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Nigel Gilbert
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2 DOCKET NO F^ ;1! COMPLAINT OF ALEX BROOKS JR 2815 J"^j '8 All 11: 42 AGAINST TXU ENERGY RETAIL PUBLIC UTILITY d0mm1sni}q111 COMPANY LLC AND CENTERPOINT OF TEXAS ^1UN0 CC.E:,,jJ ENERGY HOUSTON ELECTRIC LLC TXU ENERGY RETAIL COMPANY LLC'S RESPONSE TO COMPLAINT AND MOTION TO DISMISS TO THE HONORABLE PUBLIC UTILITY COMMISSION OF TEXAS: Pursuant to P.U.C. PROc. R and Order No. 1, TXU Energy Retail Company LLC ("TXU Energy" or "Company") timely files this response to the formal complaint of Alex Brooks Jr. ("Mr. Brooks" or "Complainant") against TXU Energy.1 TXU Energy also hereby files its motion to dismiss Mr. Brooks' complaint pursuant to P.U.C. Pttoc. R (a). In support of its response and motion to dismiss, TXU Energy respectfully shows as follows: 1. BACKGROUND On or about December 16, 2014, Mr. Brooks filed a formal complaint against TXU Energy and CenterPoint Energy Houston Electric LLC ("CenterPoint") with the Public Utility Commission of Texas ("Commission"), which complaint has been assigned to this docket for adjudication. Mr. Brooks' complaint seeks monetary damages he alleges were sustained when he fell and was physically injured and asserts that TXU Energy did not have authorization to switch his service because he didn't sign anything. On December 18th, the administrative law judge (` ALJ") issued Order No. 1, in which he docketed the complaint as a formal complaint. U. JURISDICTION TXU Energy does not contest the jurisdiction of the Commission generally to hear disputes between customers and retail electric providers ("REPs") pursuant to PURA The sole remedy sought in Mr. Brooks' complaint is monetary damages to compensate him for physical injuries he alleges he sustained when he fell. However, to the extent that Mr. Brooks ' Order No. 1 Requiring Responses at 1(December 18, 2014) (requiring TXU Energy to file a response to Mr. Brooks' complaint no later than January 8, 2014)

3 DOCKET NO RESPONSE TO COMPLAINT AND MOTION TO DISMISS PAGE 2 seeks monetary damages in connection with his complaint, TXU Energy submits that the Commission is not the proper forum for such a determination. As for the merits of Mr. Brooks' formal complaint, the complaint should be dismissed for the additional reasons stated below. III. GENERAL DENIAL TXU Energy denies each and every, all and singular, the allegations made by Mr. Brooks in his formal complaint against TXU Energy. With that said, TXU Energy also specifically addresses the allegations raised by Mr. Brooks' complaint below. IV. MOTION TO DISMISS THE ALLEGATIONS RAISED IN THE COMPLAINT Initially, TXU Energy moves to dismiss the allegations seeking monetary damages. Mr. Brooks' claim for monetary damages for physical injuries is outside the Commission's jurisdiction. This Commission has repeatedly recognized that it lacks statutory authority to award monetary damages,2 except in the limited instance of awarding refunds or credits for unauthorized charges or overcharges,3 which Mr. Brooks does not appear to be seeking. Accordingly, the Commission is not the proper forum for Mr. Brooks' claim for monetary damages, and the Commission should dismiss this claim with prejudice. Additionally, TXU Energy moves to dismiss this complaint on substantive grounds for failure to state a claim against TXU Energy on which relief can be granted4 and for other good 2 See, e.g., Complaint of Johnny H. Vinson and Eloise Vinson Against Oncor Electric Deliveq Coanpa ry, LLC, Docket No , Amended Preliminary Order at 12 (May 21, 2013) ("The Commission has repeatedly stated that it does not have statutory authority to generally adjudicate contract claims and torts or award damages."); Complaint of Idowu Odukoya Against CenterPoint Energy, Docket No , Order No. 5 Dismissing Proceeding at 2(Mar. 10, 2010) ("Neither PURA nor the Commission's rules provide for compensation for inconvenience or damages from disconnection.... To the extent the complaint asserts a claim for damages, the Commission lacks jurisdiction over the claim..."); Complaint of David Upham Against Gexa Energy, L.P., Docket No , Order on Certified Issues at 2 (Apr. 15, 2010) (determining that the complainant had no remedy available because the complainant did not contend that he was overcharged or incurred unauthorized charges); Complaint of Public Utilities Brokers of Texas and PUB Clients Against Starlight Electric, LP and TriEagle Energy, LP, Docket No , Preliminary Order at 3-4 & n. 5 & 6 (Jan. 11, 2007) (explaining that the Commission does not have jurisdiction to award monetary damages or attorney's fees and citing extensive Commission precedent in support). 3 See, e.g., Docket No , Order on Certified Issues at 2 (Apr. 15, 2010); Complaint of Nawaid Isa Against Ambit Energy and CenterPoint Energy Houston Electric LLC, Docket No , SOAH Order No. I 1(Dec. 22, 2014) (noting that, aside from refunds or credits for overcharges or unauthorized charges, "[n]o other monetary relief is authorized in PURA to be awarded in complaint cases"). CenterPoint has appealed portions of this order, but not the portion addressing monetary damages in complaint cases. 4 P.U.C. Proc. R (a)(1)(G). 0002

