Texas Retail Provider Seeks Reconsideration Of Approval Of Aggregator's License, Citing Similar Names

September 10, 2019

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Copyright 2010-19 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

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Evolve Retail Energy, LLC d/b/a Evolve Energy ("Evolve Energy") and d/b/a Evolve ("Evolve"), on its own behalf and on behalf of its affiliates in Texas and other markets owned and operated under Evolve Energy Inc., asked the Public Utility Commission of Texas to reconsider the approval of E-Volve Energy Holdings, LLC's ("E-Volve Energy") Application for an aggregator registration, "in light of Evolve Energy's timely filed objections."

The application of E-Volve Energy Holdings, LLC for an electric aggregator certificate, and the similarity of its name to an existing Texas retail electric provider, had been exclusively first reported by EnergyChoiceMatters.com on August 14

The REP Evolve said that, "The Notice of Approval was signed on September 3, 2019 -- just after Evolve Energy's motion to intervene and objections to E-Volve Energy's Application were received by the Commission. Evolve Energy objected due to the likelihood that E-Volve's later-in-time, yet nearly identical name would cause consumer confusion and mislead the public -- i.e., 'E-Volve' is too similar to Evolve Energy's pre-existing and protected name. The Commission should reconsider E-Volve's Application and the Notice of Approval in light of Evolve Energy's intervention and objection so that the Commission may have adequate opportunity to analyze the objections."

The REP Evolve's previously filed motion to intervene and objections were filed entirely under seal

"In the alternative, if this motion is denied, Evolve Energy requests this filing be considered an appeal of the Notice of Approval pursuant to 16 TAC § 22.123. E-Volve Energy's name is nearly identical to Evolve Energy's protected name, which will mislead and confuse Texas consumers. Thus, the Notice of Approval immediately prejudices Evolve Energy's substantial, material, and pre-existing rights in using and protecting its pre-existing name," the REP Evolve said

"Evolve Retail Energy LLC d/b/a 'Evolve Energy' and d/b/a 'Evolve' was established on April 6, 2018. The Commission certified Evolve Energy as a retail electric provider in Texas with authority to provide retail electric service under the names 'Evolve Energy' and 'Evolve' on April 30, 2019 and July 19, 2019, respectively. The name Evolve Energy has been continuously used in marketing and providing retail electric service ever since. On August 10, 2019, Evolve Energy filed an Assumed Name Certificate with the Texas Secretary of State, stating its intent to conduct business under the name 'E-volve Energy'. On August 14, 2019, the Texas Secretary of State issued a formal Certificate of Filing regarding Evolve Energy's assumed name," the REP Evolve said

"On August 13, 2019, E-Volve Energy Holdings, LLC, filed its Application with the Commission, seeking approval of its registration as a new Class I Aggregator using the legal name 'E-Volve Energy Holdings, LLC.' E-Volve Energy Holdings, LLC's name is extremely similar -- and, in fact is nearly identical -- to Evolve Energy's name, yet E-Volve Energy is not affiliated with Evolve Energy in any way. E-Volve Energy Holdings, LLC has also filed to register as an interim broker under the same name," the REP Evolve said

"On September 3, 2019, the Commission received Evolve Energy's timely filed motion to intervene and objection to the Application of E-Volve Energy Holdings, LLC, for An Aggregator Registration ('Application') pursuant to 16 Tex. Admin. Code ('TAC') §§ 22.103(b) and 22.104. Later that same day, the Commission rendered its Notice of Approval approving E-Volve's Application. Notably, the Notice of Approval does not reference Evolve's motion to intervene or objection, perhaps suggesting that those filings were not considered at the time of decision," the REP Evolve said

"Evolve Energy moves for reconsideration of E-Volve Energy's Application due to Evolve Energy's timely objection to the use of the similar name 'E-Volve Energy Holdings, LLC' as a registered Aggregator. E-Volve's name will mislead and confuse Texas consumers and Evolve Energy's current customers, it adversely affects Evolve Energy's name and brand, and it will put Evolve Energy's reputation at risk. The Commission's Notice of Approval should be withdrawn or reversed and the Application denied," the REP Evolve said

The REP Evolve noted that, under the aggregator certification rules, the Commission must determine whether a registering party is capable of fulfilling customer protection provisions, disclosure requirements, and marketing guidelines of PURA (16 TAC § 25.111(h)(3)(C)).

The REP Evolve said, "16 TAC § 25.475(c)(1)(A)(iv) prohibits an aggregator from 'falsely suggesting, implying or otherwise leading someone to believe that a person is a representative of a TDU or any REP or aggregator.' Moreover, 16 TAC § 25.111(G) provides that, 'engaging in fraudulent, unfair, misleading, deceptive or anti-competitive practices' is a significant violation of the rules under which an aggregator must operate. The name E-Volve Energy Holdings, LLC runs afoul of these customer protection rules due to the misleading nature of the name and the confusion it will certainly cause. Put simply, 'E-Volve Energy' is so similar to 'Evolve Energy' that customer confusion would be unavoidable. Customers would be misled to mistakenly believe that the entities are affiliates when in fact they are not."

Docket 49846

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