FILE NO. 70-8985
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 to
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
ITEM 1
_____________________________________________
Richard C. Kelly
Senior Vice President, Finance,
Treasurer and Chief Financial Officer
Public Service Company of Colorado
1225 Seventeenth Street
Denver, CO 80202
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
<PAGE>
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 files this Amendment No. 1 to the
Form U-1 Application in this File No. 70-8985, for the purposes of
amending and restating the Application in its entirety.
The Application is hereby amended and restated in its entirety as
follows:
Item 1. Description of Proposed Transaction.
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PSCo seeks Commission authorization pursuant to 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").
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 they 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.
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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 the PSCo Subs as
subsidiary companies 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
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with the proposed merger of PSCo and Southwestern Public Service Company
("SPS") that would permit 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
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the standards of section 3(b) and should be accorded an unqualified
exemption, as a subsidiary company, from all provisions of the 1935
Act.[FN*]
(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 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) The Colorado Public Utilities Commission and the Wyoming
Public Service Commission, which have jurisdiction over the respective
companies' retail electric and gas rates, have each certified to this
Commission that they have the authority and resources to protect ratepayers
subject to their respective jurisdictions and that they intend to exercise
this authority in connection with the proposed Foreign Utility investment.
In this
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[FN*]
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).
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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.
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(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 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) PSCo has submitted a related request for no-action relief,
seeking the assurance of the staff of the Division of Investment Management
that it would not seek to challenge PSCo's continuing claim of exemption
under section 3(a)(2) of the Act in the event that PSCo proceeds with
the Foreign Utility acquisition that is the subject of this Application.
Item 2. Other Regulatory Approval.
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The Colorado Public Utilities Commission and the Wyoming Public
Service Commission, which have jurisdiction over the respective companies'
retail electric and gas rates, have each certified to this Commission that
they have the authority and resources to protect ratepayers subject to
their respective jurisdiction and that they intend to exercise this
authority in connection with the proposed Foreign Utility investment. The
proposed Foreign
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Utility acquisition is not subject to the jurisdiction of any State
commission or of any federal commission other than this Commission.
Item 3. Procedure.
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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.
Item 4. Fees and Expenses.
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The estimated fees, commissions and expenses to be incurred in
connection with the proposed transactions will be approximately $30,000.
Item 5. Exhibits.
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The following exhibits are hereby filed as a part of this Application:
EXHIBIT A Form of Notice [previously filed]
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
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
EXHIBIT C Opinion of counsel
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Item 6. Information as to Environmental Effects.
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The proposed transaction does not involve a "major federal action" or
"significantly affect[] the quality of the human environment" as those
terms are used in section 102(2)(C) of the National Environmental Policy
Act, 42 U.S.C. section 4321 et seq. No federal agency is preparing an
-- ---
environmental impact statement with respect to this matter.
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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: February 19, 1997
Respectfully submitted,
PUBLIC SERVICE COMPANY OF COLORADO
By: /s/ W. Wayne Brown
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W. Wayne Brown
Corporate Secretary and Controller
STATE OF COLORADO
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PUBLIC UTILITIES COMMISSION Department of Regulatory Agencies
Joseph A. Garcia
Robert J. Hix, Chairman Executive Director [SEAL]
Vincent Majkowski, Commissioner
R. Brent Alderles, Commissioner
Bruce N. Smith, Director
January 30, 1997
Mr. Jonathan G. Katz, Secretary
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Mr. Katz:
This letter is to inform you that Public Service Company of Colorado
("PSCo") has advised this Commission that it has filed with the Securities
and Exchange Commission ("SEC") an application under Section 3(b) of the
Public Utility Holding Company Act of 1935 to obtain an exemption for its
acquisition of an interest in a foreign generation and distribution
electric utility. In connection with that application, PSCo has requested
that the Public Utilities Commission of the State of Colorado provide a
certification of its authority to protect the ratepayers of PSCo.
As the Commission having jurisdiction over the retail electric rates
of PSCo in the State of Colorado, please be advised that this Commission:
1. Has the authority and jurisdiction to protect the ratepayers of
PSCo, and
2. Intends to exercise such authority.
This certification is applicable to PSCo's application, and to all
exempt wholesale generators ("EWGs") and foreign utility companies
("FUCOs") in which PSCo may later seek to obtain an ownership interest.
However, this certification is subject to being revised or withdrawn by
this Commission in the future.
