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South Dakota Public Utilities Commission Meeting
Tuesday, August 7, 2007, at 9:30 A.M.
State Capitol Building, Room 412
Pierre, South Dakota
MINUTES OF THE COMMISSION MEETING
Chairman Dustin Johnson called the meeting to order. Present were: Vice Chairman Gary Hanson; Commissioner Steve Kolbeck; Executive Director Patty Van Gerpen; Commission Advisor Greg Rislov; Commission Attorney John Smith and Rolayne Wiest; Staff Attorneys Karen Cremer and Kara Semmler; Staff Analysts Keith Senger, Harlan Best, Bob Knadle, Dave Jacobson, Martin Bettmann, Nathan Solem, Brian Rounds; and Administrative Secretary Demaris Axthelm.
Also present were: Dave Gerdes, May, Adam, Gerdes and Thompson, representing Midcontinent Communications and Level 3 Communications; Darla Pollman Rogers, Riter, Rogers, Wattier & Brown representing RC Communications, Inc., City of Faith Municipal Telephone and Cheyenne River Sioux Tribe Telephone Authority: Brett Koenecke, May, Adam, Gerdes and Thompson, representing TransCanada Keystone Pipeline, LP; Rodrick Tobin, Siegel, Barnett & Schutz, representing WEB Water Development Corporation: Kent Moeckly, Orville Hofer, Pam Hofer, Delwin Hofer, Tim Hofer, Mike and Sue Sibson, Bernie Kayser, Robert Beatch, Lillan Anderson on behalf of Dakotans Concerned and Curt Hohn, WEB Water.
Joining the meeting by telephone were: Tami Aberle, Montana-Dakota Utilities Co.; Jason Shanks, May & Johnson, PC, representing Robert and Jeanne Lorenz, Ann and Arend Johnson and Darla and Carl Kuyper: Bob Lorenz; Roy Wise, Richardson, Wyly, Wise, Sauck and Hieb, representing Lemke Digging and Geo Thermo Drilling; Paul Linde, Schaffer Law Firm, representing Bailey's Plumbing; Steve Otto, Rural Cellurar; James Groft, James Valley Wireless; Cindy Grosvenor, Consortia Consulting; Jason Topp, Qwest Corporation; Mary Sisak, Blooston, Mordkofsky, Dickens, Duffy and Pendergast, representing Brookings Municipal Utilities d/b/a Swiftel Communications; Talbot Wieczorek, Gunderson, Palmer, Goodsell & Nelson, representing Sprint Communications Company L.P.; Amy Ellis, Cutler and Donahoe, representing Interstate Telecommucications Cooperative, Inc. and Ed Goss.
Administration
1. Approval of the Minutes of the Commission Meetings Held on April 10, April 24, May 8, and June 5, and an Ad Hoc Meeting Held on June 12, 2007. (Staff: Demaris Axthelm)
Chairman Johnson Moved to approve the Commission Minutes of April 10, April 24, May 8, and June 5, and an Ad Hoc Meeting Held on June 12, 2007. Motion passed 3-0
Consumer Reports
1. Status Report on Consumer Utility Inquiries and Complaints Received by the Commission. (Consumer Affairs: Deb Gregg)
Ms. Kara Semmler reported that the Commission had received a total of 142 contacts since the last report was prepared for the July 11, 2007 Commission meeting. 27 of the contacts involved telecommunications services; 47 contacts involved electricity issues; 11 contacts involved natural gas issues; 4 contacts involved both electrical and natural gas services, 18 contacts involved cellular phone issues; 17 contacts involved The Do Not Call Registry; and 18 contacts involved issues not regulated by the Public Utilities Commission. In 2007, 1,289 of the 1,482 complaints registered have been resolved informally. In 2006, 2,258 of the 2,466 complaints registered have been resolved informally.
