| 1 | 1 | | 81R10634 TJS-D |
|---|
| 2 | 2 | | By: Farabee H.B. No. 2851 |
|---|
| 3 | 3 | | |
|---|
| 4 | 4 | | |
|---|
| 5 | 5 | | A BILL TO BE ENTITLED |
|---|
| 6 | 6 | | AN ACT |
|---|
| 7 | 7 | | relating to the right of certain entities to intervene in |
|---|
| 8 | 8 | | enforcement actions regarding market power abuse. |
|---|
| 9 | 9 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|---|
| 10 | 10 | | SECTION 1. Section 39.157(a), Utilities Code, is amended to |
|---|
| 11 | 11 | | read as follows: |
|---|
| 12 | 12 | | (a) The commission shall monitor market power associated |
|---|
| 13 | 13 | | with the generation, transmission, distribution, and sale of |
|---|
| 14 | 14 | | electricity in this state. On a finding that market power abuses or |
|---|
| 15 | 15 | | other violations of this section are or may be occurring, the |
|---|
| 16 | 16 | | commission shall commence an appropriate enforcement proceeding |
|---|
| 17 | 17 | | with the goal of ending the market power abuse. An enforcement |
|---|
| 18 | 18 | | proceeding under this section is a contested case in which |
|---|
| 19 | 19 | | interested parties, including interested municipalities, |
|---|
| 20 | 20 | | commercial customers, retail electric providers, and other |
|---|
| 21 | 21 | | entities as determined by the commission by rule, have a right to |
|---|
| 22 | 22 | | intervene. On finding that market power abuse has occurred, the |
|---|
| 23 | 23 | | commission shall require reasonable mitigation of the market power |
|---|
| 24 | 24 | | by ordering the construction of additional transmission or |
|---|
| 25 | 25 | | distribution facilities, by seeking an injunction or civil |
|---|
| 26 | 26 | | penalties as necessary to eliminate or to remedy the market power |
|---|
| 27 | 27 | | abuse or violation as authorized by Chapter 15, by imposing an |
|---|
| 28 | 28 | | administrative penalty as authorized by Chapter 15, or by |
|---|
| 29 | 29 | | suspending, revoking, or amending a certificate or registration as |
|---|
| 30 | 30 | | authorized by Section 39.356. Section 15.024(c) does not apply to |
|---|
| 31 | 31 | | an administrative penalty imposed under this section. For purposes |
|---|
| 32 | 32 | | of this subchapter, market power abuses are practices by persons |
|---|
| 33 | 33 | | possessing market power that are unreasonably discriminatory or |
|---|
| 34 | 34 | | tend to unreasonably restrict, impair, or reduce the level of |
|---|
| 35 | 35 | | competition, including practices that tie unregulated products or |
|---|
| 36 | 36 | | services to regulated products or services or unreasonably |
|---|
| 37 | 37 | | discriminate in the provision of regulated services. For purposes |
|---|
| 38 | 38 | | of this section, "market power abuses" include predatory pricing, |
|---|
| 39 | 39 | | withholding of production, precluding entry, and collusion. A |
|---|
| 40 | 40 | | violation of the code of conduct provided by Subsection (d) that |
|---|
| 41 | 41 | | materially impairs the ability of a person to compete in a |
|---|
| 42 | 42 | | competitive market shall be deemed to be an abuse of market power. |
|---|
| 43 | 43 | | The possession of a high market share in a market open to |
|---|
| 44 | 44 | | competition may not, of itself, be deemed to be an abuse of market |
|---|
| 45 | 45 | | power; however, this sentence shall not affect the application of |
|---|
| 46 | 46 | | state and federal antitrust laws. |
|---|
| 47 | 47 | | SECTION 2. This Act takes effect immediately if it receives |
|---|
| 48 | 48 | | a vote of two-thirds of all the members elected to each house, as |
|---|
| 49 | 49 | | provided by Section 39, Article III, Texas Constitution. If this |
|---|
| 50 | 50 | | Act does not receive the vote necessary for immediate effect, this |
|---|
| 51 | 51 | | Act takes effect September 1, 2009. |
|---|