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South Dakota Public Utilities Commission Meeting
Tuesday, December 28, 2004 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 Attorneys Rolayne Ailts Wiest and John Smith; Staff Attorneys Rolayne Ailts Wiest, John Smith, Karen Cremer, and Sara Harens; Staff Analysts Dave Jacobson, Harlan Best, Michele Farris, Jim Mehlhaff, and Keith Senger; Cheri Wittler, Court Reporter; and Administrative Secretary Tina Douglas.
Also present were Bob Miller, South Dakota Electric Utility Companies; Darla Rogers, Riter, Rogers, Wattier & Brown, representing Santel Communications Cooperative, Inc., Sioux Valley Telephone Company, Golden West Telecommunications Cooperative, Inc., Vivian Telephone Company, Kadoka Telephone Company, Armour Independent Telephone Company, Bridgewater-Canistota Independent Telephone Company, Union Telephone Company, Brookings Municipal Utilities, Beresford Municipal telephone Company, McCook Cooperative Telephone Company, Valley Telecommunications Cooperative Association, Inc., Midstate Communications, Inc., Interstate Telecommunications Cooperative, Inc., Alliance Communications Cooperative, Inc, Splitrock Properties, Inc., RC Communications, Inc., Roberts County Telephone Cooperative Association, Venture Communications Cooperative, and West River Cooperative Telephone Company; Rich Coit, South Dakota Telecommunications Association; Brett Koenecke, May, Adam, Gerdes and Thompson, representing MCI Worldcom; David Gerdes, May, Adam, Gerdes and Thompson, representing MCI Worldcom, Montana-Dakota Utilities Co., and Midcontinent Communications; Randy Houdek, Venture Communications Cooperative; and Kyle White, Marv Truhe, and Linn Evans, Black Hills Corporation.
Joining the meeting by telephone were Bill Heaston, PrairieWave Telecommunications Inc.; Brad Moody, Watt Beckworth Thompson & Henneman LLP, representing Superior Renewable Energy; Suzan Stewart, MidAmerican Energy; Denny Law, Golden West Telecommunications; Colleen Sevold and Tim Goodwin, Qwest Corporation; Talbot Wieczorek, Gunderson, Palmer, Goodsell & Nelson, representing WWC License, LLC; Dana Palmer, Davenport, Evans, Hurwitz & Smith, representing MidAmerican Energy; Mark Ayotte, Briggs and Morgan, representing WWC License, LLC; Faye Jandreau, Midstate Communications, Inc.; Doug Eidahl, Vantage Point; Marcia Huber, Valley Teleco; Dan Daly, Rapid City Journal; Bruce Biewald, Synapse Energy Economics, Inc.; Jerry Reisenauer, West River Cooperative Telephone Company; and Tom Welk, Boyce, Greenfield, Pashby & Welk LLP, representing Qwest Corporation
Administration
1. Approval of the Minutes of the Ad Hoc Meetings Held on November 19, 2004; November 22, 2004; December 6, 2004; and December 10, 2004; and the Commission Meetings Held on November 30, 2004; and December 14, 2004. (Staff: Tina Douglas.)
Commissioner Burg moved to approve the Minutes of the Ad Hoc Meetings held on November 19, 2004; November 22, 2004; December 6, 2004; and December 10, 2004; and the Commission Meetings held on November 30, 2004; and December 14, 2004. Commissioner Hanson 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 2284 consumer contacts during 2004. Since the last report was prepared for the December 14, 2004, Commission meeting, 63 of these contacts had been received; 24 contacts involved telecommunications services; 11 contacts involved electricity issues; 4 contacts involved natural gas issues; 3 contacts involved gas and electric services; 10 contacts involved cellular phone issues; 7 contacts involved the Do Not Call registry; and 4 contacts involved miscellaneous services not regulated by the PUC. In 2004, 1928 of the 2284 complaints registered have been resolved informally.
Dana Palmer, Davenport, Evans, Hurwitz & Smith, representing MidAmerican Energy, stated that MidAmerican Energy and Dan Larson have entered into a Stipulation for Dismissal which was sent to the Commission. Ms. Cremer stated that the Commission has received the Stipulation for Dismissal and Mr. Larson had signed it on December 17, 2004. Ms. Cremer recommended dismissing and closing the docket.
Chairman Sahr moved to dismiss and close docket CN04-001. Commissioner Burg seconded and Commissioner Hanson concurred. Motion passed 3-0.
Mr. Mehlhaff stated that he had spoken with Donna Weig, and after discussing with her that the telemarketing company which had switched her service is no longer connected to MCI WorldCom, she agreed to withdraw her formal complaint.
Commissioner Burg moved to dismiss and close docket CT02-012. Commissioner Hanson seconded and Chairman Sahr concurred. Motion passed 3-0.