Electric
Ms. Tami Aberle, Montana-Dakota Utilities Co. (MDU), stated that MDU is seeking approval to revise its Occasional Power Purchase Non-Time Differentiated Rate 95, Short-Term Power Purchase Time Differentiated Rate 96 and Long-Term Power Purchase Time Differentiated Rate 97. The filing is made in compliance with the Commission's Order in F-3365 and in accordance with the Special Terms and Conditions of these tariffs which state that the rate schedules will be reviewed annually and revised when necessary. Mr. Dave Jacobson expanded on MDU's explanation for the change in rates and recommended approval of the tariff revisions. Chairman Johnson noted that these rates only affect generators with a design capacity of 100 KW or less in what they get paid and is not a direct rate increase that the Commission would allow the company to charge to consumers.
Vice Chairman Hanson moved to approve the tariff revisions in docket EL07-021. Motion passed 3-0.
Hydrocarbon Pipeline
Staff recommended a scheduling order to set the hearing for the first two weeks of December. Additionally, it was suggested an additional public input hearing be set at a time during the December hearings. Significant discussion was then held with Staff, the Applicant and Interveners regarding whether pre-filed or in person testimony is best. Ultimately, it was decided that pre-filed testimony is necessary for any individual to participate in the evidentiary hearing, to be held the first two weeks of December. Public comments will be received, however, without pre-filed testimony and without being sworn in at a public input hearing held near the same time as the hearing. December ultimately was decided to be the best time for such a hearing considering the Legislative Session and other conflicts including the holidays.
Chairman Johnson moved to require parties who intend to present evidence in the evidentiary hearing to file pre-filed testimony. Motion passed 3-0.
Chairman Johnson moved to issue a scheduling order based upon hearing dates of December 3-14, 2007, with Commission Counsel to hold a scheduling conference among those parties who had appeared and commented on the schedule in an effort to reach agreement on the schedule for testimony. Motion passed 3-0.
Commissioner Kolbeck moved to authorize the Executive Director to enter into a consulting agreement with experts. Motion passed 3-0.
Natural Gas
Mr. Dave Jacobson stated that NorthWestern Energy's application for a contract with less than 30 days notice is to provide service to Lake Preston Cooperative's new grain drying equipment and to expedite the construction in order to accommodate the customer's needs in a timely manner for grain drying operations. Mr. Jacobson recommended approval with the conditions that upon the completion of the construction that NorthWestern provide a written report of all costs of constructing the pipeline extension, and that this approval does not pre determine a Commission decision at the time of future rate case proceedings regarding rate treatment concerning possible cost of recovery short falls resulting from rates approved in Docket NG07-015.
Chairman Johnson moved to approve the contract with deviations with less than 30 days notice with the conditions recommended by staff that North Western Energy provides a written report of all costs of construction after completion of the construction and that this motion does not pre-determine a Commission decision at the time of future rate case proceedings regarding rate treatment concerning possible cost recovery short falls resulting from rates approved in Docket NG07-015. Motion passed 3-0.
Pipeline Safety
Mr. Roy Wise representing, Lemke Digging and Geo Thermo Drilling (Lemke Digging) asked that the Commission grant intervention to participate in any annlysis but that this shouldn't be interpreted as implying any fault. Mr. Jason Shanks representing Lorenz's, Johnson's and Kuyper's asked that the Commission grant intervention to the parties due to the fact that all parties had property that was damaged and also stated that the parties want their own expert involved in the testing of the pipes. Mr. Paul Linde, representing Bailey's Plumbing asked the Commission to grant intervention to Bailey's Plumbing and that they also would have an expert involved in any testing of the pipes. Mr. Brett Koenecke, representing NorthWestern Energy stated that NorthWestern Energy had no oppositions to the interventions.
Chairman Johnson moved to grant intervention to Arden Lemke d/b/a Lemke Digging & Geothermo Drilling, Dennis Burham, Robert & Jeanne Lorenz, Ann & Arend Kuyper, Darla & Carl Johnson and Bailey's Plumbing. Motion passed 3-0.
