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South Dakota Public Utilities Commission Meeting
Thursday, December 19, 2002; 1:30 P.M.
State Capitol Building, Room 464
Pierre, South Dakota
MINUTES OF THE COMMISSION MEETING
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 Smith; Commission Attorney Rolayne Ailts Wiest; Staff Attorneys Karen Cremer and Kelly Frazier; Staff Analysts Dave Jacobson, Harlan Best, Heather Forney, Keith Senger, Michele Farris and Mary Healy; Transportation/Warehouse Director Bob Knadle; and Administrative Secretary Mary Giddings.
Also present were Bob Miller, SD Electric Utility Companies; Kent Larson, Jim Wilcox, and Dave Hageman, Xcel Energy; Dave Gerdes, Xcel Energy and Frontier Road Homeowners Association; Sunny Holloway, Main Street Dance; Bob Riter, McLeodUSA Telecommunications Services, Inc.; Tom Harmon, City of Fort Pierre and Association of County Commissioners; Brian Meyer, SD Telecommunications Association; and Steve Wegman, Governor's Office.
Joining the meeting by telephone were Thomas Welk, Boyce, Murphy, McDowell & Greenfield; Colleen Sevold, Jeff Carmon, Tim Goodwin, Todd Lundy and Sharon Lawrence, Qwest Corporation; Jim Hettrick, MidAmerican Energy Company; Ron Spangler and Bruce Gerhardson, Otter Tail Power Company; Joe Schuele, Martin Group; Mary Lohnes, Midcontinent Communications; Dennis Berkland, building owner in Yankton; Don Ball, Montana-Dakota Utilities Co.; Al Glover, Glover, Helsper, & Rasmusson; Talbot Wieczorek, Gunderson, Palmer, Goodsell & Nelson; Matt McCaulley, PrairieWave; RaeAnn Kelsch, Western Wireless/Cellular One; Jim Billion, Brown County State's Attorney Office; Gary Colwell, Minnehaha County State's Attorney Office; Jeff Decker, Northwestern Energy; Don Phillips and Toby Karn, Pennington County Emergency Service; R. Shawn Tornow, Sioux Falls City Attorney's Office; Jack Wilds, Attorney for SD Network Against Family Violence; Linda Varud, Complainant; Robert Fogg, Jr., Complainant; and John Rice, Complain
Administration
1. APPROVAL OF THE MINUTES OF THE COMMISSION MEETING HELD ON NOVEMBER 20, 2002. (Staff: Mary Giddings.)
Chairman Burg moved to approve the minutes of the Commission meetings held on November 20, 2002, and December 11, 2002. 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. Healy presented an update on inquiries and complaints received since the November 20, 2003, Commission meeting.
Addendum
Chairman Burg moved that, based on the evidence presented at the September 5, 2002, hearing in this case, the Commission find in favor of Complainant and against McLeodUSA Telecommunications Services, Inc. and that the Commission issue a final decision and order granting the relief requested by Complainant canceling the early termination charges assessed by McLeod against Complainant in the amount of $660.68 and any associated late charges, interest or collection charges and that McLeod make any notice to credit reporting agencies as is necessary to effect the removal of such charges from Complainant's credit history. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Chairman Burg moved that, based upon the evidence presented at the December 16, 2002, hearing is this case, the Commission find in favor of Complainant and against McLeodUSA Telecommunications Services, Inc. and that the Commission issue a final decision and order granting the relief requested by Complainant, which shall require McLeod to refund the early termination charges and associated late charges, interest, penalties and /or collection charges paid by Complainant to McLeod in the amount of $3,330.05 and that McLeod make any notice to credit reporting agencies as is necessary to effect the removal of such charges from Complainant's credit history. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Chairman Burg moved that, based upon the evidence presented at the December 17, 2002, hearing in this case, the Commission find in favor of Complainant and against McLeodUSA Telecommunications Services, Inc. and that the Commission issue a final decision and order granting the relief requested by Complainant canceling the early termination charges assessed by McLeod against Complainant and associated late fees, interest and/or penalties in the amount of $2,217.78 and any associated collection charges and that McLeod make any notice to credit reporting agencies as is necessary to effect the removal of such charges from Complainant's credit history. He further moved that Complainant's request that the Commission award Complainant costs and attorney fees be denied on the grounds that the Commission does not have legal authority to award either costs or attorney fees. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
2. IN THE MATTER OF DISMISSING DOCKETS CE02-003; CT02-044
Chairman Burg moved to dismiss the complaints and close the dockets in CE02-003 and CT02-044. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Action was deferred.
