-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, B9FjJNJDE5cJTyzpOEI2sl6ZjwUpeN3yu4RqYWg48oDQPdezmN2SYwyU1Kaelbkc wKhUAoxHsL4Xv/OofXDX4Q== 0000950120-97-000013.txt : 19970117 0000950120-97-000013.hdr.sgml : 19970117 ACCESSION NUMBER: 0000950120-97-000013 CONFORMED SUBMISSION TYPE: U-1 PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19970116 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: PUBLIC SERVICE CO OF COLORADO CENTRAL INDEX KEY: 0000081018 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931] IRS NUMBER: 840296600 STATE OF INCORPORATION: CO FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: U-1 SEC ACT: 1935 Act SEC FILE NUMBER: 070-08985 FILM NUMBER: 97506886 BUSINESS ADDRESS: STREET 1: 1225 17TH ST STE 300 CITY: DENVER STATE: CO ZIP: 80202 BUSINESS PHONE: 3035717511 MAIL ADDRESS: STREET 1: P O BOX 840 STE 300 CITY: DENVER STATE: CO ZIP: 80201 U-1 1 FILE NO. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 APPLICATION OF PUBLIC SERVICE COMPANY OF COLORADO UNDER SECTION 3(b) AND RULES 10 AND 11 OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 ____________________________________________ PUBLIC SERVICE COMPANY OF COLORADO 1225 Seventeenth Street Denver, CO 80202 _____________________________________________ Richard C. Kelly Senior Vice President, Finance, Treasurer and Chief Financial Officer Public Service Company of Colorado 1225 Seventeenth Street Denver, CO 80202 (Name and address of agent for service) Please also submit copies of all correspondence to: William M. Dudley Associate General Counsel Public Service Company of Colorado 1225 Seventeenth Street, Suite 600 Denver, CO 80202 William T. Baker, Jr. Reid & Priest LLP 40 West 57th Street New York, NY 10019 Applicant Public Service Company of Colorado ("PSCo"), a public-utility holding company exempt from regulation pursuant to rule 2 under section 3(a)(2) of the Public Utility Holding Company Act of 1935, as amended (the "1935 Act" or "Act"), hereby submits this application under section 3(b) and rules 10 and 11 thereunder in connection with its proposed acquisition of a public utility company operating exclusively outside of the United States ("Foreign Utility"). Neither Foreign Utility nor any of its subsidiary companies is a public utility company operating in the United States nor, following the proposed acquisition, will serve any customers in the United States. Foreign Utility does not derive any income from United States operations or sources within the United States. PSCo asserts that, since the operations of Foreign Utility will be exclusively outside the United States, its sales and revenues, and the regulation thereof, have little or no effect on the rates and business of electric sales and generation within the United States. Accordingly, regulation of Foreign Utility as a subsidiary of a holding company is not necessary for either the public interest or for the protection of investors, and therefore no regulatory purpose would be served by treating Foreign Utility as a subsidiary of a holding company. Due to tax, legal and regulatory considerations, it may be advisable for PSCo to structure the transaction using one or more special purpose subsidiaries (collectively, "PSCo Subs"). PSCo states that, as special purpose subsidiaries to be formed for the primary purpose of acquiring an interest in Foreign Utility, PSCo Subs will derive no income from United States operations and will not be a public utility company operating in the United States. PSCo Subs will not engage in any business other than the acquisition of Foreign Utility, supervision of PSCo's investments in Foreign Utility and the participation in the management and operations of Foreign Utility. Accordingly, regulation of PSCo Subs as a subsidiary of a holding company is not necessary for either the public interest or for the protection of investors. In support hereof, PSCo states: (1) PSCo is a publicly-held corporation organized under Colorado law with its principal offices located at 1225 Seventeenth Street, Denver, Colorado 80202. PSCo engages directly, and indirectly through Cheyenne Light, Fuel and Power Company ("CLF&P"), in the sale and distribution of electricity and gas to retail and wholesale customers in Colorado and Wyoming. For the twelve months ended September 30, 1996, PSCo and its subsidiaries had operating revenues of approximately $2.1 billion; as of September 30, 1996, PSCo had assets of approximately $4.5 billion. Neither PSCo nor any corporation owned or controlled by PSCo is a "holding company" that is registered pursuant to section 5 of the Act or a "subsidiary company" of a holding company that is registered pursuant to section 5 of the Act. There is a pending application under the Act in connection with the proposed merger of PSCo and Southwestern Public Service Company ("SPS") though the formation of a new registered holding company, to be named New Century Energies, Inc. ("NCE"). File No. 70-8787. (2) Foreign Utility is not qualified to do business in any state of the United States and operates as an electric utility exclusively outside the United States. [Additional information about Foreign Utility is contained in the Request for Confidential Treatment]. (3) Section 3(b) of the 1935 Act provides an exemption for any subsidiary company, as such, of a holding company from provisions of the 1935 Act applicable to such subsidiary companies, "if such subsidiary company derives no material part of its income, directly or indirectly, from sources within the United States, and neither it nor any of its subsidiary companies is a public utility company operating in the United States," provided that the Commission finds that the application of the 1935 Act to such subsidiary company is "not necessary in the public interest or for the protection of investors." (4) Neither Foreign Utility nor any of its subsidiaries is a public-utility company operating in the United States. The proposed investment will not affect Foreign Utility's status as a public utility company subject to regulation by the laws of the jurisdiction in which Foreign Utility is organized and operates. Foreign Utility does not derive any income from United States operations or sources within the United States. As explained below, regulation of Foreign Utility under the 1935 Act is not necessary in the public interest, or for the protection of investors or consumers. Therefore, Foreign Utility satisfies the standards of section 3(b) and should be accorded an unqualified exemption, as a subsidiary company, from all provisions of the 1935 Act.