ACS Wireless, Inc.; Notice of Application, 39345-39346 [2013-15658]

Agencies

• SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 78, Number 126 (Monday, July 1, 2013)]
[Notices]
[Pages 39345-39346]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15658]


=======================================================================
-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 30567; File No. 812-14066]


ACS Wireless, Inc.; Notice of Application

AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of application under section 3(b)(2) of the Investment 
Company Act of 1940 (``Act'').

-----------------------------------------------------------------------

    Summary of Application: ACS Wireless, Inc. (``ACS Wireless'') seeks 
an order under section 3(b)(2) of the Act declaring it to be primarily 
engaged in a business other than that of investing, reinvesting, 
owning, holding or trading in securities. ACS Wireless is primarily 
engaged in providing wireless communications services.
    Applicant: ACS Wireless, Inc.

DATES: Filing Dates: The application was filed on August 3, 2012, and 
amended on January 30, 2013, and June 24, 2013.
    Hearing or Notification of Hearing: An order granting the 
application will be issued unless the Commission orders a hearing. 
Interested persons may request a hearing by writing to the Commission's 
Secretary and serving applicant with a copy of the request, personally 
or by mail. Hearing requests should be received by the Commission by 
5:30 p.m. on July 18, 2013, and should be accompanied by proof of 
service on applicant, in the form of an affidavit or, for lawyers, a 
certificate of service. Hearing requests should state the nature of the 
writer's interest, the reason for the request, and the issues 
contested. Persons who wish to be notified of a hearing may request 
notification by writing to the Commission's Secretary.

ADDRESSES: Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange 
Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicant: 
600 Telephone Avenue, Anchorage, AK 99503-6091.

FOR FURTHER INFORMATION CONTACT: Deepak T. Pai, Senior Counsel, at 
(202) 551-6876, or Mary Kay Frech, Branch Chief, at (202) 551-6821 
(Division of Investment Management, Exemptive Applications Office).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained via the 
Commission's Web site by searching for the file number, or an applicant 
using the Company name box, at https://www.sec.gov/search/search.htm or 
by calling (202) 551-8090.
    Applicant's Representations:
    1. ACS Wireless, an Alaska corporation, was incorporated on July 
31, 1995 under the name MACTEL INC. Alaska Communications Systems 
Group, Inc. (``ACS Group''), an Anchorage, Alaska-based 
telecommunications company listed on the NASDAQ Stock Market, purchased 
MACTEL INC. in May 1999 and renamed it ACS Wireless, Inc. ACS Wireless 
has since operated as a wholly-owned subsidiary of ACS Group, held 
through ACS Group's wholly-owned subsidiary Alaska Communications 
Systems Holdings, Inc. (``ACS Holdings''). ACS Wireless states that it 
is an Alaska-based telecommunications company that is primarily engaged 
in providing wireless communications services and is not presently an 
investment company as defined in section 3(a) of the Act.
    2. On June 4, 2012, ACS Group, ACS Wireless, and General 
Communications, Inc. (``GCI'') and GCI Wireless Holdings, LLC (``GCI 
Wireless'') agreed to form a joint venture in which each would 
contribute substantially all the assets used in its wireless businesses 
(other than its retail wireless business) and certain related 
telecommunications transport assets to a newly formed limited liability 
company, The Alaska Wireless Network, LLC (``AWN'') (the 
``Transaction''). ACS Wireless will sell or license certain assets used 
primarily in ACS Group's wireless activities and its related data 
transport business to GCI for $100 million in cash. ACS Wireless will 
transfer to AWN all remaining tangible and intangible assets owned, 
leased or held by ACS Wireless or any of its affiliates used primarily 
in connection with the conduct of ACS Group's wireless activities 
(other than its retail wireless business) and its related data 
transport business. Upon completion of the Transaction, ACS Wireless 
will become a member of AWN, and AWN will be owned 66\2/3\% by GCI 
Wireless and 33\1/3\% by ACS Wireless. Under the terms of the 
Transaction, AWN will be primarily engaged in providing wholesale 
wireless communications services to its members. The Transaction 
agreements contemplate that the Transaction will close no later than 
the third quarter of 2013.
    3. Applicant submits that the Transaction will not change the 
fundamental nature of its business, which is providing wireless 
telecommunications services to consumers and businesses in Alaska. 
Under section 2(a)(9) of the Act, ACS Wireless will presumptively 
``control'' AWN because it will own more than 25% of the company's 
voting securities and will exercise a controlling influence over the 
management or policies of AWN through ACS Group's position on the board 
of directors and through certain contractual rights that prevent AWN 
from taking significant actions without the approval of ACS 
Wireless.\1\
---------------------------------------------------------------------------

