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South Dakota Public Utilities Commission Meeting
January 27, 2009, at 2:30 P.M.
Room 413, Capitol Building
Pierre, South Dakota
MINUTES OF THE COMMISSION MEETING
Chairman Dusty Johnson called the meeting to order. Present were: Commissioners Steve Kolbeck and Gary Hanson; Executive Director Patty Van Gerpen; Deputy Executive Director Heather Forney; Commission Advisor Greg Rislov; Commission Attorneys John Smith and Rolayne Wiest; Staff Attorneys Kara Semmler and Karen Cremer; Staff Analysts Terri LaBrie Baker, Nathan Solem, Stacy Splittstoesser, Bob Knadle, Tim Binder, Brian Rounds, Dave Jacobson, and Jon Thurber; Consumer Affairs Supervisor Deb Gregg; and Administrative Secretary Demaris Axthelm.
Also present were: Jim Wilcox, Xcel Energy; Roger Hall; Roger Hill, on behalf of Brookings County; Curt Pearson, Basin Electric Power Cooperative; Brandon J. Sazue Sr, Crow Creek Sioux Tribe; Syd St. Pierre, Cheyenne River Sioux Tribe; Brett Koenecke, May, Adam, Gerdes and Thompson, representing Buffalo Ridge II LLC, a subsidiary of Iberdrola Renewables, Inc., MCC Telephony of the Midwest, Inc. d/b/a Mediacom, MCI Communications Services, Inc. d/b/a Verizon Business Services, and Level 3 Communications, LLC; Talbot Wiezcorek, Gunderson, Palmer, Goodsell & Nelson, representing Alltel Communications; Casey Jacobson, Basin Electric Power Cooperative; Haven Stuck, Lynn, Jackson, Shultz & Lebrun representing Basin Electric Power Cooperative; Pam Bonrud, NorthWestern Energy; Darla Rogers, Riter, Rogers, Wattier & Northrup, representing Local Exchange Carriers Association, Venture Communications Cooperative (Venture), Midstate Communications Inc, Sioux Valley Energy, H-D Electric Cooperative Association, South Dakota Rural Electric Association, and Fiber Ring Revenue-Pooling Association (FRRPA); Dave Gerdes, May, Adam, Gerdes and Thompson, representing Midcontinent Communications and Rich Coit, South Dakota Telecommunications Association.
Joining the meeting by telephone were: Meredith Moore and Onna Dominiack, Cutler and Donahoe, representing Alliance Communications Cooperative, Inc., McCook Cooperative Telephone Company, Beresford Municipal Telephone Company, Kennebec Telephone Company, Santel Communications Cooperative, Inc. and West River Cooperative Telephone Company; Colleen Sevold, Qwest Corporation; Pam Rasmussen, Xcel Energy; Jeff Decker, NorthWestern Energy; Brian Roth, McCook Cooperative Telephone Company; Colle Nash and Colgan Huber, West River Cooperative Telephone Company; Jay Jones and Lenny Solt, 321 Communications, Inc.; Gene DeJordy, Native American Telecom, LLC; Wendy Harper, Vantage Point Solutions; and Randy Houdek, Venture Communications Cooperative, Inc.
Administration
- Approval of the Minutes of the Commission Meetings Held on November 25, and December 9, 2008, and the Ad Hoc Meeting Held on December 16, 2008. (Staff: Demaris Axthelm)
Commissioner Hanson moved to approve the Commission Minutes of the November 25, 2008, December 9, 2008 Meetings, and the Ad Hoc Meeting of December 16, 2008. Motion passed 3-0.
Consumer Reports
- 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 179 contacts since the last report was prepared for the December 30, 2008 Commission meeting. 50 contacts involved telecommunications services; 33 contacts involved electrical services; 26 contacts involved natural gas services; 2 contacts involved gas and electrical services; 12 contacts involved cell phone services; 21 contacts involved the Do Not Call Registry; 3 contacts involved wind energy; 3 contacts involved the Keystone Pipeline; 1 contact involved Grain Warehouse and 28 contacts involved issues not regulated by the Public Utilities Commission. In 2009, 117 of the 145 complaints registered have been resolved informally. In 2008, 2,500 of the 2,513 complaints registered have been resolved informally.
