Texas Retail Providers Press for Prohibition on Use of Utility Brand by Affiliate Offering Competitive Electric Service

A group of Texas retail electric providers have asked the Public Utility Commission of Texas to adopt changes to the Substantive Rules to prohibit the sharing of a brand by a regulated transmission and distribution utility and an affiliate offering competitive electric service.

A proposal for publication concerning updates to the affiliate regulations would adopt minor changes relating to the prohibition on utilities linking to affiliates' social media platforms, but would not adopt any specific prohibition on shared branding (leaving the matter open to intepretation under other rules, as has been argued in two recent cases).

However, the REPs asked the Commission to approach the affiliate rules as a "blank slate" and adopt more comprehensive changes.

REPs sought to add the following language to the rule:

"A utility shall not share the same brand, logo, or any identifying brand feature with a competitive affiliate engaged in competitive electric service in Texas, nor shall a utility allow the use of its brand, logo, service mark, or any identifying brand feature by such affiliates. For purposes of this section, use or sharing includes, but is not limited to, shared domain names (including employee e-mail addresses), social media links, digital applications, or any promotional materials or advertising. Utilities may allow disclosure of their affiliation with competitive affiliates in other communications to the extent that such communications do not constitute joint marketing and advertising."

The REPs would define "competitive electric service" to mean, "[t]he sale, provision, presentation, or comparison of retail electric or electric-related products or offerings to or for the benefit of end-use customers in a competitive market" -- a definition which includes shopping comparison websites.

"A utility's brand is particularly ubiquitous - even in comparison to other large brands that advertise frequently - because the consumers that live in the utility's service territory have no choice but to receive service through meters labeled with the TDU's name that are connected to transmission and distribution lines that are serviced by trucks and employees bearing the TDU's brand, and to have contact with the utility from time to time for the provision of electricity service," the REPs said.

CenterPoint Energy, Inc. and the AEP utilities, in separate comments, did not propose any changes beyond those contained in the proposal for publication (apart from one technical change in wording suggested by AEP).

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