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Consent Decree
I. Introduction
1. This Consent Decree is entered into by the Enforcement
Bureau of the Federal Communications Commission ("Bureau") and
Xcel Energy Inc.
II. Background
2. Xcel Energy Inc. is a Minneapolis-based electricity and
natural gas energy company with annual revenues of nearly $7
billion. Xcel provides energy-related products and services to
three million electricity customers and 1.5 million natural gas
customers through its regulated operating companies in 12 Western
and Midwestern states.
3. On January 1, 1993, Western Gas Supply Company (``WGS'')
merged into Public Service Company of Colorado (``PSCO''), and
ceased to exist. At the time of the merger, WGS held three
private operational fixed microwave authorizations. Although this
transaction effectuated a substantial transfer of control
requiring prior Commission consent pursuant to Section 310(d) of
the Communications Act of 1934, as amended, 47 U.S.C. § 310(d),
the parties did not file an application for consent to the
assignment of the three authorizations until July 14, 2000. The
Commission granted the application on August 23, 2000.
4. On August 1, 1997, PSCO and Southwestern Public Service
Company (``SPS'') merged and became wholly-owned subsidiaries of
a newly formed holding company, New Century Energies, Inc.
(``NCE''). At the time of the merger, PSCO held approximately
107 microwave licenses and approximately 199 land mobile
licenses; and SPS held approximately 72 microwave licenses and
approximately 93 land mobile licenses. In addition, Cheyenne
Light Fuel & Power Company (a subsidiary of PSCO) held seven land
mobile licenses; Quixx Corporation (a subsidiary of SPS) held one
land mobile license; and e prime Networks (a non-utility
subsidiary of PSCO) held one land mobile license. As part of the
merger transaction, the shareholders of PSCO received
approximately 62% of the outstanding common stock of NCE, and
shareholders of SPS received approximately 38% of the common
stock of NCE. Consequently, as to PSCO, the merger constituted a
pro forma transfer of control of the PSCO and its subsidiary-held
licenses; and as to SPS, the merger constituted a substantial
transfer of control of the SPS and its subsidiary-held licenses.
NCE did not file appropriate applications for Commission consent
to the transfer of these authorizations until July 14, 2000. All
transfers have since been granted.
5. On March 13, 2000, e prime Networks dissolved, and control
of the one land mobile station of which e prime Networks was the
licensee was transferred to its parent, e prime, Inc., a wholly-
owned subsidiary of NCE. Although this transaction effectuated a
pro forma transfer of control requiring prior Commission
approval, the parties did not file an application for Commission
consent to the assignment of the license until July 14, 2000.
The Commission granted the application on September 25, 2000.
6. Effective August 21, 2000, NCE merged with Northern States
Power Company-Minnesota (``NSP-MN'') and ceased to exist. NSP-
MN, the surviving corporation, subsequently changed its name to
Xcel Energy, Inc. As a result of the merger, SPS and PSCO (and
their respective subsidiaries) became wholly-owned subsidiaries
of Xcel Energy Inc. The parties to this transaction timely filed
all required applications, and the applications have since been
granted.
III. Definitions
7. For the purposes of this Consent Decree, the following
definitions shall apply:
(a) "Commission" means the Federal Communications
Commission.
(b) "Bureau" means the Commission's Enforcement Bureau.
(c) ``Xcel'' means Xcel Energy Inc.
(d) "Order" means the order of the Enforcement Bureau
adopting this Consent Decree.
(e) "Final Order" means the Order that is no longer
subject to administrative or judicial reconsideration,
review, appeal, or stay.
(f) ``Act'' means the Communications Act of 1934, as
amended, Title 47 of the United States Code.
IV. Agreement
8. Xcel agrees that the Bureau has jurisdiction over the
matters contained in this Consent Decree and the authority to
enter into and adopt this Consent Decree.
9. The Bureau and Xcel agree that this Consent Decree does not
constitute an adjudication on the merits or any finding on the
facts or law regarding any violations of the Act or the
Commission's rules committed by Xcel.
10. Xcel agrees that it shall make a voluntary contribution to
the United States Treasury in the amount of $20,000 within 10
calendar days after the Bureau releases the Order adopting this
Consent Decree.
11. Xcel agrees to implement, within 10 calendar days after the
Bureau releases the Order adopting this Consent Decree, a
comprehensive internal program, a summary of which is attached
hereto, to ensure Xcel's future compliance with the Act, the
Commission's rules, and the Commission's policies.
12. In express reliance upon the representations contained
herein, the Bureau agrees to terminate its investigation into the
matters discussed in paragraphs 3 - 6, above.
