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South Dakota Public Utilities Commission Meeting
Wednesday, November 20, 2002; 10:00 A.M. - 12:00 P.M.
State Capitol Building, Room 412
Pierre, South Dakota
MINUTES OF THE COMMISSION MEETING
MORNING SESSION
Chairman Jim Burg called the meeting to order. Also present were Commissioner Pam Nelson; Commissioner Bob Sahr; Executive Director Debra Elofson; Commission Advisor Greg Rislov; Commission Counsel John J. Smith; Commission Attorney Rolayne Ailts Wiest; Staff Attorney Karen Cremer; Staff Analysts Harlan Best, Dave Jacobson, Heather Forney, Keith Senger, and Michele Farris; and Administrative Secretary Mary Giddings.
Also present were Rich Coit, SD Telecommunications Association; and Cheri McComsey Wittler, court reporter.
Joining the meeting by telephone were Talbot Wieczorek and Jim Blundell, Western Wireless; Colleen Sevold, Larry Toll, Mary Hobson and Tim Goodwin, Qwest Corporation; Joe Schuele, Martin Group; Marv Sorensen and Jean Calligan, MidAmerican Energy Company; Mary Lohnes, Midcontinent Communications; Janet Browne, AT&T; Linn Evans, Black Hills FiberCom; and Robert A. Fogg, Jr., complainant.
Administration
1. APPROVAL OF THE MINUTES OF THE COMMISSION MEETING HELD ON OCTOBER 17, 2002. (Staff: Mary Giddings.)
Chairman Burg moved to approve the minutes of the October 17, 2002, Commission meeting. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Consumer Issues
1. STATUS REPORT ON CONSUMER UTILITY INQUIRIES AND COMPLAINTS RECENTLY RECEIVED BY THE COMMISSION. (Consumer Affairs: Mary Healy.)
Ms. Cremer presented an update on inquiries and complaints received since the last Commission meeting.
2. IN THE MATTER OF DISMISSING DOCKETS CT01-047; CT02-026; CT02-030;
Chairman Burg moved to dismiss the complaints and close the dockets in CT01-047, CT02-026, and CT02-030. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Ms. Cremer recommended that action be deferred to the December 2002 Commission meeting. Action was deferred.
Talbot Wieczorek, representing CellularOne/Western Wireless, argued that there were no genuine issues as to any material facts in the case and requested that the summary judgment be approved.
Chairman Burg moved that the Commission take under advisement the decision on the motion of CellularOne for a Summary Judgment with the time and place to be noticed to the parties. Commissioner Sahr seconded and Commissioner Nelson concurred. Motion passed 3-0.
5. CT02-033 IN THE MATTER OF THE COMPLAINT FILED BY DENISE HAERTER, SIOUX FALLS, SOUTH DAKOTA, AGAINST MCIWORLDCOM AND QWEST CORPORATION REGARDING UNAUTHORIZED SWITCHING OF SERVICES. (Consumer Affairs: Mary Healy, Attorney: Karen Cremer.)
Ms. Cremer recommended that MCI's motion to dismiss be granted noting that Qwest agreed that a clerical error had been made.
Commissioner Nelson moved to grant MCI's motion to dismiss. Commissioner Sahr seconded and Chairman Burg concurred. Motion passed 3-0.
Telecommunications
1. TC98-146 IN THE MATTER OF THE FILING BY GCC LICENSE CORPORATION FOR DESIGNATION AS AN ELIGIBLE TELECOMMUNICATIONS CARRIER. (Staff Analyst: Harlan Best, Staff Attorney: Karen Cremer.)
Ms. Wiest recommended a procedural schedule as follows: Changes made and submitted by December 2, 2002; comments by SDTA and Staff by December 12, 2002; reply comments by Western Wireless due December 17; and put on the agenda for the December 19, 2002, Commission meeting. Ms. Cremer noted that Staff and Western Wireless are working on recommended changes. Chairman Burg recommended that the procedural schedule recommended by Ms. Wiest be followed. No action was taken.
Chairman Burg stated that reopening the record at this point would accomplish very little. Moreover, scheduling another hearing and briefing schedule would most likely significantly delay this proceeding. The Commission as well as AT&T will have an opportunity to comment before the FCC concerning Qwest's new section 272 affiliate. Chairman Burg also stated that acceptance of PO-20 on an interim basis does not eliminate the opportunity to make changes to this PID during the six-month review.
