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South Dakota Public Utilities Commission Meeting
Tuesday, November 14, 2006, at 9:30 A.M. (CT)
State Capitol Building, Room 412
Pierre, South Dakota
MINUTES OF THE COMMISSION MEETING
Present were Commissioner Gary Hanson; Executive Director Patty Van Gerpen; Deputy Executive Director Heather Forney; Commission Advisor Greg Rislov; Commission Attorney Rolayne Wiest; Staff Attorneys Karen Cremer and Kara Van Bockern; Staff Analysts Keith Senger, Harlan Best, Dave Jacobson, Steve Wegman and Bob Knadle; Consumer Affairs Supervisor, Deb Gregg; and Administrative Secretary Tina Douglas.
Also present were: Marlene Bennett, Martin Group; Bill Van Camp, Olinger, Lovald, McCahren & Remiers, representing AT&T Communications of the Midwest, Inc.; Brett Koenecke, May, Adam, Gerdes & Thompson, representing MCImetro Access Transmission Services, LLC., Verizon, and Midcontinent Communications; Rod Bowar, Kennebec Telephone Company; Jerry Reisenauer, West River Telecommunications Cooperative; and Bob Riter; Riter, Rogers, Wattier & Brown, representing Local Exchange Carriers Association.
Joining the meeting by telephone were Chairman Bob Sahr who called the meeting to order; Vice Chairman Dustin Johnson; Steve Kolbeck, Commissioner Elect; Commission Attorney John Smith; Darla Rogers, Riter, Rogers, Wattier & Brown, representing Local Exchange Carriers Association (LECA); Brian Iverson and Jackie Sargent, Black Hills Corporation; Meredith Moore, Cutler & Donahoe representing Brookings Municipal Utilities d/b/a Swiftel Communications; James Overcash, Woods & Aiken, Mary Sisak, Blooston Mordkofsky Dickens Duffy & Pendergast representing Brookings Municipal Utilities d/b/a Swiftel Communications; Talbot Wieczorek, Gunderson, Palmer, Goodsell & Nelson, representing Sprint Communications Company L.P. and Alltel Communications, Inc.; Ross Petrick, Vantage Point Solutions; Colleen Sevold, Qwest Corporation; Suzan Stewart, MidAmerican Energy; Todd Hansen, Beresford Municipal Telephone Company; Stacey Klinzman, VCI Company; Jim Wilcox, Xcel Energy; and Randy Houdek, Venture Communication.
Consumer Reports
1. Status Report on Consumer Utility Inquiries and Complaints Received by the Commission. (Consumer Affairs: Deb Gregg)
Ms. Deb Gregg reported that the Commission had received a total of 2,171 consumer contacts during 2006. Since the last report was prepared for the October 31, 2006, Commission meeting, 109 of these contacts had been received; 26 contacts involved telecommunications services; 17 contacts involved electricity issues; 15 contacts involved natural gas issues; 9 contacts involved cellular phone issues; 31 contacts involved do not call issues; 3 contacts involved wind energy issues; and 11 contacts involved issues not regulated by the Public Utilities Commission. In 2006, 1,858 of the 2,171 complaints registered have been resolved informally. In 2005, 1,692 of the 1,885 complaints registered have been resolved informally.
Electricity
Ms. Rolayne Wiest, stated that a Procedural Schedule should be issued which should list specific questions regarding standards, wait for comments to be filed, and then set up workshops regarding the issues. Mr. Jim Wilcox, Xcel Energy agreed with Ms. Wiest's comments. Suzan Stewart, MidAmerican Energy, agreed with Ms. Wiest also but would like to see some of the issues discussed before the workshops. Ms. Wiest recommended that an order be issued asking for written comments and with workshops to follow.
Vice Chairman Johnson moved to issue a Procedural Schedule in EL06-018 in accordance with Ms. Wiest recommendations. Commissioner Hanson seconded. Motion passed 2-0.
Jim Wilcox, Xcel Energy (Xcel), stated that Xcel had filed an application seeking approval to refund to customers proceeds received as a result of a settlement reached for overpayments for uranium enrichment services performed by the Department of Energy. Mr. Wilcox further stated Xcel is proposing that legal fees incurred in pursuit of this settlement be deducted from the proceeds and the net amount be returned to customers through the fuel adjustment clause. Mr. Dave Jacobson stated that this type of refund was similar to those in certain other refund dockets. Mr. Jacobson recommended the refund be approved subject to following the conditions: that interest at Xcel's last approved overall rate of return be applied to the refund from the time the refunds are received by Xcel until the time the refunds are returned to customers, that the allowance for outside counsel fees not be interpreted as allowing future litigation expenses to be recovered through the fuel clause and that any future recovery of litigation costs must be approved by the Commission.
