BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 736
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          Date of Hearing:   April 25, 2005

                    ASSEMBLY COMMITTEE ON UTILITIES AND COMMERCE
                               Lloyd E. Levine, Chair
                    AB 736 (Horton) - As Amended:  April 12, 2005
           
          SUBJECT  :   Public utilities: regulation.

           SUMMARY  :   This bill modifies the California Public Utilities  
          Commission (PUC) approval process for public utilities to sell,  
          lease or otherwise transfer a property or any part of a property  
          if the property is necessary for the performance of its duties  
          to the public and also exempts certain public utilities from  
          this process.  Specifically,  this bill  :  

          1)Prohibits, with certain exceptions, any public utility from  
            selling, leasing, assigning, mortgaging or disposing or  
            encumbering the whole or any part of a property without first  
            filing an advice letter and obtaining a resolution from the  
            California Public Utilities Commission (PUC).  

          2)Requires the PUC to approve the advice letter within 120 days  
            of its filing absent a protest or incomplete documentation by  
            the applicant public utility.

          3)Exempts any public utility from the provisions of Public  
            Utilities Code Section 851 if the public utility has been  
            authorized by the PUC to charge market-based rates.

          4)Exempts a public utility from having to obtain authorization  
            from the PUC before merging or otherwise consolidating with a  
            subsidiary, an affiliate, or a corporation if certain  
            conditions are met. 

           EXISTING LAW  

          1)Requires any public utility, except for a common carrier by  
            railroad, to obtain an order from the PUC before selling,  
            leasing, assigning, mortgaging, other otherwise disposing of  
            any property that is necessary or useful in the performance of  
            its duties to the public.

          2)Permits the sale or disposition by a public utility of any  
            property that is not necessary or useful in the performance of  
            its duties to the public and presumes, with certain  








                                                                  AB 736
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            exceptions, that such dispositions are not useful or necessary  
            in the performance of its duties to the public.

          3)Provides a mechanism for the PUC to exempt any public utility  
            or class of public utility from the requirements of this code  
            section and establish rules or requirements for those public  
            utilities exempted.

          4)Prohibits, with certain exceptions, a public utility and a  
            subsidiary, an affiliate, or a corporation holding a  
            controlling interest in a public utility, from acquiring,  
            taking or holding any part of the capital stock of any other  
            public utility without first having obtained authorization  
            from the PUC.

           FISCAL EFFECT :   Unknown.

           COMMENTS  :   According to the author the purpose of this bill is  
          to help streamline an unduly lengthy process at the PUC to  
          handle non-controversial asset sales, transfers, leases or other  
          encumbrances of utility property.  By reducing workload at the  
          PUC, the author argues that this bill should reduce  
          administrative costs of both the PUC and public utilities and  
          could save ratepayer dollars through reduced utility operating  
          costs.

           1)Section 851 approval process:   Public Utilities Code Section  
            851 requires any public utility,
          except for a common carrier by railroad, to undergo a full  
          proceeding at the PUC before selling, leasing, assigning,  
          mortgaging, other otherwise disposing of any property that is  
          necessary or useful in the performance of its duties to the  
          public.  As a formal proceeding, a Section 851 application  
          results in significant costs for the applicant, other parties  
          and takes up to 18 months to complete.   

          This bill would address these concerns by modifying the approval  
          process to require public utilities to file an advice letter  
          with the PUC and to obtain an authorizing resolution from the  
          PUC rather than undergoing a full proceeding.  The advice letter  
          process is less formal than a full proceeding and can be  
          completed in less time.  It requires a party to submit a letter  
          seeking PUC permission for a specified action.  The request is  
          then reviewed and approved at the staff level.  This bill  
          requires the PUC to approve the advice letter within 120 days of  








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          its filing absent protest or incomplete documentation.  The  
          standard for approving advice letters required under this bill  
          appears to be different than current practice at the PUC and may  
          not provide for sufficient review by PUC staff.   The committee  
          and author may wish to harmonize the advice letter approval  
          standard in this bill with current practice at the PUC.  

           2)PUC Pilot Program:   The Administrative Law Judge (ALJ)  
            Division of the PUC is currently
          proposing an advice letter pilot program for Section 851  
          transactions similar to AB 736.  The proposed PUC advice letter  
          program requires the filing of an advice letter which triggers a  
          30-day review period by staff.  The advice letter becomes  
          effective at end of 30 days unless staff suspends its  
          implementation for an additional 120 days (or longer if the  
          utility agrees).  At the end of the 150-day period the PUC must  
          issue a decision.

           3)Existing PUC authority:   Existing law provides a mechanism for  
            the PUC to exempt any 
          public utility or class of public utility from the requirements  
          of this code section and establish rules or requirements for  
          those public utilities exempted.  However, the PUC has not acted  
          to exempt any public utilities from this process despite the  
          concerns raised by supporters of this bill.

           4)Market-based rate exemption:   This bill exempts any public  
            utility from the provisions of
          Public Utilities Code section 851 if the public utility has been  
          authorized by the commission to charge market-based rates.  The  
          practical application of this language is to exempt wireless  
          telecommunications providers as well as two companies that  
          operate natural gas storage facilities in Northern California.

          The proponents of this provision argue that utilities that  
          charge market based rates are not guaranteed full recovery from  
          ratepayers of their operating costs, and instead bare the full  
          risk of any investment. Since these utilities bare all the risks  
          of their investments, the proponents of this bill believe that  
          there is no risk to ratepayers if assets are sold and thus there  
          is no need for the PUC to approve the sale of assets. 

          This argument however minimizes the fact that in order to obtain  
          the benefits of operating as a public utility in California, a  
          company must petition the PUC to make a determination that its  








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          project would be a public necessity.  The company is then  
          allowed to invest in physical plants that can then become a  
          critical part of our energy or telecommunications  
          infrastructure. If there is a determination at the front end  
          that the a company or project should be a public utility and  
          that utility is then allowed to become a central piece of the  
          state's infrastructure, it may not be wise to allow companies to  
          later sell the project without a determination that the project  
          is no longer a public need.   The author and committee may wish  
          to consider deleting the market-based rate exemption provisions  
          from the bill.
           
           5)Additional Exemption:   The bill also exempts public utilities  
            undergoing mergers,
          partnerships and other ownership transfers from the requirements  
          of this section if there is no change in ownership of any of the  
          shares of the capital stock of the public utility and if  
          following the ownership transfer, the beneficial owner of the  
          public utility continues to hold greater than 50 percent of the  
          ownership interest in any subsidiary or affiliated entity that  
          is a direct or indirect owner of the public utility.  According  
          to the author this ensures that the PUC retains its existing  
          authority to review and approve any sale, merger or transfer of  
          the public utility itself, or any transaction that results in a  
          change in ownership or control of the parent or holding company  
          which is the ultimate owner of the utility.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Telephone Association's Independent Company Group  
          (Sponsor)
          Global Valley Networks, Inc.
          Kerman Telephone
          Sierra Telephone
          Surewest
          TDS Telecom
          Wild Goose Storage, Inc.

           Opposition 
           
          None on file.

           Analysis Prepared by :    Adam Hunt / U. & C. / (916) 319-2083 








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