See Transcript for December 28, 2004, Commission Meeting (CT03-154)
Chairman Sahr moved that the Commission deny Qwest's Motion to Dismiss. Although the FCC has held that ISP-bound traffic is jurisdictionally interstate and Qwest repeatedly took the position that ISP traffic is interstate, Qwest elected to bill Black Hills FiberCom under its intrastate switched access tariff. The Commission believes that it has jurisdiction to rule on billings issued pursuant to an intrastate access tariff approved by this Commission and to order the refund of payments made against improper billings under that tariff. Commissioner Burg seconded and Commissioner Hanson concurred. Motion passed 3-0.
Chairman Sahr moved that the Commission find in favor of Qwest with respect to intrastate access billings prior to the effective date of the FCC's Order on Remand, and that the Commission find for Black Hills FiberCom with respect to intrastate access payments it made from the effective date of the Order on Remand to the present and that the Commission orders Qwest to refund these amounts. Prior to the Order on Remand, the FCC had permitted state involvement in setting intercarrier compensation for ISP traffic under state tariffs. In the Order on Remand, the Commission believes the FCC directed that all intercarrier compensation for ISP traffic was an FCC matter from and after the effective date of the order. In general it mandated a bill and keep system, he Commission doesn't think that is its call to make with respect to the traffic at issue here. The Commission doesn't believe it has precise enough billing evidence before them to determine the amount to be refunded. The parties should have an opportunity to petition the Commission for a determination of the precise amount if they are unable to agree following issuance of our order. Also, the Commission wants noted that additional compensation may be due to Qwest for the period after the effective date of the Order on Remand, hat is a matter for the FCC and the federal courts. Chairman Sahr further moved that the Commission deny Qwest's counterclaims on the grounds that FiberCom's actions of which Qwest complains occurred after the effective date of the Order on Remand, and that any determination of discrimination or other wrongful conduct by Black Hills FiberCom with respect to the interstate traffic at issue should be made by the FCC or a federal court. Commissioner Burg seconded and Commissioner Hanson concurred. Motion passed 3-0.
Electric
Chairman Sahr moved to authorize the Executive Director to execute the contract between the Commission and Synapse Energy Economics, Inc. Commissioner Hanson seconded and Commissioner Burg concurred. Motion passed 3-0.
Mr. Jacobson stated that the existing contract with the City of Toronto will expire on January 1, 2005, and the new agreement does not contain any deviations from Otter Tail's currently filed tariff.
Commissioner Hanson moved to approve the tariff revisions in EL04-038. Chairman Sahr seconded and Commissioner Burg concurred. Motion passed 3-0.
Telecommunications
See Transcript for December 28, 2004, Commission Meeting (TC03-191)
Chairman Sahr moved that the Commission modify condition three to state that Western Wireless does not need to provide capital expenditures or its capital budget for each RLEC service area hat Western Wireless does need to provide material capital expenditure information statewide with the location and cost listed for the material capital expenditures. Western Wireless shall work with Staff to determine what constitutes material. Chairman Sahr further moved that the Commission modify condition eight to state that Western Wireless' report regarding unfulfilled requests does not need to include potential customers, but must include consumers who were actual customers of Western Wireless. Or, in other words, consumers who signed up for service, including customers who subsequently cancelled their service. This information does not need to be provided on an RLEC service area basis. Chairman further stated that the Commission does not believe that this information will provide a complete or accurate picture of the number of unfulfilled requests for service hat it will provide the Commission with some additional information, including how well Western Wireless' five step process to provide service is working. The Commission extensively communicates with South Dakota's public regarding cell phone service, and, in fact, now receives information that allows the Commission to reasonably judge the nature and location of service requests, perhaps better than any standard the Commission could impose on WWC License, LLC so the need for WWC License, LLC's information does not appear to be critical for performance of the Commission duties.
Chairman Sahr further moved that the Commission find that Western Wireless' request for confidentiality language is unnecessary and inconsistent with the Commission rules. When Western Wireless files the information, it may request confidentiality under the Commission existing rules.
Chairman Sahr further moved that the Commission add Staff's proposed condition nine to the order. Commissioner Hanson seconded and Commissioner Burg concurred. Motion passed 3-0.
2. In the Matter of Petitions for Suspension or Modification of 47 U.S.C. Section 251(b)(2) of the Communications Act of 1934 as Amended in Dockets TC04-038, TC04-044, TC04-045, TC04-046, TC04-047, TC04-048, TC04-049, TC04-050, TC04-052, TC04-054, TC04-055, TC04-056, TC04-060, and TC04-061.