Chairman Burg moved to deny AT&T's motion to reopen and supplement the record. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Chairman Burg moved to grant Qwest's request and accept PID PO-20 on an interim basis.
Commissioner Sahr seconded and Commissioner Nelson concurred. Motion passed 3-0.
Chairman Burg moved that the Commission find that since Qwest has just recently formed a new section 272 affiliate, the details of which are not in the record before the Commission, the Commission should make no recommendation to the FCC on this issue. Commissioner Sahr seconded and Commissioner Nelson concurred. Motion passed 3-0.
Chairman Burg moved that the Commission find that when the results of the ROC OSS test and Qwest's commercial performance data are reviewed in their entirety, Qwest has demonstrated that it has substantially met the statutory and FCC standards concerning OSS. Commissioner Sahr seconded and Commissioner Nelson concurred. Motion passed 3-0.
Chairman Burg moved that the Commission find that in order for this Commission to find that Qwest's entry into the interLATA market is in the public interest, Qwest shall make the following changes to its QPAP:
1) Qwest shall remove the cap on payments to others under the QPAP;
2) Qwest shall remove the Tier 2 payment triggers and Tier 2 payments will apply in any individual month;
3) Qwest shall remove the cap on payment escalation;
4) Qwest shall delete line four of section 11.3.2 relating to disbursements from the South Dakota Discretionary Fund in order to be consistent with section 7.5;
5) Qwest shall eliminate the requirement in section 11.3 regarding the appointment of a person to administer the Fund;
6) In section 2.1.1, Qwest shall change the phrase "established by the state regulatory commission" to "administered by the state regulatory commission;"
7) Qwest shall remove the 100% cap for interval measures;
8) Qwest shall submit summary format for bill credits;
9) Qwest shall change its audit provisions to the language provided in the Commission's written order and make any corresponding revisions to section 11;
10) Qwest shall change its dispute resolution language to provide that the Commission shall resolve disputes;
11) Qwest shall change its six month review provisions to the language provided in the Commission's written order;
12) Qwest shall change its offset provision to the language as adopted in North Dakota;
13) Qwest shall delete section 17.0 which states that the QPAP is a voluntary offer;
14) Qwest shall revise section 16.6 to provide that Qwest may petition the Commission to phase out the QPAP if it exits the interLATA market or its section 272 affiliate is eliminated;
15) Qwest shall add a provision prohibiting Qwest from recovering QPAP payments from increased rates;
16) Qwest shall add a provision regarding successor language;
17) Qwest shall submit proposed model amendment for CLECs that incorporates the QPAP into a CLEC interconnection agreement;
18) Qwest shall provide payment estimates prior to any section 271 approval.
Commissioner Sahr seconded and Commissioner Nelson concurred. Motion passed 3-0.
Natural Gas
Jean Calligan, representing MidAmerican Energy Company, explained the revision of its Natural Gas Transportation Tariff and answered Commission questions. Mr. Jacobson recommended that the revisions be approved with an effective date of December 1, 2002.
Chairman Burg moved to approve MidAmerican's tariff sheets with an effective date of December 1, 2002. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Meeting adjourned until 1:30 p.m.
South Dakota Public Utilities Commission Meeting
Wednesday, November 20, 2002; 1:30 P.M.
State Capitol Building, Room 412
Pierre, South Dakota
MINUTES OF THE COMMISSION MEETING
AFTERNOON SESSION
Chairman Jim Burg called the meeting to order. Also present were Commissioner Pam Nelson; Commissioner Bob Sahr; Executive Director Debra Elofson; Commission Advisor Greg Rislov;
Commission Counsel John J. Smith; Commission Attorney Rolayne Ailts Wiest; Staff Attorneys Karen Cremer and Kelly Frazier; Staff Analysts Harlan Best, Dave Jacobson, Heather Forney, Keith Senger, and Michele Farris; Transportation/Warehouse Director Bob Knadle; and Administrative Secretary Mary Giddings.
