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
<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
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).
<PAGE>
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]
<PAGE>
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
<PAGE>
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]
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.