Chairman Sahr moved that the Final Decision and Order in TC04-054, In the Matter of the Petition of Interstate Telecommunications Cooperative, Inc. for Suspension or Modification of 47 U.S.C. Section 251(b)(2) of the Communications Act of 1934 as Amended, be amended by deleting the word "both" in the third sentence of Finding of Fact 27 and inserting the following Finding of Fact which was inadvertently deleted from the order prior to issuance:
38A. We find that implementing LNP at this time could cost ITC or its users as much as $0.61 per line per month excluding transport and that the costs of transport, if ultimately held to be ITC's responsibility, could raise that monthly cost substantially higher.
Chairman Sahr further moved that the Final Decision and Order in TC04-060, In the Matter of the Petition of Venture Communications Cooperative for Suspension or Modification of 47 U.S.C. Section 251(b)(2) of the Communications Act of 1934 as Amended, be amended by deleting the word "both" in the third sentence of Finding of Fact 17 and inserting the following Finding of Fact which was inadvertently deleted from the order prior to issuance:
29A. We find that implementing LNP at this time could cost Venture or its users as much as $0.59 per line per month excluding transport and that the costs of transport, if ultimately held to be Venture's responsibility, could raise that monthly cost substantially higher.
Chairman Sahr further moved that the Final Decision and Order in each of the following LNP suspension dockets be amended by inserting the phrase "and its/their customers" at the end of the sentence in the specified paragraphs:
! In TC04-038, Santel Communications Cooperative, Inc., Finding 48 and Conclusion 9
! In TC04-044, Sioux Valley Telephone Company, Finding 47 and Conclusion 9
! In TC04-045, Golden West Telecommunications Cooperative, Inc., Vivian Telephone Company and Kadoka Telephone Company, Finding 47 and Conclusion 9
! In TC04-046, Armour Independent Telephone Company, Bridgewater-Canistota Independent Telephone Company and Union Telephone Company, Finding 48 and Conclusion 9
! In TC04-047, Brookings Municipal Utilities d/b/a Swiftel Communications, Finding 47 and Conclusion 9
! In TC04-048, Beresford Municipal Telephone Company, Finding 46 and Conclusion 9
! In TC04-049, McCook Cooperative Telephone Company, Finding 47 and Conclusion 9
! In TC04-050, Valley Telecommunications Cooperative Association, Inc., Finding 49 and Conclusion 9
! In TC04-052, Midstate Communications, Inc., Finding 47 and Conclusion 9
! In TC04-054, Interstate Telecommunications Cooperative, Inc., Finding 56 and Conclusion 9
! In TC04-055, Alliance Communications Cooperative, Inc. and Splitrock Properties, Inc., Finding 48 and Conclusion 9
! In TC04-056, RC Communications, Inc. and Roberts County Telephone Cooperative Association, Finding 47 and Conclusion 9
! In TC04-060, Venture Communications Cooperative, Finding 47 and Conclusion 9
! In TC04-061, West River Cooperative Telephone Company, Finding 48 and Conclusion 9.
Commissioner Hanson seconded and Commissioner Burg concurred. Motion passed 3-0.
Chairman Sahr moved to deny Western Wireless' Petitions to Reconsider Final Decision and Order and urged the parties to move forward with the local number portability issues and find a solution. Commissioner Hanson seconded and Commissioner Burg concurred. Motion passed 3-0.
Mr. Best stated that on June 29, 2004, PrairieWave Telecommunications, Inc., filed a switched access cost study developing a revenue requirement and minutes of use that are not included in the revenue requirement and minutes of use used to determine the switched access rates for the Local Exchange Carrier Association. Staff and PrairieWave Telecommunications, Inc. have reached an agreement for a revenue requirement of $2,512,815.
Commissioner Hanson moved to grant PrairieWave Telecommunications, Inc.'s Switched Access Revenue Requirement of $2,512,815. Chairman Sahr seconded and Commissioner Burg concurred. Motion passed 3-0.
Mr. Senger stated that on August 2, 2004, the Commission received a joint application for a transfer of Local and Interexchange Certificate of Authority from XO Network Services, Inc. to XO Communications Services, Inc. The applicant has filed all of the required information pursuant to the administrative rules. The applicant has agreed to a $25,000.00 bond and has successfully transferred the existing bond to the new company. The application also requested that the existing exemption from filing a switched access cost study be transferred with the Certificate of Authority and is requesting a waiver of ARSD 20:10:27:07 and 20:10:27:12. The Applicant is requesting the use of Qwest rates. Mr. Senger recommended the Commission grant the waiver of ARSD 20:10:27:07 and 20:10:27:12 for 3 years, allow the use of Qwest rates and approve the transfer of the Local and Interexchange Certificate of Authority with a December 28, 2004, effective date.
Chairman Sahr moved to transfer the Certificate of Authority from XO Network Services, Inc. to XO Communications Services, Inc. with rural safeguards and subject to a continuous $25,000.00 surety bond with an effective date of December 28, 2004. Chairman Sahr furthered moved to approve the tariff and rates subject to refund with interest and also grant the ongoing exemption from developing company-specific cost-based switched access rates, and to mirror Qwest rates for a period of three years. Commissioner Hanson seconded and Commissioner Burg concurred. Motion passed 3-0.