Commissioner Hanson moved to approve the refund upon the conditions as set forth by staff in the above paragraph. Vice Chairman Johnson seconded. Motion passed 2-0.
Telecommunications
Mr. Keith Senger stated that on July 26, 2006, American Fiber Network, Inc. filed an application for a Certificate of Authority to provide local and interexchange telecommunication services in South Dakota. The applicant has provided the Commission with the $25,000 requested bond and has satisfied all outstanding staff data requests. Mr. Senger recommended the Commission grant American Fiber Network, inc. LP certificate of authority to provide local exchange and interexchange telecommunication services subject to rural safeguards and with the continuing bond requirement.
Chairman Sahr moved to grant American Fiber Network, Inc.'s Certificate of Authority subject to rural safeguards and subject to a continuous $25,000.00 surety bond. Vice Chairman Johnson seconded and Commissioner Hanson concurred. Motion passed 3-0.
Mr. Keith Senger stated that between February 14 and May 23, 2006, the City of Brookings (Brookings) annexed 5 properties. On September 8, 2006, Brookings Municipal Utilities d/b/a Swiftel Communications filed a revised service territory map reflecting the new telephone service territory as a result those annexations. Brookings is asking the Commission to waive ARSD 20:10:32:03 (1-7); (9-21) and (23) and accept the revised boundary map. Approval of this filing would remove local exchange telephone territory from Interstate Telecommunications Cooperative, Inc. (ITC) and place it in Brookings Municipal Utilities d/b/a Swiftel Communications' service territory. Mr. Senger has contacted both telephone companies and both indicated that there are no existing customers in any of these annexed properties. Additionally, Mr. Senger has contacted the landowners and none expressed any concern over the proposed change in service territory. In response to Staff's data request, the City of Brookings indicated it is relying on SDCL 9-41 and SDCL 49-31-3, and 49-31-69 through 49-31-72 and the South Dakota Supreme Court case of Brookings-Lake Telephone Co. vs. City of Brookings as providing legal authority for making this request. Mr. Senger discussed this issue with ITC's General Manager, who indicated to Mr. Senger that he will not be contesting the transfer of service territory. Mr. Senger recommended the Commission grant the waivers of ARSD 20:10:32:03 (1-7); (9-21) and (23), and amend the Brookings Municipal Utilities d/b/a Swiftel Communications' Certificate of Authority by approving the revised boundary map.
Vice Chairman Johnson moved to grant waivers of ARSD 20:10:32:03 (1-7); (9-21) and (23) and amend Brookings Municipal Utilities d/b/a Swiftel Communications' Certificate of Authority and approve the territory boundary change between Brookings Municipal Utilities d/b/a Swiftel Communications and Interstate Telecommunications Cooperative, Inc. Chairman Sahr seconded and Commissioner Hanson concurred. Motion passed 3-0.
3. TC06-159 In the Matter of the Petition of Venture Communications Cooperative for Arbitration pursuant to the Telecommunications Act of 1996 to Resolve Issues Relating to an Interconnection Agreement with Alltel Communications, Inc. (Staff Analyst: Harlan Best, Staff Attorney: Kara Van Bockern)
Mr. Talbot Wieczorek, Alltel Communications, Inc. (Alltel) stated on October 27, 2006, Alltel filed a Request to Use the Office of Hearing Examiners (OHE) pursuant to SDCL 1-26-18.3. At the October 31, 2006, Commission Meeting, Alltel was requested to file documentation that the amount in controversy was over $2,500.00. The Affidavit of Ron Williams was filed on November 11, 2006, which supported Alltel's claim that the amount exceeds $2,500.00. Mr. Wieczorek further stated that the statute is clear and it applies to Section 252 of the Federal Telecommunications Act and all contested cases. There is clearly an amount over $2,500.00 in dispute between the companies. There is no reason that this docket can not be heard by OHE, and the Commission will make its decision after OHE issues its proposed decision. Ms. Darla Rogers, Venture Communications Cooperative, stated that the request should not be granted. Ms. Rogers further stated that the statutory prerequisites were not met and that Alltel has failed to prove that the amount is over $2,500.00. Ms. Rogers urged that the Commission deny transferring this docket to OHE. Ms. Kara Van Bockern stated that staff agrees with Alltel that it is Alltel's right to request that this docket be heard by OHE. Ms. Van Bockern further stated that Ron Williams' Affidavit clearly shows that the threshold has been met. Ms. Van Bockern recommended that Alltel's Motion be granted.