Consumer Complaints
Ms. Colleen Sevold, Qwest, requested the Commission grant postponement on the motions hearing until the Commission's next regularly scheduled meeting, February 24th, or set an ad-hoc meeting if agreed to by the parties, or to grant any other relief the Commission sees fit. Mr. Roger Hall requested the Commission move forward with the hearing and to avoid anymore delays. Ms. Kara Semmler, Staff Attorney, stated that Staff agreed to the February 24, 2009 date as proposed by Qwest, allowing for a motion for summary judgment to be heard and if need be for the Commission to set a hearing date in March.
Chairman Johnson moved that the Commission grant the Motion to Adjust Procedural Schedule. Motion passed 3-0.
Electric
Ms. Pam Rasmussen, Xcel Energy, commented that Xcel appreciated Staff's and Commission's support for the project and the need to extend the deadlines and that Xcel is supportive of the Stipulation. Mr. Jim Wilcox, Xcel Energy, requested approval of the Joint Motion for Approval of Stipulation. Ms. Karen Cremer, Staff Attorney, stated that Staff recommended that the Commission grant the Joint Motion for Approval of Stipulation, adopt the Stipulation without modification and approve the permit to construct the 115 Kv transmission line.
Vice Chairman Kolbeck moved that the Commission grant the Joint Motion for Approval of Stipulation, approve the Joint Stipulation without modifications and grant Xcel Energy a permit to construct 6.5 Miles of 115 Kv transmission line and associated modifications to the Brookings Substation, subject to the terms and conditions of the Stipulation. Motion passed 3-0.
Ms. Kara Semmler, Staff Attorney, stated that Staff recommended that the Commission grant the intervention to all six parties and would like the Commission to know that Staff appreciates the parties' involvement in this docket.
Chairman Johnson moved that the Commission grant interventions to Montana-Dakota Utilities, Otter Tail Corporation d/b/a Otter Tail Power Company, MidAmerican Energy Company, Northern States Power Company, d/b/a Xcel Energy, NorthWestern Corporation d/b/a NorthWestern Energy and Black Hills Power, Inc. Motion Passed 3-0.
Ms. Darla Pollman Rogers, representing SDREA, H-D Electric and Sioux Valley Energy, stated the intention of the interventions is not to slow down the proceedings, but to ensure that collector lines are not used to deliver retail service to any customers in the incumbent electric service provider's territory and retail service should be provided by the assigned electric service provider. Ms. Rogers also requested that Buffalo Ridge II be required to purchase station power from the electric service providers in whose territories the facilities are located in, to be consistent with the state's territorial laws. Mr. Brett Koenecke, representing Iberdrola Renewables, Inc, stated that they do not object to any interventions before the Commission. Mr. Koenecke further stated that the facility has no intentions to provide power at retail or generate its own station power. Ms. Semmler, Staff Attorney, echoed Mr. Koenecke's remarks and would like to remind any of the parties that if they have any concerns that laws are not being followed, the procedure is to file a complaint with the Commission. Ms. Kara Semmler stated that Staff has no objection to any of the petitions that have filed for intervention.
Commissioner Hanson moved that the Commission grant intervention to the Deuel County Commission, South Dakota Rural Electric Association, Sioux Valley Energy, H-D Electric Cooperative, the Brookings County Commission, Ralph Terrell Spence and Catherine D. Carter. Motion passed 3-0.
Mr. Brett Koenecke, representing Iberdrola Renewables, Inc, stated that there will be some confidential information filed that will include cultural resources and artifacts of prior cultures, therefore requested Commission approval of the protective order. Mr. Hill of Brookings County has no concerns with protecting confidential information as outlined in state law. Ms. Kara Semmler, Staff Attorney, stated that Staff supported the protective order.