13. The Bureau agrees not to institute any new proceeding,
formal or informal, of any kind against Xcel for apparent
violations of Section 310(d) of the Act or Section 301 of the Act
arising from the matters discussed in paragraphs 3 - 6, above.
14. In the event that Xcel is found by the Commission or its
delegated authority to have engaged in a violation of Section
310(d) of the Act and/or Section 301 of the Act subsequent to the
release of the Order adopting this Consent Decree, Xcel agrees
that the conduct described in paragraphs 3 - 6, above, may be
considered by the Commission or its delegated authority in
determining an appropriate sanction.
15. Xcel waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or
stay, or to otherwise challenge or contest the validity of this
Consent Decree and the Order adopting this Consent Decree,
provided the Order is limited to adopting the Consent Decree
without change, addition, or modification.
16. Xcel and the Bureau agree that the effectiveness of this
Consent Decree is expressly contingent upon issuance of the
Order, provided the Order adopts the Consent Decree without
change, addition, or modification.
17. Xcel and the Bureau agree that in the event that this
Consent Decree is rendered invalid by any court of competent
jurisdiction, it shall become null and void and may not be used
in any manner in any legal proceeding.
18. Xcel and the Bureau agree that if Xcel, the Commission, or
the United States on behalf of the Commission, brings a judicial
action to enforce the terms of the Order adopting this Consent
Decree, neither Xcel nor the Commission shall contest the
validity of the Consent Decree or Order, and Xcel and the
Commission shall waive any statutory right to a trial de novo
with respect to any matter upon which the Order is based
(provided in each case that the Order is limited to adopting the
Consent Decree without change, addition, or modification), and
shall consent to a judgment incorporating the terms of this
Consent Decree.
19. Xcel agrees to waive any claims it may otherwise have under
the Equal Access to Justice Act, Title 5 U.S.C. § 504 and 47 C.F.
R. § 1.1501 et seq., relating to the matters discussed in
paragraphs
3 - 6 , above.
20. Xcel agrees that any violation of the Order adopting this
Consent Decree shall constitute a separate violation and subject
Xcel to appropriate administrative sanctions.
21. Xcel and the Bureau agree to be bound by the terms and
conditions stated herein.
22. Xcel and the Bureau agree that this Consent Decree may be
signed in counterparts.
ENFORCEMENT BUREAU
FEDERAL COMMUNICATIONS COMMISSION
By: _____________________________
____________
David H. Solomon Date
Chief
Xcel ENERGY INC.
By: ______________________________
____________
Wayne H. Brunetti Date
President and Chief Executive Officer
SUMMARY OF COMPLIANCE PROGRAM
OF
Xcel ENERGY INC.
Background
Xcel Energy Inc. was established in August of 2000 by the
merger of Northern States Power Company and New Century Energies,
Inc. Xcel is the parent of nine companies which hold FCC
authorizations: Northern States Power Company, Northern
States Power Company-Wisconsin, Viking Gas Transmission Company,
Middletown Power LLC, Public Service Company of Colorado,
Southwestern Public Service Company, Cheyenne Light Fuel & Power
Company, e prime, Inc., and Quixx Corporation. Because of the
scale of this merger, Xcel is still in the process of
centralizing its operations and establishing a compliance
program.
Corporate Compliance Program to Include FCC Regulations
Xcel's Section 310(d) compliance program is part of a larger
FCC compliance program that involves the following elements: a
compliance manual and a training program, which include
identifying and handling potential transfers covered by Section
310(d).
Xcel Compliance Manual
A compliance manual is in the process of being drafted and
will be updated as necessary. Xcel's licensing personnel will
have ready access to the compliance manual and are to follow the
procedures contained in it. Such personnel will also be
encouraged to contact the company's law department with any
questions they may have.
Compliance Training Program
Xcel, in conjunction with outside telecommunications
counsel, will establish an FCC compliance training specifically
geared to employees who engage in FCC licensing-related
activities beginning in the first quarter of 2001. The program
will include a thorough review of FCC transfer of control issues.
It is anticipated that the training sessions will be conducted at
least annually to ensure compliance with the Communications Act
of 1934, as amended, and the FCC's regulations.
Internal Process
Xcel is establishing a centralized process for the handling
of all FCC licensed facilities and related FCC applications and
matters. This will help ensure that all FCC rules are being
adhered to prior to and during any corporate restructuring,
acquisitions, or related transactions. Xcel is sensitive to the
requirements of 47 U.S.C. § 310(d) and will remain open to
communications among its personnel in order to prevent any pro
forma or substantive unauthorized assignments and/or transfers of
control.