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Vistra Alleges, "Examples Of A Person
Prohibited From Exercising Control Of An Option 1 REP Under 16 TAC § 25.107(g)(1) Still Actively Exercising Indirect Control Of A REP"
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In comments on a customary four-year review of the Texas PUC's retail electric market rules, Vistra Corporate Services Company (Vistra) alleged, "Vistra believes
there are examples of a person
prohibited from exercising control
of an Option 1 REP under 16 TAC
§ 25.107(g)(1) still actively
exercising indirect control of a REP
(or REPs)."
Vistra did not identify the alleged persons or REPs it believes are engaged in such conduct
§ 25.107(g)(1) provides "[i]n no instance" may any of the following persons control the REP or be relied upon to meet the
requirements of subsections (d) and (e) of this section [relating to technical and managerial fitness, etc]:
(A) A person who was a principal of a market participant, at any time within the six
months prior to the market participant:
(i) experiencing a mass transition of the REP’s customers under §25.43 of this
title;
(ii) having their ERCOT SFA, or similar agreement for an independent
organization other than ERCOT terminated; or
(iii) exiting an electricity or gas market with outstanding payment obligations
that, at the time of the application or amendment, remain outstanding; or
(B) A person who, by commission order, is prohibited from serving as a principal for any
commission-regulated entity
Vistra made the comment with respect to a current reporting obligation under 25.107(d)(2)(E) which requires REP applicants to report, among other negative history of their applicant or the applicant’s principals, the identification of all of the applicant’s principals, executive officers,
employees, and third-party providers that:
(a) exercised direct or indirect control over a REP that
experienced a mass transition of the REP’s customers
under §25.43 of this title (relating to Provider of Last
Resort (POLR)) at any time within the six months prior to
the mass transition;
(b) exercised direct or indirect control over a market
participant at any time within the six months prior to a
market participant having had its ERCOT SFA terminated
or a similar agreement for an applicable independent
organization other than ERCOT terminated;
(c) exercised direct or indirect control of a market participant
within the prior six months of a market participant having
exited an electricity or gas market with outstanding
payment obligations that remain outstanding; or
(d) have been barred, in any way, participation by
commission order.
As more fully noted below, Vistra does not propose changes to this provision but questions whether this reporting requirement is serving its intended
purpose
Vistra said, "Vistra does not propose specific
changes to this provision, but rather
asks whether this reporting
requirement is serving its intended
purpose. 16 TAC § 25.107 was
materially revised following the
events of Winter Storm Uri:
'specifically, new §25.107 clarifies
which persons are prohibited from
serving as a principal of a REP or
controlling the REP' among other
things including new (and much
more administratively burdensome)
reporting requirements such as
those found in 16 TAC §
25.107(d)(2)(E). The rule’s current
definitions of 'control' and
'principal' are flexible to include
'apparent or actual authority to act
in such a way that may be perceived
as having direct or indirect control
over' a REP or REP certificate
applicant. Since that rule was
adopted, however, Vistra believes
there are examples of a person
prohibited from exercising control
of an Option 1 REP under 16 TAC
§ 25.107(g)(1) still actively
exercising indirect control of a REP
(or REPs). This has left some
questions regarding the
effectiveness of the additional
reporting requirements in 16 TAC
§ 5.107(d)(2)(E). If the
Commission is not receiving the
information needed to monitor and
enforce the existing rules then these
reporting provisions could be
revised accordingly."
Vistra further proposed adding a new condition under which the PUC may revoke a REP certificate
This new condition under which a REP could face certificate revocation would be, "Allowing a prohibited person to
exercise control in violation of
subsection (g) or failing to report
prohibited persons under subsection
25.107(e)(2)(E)(iv)."
Vistra said, "A REP certificate should be subject
to revocation for allowing a
prohibited person to exercise
control or for a REP’s failure to
report prohibited persons as
required by the rule."
Vistra said, "While this may
substantively already be addressed
under subsection (k)(1) ('Providing
false or misleading information to
the commission, including a failure
to disclose any information required
by this section'), a specific
reference to the requirements of
subsection (g) and 16 TAC §
25.107(e)(2)(E)(iv) may help to
reinforce the importance of those
provisions."
Docket 57999
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July 11, 2025
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Reporting by Paul Ring • ring@energychoicematters.com
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