* (5) Since the operations of Foreign Utility as a public utility company within the meaning of section 2(a)(5) of the 1935 Act are and will be exclusively outside the United ______________________ * Although Foreign Utility would satisfy the requirements under section 33(a)(3) of the 1935 Act and become a "foreign utility company" ("FUCO") as defined therein upon the filing of a notice on Form U-57, the capitalization limits established by section 33(f) would restrict the ability of PSCo to finance the acquisition of Foreign Utility as a FUCO. The Commission has previously recognized that section 3(b) provides an alternative route for foreign acquisitions in such circumstances. See, e.g., UtiliCorp United, Inc., ---- --- ---------------------- Holding Company Act Release No. 26353 (Aug. 7, 1995). States, its sales and revenues, and the regulation thereof, should not affect the rates and business of electric sales and generation or gas sales within the United States. Moreover, since PSCo is a publicly-traded company subject to the continuous disclosure requirements of the Securities Exchange Act of 1934, as amended, regulation under the federal securities laws offers significant additional protections for the interest of investors. (6) PSCo will not seek recovery through higher rates to PSCo or CLF&P customers to compensate it for any possible loss that it might sustain by reason of the proposed Foreign Utility investment or for any inadequate returns on such investment. (7) PSCo has undertaken to apply to the Colorado Public Utilities Commission and CLF&P has undertaken to apply to the Wyoming Public Service Commission, which have jurisdiction over the respective companies' retail electric and gas rates, for certification that each commission has the authority and resources to protect ratepayers subject to its jurisdiction and that it intends to exercise its authority in connection with the proposed Foreign Utility investment. In this regard, PSCo's indirect investment in Foreign Utility will not in any way diminish the ability of the various State commissions that regulate the retail electric and gas operations of PSCo to protect the interests of consumers in their respective states. PSCo's domestic utility operations will be fully separated from PSCo's foreign operations. (8) As a result, PSCo's domestic utility customers will not be put at risk of any adverse financial effects resulting from PSCo's proposed indirect acquisition of Foreign Utility, nor will the ability of the various State commissions to protect the interests of consumers in their respective States be adversely affected. Accordingly, regulation of Foreign Utility by the SEC under 1935 Act as a subsidiary of a holding company is not necessary for either the public interest or for the protection of investors, and therefore no regulatory purpose would be served by treating Foreign Utility as a subsidiary of a holding company. (9) As special purpose subsidiaries to be formed for the primary purpose of acquiring an interest in Foreign Utility, the PSCo Subs will derive no income from United States operations and will not be public utility companies operating in the United States. The PSCo Subs will not engage in any business other than the acquisition of Foreign Utility and supervision of PSCo's investment in Foreign Utility, and the participation in the management and operations of Foreign Utility. Accordingly, regulation of the PSCo Subs as subsidiary companies is not necessary for either the public interest or for the protection of investors. (10) On the basis of the facts set forth in this Application, the Commission should grant Foreign Utility the exemption without qualification provided for by section 3(b) of the 1935 Act. (11) If Foreign Utility is exempt without qualification under section 3(b), then PSCo and the PSCo Subs would be entitled to the exemption provided by rule 10(a)(1) under the 1935 Act with respect to Foreign Utility. (12) In addition, if Foreign Utility is exempt without qualification under section 3(b) of the 1935 Act, then PSCo would be exempted pursuant to rule 11(b)(1) from section 9(a)(2) of the 1935 Act with respect to the proposed acquisition of voting securities of Foreign Utility. (13) The Applicant hereby consents to file an annual report on Form U-33-S. (14) The Applicant hereby waives a hearing with respect to this application and requests that there be no 30-day waiting period between the issuance of the Commission's order and the date on which it is to become effective. The Applicant hereby waives a recommended decision by a hearing officer or other responsible officer of the Commission and hereby consents that the Office of Public Utility Regulation may assist in the preparation of the Commission's decision and/or order. (15) The following exhibits are hereby filed as a part of this Application: EXHIBIT A Form of Notice EXHIBIT B-1 Letter from the Colorado Public Utilities Commission certifying that it has the authority and resources to protect ratepayers subject to its jurisdiction and that it intends to exercise such authority [to be filed by amendment] EXHIBIT B-2 Letter from the Wyoming Public Service Commission certifying that it has