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South Dakota Public Utilities Commission Meeting
Tuesday, May 10, 2005 at 9:30 A.M.
State Capitol Building, Room 412
Pierre, South Dakota
MINUTES OF THE COMMISSION MEETING
Chairman Gary Hanson called the meeting to order. Also present were Vice Chairman Bob Sahr; Executive Director Pamela Bonrud; Deputy Executive Director Heather Forney; Commission Advisor Greg Rislov; Commission Attorneys John Smith and Rolayne Ailts Wiest; Staff Attorneys Karen Cremer and Sara Greff; Staff Analysts Harlan Best, Dave Jacobson, Steve Wegman, Michele Farris, Keith Senger, Bob Knadle, and Jim Mehlhaff; Cheri Wittler, Court Reporter; and Administrative Secretary Tina Douglas.
Also present were Warren Lotsberg and Jeff Decker, NorthWestern Energy; David Gerdes, May, Adam, Gerdes, and Thompson, representing Midcontinent Communications and Covad Communications Company; Darla Rogers, Riter, Rogers, Wattier & Brown representing South Dakota Rural Electric Association and Sioux Valley and other various ILECs; Jim Wilcox, Xcel Energy; and Bob Miller, South Dakota Electric Utility Companies.
Joining the meeting by telephone were Commissioner Dustin Johnson; Colleen Sevold and Melissa Thompson, Qwest Corporation; Bill Heaston, PrairieWave Telecommunications, Inc.; Dave Prazak, Otter Tail Power Co.; Stan Efferding, VCI Company; Bill Haas, McLeodUSA Telecommunications Services, Inc.; Larry Nelson, Frieberg, Zimmer, Duncan & Nelson; Mark Stacey, QSI Consulting; Kyle White, Don Martinez, and Brian Iverson, Black Hills Power & Light; Alan Dietrich, NorthWestern Energy; Al Lunde, KYNT Radio; and Talbot Wieczorek, Gunderson, Palmer, Goodsell & Nelson, representing RCC Minnesota, Inc.
Commissioner Johnson moved to approve the Minutes of the Commission Meetings held on March 8, April 12, and April 26, 2005, and Ad Hoc Commission Meetings held on March 29, March 31, and April 4, 2005. Commissioner Sahr seconded and Chairman Hanson concurred. Motion passed 3-0.
1. Status Report on Consumer Utility Inquiries and Complaints Received by the Commission. (Consumer Affairs: Jim Mehlhaff)
Jim Mehlhaff reported that the Commission had received a total of 604 consumer contacts during 2005. Since the last report was prepared for the April 26, 2005, Commission meeting, 64 of these contacts had been received; 29 contacts involved telecommunications services; 5 contacts involved electricity issues; 3 contacts involved natural gas issues; 5 contacts involved gas and electric services; 6 contacts involved cellular phone issues; 6 contacts involved the Do Not Call registry; and 10 contacts involved miscellaneous services not regulated by the PUC. In 2004, 2071 of the 2370 complaints registered have been resolved informally and in 2005, 488 of the 604 complaints registered have been resolved informally .
Commissioner Sahr moved to grant Staff's Motion to Consolidate all of the complaints against S&S at this time that are not closed and ordered that any subsequent filed complaints against S&S involving the same subject matter be consolidated into this docket and to grant the other relief requested in the Motion to Consolidate. Commissioner Johnson seconded and Chairman Hanson concurred. Motion passed 3-0.
See transcript which is available at the South Dakota Public Utilities Commission office.
Commissioner Johnson moved to defer EL05-006. Chairman Hanson seconded and Commissioner Sahr concurred. Motion passed 3-0.
2. EL05-010 In the Matter of the Filing by Xcel Energy for Approval of Its 2004 Economic Development Annual Report and 2005 Economic Development Plan (Staff Analyst: Michele Farris, Staff Attorney: Sara Greff)
Jim Wilcox stated that on March 25, 2005, Xcel Energy filed for Commission approval its 2004 economic development report and the 2005 economic development budget. Xcel Energy has been filing this sort of plan for the last 15 years and it has been working quite well. Ms. Farris stated that it was a good program and recommended approval of the 2004 economic development report and the 2005 economic development plan.
Chairman Hanson moved to approve Xcel's 2004 Economic Development Report and the 2005 Economic Development Plan in EL05-010. Commissioner Sahr seconded and Commissioner Johnson concurred. Motion passed 3-0.