Mr. Best stated that on November 2, 2004, GE Business Productivity Solutions, Inc. (GEBPS) and Business Productivity Solutions, Inc. (BPS) notified the Commission of an impending transaction involving the transfer of substantially all of the assets of GEBPS, including the GEBPS customer base, to BPS without interruption of service. BPS requests that the Commission grant BPS authority to provide long distance service so that BPS can provide service to the existing customers of GEBPS. Mr. Best recommended that the Commission approve the transfer of the Certificate of Authority from GE Business Productivity Solutions, Inc. to Business Productivity Solutions, Inc. with an effective date of January 1, 2005. Mr. Best also recommended that GE Business Productivity Solutions, Inc. send a letter requesting that its Certificate of Authority be discontinued as of the date of the customer transfer.
Chairman Sahr moved to transfer the Certificate of Authority from GE Business Productivity Solutions, Inc. to Business Productivity Solutions, Inc. with an effective date of January 1, 2005, and further ordered GE Business Productivity Solutions, Inc. to send a letter to the Commission requesting its Certificate of Authority be discontinued as of the date of the customer transfer. Commissioner Hanson seconded and Commissioner Burg concurred. Motion passed 3-0.
6. In the Matter of Approving the Agreement and the Amendment in TC04-255 and TC04-256.
TC04-255 In the Matter of the Filing for Approval of Terms and Conditions for Interconnection, Unbundled Network Elements, Ancillary Services and Resale of Telecommunications Services between Qwest Corporation and RC Communications, Inc. (Staff Attorney: Sara B. Harens)
TC04-256 In the Matter of the Filing for Approval of an Amendment to an Interconnection Agreement between Qwest Corporation and MCImetro Access Transmission Services, LLC. (Staff Attorney: Sara B. Harens)
Ms. Harens stated that the above Amendment and Agreement have been properly filed, have been properly executed and do not appear to contain discriminatory provisions, no comments were filed, and recommended approval of the Amendment and Agreement.
Commissioner Burg moved to approve the Amendment in TC04-256 and the Agreement in TC04-255. Commissioner Hanson seconded and Chairman Sahr concurred. Motion passed 3-0.
Mr. Best stated that on December 2, 2004, Sancom, Inc. d/b/a Mitchell Telecom filed an Intrastate Switched Access tariff which mirrors the rates, terms and conditions of the current LECA Tariff No. 1, with the exception of the switched access rates, which are based upon a statewide average in accordance with ARSD 20:10:27:12. Sancom, Inc. d/b/a Mitchell Telecom is seeking to adopt the terms and conditions of the Local Exchange Carriers Association's tariff in addition to the rates of the cost-based companies and is also aware that these rates are subject to refund with interest. Sancom, Inc. d/b/a Mitchell Telecom has requested an effective date of January 1, 2005, for the tariff filing. Mr. Best recommended the Commission approve the Switched Access Tariff for Sancom, Inc. d/b/a Mitchell Telecom, subject to refund with interest, grant the ongoing exemption from developing company-specific, cost-based switched access rates, and also allow Sancom, Inc. d/b/a Mitchell Telecom to adopt a rate based on the statewide average costs for telecommunications companies with fewer than 100,000 access lines with an effective date of January 1, 2005.
Chairman Sahr moved to approve the tariff and rates subject to refund with interest, grant the ongoing exemption from developing company-specific cost-based switched access rates and also allow Sancom, Inc. d/b/a Mitchell Telecom to adopt a rate based on the statewide average costs for telecommunications companies with fewer than 100,000 access lines for a period of three years. Commissioner Hanson seconded and Commissioner Burg concurred. Motion passed 3-0.
Administration
1. Contracts for Energy Conference (Executive Director: Pam Bonrud)
Ms. Bonrud stated that the contracts are with the Sheraton Sioux Falls Hotel and Convention Center for the Spring PUC Energy Conference which will be held April 19 and 20, 2005. One contract is a Group Sales Agreement for guest rooms to give a special conference rate for attendees and reserve a block of rooms at state rates for PUC and other state employees. The second contract is a catering agreement which covers arrangements for coffee breaks and meals that will be provided as a part of conference activities and a meeting room rental charge of $500 for the entire event.
Chairman Sahr moved to authorize the Executive Director to execute the two contracts between the Commission and Sheraton Sioux Falls Hotel and Convention Center. Commissioner Hanson seconded and Commissioner Burg concurred. Motion passed 3-0.
Commissioner Sahr announced this will be Commissioner Burg's last Commission Meeting and thanked Commissioner Burg for his service and dedication to the South Dakota Public Utilities Commission.
Meeting adjourned.
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Tina Douglas
Administrative Secretary
