Texas Staff: CenterPoint Branding of TDU, Broker "Distinguishable" from Order on Shared AEP Branding

The use of the CenterPoint Energy name and service mark by a regulated utility and competitive affiliate engaged in electric brokering is "distinguishable" from the use of the AEP brand and service mark by regulated utilities and a retail electric provider, Staff of the Public Utility Commission of Texas said in a brief.

As previously reported, several retail electric providers have sought a declaratory order from the PUCT that broker CenterPoint Energy Services (CES), Inc.'s operation of an online shopping portal, MyTrueCost.com, makes it a competitive affiliate of electric utility CenterPoint Energy Houston Electric, and thus implicates several PURA and Substantive Rule prohibitions on affiliate conduct (Docket 40636).

Staff's brief filed Friday represents Staff's first substantive position in the proceeding.

"The facts at issue are distinguishable from the AEP C&I case, Docket No. 39509," Staff said. In that proceeding, the Commission found that, "[t]he sharing of the AEP acronym and AEP's red parallelogram logo by both AEP Retail Energy and its affiliated TDUs as described in this case violates the prohibition in PURA § 39.157(d)(6) [and] P.U.C. SUBST. R. 25.272(h)(2) of joint advertising and promotional activities that favors a competitive affiliate," and denied an application by AEP Retail Energy to serve customers under 1 MW using the AEP name.

"CES is a competitive affiliate of CenterPoint TDU and, based on the AEP C&I Order, the Commission could determine that the use of the CenterPoint Energy name and logo constitutes joint advertising in a manner that favors CES over other non-regulated electric brokers that offer similar services," Staff said.

"However, there is no evidence in this proceeding that shared branding among CenterPoint TDU and CES's MyTrueCost.com causes consumer confusion or competitive harm. Additionally, the AEP C&I Order addresses shared branding between a TDU and an affiliated REP; therefore, it is not clear that the Commission intended for its holding to apply to non-regulated electric broker services," Staff added.

"If the Commission finds the activities at issue in violation of its code of conduct rule but otherwise appropriate from a policy perspective, the Commission could open a rule-making to consider amending the definition of competitive affiliate to exclude electric brokers such as CES," Staff said.

"There is no evidence in this proceeding that indicates the use of the identical 'CenterPoint Energy' name and service mark by both CenterPoint TDU and CES constitutes a shared resource that creates customer confusion and significant opportunities for cross-subsidization of affiliates contrary to PURA and P.U.C. SUBST. R. 25.272(d)(2)," Staff said.