*1 the five counts of motion to dismiss Turpin’s This report is affirmed.
filing a fraudulent instructions dismiss remanded with
case is all three defen- bribery against counts lobbying against
dants, count the unlawful
Wurster, perjury count and to transfer County. Turpin to
against Hendricks DICKSON,
SHEPARD, C.J., and SELBY, JJ., concur.
SULLIVAN BELL TELEPHONE
INDIANA COMPA
NY, Ameritech INCORPORATED d/b/a Corporation;
Indiana; Inc., Appellants Communications
SBC below),
(Respondents
INDIANA UTILITY REGULATORY
COMMISSION; Office Con Counselor; AT&T Communica
sumer Inc.; Indiana, Consolidated
tions
City Indianapolis and Marion Coun Indiana;
ty, Cable Telecom Inc.; Time Warner Com
munications Inc.; Indiana, Sprint
munications L.P., Company
Communications Indiana, Telephone Company of
United Sprint; Payphone
Inc. d/b/a
Association; II, Inc.; Telecom KMC America,
Communications Workers
Inc.; Action Coalition Citizens Inc.; American Association of Inc.; Persons, and United Sen
Retired Inc., Appellees Action of
ior
(Statutory Be Parties and Intervenors
low).
No. 93S02-9906-EX-350.
Supreme Indiana. Court of
July 1999. *2 Stemen, Morton, E. Stanley
Sue Teresa E. Fickle, McGill, C. Daniel W. Peter J. Rustho- ven, Indiana, Indianapolis, Attorneys Ap- for pellant Ameritech Indiana. Mancini, Joseph Jr.,
Paul K. Cosgrove, E. Antonio, Texas, Randolph Seger, San L. Scott, Indiana, Indianapolis, Robert B. Communications, Appellant SBC Inc. Pashos, Plainfield, Kay Indiana, E. Robert Heidorn, Bryan Tabler, Indianapolis, G. Indiana, Hatton, Merrillville, Peter L. Indiana, George Porch, Evansville, A. Indiana, Cinergy Corp., for Amici Curiae Inc., Energy, Ipalco Enterprises, Inc., Nisourees, Inc., Sigcorp, Inc. Modisett, telephone owns Attorney access lines. Ameritech also Jeffrey A. General Chinn, telephone companies Michigan, operating Geoffrey Slaughter, A. Scott General, Wisconsin, Attorneys and Ohio. If the transac- Lott, Deputy Illinois Cindy M. proposed, is consummated as for Indiana tion Indianapolis, *3 wholly Bell will continue to be owned Regulatory Commission. Ameritech, wholly- but Ameritech will abe Becker, Beall, L. Robert M. E. Keith Anne subsidiary owned The form of the SBC. Seat, Krohn, Glennon, H. Timothy M. Karol proposed merger transaction is a of Ameri- Indiana, Utility Indianapolis, for Office newly wholly-owned tech with a formed sub- Counselor. Consumer sidiary whereby share- SBC Ameritech Indiana, Mullett, Indianapolis, A. Michael exchange would their shares for holders Persons, American Association Retired for shares SBC. Indiana, Inc., Citizens Action Coalition 2, 1998, September Utility the Indiana On Indiana, Inc., Inc. Action United Senior Commission, motion, Regulatory on its own Richardson, Jr., Wickes, F. Todd A. John investigation proposed opened an the Indiana, Indianapolis, for Amicus Curiae investigation transaction. The Commission’s Consumers, Energy Inc. Indiana Industrial hearing included on December 1 & (to- SBC, where Ameritech and Indiana Bell ON EMERGENCY PETITION responded gether “appellants”) the to the TRANSFER TO presented and wit- questions Commission’s BOEHM, Justice. hearing, At of the nesses. the close parties address the Commission asked the jurisdiction ease with the This deals approve of the Utility un- Regulatory Commission 8-l-2-83(a). § merger under Indiana Code 8-l-2-83(a). § sec- Indiana Code This der intervenors filed briefs with Several sharply language uses that contrasts tion jurisdictional addressing is- states. counterparts some other with consumers, sue. These included industrial public utility, defined provides “no It potential competi- customers and current and sell, assign, chapter, 1 of in section this shall tors. franchise, transfer, lease or encumber its works, system approval ... without 5, 1999, May the Commission found On sec- on the commission.” Based 83(a) required that section the Commission 83(a), history and of that section tion merger “a proposed to review the because legislation, and the and this Court’s similar fifty percent at least transaction which existing interpretations of sold, capital voting stock is section, we hold that section does transferred, necessarily etc. constitutes transac- confer Commission transfer, sale, public utility’s fran- etc. of outstanding in the of a tions securities chise, works, system.” appellants parent. utility or its with appeal a notice of the Court filed granted their subse- Appeals. This Court Background Factual and Procedural Ap- petition pursuant quent transfer Corporation and SBC Commu- 4(A)(9) expedited set pellate Rule and