270 Peachtree Street, NW.
Atlanta, Georgia 30303
"Energy to Serve Your World"
May 23, 2002
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Attention: Mr. Jonathan G. Katz, Secretary
|Re:||File No. S7-08-02 - Acceleration of Periodic Report Filing Dates and Disclosure |
Concerning Website Access to Reports
Dear Mr. Katz:
The Southern Company ("Southern"), a public utility holding company system headquartered in Atlanta, Georgia, is pleased to have this opportunity to comment on the Commission's proposal relating to the acceleration of periodic report filing dates and disclosure concerning website access to reports. Southern has within its holding company system a number of subsidiaries, five of which are also individual filers of periodic reports on Forms 10-K, 10-Q and 8-K.
In summary, we share the Commission's view that there is room for improvement in the current filing structure of periodic reporting in corporate America; however, we disagree on the manner in which the Commission has proposed to solve these difficulties. In our opinion, drastically reducing the time frames in which periodic reports, particularly the Form 10-Q, are required to be filed will significantly reduce the quality of the reports. Instead, we believe that the primary focus of any change should be on the earnings release process itself as opposed to the acceleration of filing of the periodic reports. Also, while we support the Commission's encouragement of access to Commission filings on company websites, we believe that posting Commission filings on the exact date of their filing is impractical at the present time.
The Earnings Release Process -
We believe that the absence of a standard methodology with respect to the information contained in earnings releases contributes significantly to the lack of understanding of companies and to the so-called information gap that currently exists. With no specific reporting criteria, a company must decide what should be emphasized in its earnings release and what later will be contained in its detailed periodic reports. The Commission attempted to address this problem in the "Aircraft Carrier" proposal a few years ago. Specifically, at that time, the Commission sought comments on a proposal to ensure uniform and even disclosure by requiring reporting companies to report selected financial data on Form 8-K within a set time period. If a similar, detailed proposal requiring significant disclosures could be considered, we believe that some of the inconsistencies in the quantity and quality of financial information that presently exists in the reporting community could be avoided. Indeed, many investors, analysts and stockholders are not only seeking information on companies, they are seeking additional ways in which to measure companies on a comparative basis. While a requirement to provide additional financial information in a Form 8-K could have the effect of delaying earnings releases, perhaps this would be a positive development since the information would be of a higher quality. We also feel that a more detailed and standard type of earnings release could have the effect of removing the pressure of accelerated filings and would provide companies with enough time in order to ensure the quality of their financial data.
Acceleration of Quarterly and Annual Report Due Dates -
Certainly, we share the Commission's view that periodic reports contain valuable information for investors and other interested persons; however, we feel that collapsing the filing time frame by one-third will significantly affect the quality of the reports. Specifically addressing the Form 10-K, we feel that some shortening of the present 90-day requirement could be realized without undue burden on manpower, costs and quality of reporting. If acceleration of the Form 10-K filing deadline is necessary, we believe a more realistic approach would be to phase in a 75-day requirement over a three-year period (e.g., 85 days the first year, 80 days the second year and 75 days the third year) to allow time to adjust to the new requirements.
In Southern's view, the proposed 30-day requirement for filing of the Form 10-Q is a much more significant undertaking. Southern normally releases its earnings approximately three weeks after the end of the quarter. The Commission states that its understanding is that a company's audit (or review) is complete or substantially complete by the time the company issues its earnings announcement. While this timing scenario may be the case for some companies, completion of an audit or review by the earnings release date is certainly not required nor the rule for all companies. Whether an audit or review has been completed, it is the goal of all companies to ensure that their internal controls are strong enough to provide a high level of accuracy in an earnings release and thus avoid later restatements upon the filing of the corresponding periodic report. However, in general, an earnings release contains only the highest level of income statement information. In most cases, the other basic financial statements, including the balance sheet and cash flow statement, have not yet been prepared, nor have any substantive footnote disclosures or management's discussion and analysis. Substantiating the accuracy of these additional components of the periodic filings requires additional time for preparation, internal review (at both consolidated and subsidiary levels), external audit review and audit committee review. With the ever expanding disclosure requirements, including the Commission's own release earlier this year related to Management's Discussion and Analysis, we believe that shortening the time allowed to prepare such information would jeopardize, rather than improve, its reliability and accuracy.
Definitive Proxy or Information Statements - Shortening of Deadlines -
A company's annual meeting date is often set in its bylaws. For example, a company registered in the state of Delaware cannot set its record date more than 60 days before the meeting date (Delaware General Corporation Law Section 213(a)). Therefore Southern cannot determine to whom we would mail our proxy statement more than 60 days before the meeting date. Typically, a company does not file a definitive proxy statement until the mail date. (Rule 14a-6(b)). Also, the proxy rules require that we state the number of shares outstanding and entitled to vote, but we cannot know that number until after the close of business on the record date. Therefore, we cannot begin printing the proxy statement until after the record date. (Item 6 of Schedule 14A).
For companies with annual meeting dates scheduled later than early May, it would be difficult, if not impossible, to meet an accelerated proxy/information statement filing date. Companies would be required to change their meeting dates, which may require bylaw changes in many cases. Southern typically files its proxy statement within approximately 105 days of year-end, but it would be nearly impossible to file by March 31 with all other things remaining unchanged.
Website Access to Information -
The Southern system has been proactive for years in seeking to bring about an electronic filing system as evidenced by the fact that we were members of the original EDGAR pilot program in early 1980's. We continue to be sensitive to enhancing our website in order to ensure that it is responsive to the needs of our interested shareholders and investors. Presently, we include our Forms 10-K and 10-Q, as well as proxy and other investor relations-type information, on our website; however, this is typically completed several days following Commission filings. While some companies choose to have an outside entity (such as a financial printer) prepare their required filings, we Edgarize and submit filings directly with the Commission. Therefore, a requirement to have these reports available on our website on the same day as our filing would present an undue burden on our personnel. If we were to choose to have an outside filing agent process our filings, it would increase our costs by approximately $15,000 to $20,000 per year. When software allowing easier conversion to web-based formats for filing with the Commission becomes a more reasonable filing option, having documentation available on our website on the same day will be a much simpler undertaking. While we believe requiring same day posting to a company's website would be a burden at this point in time, we think that such a requirement within the next two years would not be an unreasonable expectation.
Exhibits and Supplemental Schedules
The Commission also asked for comment on whether or not a company should provide website access to exhibits or supplemental schedules. While we are generally supportive of requiring Exchange Act filings on a company's website, we recommend that companies be allowed to exclude exhibits and supplemental schedules and simply provide a link to the Commission's EDGAR site for information of this type.
We appreciate the opportunity to provide these comments and hope that they are helpful to the Commission as it seeks to improve the current reporting system.
/s/Gale E. Klappa
Gale E. Klappa
Chief Financial Officer