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South Dakota Public Utilities Commission Meeting
Tuesday, February 29, 2000; 1:30 P.M.
State Capitol Building, Room 412
Pierre, South Dakota
MINUTES OF THE COMMISSION MEETING
Chairman Jim Burg called the meeting to order at 1:30 p.m. Present were Commissioner Laska Schoenfelder, Commissioner Pam Nelson, Executive Director Bill Bullard, Commission Advisor Greg Rislov, Commission Counsel Rolayne Ailts Wiest, Deputy Executive Director Sue Cichos, Staff Attorneys Karen Cremer and Camron Hoseck, Utility Analysts Harlan Best, Dave Jacobson, Michele Farris, Keith Senger, and Heather Forney, Consumer Affairs Director Leni Healy, Complaint Investigators Charlene Lund and Mary Healy, and Administrative Secretary Shirleen Fugitt.
Also present were Colleen Sevold, U S WEST; Bill Heaston, DTG; Neil Fulton, Sprint; Rich Coit, SDITC; Bob Miller, South Dakota Electric Utilities; Jim Wilcox, NSP; and Lori Grode, Pierre Court Reporting.
Joining the meeting by phone were Barb Berkenpas, DTG; Neil Schmid, FirsTel; Rusty Molstad, NWPS; Andrew Jones, Sprint; Greg Bernard and Kyle White, FiberCom; Rogena Harris, OLS; Alex Duarte, U S WEST; Paula Heeren and Rick Wolters, AT&T; Mary Lohnes, Midco Communications; John Winter, NSP; Carey Roesel, Technologies Management; Tim Tobin, Inacom; and complainants Kathleen Glynn, Judy Raker, Cheryl Plucker, Fred Prahl, Rollie Jensen, Nancy Manning and Elizabeth Frederick along with their attorney Rena Atchison.
Administration
1. Approval Of The Minutes Of The Commission Meeting Held On February 15, 2000. (Staff: Shirleen Fugitt.)
Commissioner Nelson moved to approve the minutes of the February 15, 2000, Commission Meeting. Commissioner Schoenfelder seconded and Chairman Burg concurred. Motion passed 3-0.
Consumer Issues
1. Status Report On Consumer Utility Inquiries And Complaints Recently Received By The Commission. (Consumer Affairs: Leni Healy.)
Ms. Healy presented an update on consumer inquiries and complaints received since the last Commission meeting.
Cheryl Plucker explained her complaint against MCI for unauthorized switching. Mr. Senger recommended a finding of probable cause.
Commissioner Schoenfelder moved to find probable cause. Commissioner Nelson seconded and Chairman Burg concurred. Motion passed 3-0.
Commissioner Nelson moved that the Commission make the following rulings on the objections taken under advisement at the hearing: (1) Ms. Manning's motion to amend her complaint for additional damages, loss of income, emotional distress, and punitive damages is granted; (2) U S WEST's and McLeod's objections to Exhibits 29 and 30 are overruled; (3) U S WEST's objection to Ms. Frederick's testimony as to her percentage of overhead is overruled; (4) U S WEST's objection to Ms. Frederick's testimony on what a McLeod representative stated at the probable cause hearing is overruled; (5) U S WEST's motion for the Commission to take administrative notice of the Jiracek order is granted; (6) Ms. Manning's objection to Exhibit 45 is denied; (7) McLeod's objection to questions regarding McLeod's terms and conditions is overruled; and (8) US WEST's objection to the admission by Ms. Frederick of a profit and loss statement following the hearing is moot since no profit and loss statement was filed with the Commission following the hearing. Finally, since the record is unclear as to whether Exhibit 46 was ever admitted, the Commission clarifies that it was admitted. Chairman Burg seconded and Commissioner Schoenfelder concurred. Motion passed 3-0.
With respect to the merits of the complaint, Commissioner Nelson moved that the Commission find as follows: (1) McLeod breached its contract with the Complainants by failing to provide them with service; (2) McLeod's limitation of liability language in its tariff relates only to "failure of transmission" for a call and not to failure to timely provision local exchange service; (3) McLeod's limitation of liability language in its contracts with the Complainants' was not given to the Complainants and thus failed to become part of the contract; (4) U S WEST's limitation of liability language specifically limits liability for damages with respect to provisioning of service to customers or others and, therefore, U S WEST is not liable for damages under the facts of this case; (5) The Commission finds Nancy Manning was damaged in the amount of $6,652.15 by McLeod and Elizabeth Frederick was damaged in the amount of $4,085.74 by McLeod; (6) The Commission finds no legal basis for the awarding of attorney's fees, punitive damages, or damages related to negligent infliction of emotional distress. Chairman Burg seconded and Commissioner Schoenfelder dissented. Motion passed 2-1.
