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South Dakota Public Utilities Commission Meeting
Wednesday, July 9, 2003; 9:00 A.M.
State Capital, Room 412
Pierre, South Dakota
MINUTES OF THE AD HOC 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 Attorneys John Smith and Rolayne Ailts Wiest; Staff Attorney Karen Cremer; Staff Analysts Keith Senger, Harlan Best, and Michele Farris; and Administrative Secretary Tina Douglas.
Joining the meeting by telephone were Bill Heaston, PrairieWave Telecommunications, Inc.; and Matthew McCaulley, McCaulley Law Office, representing PrairieWave Telecommunications, Inc.; Larry Toll and Colleen Sevold, Qwest Corporation; Kyle White, Black Hills FiberCom, LLC; Gary Jensen, Beardsley, Jensen, Von Wald, representing Black Hills FiberCom, LLC; Mary Lohnes and Tom Simmons, Midcontinent Communications; Tom Welk, Boyce, GreenField, Pashby & Welk LLP, representing Qwest Corporation; and Darla Rogers, Riter, Rogers, Wattier & Brown, representing Northern Valley Communications, LLC, and Midstate Telecom Inc.
Telecommunications
Chairman Sahr moved that the Commission find and conclude that the following information is sufficiently probative that denial of it to Qwest would be prejudicial to Qwest and that subject to the protective provisions of the protective order the competitive risk to interveners Prairie Wave, Black Hills, Midcontinent, Northern Valley Communications, LLC, and MidState, (collectively Respondents), will be sufficiently mitigated. Accordingly, subject to Qwest and its attorneys and representatives compliance with the provisions of the protective order set forth below, Respondents shall, to the extent they have not previously done so, respond to Qwest's discovery requests and produce to Qwest in the manner set forth in the protective order these specific items of discovery set forth as follows:
A. Interrogatory No. 8, Respondents shall provide the information requested in Interrogatory No. 8.
B. Interrogatory No. 9, Respondents shall provide the information requested in Interrogatory No. 9. As an entity that has had a continous legal existence despirte a change of control and a change of name, Prairie Wave Telecommunications, Inc. shall comply with this order to the extent that it is in possession of such information but shall not be required to obtain or attempt to obtain such information from McLeod USA. Prairie Wave shall not be required to comply with this order with respect to the incumbent local exchange operations of Prairie Wave Community Telephone, Inc. as such information is not part of the relevant market.
The Commission believes that the relevance and probative value of the following information is outweighed by the competitive risk of this disclosure, and the Commission is, therefore, denying Qwest's Motion to Compel with respect to this information. Respondents shall not be required to provide the following information to Qwest:
A. Request For Production No. 3, Respondents shall not be required to provide the documents requested by this request. This general market information is obtainable by Qwest from its own market research. To the extent that a Respondent does not provide such documents, however, it shall be precluded from offering any such documents or evidence concerning them as evidence in the proceeding.
B. Request For Production No. 4, Respondents shall not be required to provide the documents requested in this request for the reasons set forth in A. This general market information is obtainable by Qwest from its own market research. To the extent the Respondent does not provide such documents, however, it shall be precluded from offering any such documents or evidence concerning them as evidence in the proceeding.
C. Request For Production No. 5, Respondents will not be required to provide the documents requested in this request for the reasons set forth in A. The factors set forth in SDCL 49-31-3.2 involve the current state of competition and not forecasted events. Furthermore, the general marketing information called for by this request is obtainable by Qwest through its own market research. To the extent that a Respondent does not provide such documents, it shall be precluded from offering any such documents or evidence concerning them as evidence in the proceeding.
All information disclosed by Respondents pursuant to Interrogatories No. 8 and No. 9 shall be treated as confidential information pursuant to ARSD 20:10:01:39 through 20:10:01:44 except that access to and use of such information by Qwest for the purposes of the preparation for the proceedings and use in the proceedings shall be permitted subject to the provisions of this protective order.
All information produced by a Respondent pursuant to the order to compel shall be provided to the attorney of record for Qwest in this proceeding, who shall be responsible for limiting disclosure only to authorized recipients and use of the disclosed information as provided by this protective order.
Qwest's counsel of record in this proceeding may disclose the information provided pursuant to the order to compel to the following persons: David Titzel, Marti Gude, Bradley Yeager, and Starla Rook.
Additionally, each Respondent shall appoint an authorized representative or representatives to receive information from Qwest, and I would move that the Respondents make those names available to Qwest and Qwest would have the opportunity to object to anyone, realizing, though, that many of these people may be the witnesses for the hearing, and certainly the Respondents should have an ample opportunity to put on their case as well. At hearing the Commission shall hold in-camera proceedings when the disclosed information is presented where only the parties' authorized recipients may be present. Commissioner Hanson seconded and Commissioner Burg concurred. Motion passed 3-0.
Meeting adjourned.
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Tina Douglas
Administrative Secretary