    \1\ Section 2(a)(9) of the Act defines ``control'' as the power 
to exercise a controlling influence over the management or policies 
of a company, and creates a presumption that an owner of more than 
25% of the outstanding voting securities of a company controls the 
company.
---------------------------------------------------------------------------

    Applicant's Legal Analysis:
    1. Under section 3(a)(1)(C) of the Act, an issuer is an investment 
company if it is engaged or proposes to engage in the business of 
investing, reinvesting, owning, holding or trading in securities, and 
owns or proposes to acquire investment securities having a value in 
excess of 40% of the value of the issuer's total assets (exclusive of 
Government securities and cash items) on an unconsolidated basis. 
Section 3(a)(2) of the Act defines investment securities to include all 
securities except Government securities, securities issued by 
employees' securities companies, and securities issued by majority-
owned subsidiaries of the owner which are not investment companies and 
which are not excepted from the definition of investment company in 
section 3(c)(1) or 3(c)(7) of the Act.
    2. At present, ACS Wireless is not an investment company as defined 
in section 3(a) of the Act because none of its total assets (other than 
U.S. government securities and cash items) on an unconsolidated basis, 
as of December 31, 2012, consist of investment securities. ACS Wireless 
states that as a result of the Transaction, however, it will in effect 
have converted the majority of its existing assets into assets that may 
constitute an investment security in a controlled, but not primarily 
controlled, entity. The book value of ACS Wireless' interest in AWN is 
anticipated to constitute substantially more than 50% of its total 
unconsolidated assets, with the remaining portion consisting of its 
retail-related wireless assets as well as certain directly-owned 
assets. Applicant states that the assets to be contributed by ACS 
Wireless to AWN will cause the

[[Page 39346]]

total percentage of investment securities held by ACS Wireless to 
increase to approximately 93.8% of ACS Wireless' total assets on an 
unconsolidated basis. Thus, as a result of the Transaction, ACS 
Wireless may be considered an investment company within the meaning of 
section 3(a)(1)(C) of the Act.
    3. Section 3(b)(2) of the Act provides that, notwithstanding 
section 3(a)(1)(C), the Commission may issue an order declaring an 
issuer to be primarily engaged in a business other than that of 
investing, reinvesting, owning, holding or trading in securities either 
directly, through majority-owned subsidiaries, or controlled companies 
conducting similar types of businesses. ACS Wireless requests an order 
under section 3(b)(2) of the Act declaring that it is primarily engaged 
in a business other than that of investing, reinvesting, owning, 
holding or trading in securities.\2\
---------------------------------------------------------------------------

    \2\ ACS Group's counsel has advised ACS Group that neither it 
nor ACS Holdings should be deemed an investment company if the 
requested order is granted to ACS Wireless.
---------------------------------------------------------------------------

    4. In determining whether a company is ``primarily engaged'' in a 
non-investment company business under section 3(b)(2), the Commission 
considers: (a) the company's historical development, (b) its public 
representations of policy, (c) the activities of its officers and 
directors, (d) the nature of its present assets, and (e) the sources of 
its present income.\3\
---------------------------------------------------------------------------

    \3\ See Tonopah Mining Company of Nevada, 26 SEC 426, 427 
(1947).
---------------------------------------------------------------------------

    a. Historical Development. ACS Wireless states that it has been in 
the business of providing wireless telecommunications services since 
1995, including providing facilities-based voice and data services to 
individual and business customers throughout Alaska, with roaming 
coverage available in the lower 48 states, Hawaii and Canada.
    b. Public Representations of Policy. Applicant states that both ACS 
Wireless and its parent company, ACS Group, are part of a well-known 
communications company in Alaska and neither have ever portrayed 
themselves as anything other than a communications company. Through 
public statements, reports to shareholders, periodic filings with the 
Commission, public advertising and information contained on ACS Group's 
Web site, ACS Wireless and ACS Group have invariably represented that 
ACS Wireless is primarily engaged in the business of telecommunications 
services.
    c. Activities of Officers and Directors. ACS Wireless states that 
the board of directors (the ``Directors'') and executive officers (the 
``Officers'') of ACS Wireless are primarily engaged in managing ACS 
Wireless' cellular telephone business and that of its affiliates. The 
CFO and the Vice President of Finance of ACS Wireless spend less than 
10% and 5% of their time, respectively, managing cash and cash 
equivalents at the holding company level.\4\ Officers and Directors of 
ACS Wireless other than the CFO and the Vice President of Finance spend 
less than 5% of their time addressing such matters. Neither the 
Directors nor the Officers otherwise dedicate any time to investing, 
reinvesting, owning, holding or trading in investment securities.
---------------------------------------------------------------------------