Ms. Kara Semmler stated that staff has contacted a variety of experts and provided a list of experts names to all Intervenors. Ms. Semmler further stated that staff is in the process of interviewing and obtaining responses, and Ms. Semmler asked that the Executive Director be able to enter into a contract with a forensic expert on the removed failed pipe.
Chairman Johnson moved to permit the Executive Director to enter into a contract with a forensic expert after 5 working days in order to give the parties time to review the scope of services. Motion passed 3-0.
Telecommunications
1. TC07-021 - In the Matter of the Filing for Approval of Transfer of Certificate of Authority from Dialaround Enterprises Inc. to STi Prepaid, LLC. (Staff Analyst: Harlan Best, Staff Attorney: Kara Semmler)
Mr. Harlan Best stated that STi-Prepaid, LLC is requesting that Dialaround Enterprises Inc. (Dialaround) assets and Certificate of Authority (COA) be transferred to STi-Prepaid. Mr. Best further stated that in Docket TC03-078 Dialaround was granted a COA with restrictions, there has been no intervenors, the Surety Bond has been received and was in effect June 1, 2007, and STi Prepaid is licensed with the Department of Revenue and Regulations. Therefore, staff recommended approval transfer the COA to STI Prepaid LLC with the acceptance of the bond.
Commissioner Kolbeck moved to approve the transfer of Certificate of Authority from Dialaround Enterprises, Inc. to STi Prepaid, LLC. with the acceptance of the bond as recommended by staff. Motion passed 3-0.
2. In the Matter of the Request for Certification Regarding the Use of Federal Universal Service Support in Dockets TC07-029, TC07-030, TC07-031, TC07-033, TC07-038, TC07-047, TC07-064, TC07-065, TC07-066, TC07-068, TC07-070, TC07-071, TC07-072, TC07-074, TC07-075, and TC07-076.
Mr. Harlan Best stated that RCC Minnesota, Inc. (RCC) has filed according to the Commission's administrative rules for the certification of their use of federal universal service support, and the companies have certified that their support will be used in a manner that is consistent with the federal universal service provisions of 47 U.S.C. Section 254. Staff has reviewed the filings and recommended that the Commission grant the requests for certification and issue certification letters to the FCC and the USAC. Chairman Johnson then announced that the Commission meeting would no longer be available by web and the meeting would be going into executive secession to discuss further matters phone lines were then verified.
Vice Chairman Hanson moved to certify the use of USF funds and issue certification letters in Docket TC07-029. Motion passed 3-0.
TC07-030 - In the Matter of the Request of Wireless Alliance, L.L.C. for Certification Regarding its Use of Federal Universal Service Support. (Staff Analyst: Harlan Best, Staff Attorney: Karen Cremer)
Mr. Harlan Best stated that Wireless Alliance, L.L.C. has filed according to the Commission's administrative rules for the certification of its use of federal universal service support and the company has certified that its support will be used in a manner that is consistent with the federal universal service provisions of 47 U.S.C. Section 254. Staff has reviewed the filing and recommended that the Commission grant the request for certification and issue certification letters to the FCC and the USAC. Chairman Johnson then announced that the Commission meeting would no longer be available by web and the meeting would be going into executive session to discuss information that was filed as confidential.
Commissioner Kolbeck moved to certify the use of USF funds and issue certification letters in Docket TC07-030. Motion passed 3-0.
TC07-031 - In the Matter of the Request of Midcontinent Communications for Certification Regarding its Use of Federal Universal Service Support. (Staff Analyst: Harlan Best, Staff Attorney: Karen Cremer)
Mr. Harlan Best stated that Midcontinent Communications has filed according to the Commission's administrative rules for the certification of its use of federal universal service support and the company has certified that its support will be used in a manner that is consistent with the federal universal service provisions of 47 U.S.C. Section 254. Staff has reviewed the filing and recommended that the Commission grant the request for certification and issue certification letters to the FCC and the USAC.
Commissioner Kolbeck moved to certify the use of USF funds and issue certification letters in Docket TC07-031. Motion passed 3-0.
