Sec. 39.156. MARKET POWER MITIGATION PLAN. (a) In this section, "market power mitigation plan" or "plan" means a written proposal by an electric utility or a power generation company for reducing its ownership and control of installed generation capacity as required by Section 39.154.

(b) An electric utility or power generation company owning and controlling more than 20 percent of the generation capacity located in, or capable of delivering electricity to, a power region shall file a market power mitigation plan with the commission not later than December 1, 2000.

(c) The plan may provide for:

(1) the sale of generation assets to a nonaffiliated person;

(2) the exchange of generation assets with a nonaffiliated person located in a different power region;

(3) the auctioning of generation capacity entitlements as part of a capacity auction required by Section 39.153;

(4) the sale of the right to capacity to a nonaffiliated person for at least four years; or

(5) any reasonable method of mitigation.

(d) For the purposes of this section, generation capacity shall be net of the generation capacity subject to an auction under Section 39.153.

(e) The plan shall be in a form prescribed by the commission and shall provide information the commission finds reasonably necessary to evaluate the plan.

(f) The commission shall approve, modify, or reject a plan within 180 days after the date of a filing under Subsection (b). The commission may not modify a plan to require divestiture by the electric utility or the power generation company.

(g) In reaching its determination under Subsection (f), the commission shall consider:

(1) the degree to which the electric utility's or power generation company's stranded costs, if any, are minimized;

(2) whether on disposition of the generation assets the reasonable value is likely to be received;

(3) the effect of the plan on the electric utility's or power generation company's federal income taxes;

(4) the effect of the plan on current and potential competitors in the generation market; and

(5) whether the plan is consistent with the public interest.

(h) An electric utility or power generation company with an approved mitigation plan may request to amend or repeal its plan. On a showing of good cause, the commission shall modify or repeal an electric utility's or power generation company's mitigation plan.

(i) If an electric utility's or a power generation company's market power mitigation plan is not approved before January 1 of the year it is to take effect, the commission may order the electric utility or power generation company to auction generation capacity entitlements according to Section 39.153, subject to commission approval, of any capacity exceeding the maximum allowable capacity prescribed by Section 39.154 until the time a mitigation plan is approved.

(j) An auction under Subsection (i) shall be held not later than 60 days after the date the order is entered.

Added by Acts 1999, 76th Leg., ch. 405, Sec. 39, eff. Sept. 1, 1999.