Also present were Jim Wilcox and Dave Hageman, Xcel Energy; Rich Coit, SD Telecommunications Association; Tom Harmon and DIck Howard, SD Association of County Commissioners; and Cheri McComsey Wittler, court reporter.
Joining the meeting by telephone were Colleen Sevold and Jeff Carmon, Qwest Corporation; Joe Schuele, Martin Group; Kent Larson, Xcel Energy; Gale Fisher, Fisher Law Firm; Mary Lohnes, Midcontinent Communications; Karen Huizenga, Dave Blomquist and Kristi Holm, MidAmerican Energy Company; Linn Evans, Black Hills FiberCom; Doug Eidahl, James Valley Cooperative/Northern Valley Communications; Jim Billion, Brown County State's Attorney Office; Don Phillips, Pennington County 911; Gary Colwell, Minnehaha County and the City of Sioux Falls; and Roslyn Bullion, complainant.
Consumer Issues
Gale Fischer, representing Roslyn Bullion, requested that the additional evidence submitted by Ms. Bullion be admitted as evidence. Kristi Holm, representing MidAmerican Energy Company, argued that the new testimony should not be allowed. Mr. Frazier noted that the Commission closed evidence at the end of the hearing but stated that he had no objection to admitting the evidence from Ms. Bullion.
Chairman Burg moved that the additional factual evidence submitted by both parties following the October 15, 2002, hearing on this matter should not be admitted into evidence in the case and that the evidentiary record in this case be limited to the evidence presented and admitted at the hearing. This ruling would exclude from evidence MidAmerican Energy Company's Exhibit 2 to its Post-Hearing Brief and those portions of Complainant's post-hearing submittals that contain new factual written testimony. Those portions of Complainant's post-hearing submittals that constitute argument as to the evidence received at the hearing shall be considered as closing argument. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Chairman Burg moved that the Commission find and conclude that Complainant had the burden of proving the issues raised by the complaint, that the evidence does not support finding in favor of the Complainant on any of the seven issues raised by the complaint and that a preponderance of the evidence supports finding for MidAmerican Energy Company. He further moved that the Commission decide in favor of MidAmerican Energy Company on all seven issues raised by Complainant's complaint and that the Commission issue Findings of Fact, Conclusions of Law and Final Decision so reflecting. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Telecommunications
Ms. Farris noted that the application for a Certificate of Authority had been withdrawn and recommended that the docket be closed.
Chairman Burg moved to allow ePHONE Telecom, Inc. to withdraw its application for a Certificate of Authority and he further moved to close the docket. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
2. TC02-056 IN THE MATTER OF THE FILING FOR APPROVAL OF AN AGREEMENT FOR TERMS AND CONDITIONS FOR INTERCONNECTION, UNBUNDLED NETWORK ELEMENTS, ANCILLARY SERVICES AND RESALE OF TELECOMMUNICATIONS SERVICES BETWEEN QWEST CORPORATION AND NOW COMMUNICATIONS OF SOUTH DAKOTA, INC. (Staff Attorney: Kelly Frazier.)
Mr. Frazier recommended that the interconnection agreement be approved.
Commissioner Nelson moved to approve the interconnection agreement. Chairman Burg seconded and Commissioner Sahr concurred. Motion passed 3-0.
Ms. Farris recommended that ICG Telecom Group, Inc. be granted a Certificate of Authority subject to a continuous $25,000 surety bond and subject to rural safeguards.
Commissioner Nelson moved to grant ICG Telecom Group, Inc. a Certificate of Authority subject to a continuous $25,000 surety bond and subject to rural safeguards. Chairman Burg seconded and Commissioner Sahr concurred. Motion passed 3-0.
Linn Evans, representing Black Hills FiberCom, L.L.C. (FiberCom), explained its application and requested a hearing. Rich Coit, representing SD Telecommunications Association, having been granted intervention, stated its position and concerns. Ms. Wiest stated that Staff believes that FiberCom does need approval.
Chairman Burg moved that the Commission find that FiberCom does need approval and a hearing date will be set at a later time. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
5. TC02-092 IN THE MATTER OF THE APPLICATION OF AIRNEX COMMUNICATIONS, INC. FOR A CERTIFICATE OF AUTHORITY TO PROVIDE INTEREXCHANGE TELECOMMUNICATIONS SERVICES IN SOUTH DAKOTA. (Staff Analyst: Dave Jacobson, Staff Attorney: Karen Cremer.)