Mr. Harlan Best stated that James Valley Wireless, LLC has filed according to the Commission's administrative rules for the certification of its use of federal universal service support and the company has certified that its support will be used in a manner that is consistent with the federal universal service provisions of 47 U.S.C. Section 254. Staff has reviewed the filing and recommended that the Commission grant the requests for certification and issue certification letters to the FCC and the USAC.
Chairman Johnson moved to certify the use of USF funds and issue certification letters in Docket TC07-033. Motion passed 3-0.
TC07-038 - In the Matter of the Request of Midstate Telecom, Inc. for Certification Regarding its Use of Federal Universal Service Support. (Staff Analyst: Harlan Best, Staff Attorney: Karen Cremer)
TC07-047 - In the Matter of the Request of RC Communications, Inc. d/b/a RC Services for Certification Regarding its Use of Federal Universal Service Support. (Staff Analyst: Harlan Best, Staff Attorney: Karen Cremer)
Mr. Harlan Best stated that in Dockets TC07-038, TC07-047, and TC07-064 the respective companies have filed according to the Commission's administrative rules for the certification of their use of federal universal service support and the companies have certified that their support will be used in a manner that is consistent with the federal universal service provisions of 47 U.S.C. Section 254. Staff has reviewed the filings and recommended that the Commission grant the requests for certification and issue certification letters to the FCC and the USAC.
Vice Chairman Hanson moved to certify the use of USF funds and issue certification letters in Dockets TC07-038, TC07-047, and TC07-064. Motion passed 3-0.
TC07-065 - In the Matter of the Request of WWC License LLC for Certification Regarding its Use of Federal Universal Service Support. (Staff Analyst: Harlan Best, Staff Attorney: Karen Cremer)
Mr. Harlan Best stated that WWC License LLC has filed according to the Commission's administrative rules for the certification of its use of federal universal service support and the company has certified that its support will be used in a manner that is consistent with the federal universal service provisions of 47 U.S.C. Section 254. Staff has reviewed the filing and recommended that the Commission grant the requests for certification and issue certification letters to the FCC and the USAC. Chairman Johnson stated that there were not many details in the filing regarding capital expenses and unfulfilled service requests. Ms. Rolayne stated that she would ask for a map that shows areas that are covered and not covered and any deviations from previous plans.
Chairman Johnson moved to defer Docket TC07-065. Motion passed 3-0.
TC07-068 - In the Matter of the Request of Brookings Municipal Telephone d/b/a Swiftel Communications for Certification Regarding its Use of Federal Universal Service Support. (Staff Analyst: Harlan Best, Staff Attorney: Karen Cremer)
Mr. Harlan Best stated that Swiftel Communications has filed according to the Commission's administrative rules for the certification of its use of federal universal service support and has certified that its support will be used in a manner that is consistent with the federal universal service provisions of 47 U.S.C. Section 254. Staff reviewed the filing and recommended that the Commission grant the request for certification and issue certification letters to the FCC and the USAC. Ms. Rolayne Wiest stated that she has not seen a map showing the areas that are covered and that are not covered.
Chairman Johnson moved to defer action in Docket TC07-068. Motion passed 3-0.
TC07-066 - In the Matter of the Request of Santel Communications Cooperative for Certification Regarding its Use of Federal Universal Service Support. (Staff Analyst: Harlan Best, Staff Attorney: Karen Cremer)
TC07-071 - In the Matter of the Request of Farmers Mutual Telephone Company for Certification Regarding its Use of Federal Universal Service Support. (Staff Analyst: Harlan Best, Staff Attorney: Karen Cremer)
TC07-072 - In the Matter of the Request of Fort Randall Telephone Company for Certification Regarding its Use of Federal Universal Service Support. (Staff Analyst: Harlan Best, Staff Attorney: Karen Cremer)
TC07-074 - In the Matter of the Request of City of Faith Municipal Telephone for Certification Regarding its Use of Federal Universal Service Support. (Staff Analyst: Harlan Best, Staff Attorney: Karen Cremer)
TC07-075 - In the Matter of the Request of Cheyenne River Sioux Tribe Telephone Authority for Certification Regarding its Use of Federal Universal Service Support. (Staff Analyst: Harlan Best, Staff Attorney: Karen Cremer)
Mr. Harlan Best stated that in Dockets TC07-066, TC07-070, TC07-71, TC07-072, TC07-074, TC07-075, and TC07-076 the respective companies have filed according to the Commission's administrative rules for the certification of their use of federal universal service support and the companies have certified that their support will be used in a manner that is consistent with the federal universal service provisions of 47 U.S.C. Section 254. Staff has reviewed the filings and recommended that the Commission grant the requests for certification and issue certification letters to the FCC and the USAC.
