By: Fraser  S.B. No. 1772
         (In the Senate - Filed March 11, 2009; March 20, 2009, read
  first time and referred to Committee on Business and Commerce;
  April 24, 2009, reported adversely, with favorable Committee
  Substitute by the following vote:  Yeas 7, Nays 0; April 24, 2009,
  sent to printer.)
  relating to the authority of the Public Utility Commission of Texas
  to address market power abuse, including the right to order
  restitution for violations.
         SECTION 1.  Section 39.157, Utilities Code, is amended by
  amending Subsection (a) and adding Subsections (a-1) and (a-2) 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 ordering a person to cease
  a practice that the commission finds is a market power abuse, 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.  In lieu of
  assessing an administrative penalty as authorized by Section 15.024
  and this section, the commission may order any person found to have
  committed market power abuse to refund to entities directly
  affected by the abuse an amount not to exceed the greater of the
  administrative penalty that would otherwise be ordered by the
  commission or one hundred and fifteen percent of the amount of
  additional profit that the person received as a result of the market
  power abuse. 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.
         (a-1)  The office shall be permitted to intervene in any
  proceeding concerning market power abuse or market manipulation.
  The commission may allow intervention to any party that
  demonstrates that the party has been directly affected by market
  power abuse, if the commission finds that participation by the
  party will not unduly delay the proceeding or prejudice the rights
  of the party accused of market power abuse. The commission may
  limit the scope of intervention of a party other than the office,
  including limits on discovery and the number of interrogatories
  that the party may issue on the person accused of market power abuse
  and commission staff.  The commission shall take all necessary
  steps to ensure that trade secrets, proprietary information and
  business strategies, and any other competitively sensitive
  information is adequately protected from disclosure to competitors
  or customers of the person accused of market power abuse.
         (a-2)  Following a proceeding related to market power abuse
  in which the commission determines that refunds are appropriate,
  the commission shall conduct a proceeding to determine the proper
  method of distributing the refunds to entities directly affected by
  the market power abuse. Any entity directly affected by the abuse
  may intervene in the proceeding.
         SECTION 2.  The changes in law made by this Act apply only to
  a violation that occurs or continues to occur on or after the
  effective date of this Act.  A violation that occurred before the
  effective date of this Act is covered by the law in effect at the
  time the violation occurred, and the former law is continued in
  effect for that purpose.
         SECTION 3.  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.
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