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A BILL TO BE ENTITLED
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AN ACT
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relating to a private cause of action for electric market power |
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abuse. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. LEGISLATIVE FINDINGS. The legislature finds |
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that: |
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(1) the "filed rate" doctrine is at odds with the |
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intent of the state legislature to restructure the electric utility |
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industry in this state; |
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(2) the "filed rate" doctrine in a private right of |
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action for a violation of Section 39.157, Utilities Code, or of |
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Sections 15.01 through 15.26, Business & Commerce Code, is |
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abolished; and |
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(3) the deregulated wholesale and retail markets in |
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ERCOT are the relevant markets for the purposes of determining |
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standing to sue and the existence of market power abuses under |
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Section 39.157, Utilities Code. |
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SECTION 2. UTILITIES CODE AMENDMENTS. Section 39.157, |
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Utilities Code, is amended by amending Subsection (a) and adding |
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Subsection (a-1) to read as follows: |
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(a) To prevent market power abuse or other violations of |
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this section, the [The] commission shall monitor market power |
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associated with the generation, transmission, distribution, and |
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sale of electricity in this state. On a finding that market power |
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abuses or other violations of this section are occurring, the |
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commission shall require reasonable mitigation of the market power |
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by ordering the construction of additional transmission or |
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distribution facilities, by seeking an injunction or civil |
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penalties as necessary to eliminate or to remedy the market power |
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abuse or violation as authorized by Chapter 15, by imposing an |
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administrative penalty as authorized by Chapter 15, or by |
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suspending, revoking, or amending a certificate or registration as |
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authorized by Section 39.356. Section 15.024(c) does not apply to |
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an administrative penalty imposed under this section. For purposes |
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of this subchapter, market power abuses are practices by persons |
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possessing market power that are unreasonably discriminatory or |
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tend to unreasonably restrict, impair, or reduce the level of |
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competition, including practices that tie unregulated products or |
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services to regulated products or services or unreasonably |
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discriminate in the provision of regulated services. For purposes |
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of this section, "market power abuses" include predatory pricing, |
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withholding of production, precluding entry, and collusion. A |
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violation of the code of conduct provided by Subsection (d) that |
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materially impairs the ability of a person to compete in a |
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competitive market shall be deemed to be an abuse of market power. |
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The possession of a high market share in a market open to |
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competition may not, of itself, be deemed to be an abuse of market |
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power; however, this sentence shall not affect the application of |
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state and federal antitrust laws. |
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(a-1) Notwithstanding any other law, a qualifying person |
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may pursue a private right of action under Section 39.158(b) or |
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under Sections 15.01 through 15.26, Business & Commerce Code, based |
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on a violation of this section, for damages or for injunctive |
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relief, against a power generation company, a power marketer, a |
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retail electric provider, or any other supplier of wholesale or |
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retail electricity operating in ERCOT. A qualifying person is not |
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required to bring an administrative action before pursuing a |
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private right of action. In this subsection, "qualifying person" |
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means a retail electric provider that meets the requirements for |
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standing to sue for market power abuses under Sections 15.01 |
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through 15.26, Business & Commerce Code. |
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SECTION 3. EFFECTIVE DATE. This Act takes effect September |
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1, 2007. |