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PUCT Staff: PURA 39.157(d)(5)(B) Does Not Prohibit Reviewing Shared Name Used by REP, TDU
August 31, 2011
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PURA Sec. 39.157(d)(5)(B) and PUC Subst. R. 25.272(h), "do not preclude the Commission from determining, pursuant to PUCT Subst. R. 25.272(e)(1)(B), whether a REP's use of the same corporate name, trademark, brand or logo as that of its affiliate utility is deceptive, misleading, vague, or otherwise contrary to PUCT Subst. R. 25.272," PUCT Staff said in a brief on threshold issues (39509).
It's the first substantive position Staff has taken in the case which involves AEP Texas Commercial & Industrial Retail Limited Partnership's REP application to serve customers under 1 MW in Texas, using its certificated name as well as the trade names AEP Retail Energy and AEP Plus (see 8/8).
As only reported by Matters, the Commission set for briefing the question of whether PURA 39.157(d)(5)(B), establishing requirements for the use of a shared name or logo prior to September 1, 2005, precludes the Commission from evaluating the use of a shared name or logo under other provisions of PURA and the Substantive Rules regarding deceptive or misleading REP names.
Staff said that, "[n]othing in PURA suggests that the inclusion of this specific customer protection provision [under PURA 39.157(d)(5)(B)] was intended to limit the Commission's authority under other provisions of PURA Sec. 39.157 or other PURA provisions which protect customers from deceptive or misleading practices by affiliated REPs."
Staff argued that the Texas Code Construction Act presumes, among other things, that when a statute is enacted, the entire statute is intended to be effective. In contrast, Staff said that a conclusion that PURA Sec. 39.157(d)(5)(B) precludes the Commission from evaluating whether a trade name is misleading under Subst. R. 25.272(e)(1)(B) would render ineffective:
1. PURA Sec. 39.352(c), which requires that a REP comply with all applicable customer protection provisions, disclosure requirements, and marketing guidelines established by the Commission and by PURA; and
2. PURA Sec. 17.004(a)(1), which specifically states that retail electric customers are entitled to protection from fraudulent, unfair, misleading, deceptive, or anticompetitive practices.
The briefs only address the threshold legal question regarding PURA 39.157(d)(5)(B) and, as such, Staff took no position on the use of the AEP name by a mass market REP.
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