Part 2.
PUBLIC UTILITY COMMISSION OF TEXAS
Chapter 25.
SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS
Subchapter R. CUSTOMER PROTECTION RULES FOR RETAIL ELECTRIC SERVICE
16 TAC §25.478
The Public Utility Commission of Texas (commission) adopts
an amendment to §25.478, relating to credit and deposit requirements
for residential customers with changes to the proposed text as published in
the April 7, 2006, issue of the
Texas Register
(31
TexReg 2962).
The amendment addresses the requirements for victims of family violence
and customers who are 65 years or older to satisfy retail electric providers'
(REPs') credit and deposit requirements. This rule is a competition rule subject
to judicial review as specified in PURA §39.001(e). This amendment is
adopted under Project Number 31853.
The commission received comments on the proposed amendment from Imajean
Gray, Alan Abraham, Texas Legal Services Center (TLSC) and Texas Ratepayers'
Organization to Save Energy (TX ROSE) (together "TLSC"), and Texas Senior
Advocacy Coalition (TSAC). The commission received reply comments from the
Texas Council on Family Violence (TCFV) and the Retail Electric Provider Coalition
(REP Coalition) comprised of CPL Retail Energy, Direct Energy, First Choice
Power, Green Mountain Energy Company, Reliant Energy, Incorporated, Stream
Energy, TXU Energy Retail Company LP, WTU Retail Energy, and Texas Energy
Association for Marketers consisting of Accent Energy, Cirro Energy, Commerce
Energy, Incorporated, Just Energy Texas, StarTex Power, Stream Gas & Electric
Ltd. (d/b/a Stream Energy) and Tara Energy, Incorporated.
Imajean Gray, Alan Abraham, TLSC, TCFV, and TSAC support the proposed amendment.
TLSC noted its concern that the rule does not include a requirement as
to how and when a customer would be informed of the existence of the waivers
and suggested that notification be included as part of the communication with
the consumer about the security deposit. The REP Coalition filed reply comments
and noted that in Project Number 27084, consumer groups made a similar recommendation,
but it was rejected by the commission. The REP Coalition also stated that
the number of victims of family violence constitutes a small segment of the
population of electric customers and therefore it would not be practical to
discuss waiver options on every call where a deposit is required. The REP
Coalition further pointed out that it is reasonable to expect that the professionals
who assist qualifying victims are aware of the deposit waivers and would pass
that along to their clients as a matter of routine.
Commission response
The commission agrees with the REP Coalition that it may be reasonable
to expect that the professionals who assist qualifying victims of family violence
will pass along the information. However, an additional reminder from the
REP at the time the deposit is being discussed may be of significant help
to a victim, who likely has other pressing issues on his/her mind. Furthermore,
there are a significant number of elderly customers who may not receive information
regarding their eligibility for a waiver of deposit apart from information
provided by REPs. Therefore the commission, finds merit in the REPs including
this information in their written and oral communication with customers and
applicants. The commission does not believe that providing notice of these
two options will be burdensome for the REPs. Because written notice of the
ability of low-income customers to pay a deposit over $50 in two installments
must be provided pursuant to P.U.C. Substantive Rule §25.478(e)(3), the
incremental costs of adding written notice of these two additional options
should not be burdensome. Likewise, the addition of oral notice when discussing
deposit options with applicants or customers should also not be burdensome,
as there are only two options that must be discussed for which the eligibility
requirements are clear.
TLSC also urged the lifting of credit and deposit requirements for low-income
customers. The REP Coalition responded that the proposal was outside the scope
of this rulemaking project and that the commission already considered credit
policies for residential customers, including low-income customers, in two
separate rulemakings. The REP Coalition also noted that a complete waiver
of the deposit for low-income customers would negate the protection to the
REP afforded by the deposit.
Commission response
Recently in Project Number 31417,
Rulemaking Relating
to the Discount for Low-Income Electric Customers
, the commission considered
deposit policies for low income customers. In that project, the commission
decided that it was appropriate to allow low-income customers to pay any deposit
over $50 in two installments. The commission declines to address this issue
again at this time.
All comments, including any not specifically referenced herein, were fully
considered by the commission.
This amendment is adopted under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 (Vernon 1998, Supplement
2005) (PURA) which provides the commission with the authority to make and
enforce rules reasonably required in the exercise of its powers and jurisdiction;
and PURA Chapter 17, Subchapter A which relates to customer protection policy.
Cross Reference to Statutes: PURA §§14.002, 39.101, and PURA
Chapter 17, Subchapter A.
§25.478.Credit Requirements and Deposits.
