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United States of America
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In the Matter of Applications of Enron Corp. for Exemptions Under the Public Utility Holding Company Act of 1935 |
: : : : : : : : : : |
Order Denying Motion of FPL Group, Inc. and Sithe Independence Power Partners, L.P. to Introduce Witnesses |
By Order dated November 5, 2002 (the "Order"), FPL Group, Inc. and Sithe Independence Power Partners, L.P. (collectively the "Joint Movants"), were authorized to participate on a limited basis in this proceeding.1 The Order directed that the Joint Movants appear at any hearing in this proceeding by joint representation. The Order further directed that the Joint Movants could not introduce or cross-examine witnesses absent leave to do so.
By motion dated November 8, 2002, the Joint Movants request leave to produce three witnesses: two fact witnesses attesting to the Joint Movants' lack of any involvement in or knowledge of any improper activities of Enron Corp. and the potential harm that will result to them from a denial of Enron's applications for exemption; and an expert witness to testify about the potential effects to the independent energy industry and the public in the event the applications are denied.
The Joint Movants acknowledge that this proceeding involves a determination whether Enron meets any of the statutory criteria for an exemption and, if so, whether an exemption is in the public interest. The Joint Movants assert that if Enron's request for "permanent exemption is denied," then a further consideration is whether to grant Enron a "temporary exemption." In appears that the Joint Movants' proffered witness testimony is directed to this latter consideration.
By arguing that the public interest must be considered in connection with a determination whether to grant Enron a "temporary exemption," the Joint Movants misplace the proper consideration of the public interest. Under Section 3(a) of the Act, in the event Enron establishes its entitlement to an exemption under subsections (a)(1), (a)(3), or (a)(5), the Commission "shall exempt" Enron "unless and except insofar at it finds the exemption detrimental to the public interest or the interest of investors or consumers…." Thus, the consideration of the public interest is only relevant if Enron first successfully carries its burden to show that it is entitled to an exemption.
It is premature to consider leave for the Joint Movants to introduce their proposed witnesses. Joint Movants' involvement in or knowledge of any improper activities of Enron is not germane to the limited issue whether Enron qualifies for exemption under Sections 3(a)(1), 3(a)(3), or 3(a)(5) of the Act. The potential effects to the independent energy industry and the public in the event Enron's applications are denied, should arise, if at all, only in connection with any Phase II hearing. Accordingly, the motion must be denied.
IT IS ORDERED that, the Joint Movants' motion to introduce witnesses, be and hereby is DENIED.
Roel C. Campos
Commissioner
| 1 | By Order dated October 7, 2002, the Securities and Exhange Commission ordered a hearing on Enron Corp.'s application for exemption from all provisions of the Public Utility Holding Company Act of 1935 (the "Act"), except for Section 9(a)(2). Holding Co. Act. Rel. No. 27574 (Oct. 7, 2002), 67 Fed. Reg. 63464. The October 7 Order contemplates a two-phase hearing: Phase I is for the limited purpose of determining whether Enron satisfies any of the particular criteria for an exemption under various sections of the Act. If a criterion for exemption is satisfied, Phase II will be for the purpose of determining whether granting an exemption to Enron would be detrimental to the public interest or the interest of investors or consumers. |
http://www.sec.gov/rules/other/35-27604.htm
| Home | Previous Page | Modified: 11/19/2002 |