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South Dakota Public Utilities Commission Meeting
Tuesday, June 17, 2003 at 9:30 A.M.
State Capitol Building, Room 412
Pierre, South Dakota
MINUTES OF THE COMMISSION MEETING
Chairman Bob Sahr called the meeting to order. Also present were Vice Chairman Gary Hanson; Commissioner Jim Burg; Executive Director Pamela Bonrud; Deputy Executive Director Heather Forney; Commission Advisor Greg Rislov; Commission Attorney Rolayne Ailts Wiest; Commission Counsel John Smith; Staff Attorney Karen Cremer; Staff Attorney Kelly Frazier; Staff Analysts David Jacobson, Bonnie Bjork, Keith Senger, Jim Mehlhaff, Steve Wegman, Harlan Best, and Michele Farris; Harry Rosenthal, Intern; and Administrative Secretary Tina Douglas.
Also present was Bob Mercer, Newspaper Reporter.
Joining the meeting by telephone were John Blessing, AT&T; Colleen Sevold, Tim Goodwin, and Todd Lundy, Qwest Corporation; Linn Evans, Black Hills Corporation; Mary Lohnes, Midcontinent Communications; Tom Welk, Boyce, GreenField, Pashby & Welk LLP; Meredith Moore, Attorney for Recreational Adventures Co.
Administration
1. Approval of the Minutes of the Ad Hoc Meeting Held on June 13, 2003 and the Commission Meeting Held on June 3, 2003. (Staff: Tina Douglas.)
Commissioner Hanson moved to approve the minutes of the Commission Meeting held on June 3, 2003, and the Ad Hoc Meeting Held on June 13, 2003. Commissioner Burg seconded and Chairman Sahr concurred. Motion passed 3-0.
Consumer Issues
1. Status Report on Consumer Utility Inquiries and Complaints Received by the Commission. (Consumer Affairs: Jim Mehlhaff.)
Mr. Mehlhaff reported that the Commission had received a total of 1067 consumer contacts during 2003. Since the last report was prepared for the June 3, 2003, Commission meeting, 205 of these contacts had been received; 171 contacts involved telecommunications services; 9 contacts involved electricity issues; 3 contacts involved natural gas issues; 3 contacts involved cellular phone services; 1 contact involved gas and electric services; and 9 contacts involved miscellaneous services not regulated by the PUC. In 2003, 759 of the 1067 complaints registered have been resolved informally. At this time, 1853 of the 1918 complaints from 2002 have been resolved. Chairman Sahr asked if the majority of the telecommunication contacts were regarding S&S Communications/Alterna-Cel. Mr. Mehlhaff agreed that the majority of the telecommunications contacts were regarding S&S Communications/Alterna-Cell complaints.
Chairman Sahr moved that the Commission find
(i) that the fragmented T1 service ordered by Complainant Recreational Adventures Co. from AT&T was to be a special access service;
(ii) that such special access service was to be an interexchange service;
(iii) that such special access service was to be a jurisdictionally mixed service;
(iv) that the portion of the special access services to be devoted to services that have been declared by the FCC to be jurisdictionally interstate exceeded ten percent of the total proposed usage of the services;
(v) that the interstate component of the service was more than de minimus; and,
(vi) that the special access service was therefore an interstate service under the FCC's jurisdictional separation rules.
Chairman Sahr further moved that the Commission conclude
(vii) that under the FCC's decision in In the Matter of Policy and Rules Concerning the Interstate, Interexchange Marketplace, Second Report and Order, 11 FCC Rcd. 20730 (1996) (the "Detariffing Order"), the special access service ordered by Complainant was an interstate, interexchange service for which the filing of a federal tariff is prohibited;
(viii) that the special access service was a detariffed service;
(ix) that as a detariffed service, the fact that the service ordered by Complainant was jurisdictionally interstate does not necessarily preempt and preclude the applicability of certain state laws and the jurisdiction of the state to enforce those laws with respect to the service; but,
(x) that the FCC's affording of the availability of "state consumer protection and contract law" remedies to detariffed services was not intended to subject such services to the general regulatory jurisdiction of the Commission over telecommunications companies, but rather to the general contract and consumer protection laws of the state that are applicable to all businesses.
Chairman Sahr further moved that the Commission conclude that although it may decide claims against telecommunications companies under SDCL 49-13-1 and 49-13-1.1, the primary relief sought by Complainant in this case, ordering AT&T to install the ordered service, would require the Commission to exercise its general regulatory jurisdiction over telecommunication companies, and that such exercise is preempted with respect to a jurisdictionally interstate service.
