By: Solomons H.B. No. 3245
A BILL TO BE ENTITLED
AN ACT
relating to consumer protections within the electricity markets.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 39.101(h), Utilities Code, is amended to
read as follows:
(h) A retail electric provider, power generation company,
aggregator, or other entity that provides retail electric service
may not disconnect service to a residential customer during an
extreme weather emergency or on a weekend day. The entity providing
service shall defer collection of the full payment of bills that are
due during an extreme weather emergency until after the emergency
is over and shall work with customers to establish a pay schedule
for deferred bills. For purposes of this subsection, "extreme
weather emergency" means a period when: the previous day's highest
temperature did not exceed 32 degrees Fahrenheit and the
temperature is predicted to remain at or below that level for the
next 24 hours according to the nearest National Weather Service
reports; or a day for which the National Weather Service forecasts
that the heat index will reach or exceed 100 degrees Fahrenheit in
any part of a county in the relevant service territory; or a period
when, on any one of the previous two calendar days, the National
Weather Service observes a heat index of 101 degrees Fahrenheit or
more in any part of a county in the relevant service territory. [the
National Weather Service issues a heat advisory for any county in
the relevant service territory, or when such an advisory has been
issued on any one of the previous two calendar days.]
SECTION 2. Section 39.151, Utilities Code, is amended by
amending Subsection (g), to read as follows:
(g) To maintain certification as an independent
organization under this section, the organization must operate a
regional electrical network that is contained wholly within the
borders of the State of Texas. Such an organization's governing
body must be composed of persons specified by this section and
selected in accordance with formal bylaws or protocols of the
organization. The bylaws or protocols must be approved by the
commission and must reflect the input of the commission. The
bylaws must [specify the process by which appropriate stakeholders
elect members and, for unaffiliated members,] prescribe the
professional qualifications necessary for selection as a member of
the organization and[. T]the bylaws must require the use of a
professional search firm to identify candidates for membership of
unaffiliated members. The process must allow for commission input
in identifying candidates. The governing body must be composed of:
(1) the [chairman] three sitting commissioners of the
commission as [an] ex officio nonvoting members;
(2) the counsellor as an ex officio voting member
representing residential and small commercial consumer interests;
(3) the chief executive officer of the independent
organization as an ex officio voting member;
(4) [six market participants elected by their
respective market segments to serve one-year terms, with:
[(A) one representing independent generators;
[(B) one representing investor-owned utilities;
[(C) one representing power marketers;
[(D) one representing retail electric providers;
[(E) one representing municipally owned
utilities; and
[(F) one representing electric cooperatives;
[(5)] one member representing industrial consumer
interests and elected by the industrial consumer market segment to
serve a one-year term;
(6) one member representing large commercial consumer
interests selected in accordance with the bylaws to serve a
one-year term; and
(7) [five] nine members unaffiliated with any market
segment and selected by the other members of the governing body to
serve three-year terms.
SECTION 3. Subchapter D, Chapter 39, Utilities Code,
Section 39.157 (a) is amended to read as follows:
(a) The commission shall monitor market power associated
with the generation, transmission, distribution, and sale of
electricity in this state. On a finding that market power abuses or
other violations of this section are occurring, the commission
shall require reasonable mitigation of the market power by ordering
the construction of additional transmission or distribution
facilities, by seeking an injunction or civil penalties as
necessary to eliminate or to remedy the market power abuse or
violation as authorized by Chapter 15, by imposing an
administrative penalty as authorized by Chapter 15, or by
suspending, revoking, or amending a certificate or registration as
authorized by Section 39.356. Section 15.024(c) does not apply to
an administrative penalty imposed under this section. For purposes
of this subchapter, market power abuses are practices by persons
possessing market power that are unreasonably discriminatory or
tend to unreasonably restrict, impair, or reduce the level of
competition, including practices that tie unregulated products or
services to regulated products or services or unreasonably
discriminate in the provision of regulated services. For purposes
of this section, "market power abuses" include predatory pricing,
withholding of production, precluding entry, and collusion. A
violation of the code of conduct provided by Subsection (d) that
materially impairs the ability of a person to compete in a
competitive market shall be deemed to be an abuse of market power.
The possession of a high market share in a market open to
competition may not, of itself, be deemed to be an abuse of market
power; however, this sentence shall not affect the application of
state and federal antitrust laws. The possession of a low market
share within the power region may not, by itself, be deemed as a
sufficient condition to preclude a finding that an investor owner
generator engaged in an abuse of market power.
