Texas ALJ Directs Texas PUC Staff To Provide Opinion On Whether Start-up Retail Electric Provider's Name Is Misleading, Vague, Or Duplicative
January 23, 2019 Email This Story Copyright 2010-19 EnergyChoiceMatters.com
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A Texas PUC ALJ has instructed PUC Staff to provide Staff's opinion on whether the names "Option 2 Energy, LLC" and "Option 2 Energy Company" are deceptive, misleading, vague, or duplicative under the Commission's substantive rules
In its initial filing, Option 2 Energy, LLC had included the name Option 2 Energy Company under the field "Second Applicant Name" but did not request the use of such name (or any other name) as an authorized trade name. A PUC Staff recommendation also noted that, "Option 2 requested no DBAs."
While roman numerals are occasionally used in discussing the certification-type of a REP, the actual language of Subst. R. 25.107 uses the terms "Option 1", "Option 2," and, "Option 3."
A memo from Staff dated January 8, 2019 noted that REP business names shall not be deceptive, misleading, vague, otherwise contrary to § 25.272 (relating to Code of Conduct for Electric Utilities and Their Affiliates), or duplicative of a name previously approved for use by a REP certificate holder
In such January 8, 2019 memo, Staff stated that, "Option 2 complied with the requirements of this rule by providing evidence that it is authorized by the Secretary of State to do business in Texas under the name 'Option 2 Energy, LLC' (filing number 803139030), and that the name is not deceptive, misleading, vague, contrary to §25.272 or duplicative of a name previously approved for use by a REP certificate holder."
However, an ALJ issued an order on January 22 in which the ALJ stated, "Additionally, under 16 TAC § 25.107(e)(1)(B), the Commission must be satisfied that the REP's name is not 'deceptive, misleading, vague, or otherwise contrary to § 25.272 . . . or duplicative of a name previously approved for use by a REP certificate holder.' Therefore, in addition to commenting on the sufficiency of the application, Commission Staff must also offer its opinion on whether the names 'Option 2 Energy, LLC' and 'Option 2 Energy Company' are deceptive, misleading, vague, or duplicative when used by an applicant seeking an option 2 REP certification."
The ALJ also found the application to be deficient because, according to the ALJ, Option 2 Energy, LLC's application identified no customers and included no customer affidavits agreeing to service from the REP as is required for applications seeking certification under Option 2.
While Option 2 Energy, LLC filed on November 14, 2018 an affidavit under seal, the ALJ said in the January 22 order that, "The affidavit is not from a customer and it in no way satisfies the requirements of 16 TAC § 25.107(d)(2)(A)."
Staff, however, had said in its January 8, 2019 memo that, "Option 2 supplemented its application on November 14, 2018 to provide a customer affidavit," and Staff had said that, "Staff has determined that the application provides the information required to demonstrate that Option 2 satisfies the requirements of 16 TAC § 25.107 for an Option 2 Retail Electric Provider (REP) certificate. Therefore, Staff recommends that the application be approved."
The ALJ directed that on or before February 5, 2019, applicant must cure the deficiencies described by the ALJ. By February 12, 2019, Commission Staff must file a new recommendation on the sufficiency of the application.