Mr. Jacobson recommended that Airnex Communications, Inc. be granted a Certificate of Authority with restrictions from offering prepaid calling cards, accepting advance payments or customer deposits.
Commissioner Nelson moved to grant a Certificate of Authority to Airnex Communications, Inc. with restrictions from offering prepaid calling cards, accepting advance payments or customer deposits. Commissioner Sahr seconded and Chairman Burg concurred. Motion passed 3-0.
Mr. Senger recommended that action be deferred. Action was deferred.
7. TC02-160 IN THE MATTER OF THE APPLICATION OF ALL-STAR ACQUISITION CORPORATION FOR A CERTIFICATE OF AUTHORITY TO PROVIDE INTEREXCHANGE TELECOMMUNICATIONS SERVICES IN SOUTH DAKOTA. (Staff Analyst: Michele Farris, Staff Attorney: Kelly Frazier.)
Ms. Farris recommended that All-Star Acquisition Corporation be granted a Certificate of Authority with a waiver of ARSD 20:10:24:02(08) and with restrictions from offering prepaid calling cards, accepting advance payments or customer deposits.
Chairman Burg moved to grant a Certificate of Authority to All-Star Acquisition with a waiver of ARSD 20:10:24:02(08) and with restrictions from offering prepaid calling cards, accepting advance payments or customer deposits. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
8. TC02-163 IN THE MATTER OF THE APPLICATION OF BUYERS UNITED INC. FOR A CERTIFICATE OF AUTHORITY TO PROVIDE INTEREXCHANGE TELECOMMUNICATIONS SERVICES IN SOUTH DAKOTA. (Staff Analyst: Michele Farris, Staff Attorney: Kelly Frazier.)
Ms. Farris recommended that Buyers United Inc. be granted a Certificate of Authority with restrictions from offering prepaid calling cards, accepting advance payments or customer deposits and with an effective date of November 22, 2002.
Commissioner Nelson moved to grant a Certificate of Authority to Buyers United Inc. with the restrictions from offering prepaid calling cards, accepting advance payments or customer deposits and with an effective date of November 22, 2002. Commissioner Sahr seconded and Chairman Burg concurred. Motion passed 3-0.
Mr. Frazier recommended that the transfer be approved.
Chairman Burg moved to approve the transfer of the Interconnection Agreement. Commissioner Sahr seconded and Commissioner Nelson concurred. Motion passed 3-0.
Ms. Forney recommended that the exemption extension be approved with a three-year time limit to either file cost-based rates or file a petition to continue the exemption.
Chairman Burg moved to approve the exemption extension with a three-year time limit to either file cost-based rates or petition to continue the exemption. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Don Phillips, Pennington County 911, explained the intervention. Tom Harmon, representing the SD Association of County Commissioners, and Jim Billion, Brown County State's Attorney, explained their respective interventions. Ms. Cremer recommended that intervention be granted to Brown County, Pennington County, Minnehaha County, the City of Sioux Falls, and the SD Association of County Commissioners.
Chairman Burg moved to grant intervention to Brown County, Pennington County, Minnehaha County, the City of Sioux Falls, and the SD Association of County Commissioners. Commissioner Sahr seconded and Commissioner Nelson concurred. Motion passed 3-0.
12. TC02-175 IN THE MATTER OF THE APPLICATION OF INTELECALL COMMUNICATIONS, INC. FOR A CERTIFICATE OF AUTHORITY TO PROVIDE INTEREXCHANGE TELECOMMUNICATIONS SERVICES IN SOUTH DAKOTA. (Staff Analyst: Keith Senger, Staff Attorney: Kelly Frazier.)
Mr. Senger recommended that Intelecall Communications, Inc. be granted a Certificate of Authority with a waiver of ARSD 20:10:24:02(08); with restrictions from offering prepaid calling cards, accepting advance payments or customer deposits; and with an effective date of December 31, 2002.