Lastly, Chairman Sahr moved that the Commission conclude that because the state laws and remedies available to Complainant under the Detariffing Order are those afforded by general contract and consumer protection laws and because the Commission would be precluded from affording Complainant the primary relief it requests, the Commission should defer to the jurisdiction of the appropriate state or federal court under the doctrine of primary jurisdiction where the Complainant will have available the full set of rights and remedies afforded by a court of general jurisdiction.
Chairman Sahr moved that the Complaint in CT02-021 be dismissed without prejudice. Commissioner Hanson seconded and Commissioner Burg concurred. Motion passed 3-0.
Telecommunications
1. In the Matter of Dismissing Dockets TC03-002, TC03-003, TC03-004, TC03-005, TC03-006, TC03-008, TC03-009, TC03-010, TC03-011, TC03-012, TC03-013, TC03- 014, TC03-015, TC03-016, TC03-017, and TC03-018.
TC03-009 In the Matter of a Subject to Rule of Evidence 408, Confidential Billing Settlement Agreement between Qwest Corporation and McLeodUSA, Inc. (Staff Attorney: Kelly Frazier)
Mr. Frazier stated that docket TC03-006 should be moved to Item #2 of the agenda and should not be in with Item #1 of the agenda. Mr. Frazier stated that the staff has reviewed the above Agreements and found that the above Agreements were not a mandatory filing under the requirements of section 252(a)(1) of the 1996 Telecommunications Act. Mr. Frazier recommended that the Commission dismiss the above dockets without action or dismiss the dockets and reserve the right to take action later if more evidence presents itself. Tim Goodwin, representing Qwest, had no comment and concurred with the staff recommendations.
Commissioner Burg moved that the dockets be closed in TC03-002, TC03-003, TC03-004, TC03-005, TC03-008, TC03-009, TC03-010, TC03-011, TC03-012, TC03-013, TC03- 014, TC03-015, TC03-016, TC03-017, and TC03-018 with the determination that none of these Agreements qualify for a mandatory filing under requirements of section 252(a)(1) and that TC03-006 be moved to Item #2 of the agenda. Commissioner Hanson seconded and Chairman Sahr concurred. Motion passed 3-0.
2. In the Matter of Dismissing and Closing Dockets TC03-007, TC03-019, and TC03-021.
Mr. Frazier stated that on the agenda there was a typo and it should have been Docket TC02-165 which contained these four Agreements. Mr. Frazier stated that the agreements had already been approved by the Commission. Mr. Frazier recommended that there be no change of decision from the Commission at this time and the Commission should close these dockets.
Chairman Sahr moved that the dockets be closed in TC03-006 (from Item 1), TC03- 007, TC03-019, and TC03-021 on the basis that the Agreements had been previously filed in TC02-165 and had already been approved by the Commission. Commissioner Burg seconded and Commissioner Hanson concurred. Motion passed 3-0.
Mr. Frazier stated that this was a duplicate filing. This Agreement was previously filed in TC03-006. Qwest had no comment.
Commissioner Hanson moved that the docket be closed in TC03-020 on the basis that the Agreement had been previously filed in TC03-006 and had already been approved by the Commission. Commissioner Burg seconded and Chairman Sahr concurred. Motion passed 3-0.
Ms. Bjork stated that on May 7, 2003, US LEC Communications, Inc. submitted an Application for a Certificate of Authority to provide resold interexchange telecommunications services in South Dakota. The applicant is a wholly owned subsidiary of US LEC Corporation and does not have subsidiary historical financial statements. The applicant has requested a waiver from filing financial statements as required by ARSD 20:10:24:02(8). The company has made all staff recommended changes to the tariffs and has agreed to restrictions from accepting customer deposits and advance payments and offering prepaid services. Ms. Bjork recommended the Commission grant the waiver of the financial statements and approve a Certificate of Authority to US LEC Communications Inc. with an effective date of July 7, 2003, with restrictions from offering any prepaid services and from accepting customer deposits and advance payments.
Commissioner Burg moved to approve US LEC Communications Inc.'s Certificate of Authority with restrictions from accepting customer deposits and advance payments and offering prepaid services, and grant a waiver from filing financial statements as required by ARSD 20:10:24:02(8) with an effective date of July 7, 2003. Commissioner Hanson seconded and Chairman Sahr concurred. Motion passed 3-0.