Chairman Johnson moved to certify the use of USF funds and issue certification letters in Dockets TC07-066, TC07-070, TC07-71, TC07-072, TC07-74, TC07-075, and TC07-076. Motion passed 3-0.
Jason Topp stated that Qwest entered into an escalation agreement with Verizon Business Network Services, Inc. and its affiliates. Further discussion with these companies confirms no affect on a Interconnection agreement. Qwest is, therefore asking the Commission to grant the withdrawal request and close the Docket. Ms. Kara Semmler stated that staff has no objections to the withdrawal and commends Qwest for its complete candor and disclosure.
Commissioner Kolbeck moved to grant the withdrawal request and to close Docket TC07-036. Motion passed 3-0.
Mr. Dave Gerdes representing Level 3 Communications (Level 3) asked that the Commission grant Level 3's petition to intervene. Jason Topp of Qwest stated that Qwest had no objections. Ms. Karen Cremer recommended that the Commission grant Level 3's petition to intervene.
Chairman Johnson moved to grant Level 3's petition to intervene in Docket TC07-078. Motion passed 3-0.
5. TC07-079 - In the Matter of the Complaint filed by OrbitCom, Inc. against Global Crossing Telecommunications, Inc. Regarding Switched Access Services. (Staff Analyst: Keith Senger, Staff Attorney: Kara Van Bockern)
Mr. Keith Senger stated that on June 18, 2007, OrbitCom, Inc. (OrbitCom) filed a complaint against Global Crossing Telecommunications, Inc. (Global Crossing) for failure to pay switched access charges. Since then an agreement has been reached between ObitCom and Global Crossing and staff recommended that the Commission grant the request for withdrawal and close the docket.
Commissioner Kolbeck moved to grant the request for withdrawal and close Docket TC07-079. Motion passed 3-0.
6. TC07-084 - In the Matter of the Filing by NOS Communications, Inc. for a Continuation of an Exemption from Developing Company Specific Cost-Based Switched Access Rates. (Staff Analyst: Keith Senger, Staff Attorney: Kara Semmler)
Mr. Keith Senger stated that on March 7, 2003, the Commission issued an order granting NOS Communications Inc. (NOS) a three year exemption from developing company specific cost based intrastate switched access rates and allowed NOS to mirror Qwest rates. Mr. Senger also stated that in this filing NOS is requesting an extension of that exemption because the three year term has expired. Staff therefore recommended that the Commission grant NOS's request for an extension and to allow NOS to continue to use the Qwest rates. Staff also recommended that the extension have no time limit and that NOS be allowed to file adjustment to it intrastate switched access tariff and rates so long as those rate adjustments either mirror or are lower than the Qwest rates.
Vice Chairman Hanson moved that the Commission grant a continuation of an exemption from developing company specific cost-based switched access rates to NOS Communications, Inc. (NOS), allow NOS to mirror Qwest intrastate switched access rates with no time limitation, and allow NOS to file adjustments to its intrastate switched access tariff so long as those rate adjustments either mirror Qwest's rates or are lower. Motion passed 3-0.