nications, Inc., “Baby Bells” two of the briefing schedule.1 breakup of in 1984. AT&T created 11,1998, of the dispute There is no that the effect May they announced their intent On be con- corporate parent proposed will to transfer merge. Ameritech is the Ameritech, its cur- Indiana Bell from of Indiana Bell Tele- trol of company and Inc., equally undisput- ap- parent, to It is Company, operates which rent SBC. phone nothing effect exchange Bell will do Indiana’s ed that Indiana proximately 65% of local Persons, Inc., Commission, Citizens Action Coalition interve- 1. In addition to the several Inc., proceedings before the United Senior Action nors and including "intervenors”) Counsel- the Office of Consumer (together filed Inc. (the Counselor), filed briefs in this Court. or addition, joint brief. of Retired American Association ownership pre- below, the transaction. Its explained For the reasons we con- —more cisely change, legislature indirect clude that has made the —will regulated utility rely choice to ongoing but it will remain the same on the Commission’s today powers regulate directly that exists with the same utilities and assets liabilities, expressly give refused to suppliers, customers the Commission the same jurisdiction it claims over corporate capi- transactions the same structure and shareholder issue, level. terms, simple talization. The 83(a) requires whether section the Commis- Standard of Review sion’s for a transfer of control of a The Commission’s under public utility operating if the assets 8-l-2-83(a) § legal ques Code is a company this case Indiana Bell—remain *4 —in tion this Court de reviews novo. See Public operating company only things the and the Service City Comm’n Indiana v. India of of outstanding transferred are the shares of the 70, 82-83, napolis, 308, 235 Ind. 131 N.E.2d operating company.2 (1956). 312-13 Appellants point out that the Commission continuing power over Indiana Bell’s I. Jurisdiction over Transfers
rates, levels, etc., regardless service of who by a Shareholder They arg-ue owns it. that language the dispute There is no that the Com 83(a) legislative section reflects a choice not jurisdiction mission’s is defined statute regulate to transactions at the shareholder 83(a) only and that section is the basis for legislative level and a determination that the jurisdiction approve, Commission disap to or jurisdiction ongoing of the Commission is prove this transaction.3 protect public. sufficient propo- The nents of Commission respond Language A. The the Statute proposed that the transaction is the function- equivalent al of a transfer of all of Indiana step first and often the last Bell’s subject assets to SBC and should be any interpret piece legislation effort to a is approval. They Commission contend that a to examine of the statute. See shift in beneficial at the share- Collier, (Ind. 351, Collier v. 702 N.E.2d 354 holder level should be trigger sufficient to 1998); Dep’t State Revenue v. requirement prior approval pre- (1994) 870, Bancorp, Horizon 644 N.E.2d 872 vent falling from into the hands of utilities (“nothing may be read into a statute which is potential adequate owners who are threats to not within the legis manifest intention of the They argue service. ongoing further that lature” as plain ascertained from “the jurisdiction over Indiana Bell’s affairs is a meaning” obvious of the words of the stat power less effective tool disap- than the ute); see also In re Northwestern Indiana prove altogether Co., in carrying- 667, 676, 65, Tel. 201 Ind. 171 N.E. 68 (1930) (the out the pro- Commission’s mission to assure Commission must “determine the tection of question customers’ interests. of its by giving ... [the 2. exchange This transaction (quoting Chicago involves an of Amer- & E.I.R. v. Co. Public Serv. itech stock for shares Indiana, in SBC. As a result the 592, 594, Comm’n 221 Ind. 49 exchanged parent shares operating company, are shares of a of the 341, (1943)). N.E.2d Notwithstanding 341 operating company not the purpose public "to insure provide utilities itself. This purposes makes no difference for constant, reliable, and efficient service to [their] statutory analysis simplicity and we refer for customers, state,” the citizens of this Office of operating company. transfers shares of the Utility Consumer Counselor Public Serv. Co. of Indiana, Inc., (Ind.Ct.App. 463 N.E.2d 503 Commission, 3. The agency, as an administrative 1984), recognizes juris Commission itself power authority solely "derives its from dictional limits: "this statute, only Commission ... has grant power and unless a and authori