Chairman Sahr moved to grant Alltel's Motion for this docket to be heard by Office of Hearing Examiners. Commissioner Hanson seconded and Vice Chairman Johnson concurred. Motion passed 3-0.
Mr. Keith Senger stated that on October 20, 2004, the Commission issued an order granting VCI Company (VCI) the authority to provide local exchange telecommunications services in South Dakota subject to restrictions from offering any prepaid services and from accepting any customer deposits and advanced payments. On October 11, 2006, VCI filed a petition to amend its Authority to remove the restrictions and allow VCI to require deposits and/or advanced payments and to offer prepaid services. On September 29, 2006, VCI filed a tariff reflecting the new prepaid local exchange offering. The Applicant has agreed to a $25,000 bond requirement and that surety bond has been received. Mr. Senger recommended that the Commission amend VCI's Certificate of Authority to remove the restrictions and replace with a $25,000 bond requirement.
Vice Chairman Johnson moved to amend VCI Company's Certificate of Authority to remove payment restrictions, subject to a continuous $25,000.00 surety bond. Chairman Sahr seconded and Commissioner Hanson concurred. Motion passed 3-0.
5. In the Matter of Approving Amendments to Agreements in Dockets TC06-172 and TC06-179
TC06-179 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: Kara Van Bockern)
Ms. Kara Van Bockern stated that all the companies have active Certificates of Authority. The Amendments to the Agreements 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 Amendments to the Agreements.
Chairman Sahr moved to approve the Amendments to the Agreements in TC06-172 and TC06-179. Vice Chairman Johnson seconded and Commissioner Hanson concurred. Motion passed 3-0.
6. In the Matter of Approving Agreements in Dockets TC06-173, TC06-174 and TC06-177.
Ms. Kara Van Bockern stated that the Agreements 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 Agreements.
Chairman Sahr moved to approve the Agreements in TC06-173, TC06-174 and TC06-177. Vice Chairman Johnson seconded and Commissioner Hanson concurred. Motion passed 3-0.
Ms. Rolayne Wiest asked for a deferral in Dockets TC06-175 and TC06-176 until the next commission meeting regarding intervention of SDTA and also deferring Dockets TC06-175 and TC06-176 regarding consolidation of these dockets. Ms. Kara Van Bockern has no objection to a deferral. Mr. Talbot Wieczorek, Sprint Communications Company L.P. stated that the dockets could be heard back to back if not consolidated. Mr. Wieczorek stated that maybe the dockets should be deferred until January when the first round of testimony has been filed. Ms. Kara Van Bockern does not believe that the dockets should be consolidated but agrees with deferring the docket. Mr. James Overcash and Ms. Mary Sisak stated that City of Brookings Municipal Utilities d/b/a Swiftel Communications does not agree with the consolidation but had no objection to the deferral.
Chairman Sahr moved to defer Dockets TC06-175 and TC06-176. Vice Chairman Johnson seconded and Commissioner Hanson concurred. Motion passed 3-0.
Ms. Kara Van Bockern asked to have this docket deferred regarding SDTA's Petition to Intervene. Ms. Kara Van Bockern recommended that Brookings Municipal Utilities d/b/a Swiftel Communications' Petition to Intervene be granted.
Chairman Sahr moved to defer Docket TC06-178. Vice Chairman Johnson seconded and Commissioner Hanson concurred. Motion passed 3-0.
Chairman Sahr moved to grant intervention to Brookings Municipal Utilities d/b/a Swiftel Communications in Docket TC06-178. Vice Chairman Johnson seconded and Commissioner Hanson concurred. Motion passed 3-0.
Ms. Kara Van Bockern asked to have this docket deferred regarding SDTA's Petition to Intervene.
Chairman Sahr moved to defer Docket TC06-180. Vice Chairman Johnson seconded and Commissioner Hanson concurred. Motion passed 3-0.
Mary Sisak, Venture Communications Cooperative is asking to defer Rural Cellular Corporation (RCC) and Alltel Communication Inc. (Alltel)'s Petitions to Intervene because Venture Communications Cooperative (Venture) has not had time to review the Petitions to intervene. Venture has no objection to South Dakota Telecommunications Association (SDTA)'s Petition to Intervene. Ms. Rolayne Wiest had no objection to SDTA's intervention or the deferral of RCC and Alltel's Petition to Intervene.