3. EL05-011 In the Matter of the Filing by Otter Tail Corporation d/b/a Otter Tail Power Company for Approval of an Electric Service Agreement for the Supply of Bulk Interruptible Power between Otter Tail Corporation d/b/a Otter Tail Power Company and Valley Queen Cheese Factory, Inc. (Staff Analyst: Dave Jacobson, Staff Attorney: Sara Greff)
Dave Jacobson stated that Otter Tail Power Company filed for re-approval of an Electric Service Agreement to service Valley Queen Cheese Factory, Inc. pursuant to Otter Tail's currently effective Bulk Interruptible Service Tariff. The current Electric Service Agreement between Otter Tail Power Company and Valley Queen Cheese Factory, Inc. became effective June 1, 2004, with a term of one year and Otter Tail has requested approval of the new Agreement effective June 1, 2005. The term of the new proposed Electric Service Agreement is five years. Mr. Jacobson recommend approval of the Electric Service Agreement.
Commissioner Johnson moved to approve the Electric Service Agreement in EL05-011. Commissioner Sahr seconded and Chairman Hanson concurred. Motion passed 3-0.
4. EL05-013 In the Matter of the Filing for Approval of an Electric Service Agreement between Black Hills Power, Inc. and the State of South Dakota for the Operations of South Dakota School of Mines & Technology and Black Hills State University. (Staff Analyst: Dave Jacobson, Staff Attorney: Sara Greff)
Kyle White, Black Hills Power, Inc. (BHP) stated that BHP is asking for approval of an Electric Service Agreement with the State of South Dakota to continue to provide electric distribution and supplemental supply service to Black Hills State University and South Dakota School of Mines and Technology. Currently Black Hills Power, Inc. provides electric transmission, distribution and supplemental supply to these state facilities under a contract dated June 1, 2000. The existing contract term extended until June 30, 2003, with the ability to be continued until terminated by either party giving the other party one year notice. Dave Jacobson recommended approval of the Electric Service Agreement
Chairman Hanson moved to approve the Electric Service Agreement in EL05-013. Commissioner Sahr seconded and Commissioner Johnson concurred. Motion passed 3-0.
1. TC01-098 In the Matter of Determining Prices for Unbundled Network Elements (UNES) in Qwest Corporation's Statement of Generally Available Terms (SGAT). (Staff Analyst: Harlan Best. Staff Attorney: Karen Cremer.)
Karen Cremer stated that the contract between the Commission and the consultant, QSI Consulting, expired on January 27, 2005. The Commission extended the duration of the contract, but not the amount at its February 8, 2005, meeting. Ms. Cremer recommended that the contract with QSI be amended to increase the contract amount of $20,000. Settlement discussions will be starting in this docket and so the need for more funding is needed for this contract. The Commissioners also hear remarks form QSI consultant Mary Stacey.
Commissioner Johnson moved to amend the consulting contract in TC01-098. Chairman Hanson seconded and Commissioner Sahr concurred. Motion passed 3-0.
2. TC03-193 In the Matter of the Filing by RCC Minnesota, Inc. and Wireless Alliance, L.L.C. d/b/a Unicel for Designation as an Eligible Telecommunications Carrier. (Staff Analyst: Harlan Best, Staff Attorney: John Smith)
Chairman Hanson moved that the Commission find that RCC Minnesota Inc. (RCC) and Wireless Alliance LLC (WALLC) have met the requirements to be designated as an ETC and that it is in the public interest to designate RCC and WALLC in the following areas:
For the non-rural areas currently served by Qwest, I move that RCC be designated as an ETC in the Milbank, Big Stone City, and Watertown wire centers. For WALLC, I move that WALLC be designated as an ETC in the Tea, Canton, Harrisburg, and three Sioux Falls wire centers. I move that RCC and WALLC not be designated in the Huron, Iroquois, DeSmet, Lake Preston, Arlington and Madison wire centers since they would serve only a small portion of those wire centers and the Commission has previously designated as separate service areas each Qwest exchange.
For the rural areas where the Petitioners have committed to serving the rural telephone companies' entire study areas, I move that RCC be designated in the study areas of RC Communications, Roberts County, Stockholm-Strandburg, and Valley Telephone. I move that WALLC be designated in the Union Telephone study area.
For the rural areas where the Petitioners will not serve the entire study areas, I move that the Commission reject the Petitioners' request that they be designated throughout their licensed area which would allow the Petitioners to serve only parts of some wire centers. I move that instead the Commission accept the Petitioners' alternative proposal. Under that alternative proposal, the Petitioners will serve entire wire centers and to the extent small portions of some of these wire centers fall outside of the Petitioners' licensed areas, the Petitioners will still serve these areas through resale or other methods.