specifically delegated by such as is ty can be found in the statute it must be conclud Co., Light statute.” In re ed Madison there is none.” & Power General Tel. Co. of (PUR) 517, (IPSC Rep. Inc. v. 1924C 1924). Public Serv. Comm’n Pub. Util. of 373 646, 651, (1958) 238 Ind. N.E.2d ‘practical Although con- nies. the Commission this ease as a is known statutes] what ”). expressly expressing from refrained a view struction’ question of whether on Ameritech was only prohibits ac- this section its face On “public utility,” holding itself such would “trans- utility” that effect a “public tions very potential significant consequences. have works, “franchise, etc., fer” 83(a) have been Section itself would violated syntax, appellants this system.” Given acquisitions by well-publicized several oth- apply to does not contend that section proceeded companies that have er public outstanding of a transfers approval, quite some re- without First, appellants for two reasons. cently. The sale securities if is argue even requires approval under affected, required approval 79. Securities issued without section utility,” a defined only “public if which is according “void” term, something. Sec- proposes to transfer 83(d). ond, they the transaction does contend that “franchise, system” works not transfer many If and the other remain, utility, as of which all companies owning Indiana utilities are them- If, here, before, pro- in Indiana Bell. utilities, very number selves vast *5 effect transfer posed transaction would public violations of sections have been these linguistic points utility, two the entire these years committed over the in full view of the Because two coin. are sides the same Commission, the courts and the General As- “franchise, works, sys- or sembly. deafening The silence that attended utility utility, if the of a rests tem” only these events can confirm common by the literally, read it takes action statute is companies understanding that transfer them. by public utilities as defined not themselves they subject be to a statute. Whether should Utility” 1. Who is a “Public degree regulation an- higher is of course by utility” defined statute “Public is matter, it is consideration other but for own, operate, manage, may “that entity as an Assembly, not this Court or the the General any plant equipment within or control Commission. (1998). ap § The state.” Ind.Code 8-1-2-1 Presumably recognizing practical this pellants argue that the shareholders finding public in to be problem Ameritech a company fall utility’s holding do not public utility, expressly reserved writing If we defined were within this term. point on the but found its view slate, in this inclusion of “control” on clean undisputed based on in fairly interpreted to might be definition proposed transaction would shift fact that the anyone utility” among “public who clude from Bell Ameri- control to SBC by ownership of public utility control of a view, problem this which tech. One with very voting A sizeable stock or otherwise. certainly policy, in is enjoys support some body points in other di precedent support As a does not it. that statute however, finding holding compa rection and grammar, prohibition of section matter of major public would effect a nies be utilities 83(a) utilities, anyone operates not on relatively change in doctrine. settled below, we explained For the reasons else. legislative difference between The says, section means what it conclude that the judicial or administrative resolution and no more. changed If the law is the issue is enormous. statute, with prospectively it will be done “Franchise, Works, or 2. What past the other no effect on transactions. On System” aof hand, principled deci difficult to see it is statutory equally public utility hurdle is second finding to be sion A 83(a) point out appellants The insurmountable. purposes of that would section 83(a) requires transac array because section question past trans call into also “franchise, compa- involving a tion many it and actions other works, system,” outstanding argue The a transfer of intervenors that sub-sec (a) shares in a does not fall within of stock tion must be read to include transactions (b) jurisdiction. ago years (d), in Six stock because subsections ex 83(a) in agreed
