By Danburg H.B. No. 2368
74R7430 CBH-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to authority of an exempt wholesale generator or power
1-3 marketer to sell electricity at wholesale in this state.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 3, Public Utility Regulatory Act (Article
1-6 1446c, Vernon's Texas Civil Statutes), is amended by amending
1-7 Subdivision (c) and adding Subdivision (w) to read as follows:
1-8 (c) The term "public utility" or "utility," when used in
1-9 this Act, includes any person, corporation, river authority,
1-10 cooperative corporation, or any combination thereof, other than a
1-11 municipal corporation <or a water supply or sewer service
1-12 corporation>, or their lessees, trustees, and receivers, now or
1-13 hereafter <owning or operating for compensation in this state
1-14 equipment or facilities for>:
1-15 (1) producing, generating, transmitting, distributing,
1-16 selling, or furnishing electricity in this state ("electric
1-17 utilities" hereinafter) provided, however, that this definition
1-18 shall not be construed to apply to or include:
1-19 (A) a qualifying small power producer or
1-20 qualifying cogenerator, as defined in Sections 3(17)(D) and
1-21 3(18)(C) of the Federal Power Act, as amended (16 U.S.C. Sections
1-22 796(17)(D) and 796(18)(C));
1-23 (B) an exempt wholesale generator as defined by
1-24 Section 32(a)(1), Public Utility Holding Company Act of 1935, as
2-1 amended (15 U.S.C. Section 79 et seq.); or
2-2 (C) a power marketer;
2-3 (2)(A) owning or operating for compensation in this
2-4 state equipment or facilities for the conveyance, transmission, or
2-5 reception of communications over a telephone system as a dominant
2-6 carrier as hereinafter defined ("telecommunications utilities"
2-7 hereinafter); provided that no person or corporation not otherwise
2-8 a public utility within the meaning of this Act shall be deemed
2-9 such solely because of the furnishing or furnishing and maintenance
2-10 of a private system or the manufacture, distribution, installation,
2-11 or maintenance of customer premise communications equipment and
2-12 accessories; and provided further that nothing in this Act shall be
2-13 construed to apply to telegraph services, television stations,
2-14 radio stations, community antenna television services, or
2-15 radio-telephone services that may be authorized under the Public
2-16 Mobile Radio Services rules of the Federal Communications
2-17 Commission, other than such radio-telephone services provided by
2-18 wire-line telephone companies under the Domestic Public Land Mobile
2-19 Radio Service and Rural Radio Service rules of the Federal
2-20 Communications Commission; and provided further that interexchange
2-21 telecommunications carriers (including resellers of interexchange
2-22 telecommunications services), specialized communications common
2-23 carriers, other resellers of communications, other communications
2-24 carriers who convey, transmit, or receive communications in whole
2-25 or in part over a telephone system, and providers of operator
2-26 services as defined in Section 18A(a) of this Act (except that
2-27 subscribers to customer-owned pay telephone service shall not be
3-1 deemed to be telecommunications utilities) are also
3-2 telecommunications utilities, but the commission's regulatory
3-3 authority as to them is only as hereinafter defined;
3-4 (B) "dominant carrier" when used in this Act
3-5 means (i) a provider of any particular communication service which
3-6 is provided in whole or in part over a telephone system who as to
3-7 such service has sufficient market power in a telecommunications
3-8 market as determined by the commission to enable such provider to
3-9 control prices in a manner adverse to the public interest for such
3-10 service in such market; and (ii) any provider of local exchange
3-11 telephone service within a certificated exchange area as to such
3-12 service. A telecommunications market shall be statewide until
3-13 January 1, 1985. After this date the commission may, if it
3-14 determines that the public interest will be served, establish
3-15 separate markets within the state. Prior to January 1, 1985, the
3-16 commission shall hold such hearings and require such evidence as is
3-17 necessary to carry out the public purpose of this Act and to
3-18 determine the need and effect of establishing separate markets.
3-19 Any such provider determined to be a dominant carrier as to a
3-20 particular telecommunications service in a market shall not be
3-21 presumed to be a dominant carrier of a different telecommunications
3-22 service in that market. The term does not include an interexchange
3-23 carrier that is not a certificated local exchange carrier, with
3-24 respect to interexchange services.
3-25 (3) The term "public utility" or "utility" shall not
3-26 include any person or corporation not otherwise a public utility
3-27 that furnishes the services or commodity described in any paragraph
4-1 of this subsection only to itself, its employees, or tenants as an
4-2 incident of such employee service or tenancy, when such service or
4-3 commodity is not resold to or used by others. The term "electric
4-4 utility" shall not include any person or corporation not otherwise
4-5 a public utility that owns or operates in this state equipment or
4-6 facilities for producing, generating, transmitting, distributing,
4-7 selling, or furnishing electric energy to an electric utility, if
4-8 the equipment or facilities are used primarily for the production
4-9 and generation of electric energy for consumption by the person or
4-10 corporation. The term "public utility," "utility," or "electric
4-11 utility" shall not include any person or corporation not otherwise
4-12 a public utility that owns or operates in this state a recreational
4-13 vehicle park that provides metered electric service in accordance
4-14 with Article 1446d-2, Revised Statutes. A recreational vehicle
4-15 park owner is considered a public utility if the owner fails to
4-16 comply with Article 1446d-2, Revised Statutes, with regard to the
4-17 metered sale of electricity at the recreational vehicle park.
4-18 (w) "Power marketer" means a person that takes ownership of
4-19 electric energy in this state to buy and sell the energy at
4-20 wholesale but does not own generation, transmission, or
4-21 distribution facilities in this state and does not have a
4-22 certificated service area.
4-23 SECTION 2. Article III, Public Utility Regulatory Act
4-24 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
4-25 adding Section 19A to read as follows:
4-26 Sec. 19A. (a) An exempt wholesale generator or power
4-27 marketer may sell electricity in this state only at wholesale.
5-1 (b) An affiliate of a public utility may be an exempt
5-2 wholesale generator or power marketer and may sell electricity at
5-3 wholesale in this state, but only in accordance with an integrated
5-4 resource planning process, if one exists. An affiliate of a
5-5 public utility that is an exempt wholesale generator or power
5-6 marketer may acquire equipment or facilities of the public utility
5-7 in accordance with applicable federal and state law.
5-8 SECTION 3. Section 47, Public Utility Regulatory Act
5-9 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
5-10 as follows:
5-11 Sec. 47. No public utility may discriminate against any
5-12 person or corporation that sells or leases equipment or performs
5-13 services in competition with the public utility, nor may any public
5-14 utility engage in any other practice that tends to restrict or
5-15 impair such competition. An electric utility may not grant undue
5-16 preference to any person in connection with the purchase or sale of
5-17 any utility service, including the purchase or sale of electricity
5-18 at wholesale.
5-19 SECTION 4. This Act takes effect September 1, 1995.
5-20 SECTION 5. The importance of this legislation and the
5-21 crowded condition of the calendars in both houses create an
5-22 emergency and an imperative public necessity that the
5-23 constitutional rule requiring bills to be read on three several
5-24 days in each house be suspended, and this rule is hereby suspended.