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.