we this view of section plicitly public utility, with relate to stock of a materia, Utility Consumer Pub- pari Counselor the section should be read Office of Inc., Company i.e., accomplish general lic Service goal. the same (Ind.1993). Although generally N.E.2d still agree We do. we that statutes together, construed must be we draw the argue The and the Counselor opposite conclusion. The fact that the other distinguishable that this case is from PSI’s explicitly they apply subsections state holding company creation of a because con- stock of demonstrates that the trol of Bell from Ameritech will shift Assembly say General how to knows They correctly SBC. observe that PSI when it means stock. The of this newly transaction included creation of section reinforces the leg conclusion that the holding company formed in which the share- islature made a conscious choice to exclude exchanged operating company holders of the transactions stock from the Commission’s holding compa- their shares for shares of the 83(a) jurisdiction. so, If reversing ny. After this transaction the share- same legislature choice is for the as a funda holders, directors, the same board of and the separation powers mental matter of among management same were in government. the three branches of our state utility. way saying, This is another terms, statutory that there “sale” or was no Legislative History B. The the Act proposed other “transfer.” The Ameritech- SBC transaction differs from PSI history of section confirms that respect, ruling rationale of but the our PSI specific legisla- it embodies choice *6 did not turn on absence of a “transfer.” require approval ture not to of shareholder Rather, object we that the held of the trans- Indeed, Assembly transactions. the General “franchise, works, system” fer was not the or repeatedly made the conscious decision public utility. Indeed, of a specifically we holding not to include companies the defi- something being observed that was trans- “public utility.” nition of The statute has ferred, require but the transfer did not Com- been on the books since 1913. At the it time approval: contemplated mission “[t]he ex- passed ensuing was and in the troubled dec- change holding company stock does not ades, frequent regulate calls were made to sale, assignment, transfer, involve a lease or public utility holding companies in this state works, franchise, encumbrance of PSI’s or 1925, and In elsewhere. Branch Governor system, all of which PSI will continue to own. opening addressed session the General Only being shares PSI stock are trans- Assembly urged and legislation to declare all ferred.” Id. at 1364. holding companies public give utilities and investigatory power over argues The Commission that this Court’s holding companies to out the “find true sta- statement of issue in PSI as “whether tus of affairs and fix proper a valuation for exchange the stock between and PSI purpose making a rate.” 1925 JOUR- holding company constitutes a transfer of 8, Jan. NAL of the State Senate control,” 1363, supports id. at its view 1925, session, p. 11-12. In the 1925 a bill hinges “change on a in control.” was introduced to amend definition of However, holding case, clearly of the public utility in provide: 1 section to statute, based on the of the is that public utility’s per transactions a shareholders fifty whenever more than cent of the require do not approval. Ac- any public utility common stock of corpora- PSI, cordingly, revisited, held, it unless is to be by any tion is owned controlled or governs pre- corporation any the resolution of this holding case and other or com- jurisdiction. cludes pany individuals, believe or We association of then then, correctly corporation, the case holding company was decided such other reaffirm it. or association of individuals shall be
357 “reorganization” of a which utility and shall be is de- public a deemed to be resulting this act. include a transaction subject provisions of fined to to all the change any in “the or (Ind. 18, Assembly Bill 74th General Senate entity majority a which owns controls 1925). postpone to voted indefi- The Senate voting capital public utility”); a no nitely apparently took other this bill and (“no (1991) § per- 4905.402 Ohio Rev.Code it. action on 1925 the State Jouenal control, acquire directly or son shall indirect- at 178-79. Similar bills of Indiana Senate ly, telephone company a of a domestic 1931 in the 1929 and ses- were introduced holding company controlling a domestic tele- sions, 1929 failed. but See Journal phone company” prior without commission RepResentatives of Indiana House of State approval). As a result both Ohio Illinois 448-449; at 1931 Journal the State approve have to this transaction 121, 621-22. Indiana Senate of today. electing Indiana is not alone company was holding Abuse of structures us, approach. Appellants tell different rampant and thirties4 and twenties disputes, no that neither nor one Wisconsin subject steps ultimately Indiana took to hold- power. Michigan asserts that regulatory scheme. In ing companies to its 1933, give the Act was Com- amended Finally, regulate Indiana has chosen investigate power mission companies regulated other indus- (those more own 10% or affiliates who how to tries and knows write statute stock). utility’s voting capital See Acts of See, accomplish goal. that if it desired ch. Assembly, Indiana General (1998) §§ -19 e.g., 28-2-14-1 to Ind.Code (now § § 8-1-2- at Ind.Code codified (bank §§ holding companies) Id. 27-1-23- & (1998)). light In of the three failed at- (insurance holding companies). 