5. In the Matter of the Filing for Approval of Amendments to Agreements in TC03-082, TC03-083, and TC03-086.
Mr. Frazier stated that all of the Amendments have been properly filed, have been properly executed and do not appear to contain discriminatory provisions, no comments were filed, and recommended approval to all of the Amendments.
Commissioner Hanson moved to approve the Amendments in TC03-082, TC03-083, and TC03-086. Commissioner Burg seconded and Chairman Sahr concurred. Motion passed 3-0.
Ms. Bjork stated that on May 12, 2003, Covista, Inc. filed an application for a Certificate of Authority to provide local exchange telecommunication services in South Dakota. The company currently has authority to provide interexchange services in South Dakota. The company intends to be a reseller using Qwest facilities. The applicant does not offer prepaid services or accept customer deposits and advance payments. The applicant has requested a waiver from filing ARSD 20:10:32:03(13), which requires the company to tariff or price list of each contemplated local service offering. The company has agreed to provide a final tariff with price information prior to providing service in South Dakota. Ms. Bjork recommended the Commission grant Covista, Inc. the waiver of administrative rule and a certificate for local exchange authority subject to rural safeguards, restrictions from prepaid services, advance payments and customer deposits, and to provide a tariff or price list of each contemplated local service offering.
Chairman Sahr moved to grant US LEC Communications Inc.'s Certificate of Authority with restrictions from accepting customer deposits and advance payments and offering prepaid services and subject for rural safeguards, and a waiver requiring the company to tariff or price list each contemplated local service offering as required by ARSD 20:10:32:03(13) as long as the company provides the Commission with a final tariff with price information prior to providing service in South Dakota. Commissioner Hanson seconded and Commissioner Burg concurred. Motion passed 3-0.
Colleen Sevold, Qwest Corporation, stated that Qwest had received a request from West River Telecommunications who had been contacted by two customers requesting that West River Telecommunications provide their service. Both companies are in agreement to the change. Ms. Farris stated that the service territory boundary change is between West River Telecommunications Cooperative's McLaughlin Exchange and Qwest's Timber Lake Exchange and because of the boundary change SDCL 49-31-69 requires that both companies amend its Certificate of Authority. Both West River Telecommunications and Qwest have requested an amended Certificate of Authority. Both companies have also requested a waiver from ARSD 20:10:32:03 subparagraphs 1-7, 9-21 and 23. The companies are requesting the waivers because the Commission already has the information and the change in territory doesn't affect the information. Both of the Companies are in good standing with the Commission and the change in territory benefits the customers requesting the change. Ms. Farris recommended the Commission approve the boundary change and grant the amended Certificates of Authority, for both West River Telecommunications Cooperative and Qwest with waivers from ARSD 20:10:32:03 subparagraphs 1-7, 9-21 and 23.
Commissioner Hanson moved to approve the boundary change approve the boundary change and grant the amended Certificates of Authority, for both West River Telecommunications Cooperative and Qwest with waivers from ARSD 20:10:32:03 subparagraphs 1-7, 9-21 and 23. Commissioner Burg seconded and Chairman Sahr concurred. Motion passed 3-0.
Colleen Sevold, Qwest Corporation, stated that Qwest prepared this filing to comply with FCC Order 02-025. This simply offers the PAL providers some protection services, which will be offered on incoming and/or outgoing calls at a lower rate. This service prohibits collect and or third number billed calls from being charged to incoming protected lines and restricts outgoing toll calls to only collect, third number billed and calling cards on outgoing protected lines. Mr. Senger recommended that the Commission approve the tariff revision with a June 30, 2003, effective date.
Commissioner Burg moved to approve the tariff revision in TC03-088 with an effective date of June 30, 2003. Commissioner Hanson seconded and Chairman Sahr concurred. Motion passed 3-0.
ADDENDUM TO THE AGENDA
Natural Gas
Ms. Cremer stated that Montana-Dakota Utilities Co. and Staff filed a joint Motion to Continue and Reschedule the Hearing and Further Suspend Rates on June 13, 2003.
Chairman Sahr moved to grant the Motion to Continue and Reschedule the Hearing and Further Suspend Rates in NG02-011. Commissioner Burg seconded and Commissioner Hanson concurred. Motion passed 3-0.
Meeting adjourned.
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Tina Douglas
Administrative Secretary