(a)
Credit requirements for residential customers. A retail
electric provider (REP) may require a residential customer or applicant to
establish and maintain satisfactory credit as a condition of providing service
pursuant to the requirements of this section.
(1)
Establishment of satisfactory credit shall not relieve
any customer from complying with the requirements for payment of bills by
the due date of the bill.
(2)
The credit worthiness of spouses established during shared
service in the 12 months prior to their divorce will be equally applied to
both spouses for 12 months immediately after their divorce.
(3)
A residential customer or applicant seeking to establish
service with an affiliated REP or provider of last resort (POLR) can demonstrate
satisfactory credit using one of the criteria listed in subparagraphs (A)
through (E) of this paragraph.
(A)
A residential customer or applicant may be deemed as having
established satisfactory credit if the customer or applicant:
(i)
has been a customer of any REP or an electric utility within
the two years prior to the request for electric service;
(ii)
is not delinquent in payment of any such electric service
account; and
(iii)
during the last 12 consecutive months of service was
not late in paying a bill more than once.
(B)
A residential customer or applicant may be deemed as having
established satisfactory credit if the customer or applicant possesses a satisfactory
credit rating obtained through a consumer reporting agency, as defined by
the Federal Trade Commission.
(C)
A residential customer or applicant may be deemed as having
established satisfactory credit if the customer or applicant is 65 years of
age or older and the customer is not currently delinquent in payment of any
electric service account.
(D)
A residential customer or applicant may be deemed as having
established satisfactory credit if the customer or applicant has been determined
to be a victim of family violence as defined in the Texas Family Code §71.004,
by a family violence center as defined in Texas Human Resources Code §51.002,
by treating medical personnel, by law enforcement personnel, by the Office
of a Texas District Attorney or County Attorney, by the Office of the Attorney
General, or by a grantee of the Texas Equal Access to Justice Foundation.
This determination shall be evidenced by submission of a certification letter
developed by the Texas Council on Family Violence. The certification letter
may be submitted directly by use of a toll-free fax number to the affiliated
REP or POLR.
(E)
A residential customer or applicant seeking to establish
service may be deemed as having established satisfactory credit if the customer
is medically indigent. In order for a customer or applicant to be considered
medically indigent, the customer or applicant must make a demonstration that
the following criteria are met. Such demonstration must be made annually:
(i)
the customer's or applicant's household income must be
at or below 150% of the poverty guidelines as certified by a governmental
entity or government funded energy assistance program provider; and
(ii)
the customer or applicant or the spouse of the customer
or applicant must have been certified by that person's physician as being
unable to perform three or more activities of daily living as defined in 22
TAC §224.4, or the customer's or applicant's monthly out-of-pocket medical
expenses must exceed 20% of the household's gross income. For the purposes
of this subsection, the term "physician" shall mean any medical doctor, doctor
of osteopathy, nurse practitioner, registered nurse, state-licensed social
workers, state-licensed physical and occupational therapists, and an employee
of an agency certified to provide home health services pursuant to 42 U.S.C. §1395
(4)
A residential customer or applicant seeking to establish
service with a REP other than an affiliated REP or POLR can demonstrate satisfactory
credit using one of the criteria listed in subparagraphs (A) through (B) of
this paragraph. Notice of these options for customers or applicants shall
be included in any written or oral notice to a customer or applicant when
a deposit is requested. A REP other than an affiliated REP or POLR may establish
additional methods by which a customer or applicant not meeting the criteria
of subparagraphs (A) or (B) of this paragraph can demonstrate satisfactory
credit, so long as such criteria are not discriminatory pursuant to §25.471(c)
of this title (relating to General Provisions of Customer Protection Rules).
(A)
The residential customer or applicant is 65 years of age
or older and the customer is not currently delinquent in payment of any electric
service account.
(B)
The customer or applicant has been determined to be a victim
of family violence as defined in the Texas Family Code §71.004, by a
family violence center as defined in Texas Human Resources Code §51.002,
by treating medical personnel, by law enforcement personnel, by the Office
of a Texas District Attorney or County Attorney, by the Office of the Attorney
General, or by a grantee of the Texas Equal Access to Justice Foundation.
This determination shall be evidenced by submission of a certification letter
developed by the Texas Council on Family Violence. The certification letter
may be submitted directly by use of a toll-free fax number to the REP.
(5)
Pursuant to the Public Utility Regulatory Act (PURA) §39.107(g),
a REP that requires pre-payment for metered residential electric service may
not charge an amount for electric service that is higher than the price charged
by the POLR in the applicable transmission and distribution service territory.