These designations will require redefining the rural company's study areas. Thus, these designations are subject to the FCC agreeing with the Commission on the redefinitions. With respect to these redefinitions, I move that the Commission not redefine each affected Company's study area into individual wire centers, but instead redefine into groups of wire centers that the Petitioners proposed serving under their alternative proposal. For example, for James Valley, the Commission should redefine James Valley's study area by creating a service area comprised of Andover and Bristol. The remaining wire centers in James Valley's study area, for which RCC is not receiving ETC designation, would be a separate service area. I am recommending this in order to lessen the concern that a competitive ETC could seek to withdraw from serving certain high-cost, low density wire centers but continue to serve less costly wire centers.
Chairman Hanson further moved that the Commission not adopt the FCC's order on the Joint Board's recommendations since that order was not released until after the hearing and the briefing had been completed. Instead I move that the Commission impose the following conditions on these ETC designations:
1. On or before August 1, 2005, the Petitioners shall file their advertising plans and materials for South Dakota that they plan to use to inform consumers of their universal service offerings. Included in these advertising plans and materials shall be the Petitioners' advertising plans and materials regarding the Lifeline and Link-up programs and the forms for applying for Lifeline and Link-Up in South Dakota.
2. On or before August 1, 2005, the Petitioners shall file their service agreements pursuant to which they intend to offer their universal service offerings in South Dakota. The agreements shall be consistent with the Commission's service quality rules and shall also advise customers that they may qualify for financial assistance under the federal Link-Up and Lifeline programs and provide basic information on how to apply.
3. The Petitioners agreed to disputes being resolved by the Commission. The service agreement shall state that any disputes or claims arising under the service agreement may be subject to the Commission's complaint jurisdiction, at the consumer's option. Thus, the Petitioners' service agreements shall not compel submission of disputes to arbitration which would deprive customers of access to the complaint procedures of SDCL Chapter 49-13 and ARSD Chapter 20:10:01.
4. The Petitioners have been designated as an ETC in portions of some rural telephone company wire centers that lie outside the boundaries of the areas in which Petitioners have been licensed by the FCC to provide wireless service. The Petitioners shall provide service to requesting customers in such areas by extension, resale, or other arrangements with other carriers, consistent with section 214(e)(1)(A). The service shall be provided at prices and upon terms and conditions that are comparable to what is provided within the Petitioners' licensed areas.
5. Consistent with their obligations pursuant to section 214(e)(1), the Petitioners shall continue to build out facilities and extend service to meet the statutory objective of offering service "throughout the service area for which the designation is received. . . ."
6. In conjunction with, but separate from and in addition to their annual certification filings under 47 C.F.R. §§ 54.313 and 54.314, the Petitioners shall submit records and documentation on an annual basis detailing their progress towards meeting the statutory objective of offering service throughout the service areas for which the designation is received. At a minimum, such information shall detail the location and cost of material capital expenditures made by the Petitioners within the State of South Dakota during the preceding annual period and shall include their proposed capital budgets for the State of South Dakota for the ensuing year. The Petitioners shall work with Commission Staff to determine what constitutes material expenditures. If the Petitioners and Staff are unable to agree, either party shall bring the issue before the Commission for a decision.
7. The Petitioners shall annually submit proposed plans for the upcoming calendar year which sets forth the Petitioners' proposed plans for construction of new facilities and service enhancements to existing facilities. The plans shall be submitted on or before March 1st of each year. Following the first filing, the Petitioners' subsequent annual filings shall also include a report stating whether the proposed plans were implemented, any deviations from the previous year's proposed plans, and the reasons for any deviations. Following this annual filing, the Petitioners shall meet with Commission Staff to discuss the proposed plans and any deviations from a previous year's proposed plans.
8. The Petitioners shall construct the four additional cell sites within one year of their receipt of high-cost support. The year shall begin from the date the Petitioners first begin to receive high-cost support for the entirety of their designated areas. If the Petitioners are unable to construct all four cell sites during this time frame, they shall submit a report detailing the reasons why they were unable to do so and shall thereafter submit monthly reports detailing their progress toward meeting this goal. The initial report shall be due at the end of the year end time frame.
9. The Petitioners shall commit to and abide by the terms of the Cellular Telecommunications Industry Associates Consumer Code for Wireless Service as it is amended from time to time.
10. By March 1st of each year, the Petitioners shall provide annual reports detailing the consumer complaints that it has received during the previous one year period. This report shall include the nature and location of the complaints.