Chairman Sahr moved to grant SDTA's intervention in Docket TC06-181. Vice Chairman Johnson seconded and Commissioner Hanson concurred. Motion passed 3-0.
Chairman Sahr moved to defer RCC and Alltel's Petitions to Intervene in Docket TC06-181. Vice Chairman Johnson seconded and Commissioner Hanson concurred. Motion passed 3-0.
ADDENDUM
Telecommunications
Ms. Karen Cremer requested that Dockets TC04-222 and TC04-258 be deferred.
Chairman Sahr moved to defer Docket TC05-222 and TC05-258. Commissioner Hanson seconded and Vice Chairman Johnson concurred. Motion passed 3-0.
3. In the Matter of the Establishment of Switched Access Revenue Requirements in Dockets TC04-104, TC04-106, TC04-107, TC04-108, TC04-111, TC04-112, TC04-114, TC04-116, TC04-117, TC04-118, TC04-119, TC04-120, TC04-121, TC04-122, TC04- 123, TC04-124, TC04-125, TC05-083, TC05-087, TC05-090, TC05-091, TC05-092, TC05-093, TC05-094, TC05-095, TC05-096, TC05-097, TC05-098, TC05-109, TC06-076, and TC06-079.
Ms. Darla Rogers, LECA, stated that all of the above companies had filed switched access cost studies. On September 27, 2005, the Commission denied Midcontinent Communications (Midco), MCImetro Access Transmission Services, LLC. (MCI) and AT&T Communications of the Midwest, Inc.'s (AT&T) intervention in the 2004 Cost Study Dockets. On September 27, 2005, the Commission granted Midco, MCI and AT&T's intervention in the 2005 Cost Study Dockets. A rulemaking docket was also opened regarding revising the switched access rules. On November 8, 2006, a Settlement Stipulation was filed with the Commission. The Settlement Stipulation states that the rates will become effective 35 days after the approval of the stipulation, that the dockets will be closed, and that there will be no refunds; rates will be effective for 3 years or until the rules are changed on switched access or the Commission issues an Order. Mr. Brett Koenecke, MCI, Verizon, and Midco, agreed with Ms. Rogers and asked that the Stipulation be approved. Mr. Bill Van Camp, AT&T, agreed also with Ms. Rogers and asked that the Stipulation be approved. Ms. Karen Cremer recommended that the Settlement Stipulation be approved but that the Commission should defer the LECA‘s Dockets TC04-119, TC05-096, and TC06-079 until LECA's revised tariff has been filed.
Chairman Sahr moved to approve the Settlement Stipulation and close Dockets TC04-104, TC04-106, TC04-107, TC04-108, TC04-111, TC04-112, TC04-114, TC04-116, TC04-117, TC04-118, , TC04-120, TC04-121, TC04-122, TC04- 123, TC04-124, TC04-125, TC05-083, TC05-087, TC05-090, TC05-091, TC05-092, TC05-093, TC05-094, TC05-095, TC05-097, TC05-098, TC05-109, and TC06-076. Vice Chairman Johnson seconded and Commissioner Hanson concurred. Motion passed 3-0.
Chairman Sahr moved to defer Dockets TC04-119, TC05-096 TC06-079. Vice Chairman Johnson seconded and Commissioner Hanson concurred. Motion passed 3-0.
4. In the Matter of the Extension of Deadline for Filing its 2006 Cost Study in Dockets TC06-048, TC06-049, TC06-068, TC06-069, TC06-070, TC06-071, TC06-072, TC06-073, TC06-074, and TC06-075
Ms. Karen Cremer stated the Dockets above will need to be reopened so the Settlement Stipulation can be approved and then the Dockets closed again.
Chairman Sahr moved to reopen and approve the Settlement Stipulation and then close Dockets TC06-048, TC06-049, TC06-068, TC06-069, TC06-070, TC06-071, TC06-072, TC06-073, TC06-074, and TC06-075. Vice Chairman Johnson seconded and Commissioner Hanson concurred. Motion passed 3-0.
Ms. Karen Cremer stated that the issue of a refund was taken care of by approving the Settlement Stipulation and recommended that Docket TC03-108 be closed
Chairman Sahr moved to approve the Settlement Stipulation and close Docket TC03-108. Vice Chairman Johnson seconded and Commissioner Hanson concurred. Motion passed 3-0.
Meeting adjourned.
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Tina Douglas
Administrative Secretary