1 to -13 preceding years to tempts in six include companies in the definition of Interpretation D. Commission utility, must this addition be viewed as companies compromise brought holding Beginning the Commis at least scrutiny under limited of the Commission did not sion held confer information, access affiliate but providing entity subject them to all go did not so far as holding compa “not but is a that is utility. imposed requirements Co., on a ny.” Light In re Madison & Power *7 short, appellants that agree (PUR) (IPSC section 517, we with Rep. Pub. 519 1924C Util. legislative choice to 49 “reflects a continued 1924) (no jurisdiction holding company indirect, direct, regulation of use rather than stock); re capital see In sale of also Otter holding companies.” Co., (PUR) Rep. 1925A Pub. Util. bein Tel. (IPSC 1924). 1990, recently 189, 191 As Comparison Legislation with other
C. jurisdic had no held that it Commission 83(a) approve to a transfer Assembly to tion under section If had elected the General by public utility’s of stock a shareholder. utility companies, regulate public am- alone legislation was “We conclude that ple model available place within Utility Holding [a shareholder] Public sufficient form of Federal addition, public utility regulation.” In re of Company ambit Act of 1935.5 some 38827, Corp., 1990 public Utility No. holding companies as utili- Dalecarlia states treat (IURC 11, Apr. 114 at *4 approval explicitly require trans- Ind. PUC LEXIS ties or See, 1990) argument utility. (rejecting the Counselor’s in a controlling fer of a interest shareholders, Comp. (West utility di public includes e.g., § III. Stat. 220 5/7-204 utilities); 1993) (statute public approval managers of all requires rectors commission slaugh- prevent financial the recurrence such generally 4. F. See Integration Ritchie, Robert (1954) (de- 2). ter," Companies 1-15 id. Holding Public utility holding scribing collapse of companies Insull oth- assembled Samuel (1994 Supp. §§ & to 79z-6 III 5. 15 U.S.C. 79a upon "impressed ers "debacle" that as a 1997). regulation the need for some sort of 358 subject legislature
see with a also In re MidAmerica Communications left unad- 39187, Corp., 1991 No. Ind. PUC LEXIS 196 dressed. This is no obscure backwater of the (“Mere (IURC 1991) 12, at *2 owner June law. The debate over how much and how to utility ship in the stock of a does not interest regulate public their holding utilities and corporation transform an individual or from companies been a page has matter front public utility”). an investor into concern for decades. The conclusion is ines- capable legislature Indiana’s has re- points to several re The Counselor issue, open solved this and not left it to court ap cent eases where the Commission has interpretation. administrative Under proved involving compa transactions circumstances, these neither the Commission case, nies. In each and its nor legislate this Court is free to its own parent voluntarily holding company sought policy. question approval litigat nor was neither contested Legislative E. Silence See, parties ed to the transaction. 40099, e.g., In Corp., re Tel. No. Rochester long “A adhered administra (IURC 8, 1995 Ind. PUC LEXIS 40 Feb. interpretation dating legislative tive from 1995); 40205, Corp., In re Frontier No. 1995 enactment, subsequent change with no hav (IURC 1995). Ind., July 12, 1995 WL ing involved, been made the statute raises may holding compa Parties seek presumption legislative acquiescence ny transactions from the Commission for a strongly persuasive upon which is reasons, variety voluntary but their sub courts.” Oil Meyer, Shell Co. v. 705 N.E.2d bearing mission has no on the (Ind.1998) (quoting Board Sch. scope statutory jurisdic of the Commission’s Ass’n, Trustees v. Marion Teachers tion. N.E.2d 311 (Ind.Ct.App.1988)). The legislative acknowledges doctrine acquiescence that it has is less 83(a) long interpreted preclude