SECTION 4. Subchapter D, Chapter 39, Utilities Code,
Section 39.157 (a) is amended to read as follows:
(a) The commission shall monitor market power associated
with the generation, transmission, distribution, and sale of
electricity in this state. On a finding that market power abuses or
other violations of this section are occurring, the commission
shall require reasonable mitigation of the market power by ordering
the construction of additional transmission or distribution
facilities, by seeking an injunction or civil penalties as
necessary to eliminate or to remedy the market power abuse or
violation as authorized by Chapter 15, by imposing an
administrative penalty as authorized by Chapter 15, or by
suspending, revoking, or amending a certificate or registration as
authorized by Section 39.356. The commission shall permit affected
customers, including political subdivisions, retail electric
providers and commercial power users to participate in enforcement
proceedings alleging market power abuses or manipulation of the
wholesale market. The commission shall order refunds be made to end
users adversely impacted by findings of market power abuse or
manipulation of the wholesale market. Notwithstanding any action
or inaction by the commission on an allegation of market power abuse
or manipulation of the wholesale market, private parties may seek
remedies in any appropriate forum. The Filed Rate Doctrine shall
not be a defense in any private party suit that alleges market power
abuse or manipulation of the wholesale market. Section 15.024(c)
does not apply to an administrative penalty imposed under this
section. For purposes of this subchapter, market power abuses are
practices by persons possessing market power that are unreasonably
discriminatory or tend to unreasonably restrict, impair, or reduce
the level of competition, including practices that tie unregulated
products or services to regulated products or services or
unreasonably discriminate in the provision of regulated services.
For purposes of this section, "market power abuses" include
predatory pricing, withholding of production, precluding entry,
and collusion. A violation of the code of conduct provided by
Subsection (d) that materially impairs the ability of a person to
compete in a competitive market shall be deemed to be an abuse of
market power. The possession of a high market share in a market
open to competition may not, of itself, be deemed to be an abuse of
market power; however, this sentence shall not affect the
application of state and federal antitrust laws.
SECTION 5. Sections 37.051(a), 37.053(a), 37.055, 37.057,
and 37.151, Utilities Code, are amended to read as follows:
Sec. 37.051. CERTIFICATE REQUIRED. (a) An person
[electric utility] may not directly or indirectly provide service
to the public under a franchise or permit unless the person
[utility] first obtains from the commission a certificate that
states that the public convenience and necessity requires or will
require the installation, operation, or extension of the service.
(d) A certificate may be granted to a person under this
subsection for a facility used solely for the transmission of
electricity.
Sec. 37.053. APPLICATION FOR CERTIFICATE. (a) A person
[An electric utility] that wants to obtain or amend a certificate
must submit an application to the commission.
Sec. 37.055. REQUEST FOR PRELIMINARY ORDER. (a) a person
[An electric utility] that wants to exercise a right or privilege
under a franchise or permit that the person [utility] anticipates
obtaining but has not been granted may apply to the commission for a
preliminary order under this section.
(b) The commission may issue a preliminary order declaring
that the commission, on application and under commission rules,
will grant the requested certificate on terms the commission
designates, after the person [electric utility] obtains the
franchise or permit.
(c) The commission shall grant the certificate on
presentation of evidence satisfactory to the commission that the
person [electric utility] has obtained the franchise or permit.
Sec. 37.057. DEADLINE FOR APPLICATION FOR NEW TRANSMISSION
FACILITY. The commission may grant a certificate for a new
transmission facility to any qualified applicant that meets the
requirements of this subchapter. The commission must approve or
deny an application for a certificate for a new transmission
facility not later than the first anniversary of the date the
application is filed. If the commission does not approve or deny
the application on or before that date, a party may seek a writ of
mandamus in a district court of Travis County to compel the
commission to decide on the application.
Sec. 37.151. PROVISION OF SERVICE. Except as provided by
this section, Section 37.152, and Section 37.153, a certificate
holder, other than those granted a certificate pursuant to Section
37.051(d), shall:
(1) serve every consumer in the utility's certificated
area; and
(2) provide continuous and adequate service in that
area.
SECTION 6. Subchapter Z, Chapter 39, Utilities Code, is
amended by adding Section 39.925 to read as follows:
Sec. 39.925. NODAL IMPLEMENTATION. An independent
organization under this section shall not allow any charges or
costs associated with a nodal wholesale market design or its
implementation to be passed to the retail customers. The wholesale
companies may recover the nodal wholesale market design and
implementation costs only from costs savings realized from the
nodal system. The commission is authorized and directed to monitor
the nodal wholesale market system and an independent organization
under this section shall insure that all monetary and other
material information is shared with the commission. The commission
shall determine when costs recovery is complete. After cost
recovery is complete, any future monetary savings realized by the
wholesale companies as a result of the nodal wholesale market
design must be passed to the retail customers as determined by the
commission. The commission shall enforce this section with civil
penalties.