4 DOCKET NO RESPONSE TO COMPLAINT AND MOTION TO DISMISS PAGE 3 cause shown5. Even though Mr. Brooks confirms that his decision to switch was memorialized in a voice recording,6 he disputes that the third-party verification (TPV) process is sufficient and concludes that his retail electric service was switched without his authorization because he didn't sign a written document.7 Mr. Brooks' TPV authorizing the switch to TXU Energy is attached as Exhibit 1. PUC Substantive Rule (h) provides that an audio recording, like a TPV, is the required method to verify the customer's authorization in a telephonic enrollment. It's undisputed that TXU Energy made an audio recording of the enrollment authorization. Mr. Brooks contests the legal sufficiency of an audio recording versus a written, signed authorization. Mr. Brooks is essentially asserting that PUC Substantive Rule (h) does not apply to him. This is not a claim on which relief can be granted as it relates to TXU Energy. TXU Energy respectfully submits that this complaint against it should be dismissed because the damage claims cannot be awarded by the Commission. It should also be dismissed for failure to state a claim against TXU Energy on which relief can be granted and for other good cause shown pursuant to P.U.C. Proc. R (a)(1)(g) and (H). V. APPLICABLE STATUTES, RULES, ORDERS AND/OR TARIFF PROVISIONS Procedural Rules (a)(1)(G) and (H) apply as the basis for the motion to dismiss for failure to state a claim on which relief can be granted and for other good cause shown. Additionally, P.U.C. Subst. R (h) provides that audio recordings, like TPVs, are the required method of verifying the customer's authorization of a telephonic enrollment. Further, PURA and the precedent cited in footnotes 2 and 3, infra, establish that the Commission does not have jurisdiction to award the monetary damages sought. Generally, the provisions of PURA, CenterPoint's Retail Delivery Service Tariff and the Commission's Substantive and Procedural Rules apply. 5 P.U.C. Proc. R (a)(1)(H). 6 "You base them on a recorded [sic]." Plaintiff's Complaint, p. 4 7 "Starting here with TXU R.C. #10004 taking ESIID... without my signing for it." Plaintiff's Complaint, p

5 DOCKET NO RESPONSE TO COMPLAINT AND MOTION TO DISMISS PAGE 4 VI. COMMISSION-APPROVED RATES/TARIFFS THAT ARE THE SUBJECT OF THE COMPLAINT Order No. I requires that TXU Energy provide copies of any Commission-approved rates/tariff relevant to Mr. Brooks' complaint. In response, TXU Energy asserts that there is no Commission-approved rate or tariff related to TXU Energy that applies to Mr. Brooks' complaint. VII. PRAYER FOR RELIEF WHEREFORE, TXU Energy respectfully denies the allegations made against it, requests that the Commission issue an order dismissing the complaint against TXU Energy for lack of jurisdiction to award monetary damages, for failure to state a claim on which relief can be granted pursuant to P.U.C. Proc. R (a)(1)(G) and because there are no material issues of fact in dispute pursuant to P.U.C. Proc. R (a)(1)(H) on the claim that TXU Energy switched electric service without authorization, and to grant TXU Energy any other relief to which it may be entitled. submitted, By: ' 1 J L. Munn S e Bar No TXU Energy 6555 Sierra Drive, 3ra Floor Irving, Texas (972) (972) (facsimile) john.munn(4-ytxu.com ATTORNEY FOR TXU ENERGY RETAIL COMPANY LLC 0004

6 DOCKET NO RESPONSE TO COMPLAINT AND MOTION TO DISMISS PAGE 5 CERTIFICATE OF SERVICE It is hereby certified that a copy of the foregoing ho' sent via first class United States mail postage prepaid to all parties of record on this the day of January, dy Kimbrough 0005

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Control Number : 40625 Item Number : 36 Addendum StartPage : 0 P.U.C. DOCKET NO. 40625 SOAH DOCKET NO. 473-13-081 ^: ---, - _ COMPLAINT OF FELIX PUBLIC UTILITY COM^-^S*N CARRILLO D/B/A RANCHO VIEJO AGAINST