BILL ANALYSIS AB 736 Page 1 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 Page 2 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 AB 736 Page 3 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 AB 736 Page 4 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 AB 736 Page 5