SECTION 7. Subchapter Z, Chapter 39, Utilities Code, is
amended by adding Section 39.926 to read as follows:
Sec. 39.926. Electricity providers shall provide a real
time quote from the NYMEX for the Henry Hub spot gas price. The
quote shall be placed prominently on the electricity provider's
homepage. A graph showing the daily gas price for the previous five
years shall also be provided with a comparison of electricity
prices charged by the provider. This real time quote shall
establish the rate to be charged by electricity providers and will
enforce direct pass through of non-bypassable charges (both up and
down) to the consumer.
SECTION 8. Section 39.107(h), Utilities Code, is amended to
read as follows:
(h) The commission shall establish a non-bypassable
surcharge for an electric utility or transmission and distribution
utility to use to recover reasonable and necessary costs incurred
in deploying advanced metering and meter information networks to
residential customers and nonresidential customers other than
those required by the independent system operator to have an
interval data recorder meter. The commission shall ensure that the
nonbypassable surcharge reflects a deployment of advanced meters
that is no more than one-third of the utility's total meters over
each calendar year and shall ensure that the nonbypassable
surcharge does not result in the utility recovering more than its
actual, fully allocated meter and meter information network costs.
The expenses must be allocated to the customer classes receiving
the services, based on the electric utility's most recently
approved tariffs. An electric utility or transmission and
distribution utility that deploys advanced meter and meter
information networks shall seek to obtain and utilize funds,
including grants, loans, and loan guarantees, made available by the
federal government if such funds would lower the overall cost of
deployment. The commission shall reflect the funds obtained by the
electric utility or transmission and distribution utility when
establishing the surcharge required by this subsection, including
timely ordering reductions to surcharges approved prior to the
receipt of the funds.
SECTION 9. Section 39.904, Utilities Code, is amended by
adding Subsection (h-1) to read as follows:
(h-1) An electric utility, transmission and distribution
utility, or river authority that has been designated by the
commission to construct transmission capacity pursuant to
Subsection (g) shall seek to obtain and utilize funds, including
grants, loans, and loan guarantees, made available by the federal
government if such funds would lower the overall cost of
construction. The commission shall reflect the funds obtained by
the electric utility, transmission and distribution utility, or
river authority when establishing or modifying the rates of the
electric utility or transmission and distribution utility,
including timely ordering reductions to rates approved prior to the
receipt of the funds.
SECTION 10. Subchapter C, Chapter 39, Utilities Code, is
amended by adding Section 39.107(i) to read as follows:
(i) Electric providers shall state per unit cost of smart
meters for residential and business on billing statements and the
company website. Customers shall only be charged for the actual
cost of a smart meter. The actual cost of the meter is the amount
the provider paid to the manufacturer. Consumers shall have the
option of making either a one time payment for the full cost of the
meter or a recurring monthly fee. Providers must file with the PUC
a payment schedule for smart meters which clearly states the cost,
proposed monthly fee, and date certain when smart meter fee ends.
Providers charging more than the actual price the provider paid are
subject to fines and license revocation.
SECTION 11. Subchapter E, Chapter 12, Utilities Code, is
amended by adding Section 12.204 to read as follows:
Sec. 12.204. INTERNET FOR HEARINGS AND MEETINGS. The
commission shall make publicly accessible without charge live
Internet video of all public hearings and meetings of the
commission for viewing from the Internet website found at
http://www.puc.state.tx.us.
SECTION 12. Section 39.1511, Utilities Code, is amended by
adding Subsection (c) to read as follows:
(c) The commission shall ensure that an independent
organization certified under this section makes publicly
accessible without charge live Internet video of all public
hearings and meetings subject to this section for viewing from an
Internet website.
SECTION 13. The change in law made by this Act applies to a
hearing or meeting held on or after the effective date of this Act.
A hearing or meeting held before the effective date of this Act is
governed by the law as it existed immediately before that date, and
that law is continued in effect for that purpose.
SECTION 14. An independent organization certified by the
commission before September 1, 2009, shall modify the
organization's governing body to comply with Section 39.151(g),
Utilities Code, as amended by this Act no later than September 1,
2010. On or after September 1, 2010, the commission may decertify
an independent organization whose governing body does not comply
with Section 39.151(g), Utilities Code, as amended by this Act.
SECTION 15. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2009.