(6)
The REP may obtain payment history information from any
REP that has served the applicant in the previous two years or from a consumer
reporting agency, as defined by the Federal Trade Commission. The REP shall
obtain the customer's or applicant's authorization prior to obtaining such
information from the customer's or applicant's prior REP. A REP shall maintain
payment history information for two years after a customer's electric service
has been terminated or disconnected in order to be able to provide credit
history information at the request of the former customer.
(b)
Credit requirements for non-residential customers. A REP
may establish nondiscriminatory criteria pursuant to §25.471(c) of this
title to evaluate the credit requirements for a non-residential customer or
applicant and apply those criteria in a nondiscriminatory manner. If satisfactory
credit cannot be demonstrated by the non-residential customer or applicant
using the criteria established by the REP, the customer may be required to
pay an initial or additional deposit. No such deposit shall be required if
the customer or applicant is a governmental entity.
(c)
Initial deposits for applicants and existing customers.
(1)
If satisfactory credit cannot be demonstrated by a residential
applicant, a REP may require the applicant to pay a deposit prior to receiving
service.
(2)
An affiliated REP or POLR shall offer a residential customer
or applicant who is required to pay an initial deposit the option of providing
a written letter of guarantee pursuant to subsection (i) of this section,
instead of paying a cash deposit.
(3)
A REP shall not require an initial deposit from an existing
customer unless the customer was late paying a bill more than once during
the last 12 months of service or had service terminated or disconnected for
nonpayment during the last 12 months of service. The customer may be required
to pay this initial deposit within ten days after issuance of a written disconnection
notice that requests such deposit. The disconnection notice may be combined
with or issued concurrently with the request for deposit. The disconnection
notice shall comply with the requirements in §25.483(m) of this title
(relating to Disconnection of Service).
(d)
Additional deposits by existing customers.
(1)
A REP may request an additional deposit from an existing
customer if:
(A)
the average of the customer's actual billings for the last
12 months are at least twice the amount of the original average of the estimated
annual billings; and
(B)
a termination or disconnection notice has been issued or
the account disconnected within the previous 12 months.
(2)
A REP may require the customer to pay an additional deposit
within ten days after the REP has requested the additional deposit.
(3)
A REP may terminate or disconnect service if the additional
deposit is not paid within ten days of the request, provided a written disconnection
notice has been issued to the customer. A disconnection notice may be combined
with or issued concurrently with the written request for the additional deposit.
The disconnection notice shall comply with the requirements in §25.483(m)
of this title.
(e)
Amount of deposit.
(1)
The total of all deposits, initial and additional, required
by a REP from any residential customer or applicant
(A)
shall not exceed an amount equivalent to the greater of
(i)
one-fifth of the customer's estimated annual billing or;
(ii)
the sum of the estimated billings for the next two months.
(B)
A REP may base the estimated annual billing for initial
deposits for applicants on a reasonable estimate of average usage for the
customer class. If a REP requests additional or initial deposits from existing
customers, the REP shall base the estimated annual billing on the customer's
actual historical usage, to the extent that the historical usage is available.
After 12 months of service with a REP, a customer may request that a REP recalculate
the required deposit based on actual historical usage of the customer.
(2)
For the purpose of determining the amount of the deposit,
the estimated billings shall include only charges for electric service that
are disclosed in the REP's terms of service document provided to the customer
or applicant
(3)
If a customer or applicant qualifies for the rate reduction
program under §25.454 of this title (relating to Rate Reduction Program),
then such customer or applicant shall be eligible to pay any deposit that
exceeds $50 in two equal installments. Notice of this option for customers
eligible for the rate reduction program shall be included in any written notice
to a customer requesting a deposit. The customer shall have the obligation
of providing sufficient information to the REP to demonstrate that the customer
is eligible for the rate reduction program. The first installment shall be
due no sooner than ten days, and the second installment no sooner than 40
days, after the issuance of written notification to the applicant of the deposit
requirement.
(f)
Interest on deposits. A REP that requires a deposit pursuant
to this section shall pay interest on that deposit at an annual rate at least
equal to that set by the commission in December of the preceding year, pursuant
to Texas Utilities Code §183.003 (relating to Rate of Interest). If a
deposit is refunded within 30 days of the date of deposit, no interest payment
is required. If the REP keeps the deposit more than 30 days, payment of interest
shall be made from the date of deposit.
(1)
Payment of the interest to the customer shall be made annually,
if requested by the customer, or at the time the deposit is returned or credited
to the customer's account.
(2)
The deposit shall cease to draw interest on the date it
is returned or credited to the customer's account.