legisla section relevant where the issue is one the addressed, over transactions ture sharehold- rather than need to fill companies. argues ers or holding gap It interpret ambigui the statute or change interpretation ty. Nonetheless, in this case is re- we if assume that the Gen quired in “shipwrecking jus- order avoid eral Assembly were dissatisfied with the light tice” “the modern reality economic long-standing interpretation that holding-company ... transactions are PSI, or this Court’s decision jour by the method du which control of it would have amended the Act to include utilities is transferred.” Public hold- holding companies in “public the definition of ing companies hardly phenomenon. a new utility,” regulate or to transactions in control If regulatory feels regardless parties to the potentially efforts are frustrated the ina- can, course, pursue transaction. It still *8 bility disapprove transactions, to shareholder that course. by changes either of the economy reason in The argues Commission appel- that the changes or regulation, in the desired level rely legislative acquiescence lants on cannot Assembly. it must turn to the General showing without a of reliance. See Citizens The Commission and others also ar Action v. Coalition Indiana Northern gue by Co., that the Commission is not bound its Indiana Pub. Serv. 485 N.E.2d (Ind.1985) (“the prior rulings, and should be free to correct legislative acqui- doctrine of past respond develop errors and new estoppel to escence designed is an doctrine agree general proposi ments. We with protect that rely long who standing those on a tion, application but no it to this interpretation”). has case. administrative Even if the rulings appellants Commission are relevant here not as in this case are not able to show binding precedent, but they as confirmation of a that detrimentally have relied on the legislative clear choice. not dealing previous interpretation,6 We are agreed 6. The complete investigation has approval promptly its and decide on However, subjects this of the asset at all. the that “lease” holding from this Court clearly question would in involved a transaction to Commission “selling, trans- significant implications public utility assigning, transferring, for other have existing encumbering” on law. leasing, have relied its own Ac- actions that or assets. noted, holding And, already bearing the that cordingly, opinion view the no on a have dra- public utilities would companies are of the transfer shareholders utili- mul- Ameritech and a consequences Finally, if it ty’s holding company. matic did even their corporations and share- of other speak utility, titude of control to the transfer holders. Appeals’ Cable is a Court of Illinois-Indiana opinion superseded more opin- recent
F. Other Authorities ion of this Court PSI. approach to support its “functional” In PSI, points, as The also it did Counselor jurisdiction, points to the the Commission Energy Regulatory to the Federal Commis Appeals’ decision Illinois- Court holding in In re sion’s Central Vermont Pub Inc. Cable Television Association jurisdic it Corporation, lic Service that had Indiana, 427 Service Commission Public company tion over creation (Ind.Ct.App.1981). In Illinois- N.E.2d 1100 utility’s capital under sale of stock Cable, held Appeals the Court of Power Act. 84 Federal PUR4th did have (F.E.R.C.1987). In we disa WL 257899 PSI set rates for cable under ruling, applied greed at least as it with that existing tele- pole attachments to television The statute. We still do. FPA to Indiana’s went phone The court and electric facilities. sell, utility provides: “No shall lease explain that the utilities’ “incidental on to its dispose of the whole of facili or otherwise its not authorize Com- property did lease” having ties ... without first secured order jurisdiction. This was a mission authorizing do of the it to so.” by hanging telephone poles on a few cables (1994 1997). 