Commissioner Nelson moved to grant Intelecall Communications, Inc. a Certificate of Authority with a waiver of ARSD 20:10:24:02(08); with restrictions from offering prepaid calling cards, accepting advance payments or customer deposits; and with an effective date of December 31, 2002. Chairman Burg seconded and Commissioner Sahr concurred. Motion passed 3-0.
Ms. Forney recommended that Midcontinent Communications, Inc. be granted waivers of ARSD 20:10:27:11 and ARSD 20:10:27:12 with a three-year time limit to either file cost-based rates or file a petition to continue the exemption, and to approve revised switched access rates. .
Chairman Burg moved to grant Midcontinent Communications, Inc. waivers of ARSD 20:10:27:11 and ARSD 20:10:27:12 with a three-year time limit to either file cost-based rates or file a petition to continue the exemption. Chairman Burg also moved to approve revised switched access rates. Motion passed 3-0.
Electric
Jim Wilcox, representing Xcel Energy, explained the report. Ms. Forney recommended that the 2001 economic development report and 2002 budget be approved.
Commissioner Nelson dissented, stating "Xcel Energy (Xcel) first filed these economic development plans five years before I took office. I understand the economic development plan blueprint was developed during settlement between our staff and employees of Northern States Power Company, Xcel's predecessor. Rate payers and utility would each contribute $50,000 annually; the utility would develop a plan to spend the money; and this Commission would ge say through an approval process. The idea was that economic development would be a benefit for both customer and company. The Commission subsequently approved the settlement, and annual filings have been made.
I have approved past filings of these plans. I believe these plans can be a beneficial tool. The trick is to transform the money into an economic development tool. We have seen Xcel offer a variety of programs designed to do just that. I understand some may have yielded more immediate returns than others, and I understand how some projects require a longer-term view as benefits may be difficult to measure. One must keep an open, imaginative mind and one must exhibit a degree of patience with results.
Last year we approved a plan that gave Xcel wide spending latitude for the bulk of the money. Over 60% was in a 'pot' dubbed the 'Economic Assistance Program.' We relied on Xcel's discretion to appropriately ladle the cash out of the pot and into the hands of worthy economic causes.
My dissent arises because I think at least some of the cash was 'ladled' to programs that have little, if any hope of economic development return. Specifically, I believe donating $5,000 to the SD Tech Summit is more appropriately labeled as a political contribution than an economic development contribution. Yes, these types of events have been funded in the past, with approval. There was some hope of benefit. I no longer see the value. I have neither seen nor heard of any concrete positive results from past summits. We learn from the past, and then we must act. My dissent from the majority approval does just that. I further recommend the percentage of discretionary economic funds, because it has grown so large, be kept under closer scrutiny by this Commission. It appears the reporting and approval process should be expanded to require Commission approval before large amounts are doled out from the fund."
Chairman Burg moved to approve Xcel's 2001 economic development plan and 2002 economic development budget. Commissioner Sahr seconded and Commissioner Nelson dissented. Motion passed 2-1.
Karen Huizenga, representing American Energy Company, explained the waiver. Mr. Jacobson recommended that the waiver be approved with the conditions that: 1) Approval of this request is a one time, case specific approval and any future deviation from filed EECA tariffs must be filed for and approved by the Commission before implementation. 2) The EECA currently tariffed is not changed by this approval. 3) No precedent is created by approval of this request. 4) MidAmerican shall agree and respond to reporting requirements as directed by Staff.
Chairman Burg moved to approve MidAmerican's request for a nonpermanent waiver of specific wording of MidAmerican's Electric Energy Cost Adjustment Tariff to permit flow through of capacity savings to customers with the conditions recommended by Staff. Commissioner Sahr seconded and Commissioner Nelson concurred. Motion passed 3-0.
3. XCEL ELECTRIC RELIABILITY STUDY. (Commission Analyst: Greg Rislov.)
Dave Hagemann, Xcel engineer, reported Xcel's response to the electric reliability study done by Power System Engineering (PSE). Kent Larson, representing Xcel, further explained improvements made. Chairman Burg, Commissioner Nelson and Mr. Rislov questioned the report and requested that Xcel provide answers to the study questions of reliability posed by PSE. This is to be done at a Commission meeting in December. Mr. Rislov will work with Xcel.
Meeting adjourned.
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Mary R. Giddings
Administrative Secretary