    \4\ Treasury functions related to the assets of ACS Wireless 
including the managing and holding of cash and cash equivalents are 
performed at the holding company level by ACS Holdings.
---------------------------------------------------------------------------

    d. Nature of Assets. Applicant states that, as of December 31, 
2012, ACS Wireless' directly-owned assets included: (i) $20.7 million 
of current assets including cash, accounts receivable, material, 
supplies, prepayment and other current assets (``Current Assets''), and 
(ii) $74.2 million of property and plant and equipment (``PP&E'').\5\ 
Applicant states that many of the assets categorized as Current Assets 
will remain with ACS Wireless after the Transaction and will not be 
contributed to AWN, as they are primarily related to ACS Wireless' 
retail wireless business. Certain receivables, PP&E, and certain 
Contributed Affiliate Assets \6\ will be contributed to AWN. Applicant 
represents that following the Transaction, a majority of ACS Wireless' 
assets will be comprised of its interest in AWN, which will be a 
controlled company engaged in the wireless communications industry. 
Applicant states that, on a pro forma basis post-Transaction, its 
assets will consist of approximately 6.2% of directly-owned assets and 
approximately 93.8% of controlled company assets on an unconsolidated 
basis.\7\
---------------------------------------------------------------------------

    \5\ PP&E includes cell towers, leases, electronic equipment, and 
other similar assets.
    \6\ ACS Group will cause certain of its other subsidiaries to 
transfer wireless spectrum licenses and certain network usage rights 
assets to ACS Wireless immediately prior to the Transaction 
(collectively ``Contributed Affiliate Assets'').
    \7\ Applicant states that the valuations have been determined in 
accordance with section 2(a)(41) of the Act.
---------------------------------------------------------------------------

    e. Sources of Income. ACS Wireless states that it derives all of 
its income from its wireless businesses. For accounting purposes ACS 
Wireless is not a separate financial reporting segment of ACS Group and 
therefore ACS Group does not track ACS Wireless' expenses separately, 
although it does track ACS Wireless' revenue for business purposes. As 
noted in the application, all of ACS Wireless' revenue, as of December 
31, 2012, is attributable to the directly-owned assets of its wireless 
telecommunications business. Dividends, interest and gains, and losses 
on sales of securities currently constitute no portion of the ACS 
Wireless' revenue. Applicant states that post-Transaction, on a pro 
forma basis, for the twelve months ended December 31, 2012, its revenue 
was $160,721,000 of which 51.6% would be attributable to directly-owned 
assets and 48.4% would be attributable to controlled companies.\8\ 
Applicant also states that it will receive distributions from AWN 
following the Transaction which will include a preferred distribution 
for the first four years, intended to present a stable cash flow to ACS 
Wireless, and thereafter will be one-third of AWN's distributions. 
Distributions from AWN and revenue from operations conducted directly 
by ACS Wireless are anticipated to be ACS Wireless' only sources of 
revenue following the Transaction.
---------------------------------------------------------------------------

    \8\ Applicant states that this figure represents revenue related 
to assets to be contributed by ACS Wireless to AWN. This figure does 
not include revenue related to assets to be contributed to AWN by 
GCI, as that revenue information is not yet available. Thus, this 
revenue figure also does not represent the ultimate revenue ACS 
Wireless will record, which will be applicant's one-third share of 
AWN's combined net income.
---------------------------------------------------------------------------

    5. ACS Wireless thus states that it meets the factors that the 
Commission considers in determining whether an issuer is primarily 
engaged in a business other than that of investing, reinvesting, 
owning, holding or trading in securities.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Kevin M O'Neill,
Deputy Secretary.
[FR Doc. 2013-15658 Filed 6-28-13; 8:45 am]
BILLING CODE 8011-01-P