Very truly yours,
/s/ Bruce N. Smith
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Bruce N. Smith
Director
1580 Logan Street, Office Level 2, Denver, Colorado 80203
Telephone Number (303)894-2000 Consumer Affairs (303) 894-2020
Permit and Insurance (Outside Denver) 1-800-888-0170
Consumer Affairs (Outside Denver) 1-800-456-0658
[LETTERHEAD OF THE PUBLIC SERVICE COMMISSION
OF THE STATE OF WYOMONG]
January 23, 1997
Mr. Jonathan G. Katz
Secretary
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: SEC File No. 70-8985
Dear Mr. Katz:
Cheyenne Light, Fuel & Power Company (Cheyenne Light), a wholly-owned
subsidiary of Public Service Company of Colorado (PSCo), has advised the
Wyoming Public Service Commission (Commission) that PSCo has filed an
application with the Securities and Exchange Commission (SEC) under Section
3(b) of the Public Utility Holding Company Act of 1935 to obtain an
exemption for its acquisition of an interest in a foreign generation
and distribution electric utility. In connection with that application,
PSCo has requested that we provide you with a certification of our
authority to protect the ratepayers of Cheyenne Light.
As the Commission having jurisdiction over the retail electric and gas
rates of Cheyenne Light in Wyoming, please be advised that the Wyoming
Public Service Commission [i] has the authority, resources and jurisdiction
to protect the ratepayers of Cheyenne Light, and [ii] intends to exercise
this authority.
This certification is applicable to PSCo's present application and to
all exempt wholesale generators (EWGs) and foreign utility companies
(FUCOs) in which PSCo or Cheyenne Light may later seek to obtain an
ownership interest. This certification is, however, subject to being
revised or withdrawn by the Commission in the future.
Yours very truly,
PUBLIC SERVICE COMMISSION OF WYOMING
/s/ Steve Ellenbecker
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STEVE ELLENBECKER, Chairman
/s/ Kristin H. Lee
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KRISTIN H. LEE, Commissioner
[Official
Seal]
/s/ Stephen G. Oxley
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STEPHEN G. OXLEY, Secretary and Chief Counsel
cc: Robert P. Wason
REID & PRIEST LLP
701 Pennsylvania Avenue, N.W.
Washington, DC 20004
(202) 508-4076
February 16, 1997
Securities and Exchange Commission
450 Fifth St., N.W.
Washington, D.C. 20459
Ladies and Gentlemen:
This opinion relates to the Application filed January
17, 1997 by Public Service Company of Colorado ("PSCo") under the
Public Utility Holding Company Act of 1935 ("1935 Act" or "Act").
The Application seeks authorization pursuant to section 3(b) of
the Act and rules 10 and 11 thereunder in connection with the
proposed acquisition by PSCo of a public utility company
operating exclusively outside of the United States ("Foreign
Utility").
Based upon the foregoing and subject to the
qualifications and assumptions specified herein, we are of in
accordance with the order or orders of the Securities and
Exchange Commission ("Commission") with respect thereto, and all
authorizations and approvals from appropriate governmental and
regulatory authorities are duly obtained:
(a) All state laws applicable to the proposed
acquisition will have been complied with; and
(b) PSCo will legally acquire the securities of
Foreign Utility.
In rendering the above opinion, we have made the
following assumptions and our opinion is qualified accordingly:
(a) The staff of the Division of Investment Management
has issued a no-action letter in which it agrees not to
recommend enforcement action with respect to PSCo's
continuing claim of exemption pursuant to rule 2 under
section 3(a)(2) of the Act, pending receipt of the necessary
regulatory approvals and consummation of the proposed merger
of PSCo and Southwest Public Services Co. ("SPS") and the
formation of New Century Energies, Inc. as a new registered
holding company on or before September 30, 1997.
<PAGE>
Securities and Exchange Commission
Page 2
February 16, 1997
(b) The staff of the Division of Investment Management
has orally agreed to extend the period of forbearance for
cause in the event that the PSCo/SPS merger is not
consummated during that period.
(c) The Colorado Public Utilities Commission and the
Wyoming Public Service Commission, which have jurisdiction
over the retail electric and gas rates of PSCo and its
subsidiary, Cheyenne Light, Fuel and Power Company, have each
certified to this Commission that they have the authority and
resources to protect ratepayers subject to their respective
jurisdiction and that they intend to exercise this authority
in connection with the proposed Foreign Utility Investment.
(d) PSCo has represented that the laws of the states
of Wyoming and Colorado have been and will be complied with.
We consent to the use of this opinion as an exhibit to the
Application.
Very truly yours,
/s/ Reid & Priest LLP
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REID & PRIEST LLP