the authority and resources to protect ratepayers subject to its jurisdiction and that it intends to exercise such authority [to be filed by amendment] EXHIBIT C Opinion of counsel [to be filed by amendment] It is requested that copies of all orders, notices and communications with respect to the above application be served as follows: William M. Dudley Associate General Counsel Public Service Company of Colorado 1225 Seventeenth Street, Suite 600 Denver, CO 80202 William T. Baker, Jr. Reid & Priest LLP 40 West 57th Street New York, NY 10019 WHEREFORE, Applicant respectfully requests that the Commission issue an order herein determining that Foreign Utility is entitled to the exemption without qualification provided for by section 3(b) of the 1935 Act. Dated: January 16, 1997 Respectfully submitted, PUBLIC SERVICE COMPANY OF COLORADO By: /s/ W. Wayne Brown -------------------------------- W. Wayne Brown Corporate Secretary and Controller EXHIBIT INDEX Exhibit Description ------- ----------- EXHIBIT A Form of Notice EXHIBIT B-1 Letter from the Colorado Public Utilities Commission certifying that it has the authority and resources to protect ratepayers subject to its jurisdiction and that it intends to exercise such authority [to be filed by amendment] EXHIBIT B-2 Letter from the Wyoming Public Service Commission certifying that it has the authority and resources to protect ratepayers subject to its jurisdiction and that it intends to exercise such authority [to be filed by amendment] EXHIBIT C Opinion of counsel [to be filed by amendment] EX-99 2 EXHIBIT A EXHIBIT A [FORM OF NOTICE] Notice is hereby given that the following filing(s) has/have been made with the Commission pursuant to provisions of the Public Utility Holding Company Act of 1935, as amended, (the "Act"), and rules promulgated thereunder. All interested persons are referred to the application(s) and/or declaration(s) for complete statements of the proposed transaction(s) summarized below. The application(s) and/or declaration(s) and any amendments thereto is/are available for public inspection through the Commission's office of Public Reference. Interested persons wishing to comment or request a hearing on the application(s) and/or declaration(s) should submit their views in writing by January __, 1997, to the Secretary, Securities and Exchange Commission, Washington, DC 20549, and serve a copy on the relevant applicant(s) and/or declarant(s) at the address(es) specified below. Proof of service (by affidavit or, in case of an attorney at law, by certificate) should be filed with the request. Any request for hearing shall identify specifically the issues of fact or law that are disputed. A person who so requests will be notified of any hearing, if ordered, and will receive a copy of any notice or issued in this matter. After said date, the applications(s) and/or declaration(s) as filed or amended, may be granted and/or permitted to become effective. Public Service Company of Colorado Public Service Company of Colorado ("PSCo"), a public- utility holding company exempt from regulation pursuant to rule 2 under section 3(a)(2) of the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"), has filed an application under section 3(b) of the Act and rules 10 and 11 thereunder in connection with its proposed acquisition of a public utility company operating exclusively outside of the United States ("Foreign Utility"). Due to tax, legal and regulatory considerations, it may be advisable for PSCo to structure the transaction using one or more intermediate special purpose subsidiaries (collectively, "PSCo Subs"). Neither Foreign Utility nor any of its subsidiary companies is a public utility company operating in the United States nor, following the proposed acquisition, will serve any customers in the United States. Foreign Utility does not derive any income from United States operations or sources within the United States. PSCo states that, as special purpose subsidiaries to be formed for the primary purpose of acquiring an interest in Foreign Utility, PSCo Subs will derive no income from United States operations and will not be a public utility company operating in the United States. PSCo Subs will not engage in any business other than the acquisition of Foreign Utility, supervision of PSCo's investments in Foreign Utility and the participation in the management and operations of Foreign Utility. Accordingly, regulation of PSCo Subs as a subsidiary of a holding company is not necessary for either the public interest or for the protection of investors. PSCo states that it will not seek recovery through higher rates to PSCo or CLF&P customers to compensate it for any possible loss that it might sustain by reason of the proposed Foreign Utility investment or for any inadequate returns on such investment. PSCo has further undertaken to apply to the Colorado Public Utilities Commission and CLF&P has undertaken to apply to the Wyoming Public Service Commission, which have jurisdiction over the respective companies' retail electric and gas rates, for certification that each commission has the authority and resources to protect ratepayers subject to its jurisdiction and that it intends to exercise its authority in connection with the proposed Foreign Utility investment. PSCo represents that its domestic utility operations will be fully separated from its foreign operations. If Foreign Utility is exempt without qualification under section 3(b), then PSCo and the PSCo Subs would rely upon the exemption provided by rule 10(a)(1) under the 1935 Act with respect to Foreign Utility, and PSCo would be exempted pursuant to rule 11(b)(1) from section 9(a)(2) of the 1935 Act with respect to the proposed acquisition of voting securities of Foreign Utility. For the Commission, by the Division of Investment Management, pursuant to delegated authority. -----END PRIVACY-ENHANCED MESSAGE-----