Commissioner Schoenfelder made the following motions and comments: I move that the Commission find that the Raker's claim for damages regarding the provisioning of service by U S WEST is limited by U S WEST's tariff, section 2.4.1(A)(1). This tariff section specifically limits U S WEST's liability for damages associated with the provisioning of service. Therefore, I move that the Raker's claim for damages be denied. Commissioner Nelson seconded and Chairman Burg concurred. Motion passed 3-0.
Ms. Cremer reported that a settlement has been reached and recommended dismissing Budget Call Long Distance from the complaint and proceeding to a hearing with NOR Communications.
Chairman Burg moved to dismiss Budget Call Long Distance from the complaint. Commissioner Nelson seconded and Commissioner Schoenfelder concurred. Motion passed 3-0.
Chairman Burg moved to set a March 22, 2000, hearing date for NOR Communications. Commissioner Nelson seconded and Commissioner Schoenfelder concurred. Motion passed 3-0.
Mr. Senger noted that a settlement has been reached and recommended that the complaint be dismissed and the docket be closed.
Commissioner Schoenfelder moved to dismiss the complaint and close the docket. Commissioner Nelson seconded and Chairman Burg concurred. Motion passed 3-0.
Ms. Healy recommended the complaint be dismissed and the docket closed.
Commissioner Schoenfelder moved to dismiss the complaint and close the docket. Commissioner Nelson seconded and Chairman Burg concurred. Motion passed 3-0.
Ms. Healy recommended the complaint be dismissed and the docket closed.
Commissioner Nelson moved to dismiss the complaint and close the docket. Chairman Burg seconded and Commissioner Schoenfelder concurred. Motion passed 3-0.
Ms. Healy recommended the complaint be dismissed and the docket closed.
Chairman Burg moved to dismiss the complaint and close the docket. Commissioner Schoenfelder seconded and Commissioner Nelson concurred. Motion passed 3-0.
Ms. Cremer recommended the complaint be dismissed and the docket closed.
Commissioner Nelson moved to dismiss the complaint and close the docket. Chairman Burg seconded and Commissioner Schoenfelder concurred. Motion passed 3-0.
Ms. Cremer recommended the complaint be dismissed and the docket closed.
Commissioner Nelson moved to dismiss the complaint and close the docket. Commissioner Schoenfelder seconded and Chairman Burg concurred. Motion passed 3-0.
Ms. Cremer recommended the complaint be dismissed and the docket closed.
Commissioner Schoenfelder moved to dismiss the complaint and close the docket. Commissioner Nelson seconded and Chairman Burg concurred. Motion passed 3-0.
Ms. Cremer recommended the complaint be dismissed and the docket closed.
Commissioner Nelson moved to dismiss the complaint and close the docket. Commissioner Schoenfelder seconded and Chairman Burg concurred. Motion passed 3-0.
Mr. Hoseck recommended the complaint be dismissed and the docket closed.
Commissioner Nelson moved to dismiss the complaint and close the docket. Commissioner Schoenfelder seconded and Chairman Burg concurred. Motion passed 3-0.
Ms. Cremer recommended the complaint be dismissed and the docket closed.
Commissioner Schoenfelder moved to dismiss the complaint and close the docket. Commissioner Nelson seconded and Chairman Burg concurred. Motion passed 3-0.
Ms. Farris recommended the complaint be dismissed and the docket closed.
Chairman Burg moved to dismiss the complaint and close the docket. Commissioner Schoenfelder seconded and Commissioner Nelson concurred. Motion passed 3-0.
Rollie Jensen explained his complaint against McLeod USA and noted that he wishes to include U S WEST in his complaint. Colleen Sevold, U S WEST, had no objection to adding U S WEST to the complaint nor to a finding of probable cause. Bill Heaston, McLeod USA, had no objection to amending the complaint and expanding the complaint to a billing issue.
Commissioner Schoenfelder moved to amend the complaint to include U S WEST, expand it to a billing issue and find probable cause against U S WEST. Chairman Burg seconded and Commissioner Nelson concurred. Motion passed 3-0.
Mr. Senger recommended the complaint be dismissed and the docket closed.
Commissioner Schoenfelder moved to dismiss the complaint and close the docket. Commissioner Nelson seconded and Chairman Burg concurred. Motion passed 3-0.
Ms. Cremer recommended a finding of probable cause. Rogena Harris, OLS, noted no objection.
Chairman Burg moved to find probable cause. Commissioner Schoenfelder seconded and Commissioner Nelson concurred. Motion passed 3-0.
Ms. Cremer recommended a finding of probable cause.
Commissioner Nelson moved to find probable cause. Chairman Burg seconded and Commissioner Schoenfelder concurred. Motion passed.
Kathleen Glynn explained her complaint against OLS. Ms. Cremer recommended a finding of probable cause.
Chairman Burg moved to find probable cause. Commissioner Nelson seconded and Commissioner Schoenfelder concurred. Motion passed 3-0.