11. By March 1st of each year, the Petitioners shall provide a report itemizing the number of unfulfilled requests the Petitioners received to provide service to a current customer's residence during the previous year and requests for service from potential customers within the Petitioners' service areas that went unfulfilled during the previous year, including the steps the Petitioners took to provide service and the reasons why such requests went unfulfilled. Following the submission of this report, the Petitioners shall meet with Commission Staff to discuss the report.
12. In the event that Commission Staff believes that information beyond what the Petitioners has provided is necessary for Staff and the Commission to perform their responsibilities relating to the Petitioners' meeting their obligations under the law and this Order, Staff shall first make a request for such information to the Petitioners. If the Petitioners object to such request, Staff and the Petitioners shall first confer in an effort to resolve the issue. If after such conference, Staff and the Petitioners are unable to reach agreement concerning the need for such information or the reasonableness of such request, Staff may petition the Commission for an order modifying the Conditions herein upon a showing of good cause therefor. Commissioner Sahr seconded and Commissioner Johnson concurred. Motion passed 3-0.
Commissioner Johnson moved to designate VCI Company as an ETC in the requested service areas, and provide whatever documentation is necessary to Federal Communications Commission and to the Universal Service Administration Company regarding VCI Company's ETC status in South Dakota. Commissioner Sahr seconded and Chairman Hanson concurred. Motion passed 3-0.
4. TC05-001 In the Matter of the Application of Phone1, Inc. for a Certificate of Authority to Provide Alternative Operator Services in South Dakota. (Staff Analyst: Keith Senger, Staff Attorney: Sara Greff)
Keith Senger stated that on January 13, 2005, Phone1, Inc. filed an application seeking a Certificate of Authority to provide interexchange services throughout South Dakota. He has requested certain data and as of the date this item was put on the agenda had not received anything from them. He stated that the company finally responded to his data request and is asking to have this docket deferred.
Commissioner Johnson moved to defer TC05-001. Chairman Hanson seconded and Commissioner Sahr concurred. Motion passed 3-0.
5. TC05-020 In the Matter of the Filing by McLeodUSA Telecommunications Services, Inc. for Approval of Revisions to its Switched Access Tariff. (Staff Analyst: Harlan Best, Staff Attorney: Karen Cremer)
Bill Haas, McLeodUSA Telecommunications Services, Inc. stated that on February 11, 2005, McLeodUSA Telecommunications Services, Inc. (McLeod) filed for textual changes to the Application, the Definition, and the Regulations Sections of its Access Tariff. He indicated that this change would make it less difficult to resolve billing issues it may have with carriers. Karen Cremer stated that the staff has no problem with the first sentence in Subsection G but objects to the second sentence referring to the 90 days and would recommend removing the second sentence. Harlan Best stated that the second sentence reads that if the company does not review or object to the billing within the 90 days then the billing would be correct.
Chairman Hanson moved to approve the Switched Access Tariff Revisions except for the second sentence of Subsection G which should be removed. Commissioner Sahr seconded and Commissioner Johnson concurred. Motion passed 3-0.
Harlan Best stated that on March 28, 2005, Qwest Corporation filed to introduce clarifying language for its Common Channel Signaling Access Capability in the Access Service Tariff. Mr. Best also stated the language was being modified in all Qwest states to be consistent across all of the states. Mr. Best recommended approval of the tariff revisions.
Commissioner Johnson moved to approve the tariff revisions in TC05-055. Chairman Hanson seconded and Commissioner Sahr concurred. Motion passed 3-0.
7. TC05-056 In the Matter of the Petition of DIECA Communications, Inc. d/b/a Covad Communications Company for Arbitration of an Interconnection Agreement with Qwest Corporation. (Commission Attorney: Rolayne Ailts Wiest)
David Gerdes, May, Adam, Gerdes, and Thompson, representing Covad Communications Company suggest the following procedural schedule:
Simultaneous initial briefs shall be filed on or before June 10, 2005;
Simultaneous reply briefs shall be filed on or before July 1, 2005;
Oral arguments shall be heard to be set by the Commission;
Rolayne Wiest suggest the following to correspond with the Commission Meeting:
Simultaneous initial briefs shall be filed on or before June 3, 2005;
Simultaneous reply briefs shall be filed on or before June 24, 2005;
Oral arguments shall be heard at the Commission meeting scheduled for June 28, 2005;
Decision at the Commission meeting scheduled for July 12, 2005, is recommended.
Chairman Hanson moved to proceed with the procedural schedule set by staff. Commissioner Johnson seconded and Commissioner Sahr concurred. Motion passed 3-0.