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A BILL TO BE ENTITLED
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AN ACT
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relating to the authority of the Public Utility Commission of Texas |
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to address market power abuse, including the right to order |
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restitution for violations. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 39.157, Utilities Code, is amended by |
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amending Subsection (a) and adding Subsections (a-1) and (a-2) to |
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read as follows: |
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(a) The commission shall monitor market power associated |
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with the generation, transmission, distribution, and sale of |
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electricity in this state. On a finding that market power abuses or |
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other violations of this section are occurring, the commission |
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shall require reasonable mitigation of the market power by ordering |
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the construction of additional transmission or distribution |
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facilities, by seeking an injunction or civil penalties as |
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necessary to eliminate or to remedy the market power abuse or |
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violation as authorized by Chapter 15, by ordering a person to cease |
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a practice that the commission finds is a market power abuse, by |
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imposing an administrative penalty as authorized by Chapter 15, or |
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by suspending, revoking, or amending a certificate or registration |
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as authorized by Section 39.356. Section 15.024(c) does not apply |
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to an administrative penalty imposed under this section. In lieu of |
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assessing an administrative penalty as authorized by Section 15.024 |
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and this section, the commission may order any person found to have |
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committed market power abuse to refund to entities directly |
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affected by the abuse an amount not to exceed the greater of the |
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administrative penalty that would otherwise be ordered by the |
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commission or one hundred and fifteen percent of the amount of |
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additional profit that the person received as a result of the market |
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power abuse. For purposes of this subchapter, market power abuses |
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are practices by persons possessing market power that are |
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unreasonably discriminatory or tend to unreasonably restrict, |
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impair, or reduce the level of competition, including practices |
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that tie unregulated products or services to regulated products or |
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services or unreasonably discriminate in the provision of regulated |
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services. For purposes of this section, "market power abuses" |
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include predatory pricing, withholding of production, precluding |
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entry, and collusion. A violation of the code of conduct provided |
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by Subsection (d) that materially impairs the ability of a person to |
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compete in a competitive market shall be deemed to be an abuse of |
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market power. The possession of a high market share in a market |
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open to competition may not, of itself, be deemed to be an abuse of |
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market power; however, this sentence shall not affect the |
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application of state and federal antitrust laws. |
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(a-1) The office shall be permitted to intervene in any |
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proceeding concerning market power abuse or market manipulation. |
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The commission may allow intervention to any party that |
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demonstrates that the party has been directly affected by market |
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power abuse, if the commission finds that participation by the |
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party will not unduly delay the proceeding or prejudice the rights |
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of the party accused of market power abuse. The commission may |
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limit the scope of intervention of a party other than the office, |
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including limits on discovery and the number of interrogatories |
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that the party may issue on the person accused of market power abuse |
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and commission staff. The commission shall take all necessary |
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steps to ensure that trade secrets, proprietary information and |
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business strategies, and any other competitively sensitive |
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information is adequately protected from disclosure to competitors |
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or customers of the person accused of market power abuse. |
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(a-2) Following a proceeding related to market power abuse |
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in which the commission determines that refunds are appropriate, |
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the commission shall conduct a proceeding to determine the proper |
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method of distributing the refunds to entities directly affected by |
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the market power abuse. Any entity directly affected by the abuse |
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may intervene in the proceeding. |
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SECTION 2. The changes in law made by this Act apply only to |
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a violation that occurs or continues to occur on or after the |
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effective date of this Act. A violation that occurred before the |
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effective date of this Act is covered by the law in effect at the |
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time the violation occurred, and the former law is continued in |
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effect for that purpose. |
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SECTION 3. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2009. |
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