7. In the Matter of the Application of MCC Telephony of the Midwest, Inc. d/b/a Mediacom for a Certificate of Authority in Dockets TC06-188 and TC06-189
TC06-188 - In the Matter of the Application of MCC Telephony of the Midwest, Inc. d/b/a Mediacom for a Certificate of Authority to Provide Interexchange and Local Exchange Services in the Brookings Exchange (Staff Analyst: Nathan Solem, Staff Attorney: Kara Van Bockern)
Chairman Johnson stated that Dockets TC06-188 and TC06-189 would be taken up in the Addendum part of the Agenda.
ADDENDUM TO THE
AGENDA OF COMMISSION MEETING
Telecommunications
Ms. Kara Semmler stated that discovery has taken longer than anticipated and asked that the Commission grant the motion to delay. Ms. Semmler further stated that Mr. VanCamp has no objections.
Commissioner Kolbeck moved to grant the motion to delay in Docket TC06-191. Motion passed 3-0.
2. TC07-007 - In the Matter of the Petition of Brookings Municipal Utilities d/b/a Swiftel Communications for Suspension or Modification of Dialing Parity, Number Portability and Reciprocal Compensation Obligations. (Staff Analyst: Harlan Best, Staff Attorney: Karen Cremer)
Ms. Karen Cremer stated that all parties have signed off on the Stipulation and ask that the Commission approve the Stipulation and issue a continuance of all deadlines for a period of 7 months.
Chairman Johnson moved to approve the Stipulation and issue a continuance of all deadlines for period of 7 months in Docket TC07-007. Motion passed 3-0.
3. TC07-085 - In the Matter of the Filing by Primus Telecommunications, Inc. for Approval of Relief of Certification Requirement to Post Surety Bond. (Staff Analyst: Keith Senger, Staff Attorney: Karen Cremer)
Mr. Keith Senger stated that on August 14, 1996, the Commission issued an order granting Primus Telecommunications, Inc. (Primus) the authority to provide interexchange telecommunications services in South Dakota subject to a continuing $25,000 surety bond, and then on July 17, 2007, Primus filed a letter requesting that the Commission amend its certificate of authority by removing the bond requirement. Mr. Senger further stated that Primus has agreed to restrictions from requiring and accepting any deposits or advanced payment and from offering any prepaid services to South Dakota customers and that Primus's bond has expired over 6 months ago and Primus has been operating without the required bond. Mr. Senger further stated that during discussion with the company, he learned that Primus sells a prepaid service via the internet. Primus assured Mr. Senger that Primus has the ability to restrict South Dakota customers. Staff recommended to the Commission to amend Primus's authority to remove the bond requirement and replace it with restrictions from requiring and accepting any deposits or advanced payments and from offering any prepaid services to South Dakota customers.
Vice Chairman Hanson moved to approve the relief of certification requirement to post a surety bond and amend the certificate subject to restrictions from requiring and accepting any deposits or advanced payments and from offering any prepaid services and prepaid calling cards to South Dakota customers in Docket TC07-085. Motion passed 3-0.
4. In the Matter of the Application of MCC Telephony of the Midwest, Inc. d/b/a Mediacom for a Certificate of Authority in Dockets TC06-188 and TC06-189
Chairman Johnson announced that he would take up Agenda Item number 7. Docket TC06-188 and TC06-189 with Addendum item number 4. Dockets TC06-188 and TC06-189.
Brett Koenecke representing, MCC Telephony of the Midwest, Inc. d/b/a Mediacom stated that the four dockets that are proceeding together are TC06-178, TC06-180, TC06-188 and TC06-189, and that a joint motion had been filed to delay the hearings in Dockets TC06-178 and TC06-188. MCC is now filing a joint motion to delay hearings in Dockets TC06-189 and TC06-188. Mr. Koenecke further stated all parties have signed the Joint Motion and asked the Commission to grant the joint motion to delay hearings. Ms. Kara Semmler stated that staff had no objections and agrees that this is a follow up from last months meeting and that all four Dockets should follow the same path.
Chairman Johnson moved to grant the Joint Motion to delay hearings in Dockets TC06-188 and TC06-189. Motion passed 3-0.
Meeting adjourned.
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Demaris Axthelm
Administrative Secretary