Chairman Burg moved that the Commission find that all of the pleadings, affidavits and other filings of the parties and the arguments of the parties on CellularOne's Motion for Summary Judgment show that there is no genuine issue of material fact regarding any of Complainant's nine claims and that the Commission conclude that CellularOne is entitled to judgment as a matter of law on all nine claims alleged in the Complaint. He further moved that summary judgment be granted in favor of CellularOne and against Complainant on all nine claims stated in the Complaint and the Order for and Notice of Hearing in this case and that a final decision be issued granting summary judgment in favor of CellularOne. Commissioner Sahr seconded and Commissioner Nelson concurred. Motion passed 3-0.
Bob Riter, representing McLeodUSA Telecommunications Services, Inc. (McLeod), stated that he had no objection to dismissing Qwest Communications, Inc. (Qwest), as a party. Tom Welk, representing Qwest, explained that Qwest had no responsibility and should therefore be dismissed as a party. Mr. Frazier recommended that Qwest be dismissed as a party. Mr. Riter, representing McLeod, stated that there are issues that need to be settled.
Chairman Burg moved to dismiss Qwest Communications, Inc. as a party. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Chairman Burg moved to deny McLeodUSA Telecommunications Services, Inc.'s motion to dismiss the complaint. Commissioner Sahr seconded and Commissioner Nelson concurred. Motion passed 3-0.
Electric
Al Glover, representing West Central, explained the amendment. Ms. Farris recommended that the amended agreement be approved. Dave Gerdes, representing the Frontier Road Homeowners Association (Homeowner's), explained the filing for withdrawal of intervention. Staff supported the Homeowner's withdrawal filing.
Chairman Burg moved to approve the agreement as amended. Commissioner Sahr seconded and Commissioner Nelson concurred. Motion passed 3-0.
Chairman Burg moved to grant the Homeowner's withdrawal of intervention. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Jim Wilcox, representing Xcel, explained the tariff. Mr. Jacobson recommended that the tariff be approved.
Chairman Burg moved to approve Xcel Energy's tariff sheets. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Ron Spangler and Bruce Gerhardson, representing Otter Tail Power Company, explained the changes to its standard Municipal Contract form. Ms. Farris recommended that the changes be approved.
Chairman Burg moved to approve the revised Municipal Service Agreement. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Don Ball, representing Montana-Dakota Utilities Co., explained the tariff revisions. Mr. Jacobson recommended that the tariff revisions be approved.
Chairman Burg moved to approve Montana-Dakota Utilities Co. tariff sheet and also the inclusion of purchased power costs related to energy purchased from Dakota I Power Partners LLC in Fuel Clause Rate 58. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Ron Spangler, representing Otter Tail Power Company, explained the contract with deviations with the City of Waubay. Mr. Jacobson recommended that the contract with deviations be approved.
Chairman Burg moved to approve Otter Tail Power Company's tariff sheet and contract with deviations with the City of Waubay. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Natural Gas
Dennis K. Berkland, representing Berkland Organization, explained the request for a variance to Master Metering Rules pursuant to ARSD 20:10:26, for property located at 110 W. 6th St., Yankton, South Dakota. Ms. Farris stated that this property was within the exception of ARSD 20:10:26:04(6) and a variance was not required.
Chairman Burg moved that the Commission find that the proposed central water heating system falls within the exception of ARSD 20:10:26:04(6). Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Jeff Decker, representing NorthWestern Energy, explained the revisions to its natural gas tariff to terminate Manufactured Gas Plant cost recovery and its proposal to pass back an associated over-recovery to customers through the commodity gas cost true-up. Mr. Jacobson explained the over-collection and recommended that the true-up be approved with conditions.
Chairman Burg moved to approve NorthWestern Energy's tariff revision and allow over- collected, manufactured gas plant cleanup cost recovery funds to be returned to ratepayers through the Commodity gas cost true-up with the following conditions:
1) Approval of this request is a one time, case specific approval and any future deviation from filed Adjustment Clause tariffs must be filed for and approved by the Commission before implementation.
2) The Adjustment Clause currently tariffed is not changed by this approval and no precedent is created by approval of this request.
Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Telecommunications
Ms. Wiest stated that Western Wireless had requested that action be deferred. Action was deferred.
Mr. Frazier recommended that the order be withdrawn and the docket closed.
Chairman Burg moved to withdraw the Order and close the docket. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 2-0.
Mr. Frazier reviewed the agreement and recommended approval.
Chairman Burg moved to approve the Interconnection Agreement as amended. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Mr. Senger recommended that Voicecom Telecommunications, LLC be granted a Certificate of Authority with restrictions from offering prepaid calling cards, accepting advance payments or customer deposits.
Chairman Burg moved to grant a Certificate of Authority to Voicecom Telecommunications, LLC with restrictions from offering prepaid calling cards, accepting advance payments or customer deposits. Commissioner Sahr seconded and Commissioner Nelson seconded. Motion passed 3-0.
Mr. Frazier recommended that the amendment be approved.
Chairman Burg moved to approve the amendment. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Mr. Senger recommended that NobelTel, LLC 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 NobelTel, LLC 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 Sahr seconded and Commissioner Nelson concurred. Motion passed 3-0.