824(b) § III Supp. & 16 U.S.C. assets there was no “lease” of essential that: FERC reasoned was utility presumably also that what [although of the the current stockholders “franchise, works or surrendered was not the holding- will own system.” point all the addresses at Neither reorganization is company after the com- or must be transferror issue who they longer proprie- pleted will no have a voting could whether over, tary in, interest or direct control “franchise, works, system.” or constitute jurisdictional facilities. substance of opinion, course Court therefore, transaction, “disposi- is approval is Appeals stated that “Commission the transfer of all tion” of facilities via gained may operated be be before direct control. any person other than controlled permitted do Because FERC was constru- person who is Id. 215-16. licensed ing to section argues that is not identical so.” Id. at 1108. The Commission statute 83(a), finding distinguishable on that supports its its decision this statement there ground importantly, More a transaction alone. in this case over reasoning Ver- “change in a We difficulties Central that will result control.” sug- it, of mont that undermine the Counselor’s disagree. On the facts before Court “change in gestion follow FERC’s quite properly that section that we Appeals held *9 jurisdiction. analysis to jurisdiction the control” determine did confer where not the will part view that shareholders lose utility of FERC’s leases “divisible jurisdictional facili- at control over the was directed the level “direct works.” “Control” di- being suggests that the stockholders had authority utility’s assets ties” of over the of formation the was rect control before the to determine whether there transferred proposed structuring as is beyond time their their transaction delaying avoid the transaction governmental approval. required point to secure other is in view of reliance. The moot sufficient disapproved, were If the transaction holding today. our powerful argument that SBC have a and would fundamentally SHEPARD, C.J., holding company. This is a opinion. dissents with illogical point. and The officers directors of SULLIVAN, J., participating. not utility over had direct control the assets just they of had after the SHEPARD, Justice, dissenting. Chief holding company was created. And the years ago, Six Justice DeBruler outlined ability to shareholders had the vote the di- legal 83; analysis of his section he concluded rectors out before and after creation of buying selling utilities within holding company. Whether one views Utility Regula of the Indiana shareholders, di- the officers tory Utility Commission. Consum Office of “control,” change any rectors as in no in er Company Counselor v. Public Semice holding these is effected the creation of a Inc., (Ind. 608 N.E.2d Accordingly, per- company. we do not find 1993) (DeBruler, J., dissenting). analysis suasive FERC’s its thought then, I DeBruler right Justice was applied under the FPA as to this Court’s I today. and adhere those views I would 83(a). interpretation of section asserting affirm the order of the Commission sum, 83(a), jurisdiction. long-standing interpretation Commission’s find I some modest solace the acknowl- preclude and this Court’s in PSI my edgement colleagues policy arguments favoring supervision of business by public utility’s holding company. today combinations such as the one before us Policy II. Public “compelling.” Slip. opin. at 19. As a The others make several people, state of six million ais sub- compelling policy arguments, all of boil which Still, enterprise. stantial economic can- we pre-merger investiga- down to the need for hope to thrive in global the modern econ- tion pro- the Commission to omy unless our state acts with force and tect the As consumers Indiana. the Coun- foresight every opportunity. In the field puts selor it: banking, Indiana missed the chance be [bjecause potential largely Ohio and abuse became branch office. now companies, ratepay- dissipating long- We seem at risk of our require standing
ers and deserve the advantage Commission’s national the insurance ability investigate industry. appropri- department and where The executive has de- ate, authority protect ground exercise its cided to cus- stand the field of proposed mergers when regret judi- tomers telecommunications. I between that the public utility holding companies ciary slip away. would re- let it regu- sult transfer control over their public utility
lated Indiana subsidiaries. may
It well be that it is more efficient or protecting
effective in the interests citizens our state for the Commission to CORPORATION; GTE Bell Atlantic Cor- power disapprove have a shift poration; Inc.; North, GTE Contel of a utility, regu- simply power rather than South, Inc.; GTE Communications late the after its is trans- Corp.; Telecommunications, and GTE However, arguments ferred. those are for Appellants (Respondents Below), Inc. Assembly, the General not this Court or the Commission. INDIANA UTILITY REGULATORY Conclusion COMMISSION; Office of Con- order is vacated for lack Counselor; sumer AT&T Communica- jurisdiction. Inc.; tions Time Warner *10 Inc.;
Communications SELBY, JJ„ Sprint L.P.; DICKSON and concur. Company, Communications