Current through Reg. 50, No. 13; March 28, 2025
(a)
Obligation to use alternative dispute resolution. Subject to the right to seek
direct commission review pursuant to subsection (f) of this section, in the
event that a dispute arises under Division 1 of this subchapter (relating to
Open-Access Comparable Transmission Service for Electric Utilities in the
Electric Reliability Council of Texas) and the dispute is not subject to the
alternative dispute resolution procedures established in the
commission-approved Electric Reliability Council of Texas (ERCOT) protocols,
the parties to the dispute shall engage in mediation or other alternative means
for resolving the dispute, prior to filing a complaint with the
commission.
(b) Referral to senior
representatives. Such disputes shall be referred for resolution to a designated
senior representative of each of the parties to the dispute. The senior dispute
representative shall be an individual who has authority to resolve the dispute.
The senior dispute representatives shall make a good faith effort to resolve
the dispute on an informal basis as promptly as practicable.
(c) Mediation or arbitration. In the event
the parties are unable to resolve the dispute under subsection (b) of this
section, the parties shall either:
(1) refer
the matter to arbitration in accordance with procedures in subsection (d) of
this section; or
(2) upon agreement
of all parties, engage in mediation with the assistance of a neutral third
party, mutually selected by all parties concerned, who has training or
experience in mediation.
(d) Arbitration. If the parties choose to
refer the matter to arbitration, pursuant to subsection (c) of this section:
(1) The commission shall maintain a
commission-approved list of qualified persons available to serve on arbitration
panels who are knowledgeable in electric utility matters, including electricity
transmission and bulk power issues. The commission shall also maintain a
separate list of qualified persons experienced in arbitration that may be
available to chair the arbitration panels.
(2) A party shall initiate arbitration by
filing a letter with the commission requesting that arbitration be scheduled. A
copy of the letter shall be served upon the other party to the dispute at the
same time the letter is filed with the commission.
(3) Only parties to the dispute may
participate in the arbitration.
(4)
Arbitration panel. Any arbitration initiated under this section shall be
conducted before a three-member arbitration panel. Each party shall choose one
arbitrator from the commission-approved list of panel members. In the event
there are more than two parties to the dispute, the parties shall jointly
select the two arbitrators. The two arbitrators chosen by the parties shall
choose the chairman of the arbitration panel. If the two arbitrators chosen by
the parties are unable to agree on the selection of a chairman, they will be
dismissed and the parties shall select two different arbitrators from the
approved list. The arbitrators are not required to choose the chairman from the
names of persons on the commission's list of panel members so long as the
person chosen is qualified as an arbitrator. Panel members chosen shall not
have any current or past substantial business or financial relationships with
any party to the arbitration (other than previous arbitration experience). The
chairman of the panel shall make all necessary arrangements for arbitration to
commence within ten working days of completion of the panel.
(5) Procedures. The arbitrators shall provide
each of the parties an opportunity to be heard and, except as otherwise
provided herein, shall generally conduct the arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association and any
applicable commission rules. The panel may request that the parties provide
additional technical information relevant to the dispute. The arbitration panel
shall render a decision within 30 calendar days from the closing of the
evidentiary record of the arbitration and shall notify the parties in writing
of such decision and the reasons therefore. The decision shall not be
considered precedent in any future proceeding.
(6) Basis for decision. The arbitrators shall
be authorized only to interpret and apply the provisions of the commission's
rules relating to transmission services, the commission-approved ERCOT
protocols, the transmission service provider's (TSP) transmission tariff, and
any service agreement entered into under that tariff. The arbitrators shall
have no power to modify or change any of the above in any manner. The
arbitrators may agree with the positions of one or more of the parties, or may
recommend a compromise position.
(7) If any party to the arbitration files a
complaint before the commission, the arbitration panel decision shall be filed
in the commission's Central Records and shall be considered by the commission
in preparing a Preliminary Order in the complaint proceeding. The complaint
shall be docketed and may be referred to the State Office of Administrative
Hearings. The decision may be admitted in evidence in any such complaint
proceeding.
(8) Costs. Each party
shall be responsible for the following costs, if applicable:
(A) its own costs incurred during the
arbitration process;
(B) its pro
rata share of the costs of the three arbitrators, pooled and shared evenly
among the parties.
(e) Effect of pending alternative dispute
resolution. The transaction which is the subject of the dispute shall be
allowed to go forward pending the resolution of the dispute to the extent
system reliability is not affected.
(f) Effect on rights under law. Nothing in
this section shall restrict the rights of any party to file a complaint with
the commission under relevant provisions of the Public Utility Regulatory Act
or with the Federal Energy Regulatory Commission under the Federal Power Act or
the right of a TSP to seek changes in the rates or terms for transmission,
following the completion of the alternative dispute resolution procedures in
this section.
(1) Use or application of the
arbitration provisions in this subsection does not affect the jurisdiction of
the commission over any matters arising under this section.
(2) Nothing in this section shall restrict
the right of a market participant to file a petition seeking direct relief from
the commission without first utilizing the alternative dispute resolution
process where an action by a TSP, distribution service provider (DSP), or ERCOT
might inhibit the ability of a transmission service customer to provide
continuous and adequate service to its customers.
(3) Because of the imminent threat to the
health and welfare of a TSP's customers in the event of a reliability problem,
a petitioner's dispute will be heard by the commission in an emergency session
except in those instances where a quorum of the commission is not present. In
those instances where a quorum is not present, the chairman of the commission
shall have the authority to issue an interim order to resolve the dispute so as
to protect the reliability of the system, with the order remaining in effect
until such time as a quorum is present.