(g)
Notification to customers. When a REP requires a customer
to pay a deposit, the REP shall provide the customer written information about
the provider's deposit policy, the customer's right to post a guarantee in
lieu of a cash deposit if applicable, how a customer may be refunded a deposit,
and the circumstances under which a provider may increase a deposit. These
disclosures shall be included either in the Your Rights as a Customer disclosure
or the REP's terms of service document.
(h)
Records of deposits.
(1)
A REP that collects a deposit shall keep records to show:
(A)
the name and address of each depositor;
(B)
the amount and date of the deposit; and
(C)
each transaction concerning the deposit.
(2)
A REP that collects a deposit shall issue a receipt of
deposit to each customer or applicant paying a deposit or reflect the deposit
on the customer's bill statement. A REP shall provide means for a depositor
to establish a claim if the receipt is lost.
(3)
A REP shall maintain a record of each unclaimed deposit
for at least four years.
(4)
A REP shall make a reasonable effort to return unclaimed
deposits.
(i)
Guarantees of residential customer accounts. A guarantee
agreement in lieu of a cash deposit issued by any REP, if applicable, shall
conform to the following requirements:
(1)
A guarantee agreement between a REP and a guarantor shall
be in writing and shall be for no more than the amount of deposit the provider
would require on the customer's account pursuant to subsection (e) of this
section. The amount of the guarantee shall be clearly indicated in the signed
agreement. The REP may require, as a condition of the continuation of the
guarantee agreement, that the guarantor remain a customer of the REP, have
no past due balance, and have no more than one late payment in a 12-month
period during the term of the guarantee agreement.
(2)
The guarantee shall be voided and returned to the guarantor
according to the provisions of subsection (j) of this section.
(3)
Upon default by a residential customer, the guarantor of
that customer's account shall be responsible for the unpaid balance of the
account only up to the amount agreed to in the written agreement.
(4)
If the guarantor ceases to be a customer of the REP or
has more than one late payment in a 12-month period during the term of the
guarantee agreement, the provider may treat the guarantee agreement as in
default and demand a cash deposit from the residential customer as a condition
of continuing service.
(5)
The REP shall provide written notification to the guarantor
of the customer's default, the amount owed by the guarantor, and the due date
for the amount owed.
(A)
The REP shall allow the guarantor 16 days from the date
of notification to pay the amount owed on the defaulted account. If the sixteenth
day falls on a holiday or weekend, the due date shall be the next business
day.
(B)
The REP may transfer the amount owed on the defaulted account
to the guarantor's own electric service bill provided the guaranteed amount
owed is identified separately on the bill as required by §25.479 of this
title (relating to Issuance and Format of Bills).
(6)
The REP may initiate termination of the guarantor's service
(or disconnection of service for the POLR, or any REP having disconnect authority)
for nonpayment of the guaranteed amount only if the termination of service
(or, where applicable, the disconnection of service) was disclosed in the
written guarantee agreement, and only after proper notice as described by
paragraph (5) of this subsection and §25.482 of this title (relating
to Termination of Service) or §25.483 of this title.
(j)
Refunding deposits and voiding letters of guarantee.
(1)
A deposit held by a REP shall be refunded when the customer
has paid bills for service for 12 consecutive residential billings or for
24 consecutive non-residential billings without having any late payments.
A REP may refund the deposit to a customer via a bill credit. REPs shall comply
with this provision as soon as practicable, but no later than August 31, 2004.
(2)
Once the REP is no longer the REP of record for a customer
or if service is not established with the REP, the REP shall either transfer
the deposit plus accrued interest to the customer's new REP or promptly refund
the deposit plus accrued interest to the customer, as agreed upon by the customer
and both REPs. The REP may subtract from the amount refunded any amounts still
owed by the customer to the REP. If the REP obtained a guarantee, such guarantee
shall be cancelled to the extent that it is not needed to satisfy any outstanding
balance owed by the customer. Alternatively, the REP may provide the guarantor
with written documentation that the contract has been cancelled to the extent
that the guarantee is not needed to satisfy any outstanding balance owed by
the customer.
(3)
If a customer's or applicant's service is not connected,
or is terminated or disconnected, the REP shall promptly void and return to
the guarantor all letters of guarantee on the account or provide written documentation
that the guarantee agreement has been voided, or refund the customer's or
applicant's deposit plus accrued interest on the balance, if any, in excess
of the unpaid bills for service furnished. Similarly, if the guarantor's service
is not connected, or is terminated or disconnected, the REP shall promptly
void and return to the guarantor all letters of guarantee or provide written
documentation that the guarantees have been voided. This provision does not
apply when the customer or guarantor moves or changes the address where service
is provided, as long as the customer or guarantor remains a customer of the
REP.