Todd Lundy, representing Qwest, explained the amendments. Mr. Frazier further explained the issues and recommended that the amendments be approved and that the Commission reserve the right to consider Qwest's failure to file these agreements pursuant to 252(e)(1) at a later time.
Chairman Burg moved to approve the amendments and defer action until a later date on Qwest's failure to file. Commissioner Sahr seconded and Commissioner Nelson concurred. Motion passed 3-0.
Colleen Sevold, representing Qwest Corporation, explained the withdrawal request.
Chairman Burg moved to grant the withdrawal of the docket. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Tom Welk, representing Qwest Corporation, explained the interim rates filing. Don Phillips, representing Pennington County; Jim Billion, representing Brown County; Gary Colwell, representing Minnehaha County; R. Shawn Tornow, representing the City of Sioux Falls; and Tom Harmon, representing South Dakota Association of County Commissioners, objected to the interim rates. Sharon Lawrence, representing Qwest, explained its position on interim rates. Ms. Forney explained the cost study from Qwest is subject to refund if rates have been overstated. Mr. Smith asked if anyone is now receiving this service. Gary Colwell, representing Minnehaha County, stated that Sioux Falls is getting ready to implement this service but can't because the FCC may opt out if the tariff is allowed. Ms. Cremer stated that Staff feels that interim rates need to be filed, not individual contracts.
Chairman Burg moved to approve the Interim Rates with true-ups or refunds at such time as the rates to be included in the tariff are finally determined. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Matt McCaulley, representing PrairieWave, explained its petition to intervene. Western Wireless explained that it had agreed to limited intervention. Brian Meyer, representing SD Telecommunications Association, stated it had no objections to the intervention. Ms. Wiest recommended the adoption of the procedural schedule in the stipulated agreement.
Chairman Burg moved to grant intervention to PrairieWave Community Telephone, Inc. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Chairman Burg moved to require Western Wireless to make a deposit not to exceed $75,000. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Chairman Burg moved that the Commission adopt the procedural schedule in the stipulated agreement. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Mr. Frazier recommended approval of the amendment.
Chairman Burg moved to approve the amendment. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Todd Lundy, representing Qwest Corporation, explained that the agreement was an informational filing. Mr. Frazier recommended approval of the agreement.
Chairman Burg moved that the Commission find that the agreement does not fall under the mandatory filing requirements of 252(a)(1) of the 1996 Telecommunications Act. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Todd Lundy, representing Qwest Corporation, explained the agreement. Mr. Frazier recommended approval of the agreement.
Chairman Burg moved that the Commission find that this agreement does not fall under the mandatory filing requirements of 252(a)(1) of the 1996 Telecommunications Act. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Ms. Farris recommended that the Certificate of Authority be granted to LCR Telecommunications, L.L.C. with a waiver of ARSD 20:10:24:02(8); restrictions from offering prepaid calling cards, accepting advance payments or customer deposits; and with an effective date of January 6, 2003.
Chairman Burg moved to grant a Certificate of Authority to LCR Telecommunications, L.L.C. with restrictions from offering prepaid calling cards, accepting advance payments or customer deposits and with an effective date of January 6, 2003. Commissioner Sahr seconded and Commissioner Nelson concurred. Motion passed 3-0.
Mr. Frazier recommended that the amendment be approved.
Chairman Burg moved to approve the Amendment. Commissioner Nelson seconded and Commissioner Sahr concurred. Motion passed 3-0.
Other
1. XCEL ELECTRIC RELIABILITY STUDY. (Commission Analyst: Greg Rislov.)
Kent Larson, Dave Hageman and Jim Wilcox, representing Xcel, presented a detailed and specific report on actions Xcel has taken to resolve distribution system-related problems in Sioux Falls as identified in the PSE Study and answered questions from the Commissioners and Staff.
2. WESTERN WIRELESS - STATUS REPORT ON WINNER AREA PLAN
Commissioner Nelson moved that in order to resolve the issue of the service outage in the Winner area from August 16 through December 2, 2002, without the necessity of opening a formal docket on the issue, Western Wireless shall take the following additional actions:
1) Western will waive or refund any early termination charges assessed against Winner- area customers for termination during the out-of-service period from August 16 to December 2, 2002.
2) Western will also waive any early termination charges for Winner-area customers who give notice within the next 30 days.
3) Western will provide an additional 30 days within which Western will give credits to customers requesting them for any of the three months for which they have not yet received a credit. The 30 days will begin on the date Western published a notice of this right in the Winner paper. Prior to publication, Western will submit the announcement to Commission Staff for its review and approval.
Commissioner Sahr seconded and Chairman Burg concurred. Motion passed 3-0.
Meeting adjourned.
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Mary R. Giddings
Administrative Secretary