21. CT00-035 IN THE MATTER OF THE COMPLAINT FILED BY GORDON WILKERSON, MANAGER, ON BEHALF OF SIOUX FALLS STOCKYARDS CO., SIOUX FALLS, SOUTH DAKOTA, AGAINST FIRSTEL BUSINESS SYSTEMS REGARDING BILLING DISPUTE. (Staff Analyst: Michele Farris. Staff Attorney: Camron Hoseck.)
Ms. Farris recommended dismissing the complaint and closing the docket.
Commissioner Nelson moved to dismiss the complaint and close the docket. Commissioner Schoenfelder seconded and Chairman Burg concurred. Motion passed 3-0.
Fred Prahl explained his complaint against Inacom and U S WEST.
Commissioner Schoenfelder moved to find probable cause. Commissioner Nelson seconded and Chairman Burg concurred. Motion passed 3-0.
Gas/Electric
Rusty Molstad, NWPS, explained the revisions being made in the bill format. Mr. Jacobson recommended the waiver of ARSD 20:10:13:20 and approval of the filing.
Commissioner Nelson moved to grant the waiver and approve the filing. Chairman Burg seconded and Commissioner Schoenfelder concurred. Motion passed 3-0.
Electric
Chairman Burg made the following comments and motions: As stated in the notice of hearing for this case, the issue to be decided by the Commission is whether NSP correctly determined who were the benefited customers. NSP determined that all of NSP's customers in Sioux Falls were benefited customers and assessed them a one time charge of $2.16. I move that the Commission find that NSP's determination that all of its Sioux Falls customers benefited was incorrect. NSP failed to show that the two and a half block underground placement of a 13,800 volt three-phase feeder line benefited all of its Sioux Falls customers. In fact, the record fails to show that any customers or group of customers can be said to have benefited. The city ordinance presented at the hearing is silent as to any reasons for requiring the lines to be placed underground. In the record, there is only speculation that the undergrounding was required for aesthetic reasons and there is no evidence that the undergrounding was required for operational, safety, or economic reasons. I further move that NSP credit customers the one time charge of $2.16. For those people who paid the charge but are no longer NSP customers, NSP shall refund the charge upon request. Commissioner Nelson seconded and Commissioner Schoenfelder concurred. Motion passed 3-0.
Jim Wilcox, NSP, explained the filing and answered questions from the Commission. Further action was deferred until after the intervention deadline passes.
Telecommunications
Carey Roesel, Technologies Management, explained the request for a reduction in the bond requirement. Mr. Hoseck presented further explanation.
Commissioner Nelson moved to deny the request for a bond reduction. Commissioner Schoenfelder seconded and Chairman Burg concurred. Motion passed 3-0.
Ms. Forney explained the application and recommended approval.
Chairman Burg moved to approve the application. Commissioner Nelson seconded and Commissioner Schoenfelder concurred. Motion passed 3-0.
Ms. Wiest recommended granting intervention to McLeodUSA, U S WEST, Sprint and AT&T.
Commissioner Schoenfelder moved to grant intervention to McLeodUSA, U S WEST, Sprint and AT&T. Commissioner Nelson seconded and Chairman Burg concurred. Motion passed 3-0.
Mr. Senger reported that the company wishes to withdraw this application.
Commissioner Schoenfelder moved to allow withdrawal of the application and to close the docket. Chairman Burg seconded and Commissioner Nelson concurred. Motion passed 3-0.
Colleen Sevold, U S WEST, explained the filing and answered questions from the Commission. Ms. Forney addressed Staff's requested wording changes. Action was deferred.
Mr. Senger explained the application and recommended approval with restrictions on customer deposits, advance payments and prepaid calling cards and an effective date of March 25, 2000.
Chairman Burg moved to approve the application with the restrictions noted above. Commissioner Nelson seconded and Commissioner Schoenfelder concurred. Motion passed 3-0.
Ms. Forney explained the filing and recommended approval.
Commissioner Nelson moved to approve the filing. Chairman Burg seconded and Commissioner Schoenfelder concurred. Motion passed 3-0.
Following comments from the parties, Ms. Wiest recommended that a procedural schedule be set and that U S WEST file more explicit comments in this matter.
Chairman Burg moved to set a procedural schedule. Commissioner Nelson seconded and Commissioner Schoenfelder concurred. Motion passed 3-0.
Action was deferred.
Addendum
Consumer Issues
Ms. Cremer recommended the complaint be dismissed and the docket closed.
Chairman Burg moved to dismiss the complaint and close the docket. Commissioner Schoenfelder seconded and Commissioner Nelson concurred. Motion passed 3-0.
Ms. Cremer recommended dismissing the complaint and closing the docket.
Commissioner Nelson moved to dismiss the complaint and close the docket. Commissioner Schoenfelder seconded and Chairman Burg concurred. Motion passed 3-0.
Natural Gas
Mr. Jacobson explained the request for an extension of time.
Chairman Burg moved to grant an extension of time. Commissioner Schoenfelder seconded and Commissioner Nelson concurred. Motion passed 3-0.
The meeting was adjourned.
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Shirleen Fugitt
Administrative Secretary