(4)
A REP shall terminate a guarantee agreement when the customer
has paid its bills for 12 consecutive months without service being disconnected
for nonpayment and without having more than two delinquent payments.
(k)
Re-establishment of credit. A customer or applicant who
previously has been a customer of the REP and whose service has been terminated
or disconnected for nonpayment of bills or theft of service by that customer
(meter tampering or bypassing of meter) may be required, before service is
reinstated, to pay all amounts due to the REP or execute a deferred payment
agreement, if offered, and reestablish credit.
(l)
Upon sale or transfer of company. Upon the sale or transfer
of a REP or the designation of an alternative POLR for the customer's electric
service, the seller or transferee shall provide the legal successor to the
original provider all deposit records.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 12, 2006.
TRD-200603204
Adriana A. Gonzales
Rules Coordinator
Public Utility Commission of Texas
Effective date: July 2, 2006
Proposal publication date: April 7, 2006
For further information, please call: (512) 936-7223
16 TAC §25.484
The Public Utility Commission of Texas (commission) adopts
an amendment to §25.484, relating to the Electric No-Call List, with
no changes to the proposed text as published in the December 30, 2005, issue
of the
Texas Register
(30 TexReg 8781).
The amendment reflects an amendment made to Public Utility Regulatory Act,
Texas Utilities Code Annotated §39.1025 (Vernon 1998, Supplement 2005)
(PURA) by the 79th Legislature. Specifically, the amendment limits electric
no-call registration to nonresidential electric customers on or after May
27, 2005. This amendment is adopted under Project Number 31926.
No party requested a public hearing on this rulemaking pursuant to the
Administrative Procedure Act, Texas Government Code §2001.029. The commission
received no comments on the proposed amendment.
This amendment is adopted under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 (Vernon 1998, Supplement
2005) (PURA) which provides the commission with the authority to make and
enforce rules reasonably required in the exercise of its powers and jurisdiction,
and specifically, PURA §39.1025, which grants the commission the authority
to operate the no-call database and prohibits the telephone solicitation of
an electric customer who has previously advised the commission that he/she
does not want to receive such solicitations.
Cross Reference to Statutes: Public Utility Regulatory Act §14.002
and §39.1025.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 12, 2006.
TRD-200603205
Adriana A. Gonzales
Rules Coordinator
Public Utility Commission of Texas
Effective date: July 2, 2006
Proposal publication date: December 30, 2005
For further information, please call: (512) 936-7223
Subchapter B. CUSTOMER SERVICE AND PROTECTION
16 TAC §26.37
The Public Utility Commission of Texas (commission) adopts
amendments to §26.37, relating to the Texas No-Call List with no changes
to the proposed text as published in the December 30, 2005, issue of the
The amendments comport with the amendments made to Texas Business &
Commerce Code Annotated §44.101 by the 79th Legislature and also provide
clarification regarding the commission's enforcement authority. Specifically,
the proposed amendments: 1) define the Texas no-call list as a combined list
consisting of the name and telephone numbers of each consumer in this state
who has requested to be on the list and of each person in the portion of the
national do-not call registry maintained by the United States government that
relates to this state; 2) provide for registration via the commission's internet
website at no charge; and 3) clarify that a violation of the section by a
telemarketer, other than a state licensee or telecommunications provider,
is subject to enforcement action pursuant to P.U.C. PROC. R. §22.246.
These amendments are adopted under Project Number 31900.
No party requested a public hearing on this rulemaking pursuant to the
Administrative Procedure Act, Texas Government Code §2001.029. The commission
received no comments on the proposed amendment.
This amendment is adopted under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 (Vernon 1998, Supplement
2005) (PURA) which provides the commission with the authority to make and
enforce rules reasonably required in the exercise of its powers and jurisdiction,
and specifically, Texas Business & Commerce Code §§44.101-44.104,
which grant the commission the authority to administer and enforce the no-call
list.
Cross Reference to Statutes: Public Utility Regulatory Act §14.002;
Texas Business & Commerce Code Annotated §§44.101-44.104.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 12, 2006.
TRD-200603206
Adriana A. Gonzales
Rules Coordinator
Public Utility Commission of Texas
Effective date: July 2, 2006
Proposal publication date: December 30, 2005
For further information, please call: (512) 936-7223
Chapter 26.
SUBSTANTIVE RULES APPLICABLE TO TELECOMMUNICATIONS SERVICE PROVIDERS
Subchapter P. TEXAS UNIVERSAL SERVICE FUND