(a) Purpose. The purpose of this section is to identify competitive energy services, as defined in §25.341 of this title (relating to Definitions), that shall not be provided by affected electric utilities.
(b) Application. This section applies to electric utilities, as defined by the Public Utility Regulatory Act (PURA) §31.002(6), which include transmission and distribution utilities as defined by PURA §31.002(19). This section shall not apply to an electric utility under PURA §39.102(c) until the termination of its rate freeze period. This section shall not apply to an electric utility subject to PURA §39.402 until customer choice begins in the utility's service area.
(c) Competitive energy service separation. An electric utility shall not provide competitive energy services, except for the administration of energy efficiency programs as specifically provided elsewhere in this chapter, and except as provided in subsections (f) and (g) of this section.
(d) Petitions relating to the provision of competitive energy services.
(1) Petition by an electric utility to provide a competitive energy service. A utility may petition the commission to provide on an unbundled-tariffed basis a competitive energy service that is not widely available to customers in an area. The utility has the burden to prove to the commission that the service is not widely available in an area. The utility's petition may be filed jointly with an affected person or with commission staff.
(2) Petition to classify a service as a competitive energy service or to end the designation of a competitive energy service as a petitioned service. An affected person or the commission staff may petition the commission to classify a service as a competitive energy service or to end the designation of a competitive energy service as a petitioned service. The commission may consider factors including, but not limited to, the factors in paragraph (1) of this subsection (where applicable) when reviewing a petition under this paragraph.
(e) Filing requirements.
(1) An electric utility shall file the following as part of its business separation plan pursuant to §25.342 of this title (relating to Electric Business Separation):
(2) An electric utility shall file complete cost information related to paragraph (1) of this subsection pursuant to §25.344 of this title (relating to Cost Separation Proceedings) and the Unbundled Cost of Service Rate Filing Package (UCOS-RFP).
(f) Exceptions related to certain competitive energy services. An electric utility may not own, operate, maintain or provide other services related to equipment of the type described in §25.341(3)(F) of this title, except in any of the following instances or as otherwise provided in this subchapter or by commission order.
(1) An electric utility may provide equipment, maintenance, and repair services in an emergency situation as set forth in subsection (g) of this section.
(2) An electric utility may provide maintenance service to high-voltage protection equipment and other equipment located on the customer's side of delivery point that is an integral part of the utility's delivery system. For purposes of this subsection, the point of delivery means the point at which electric power and energy leave a utility's delivery system.
(3) An electric utility may own equipment located on the customer's side of the point of delivery that is necessary to support the operation of electric-utility-owned facilities, including, but not limited to, billing metering equipment, batteries and chargers, system protection apparatus and relays, and system control and data acquisition equipment.
(4) Until the earlier of January 1, 2008, or the date the commission grants a petition by an affected person to discontinue facilities-rental service provided by an electric utility under this subsection, an electric utility may, pursuant to a commission-approved tariff, continue to own and lease to a customer distribution-voltage facilities on the customer's side of the point of delivery, if the customer was receiving facilities-rental service under a commission-approved tariff prior to September 1, 2000, and the customer elects to continue to lease the facilities. Facilities-rental service shall be provided in accordance with the following requirements.
(5) An electric utility may operate and maintain a distribution system located behind the electric utility's point of delivery on a military base, whether that distribution system is owned by the military base or a third party. In addition, an electric utility may own such a distribution system. For purposes of this subsection, "point of delivery" means the point at which electric power and energy are metered. The provision of such services by an electric utility shall be considered discretionary services and shall not be considered competitive energy services.
(g) Emergency provision of certain competitive energy services.
(1) Emergency situation. Notwithstanding subsection (c) of this section, in an emergency situation, an electric utility may provide transformation and protection equipment and transmission and substation repair services on customer facilities. For purposes of this subsection, an "emergency situation" means a situation in which there is a significant risk of harm to the health or safety of a person or damage to the environment. In determining whether to provide the competitive energy service in an emergency situation, the utility shall consider the following criteria:
(2) Notification and due diligence. Prior to providing an emergency service as set forth in paragraph (1) of this subsection, the electric utility shall inform the customer that the requested service is a competitive energy service and that the utility is not permitted to provide the service unless it is an emergency situation. The utility must determine, based on information provided from the customer or by other methods, whether the situation is an emergency situation, as defined in paragraph (1) of this section.
(3) Record keeping and reporting.
(4) Discretionary service charge for provision of competitive energy services in emergency situation. The charge for providing service pursuant to this subsection shall be based on a fully unbundled, embedded cost-based discretionary service tariff. An electric utility that seeks to provide emergency service under this subsection shall file with the commission an updated discretionary service rate schedule to implement this subsection. Notwithstanding other provisions in this chapter, an electric utility may directly bill the requesting entity for emergency service provided under this subsection.
(5) Commission review. Upon request, an electric utility shall make available to the commission all required records regarding the provision of competitive energy services pursuant to this subsection.
(h) Evaluation of competitive energy services. Every two years beginning in October 2005 or as otherwise determined by the commission, the commission shall evaluate the degree of competition for the competitive energy services described in §25.341 of this title to determine if they are widely available in areas throughout Texas.
(i) Sale of non-roadway security lighting assets. Prior to the execution of a sale of an electric utility's non-roadway security lighting assets described in §25.341(3)(J)(i) and (ii) of this title, the electric utility shall provide the commission reasonable notice of the proposed transaction.
Source Note: The provisions of this §25.343 adopted to be effective February 9, 2000, 25 TexReg 720; amended to be effective October 9, 2003, 28 TexReg 8586; amended to be effective July 11, 2005, 30 TexReg 3990