Commissioner Hanson moved that the Commission grant the Motion for Entry of Protective Order. Motion passed 3-0.
Chairman Johnson stated that the Commission would combine item 4 under Electric and item 1 under Natural Gas, Dockets EL08-003 and NG08-033, as both questions are tariff revisions submitted by NorthWestern Corporation.
1. NG08-014 In the Matter of the Filing by NorthWestern Corporation d/b/a NorthWestern Energy for Approval of Tariff Revisions. (Staff Analysts: Terri LaBrie Baker/Dave Jacobson, Staff Attorney: Karen Cremer)
Mr. Jeff Decker, representing NorthWestern, stated that NorthWestern has added bankruptcy letters to both the electric and natural gas tariffs. The gas tariff filing also contains an update to the large customer Sales Agreement form rate. Ms. Terri LaBrie Baker, Staff Analyst, stated that Staff has reviewed the filing and offered no changes to be made to the sample forms and requested the Commission approve the tariffs with an effective date of January 15, 2009.
Commissioner Hanson moved that the Commission approve the tariff revisions in
docket EL08-033 with an effective date of January 15, 2009. Motion passed 3-0.
Vice Chairman Kolbeck moved that the Commission approve the tariff revisions in
docket NG08-014 with an effective date of January 15, 2009. Motion passed 3-0.
Casey Jacobson, Basin Electric Power Cooperative, explained Basin's waiver request. Ms. Karen Cremer, Staff Attorney, stated that Staff recommended the Commission grant the request to waive the 30-day requirement for designation of the affected area and the local review committee.
Chairman Johnson moved that the Commission grant the waiver request. Motion passed 3-0.
Ms. Karen Cremer, Staff Attorney, stated that pursuant to SDCL 49-41B-6, the Commission must designate a local review committee for the affected area, and therefore, Staff filed exhibit 1, which reflects the potential tribes, school districts, counties, and cities when using different radii. Staff recommended 12 miles as compared to 6 miles for the most comparable facility of Groton 1. This is based on the increased economic impact due to 30 permanent employees and the anticipated impact on Brookings, the area's largest city, which is 12 miles from the facility. Casey Jacobson, Basin Electric, agreed with Staff's recommendation of a 12 mile radius for a local review committee.
Vice Chairman Kolbeck moved that the Commission designate an affected area of 12 miles for Basin Electric's proposed Deer Creek Station Project and moved that the Commission approve a local review committee to include the following entities: Brookings and Deuel Counties, Brookings School District 051, Deubrook School District 05-6 and Elkton School District 05-3, and the cities of Astoria, Aurora, Brookings, Bushnell, Elkton and White. Motion passed 3-0.
Pipeline Safety
Ms. Kara Semmler, Staff Attorney, stated this docket originated from a 2007 docketed pipeline incident which outlined Staff's concerns that were mostly resolved, but the remaining concern resulted in this docket. Staff has worked with NorthWestern and filed an amended report which explains Staff's position and recommended the Commission approve the settlement agreement and close the docket. Mr. Brett Koenecke, representing NorthWestern, stated the amended report filed by Staff contains detailed information and appreciated Staff's efforts and looks forward to the final resolution of this matter. Mr. Nathan Solem, Staff Analyst, stated that NorthWestern will include a gas migration survey in its emergency procedures as a requirement in an underground leak incident.
Chairman Johnson moved that the Commission approve the settlement agreement and close the docket. Motion passed 3-0.
Telecommunications
1 In the Matter of the Petition for Arbitration Pursuant to the Telecommunications Act of 1996 to Resolve Issues Relating to an Interconnection Agreement in Dockets TC07-111, TC07-112, TC07-113, TC07-114, TC07-115, and TC07-116
Commissioner Johnson stated Docket TC07-111 has been resolved. Chairman Johnson stated that the unresolved issues are: reciprocal compensation rate, interMTA factor and Rate, factor billing, traffic factor, MTA Definition, direct connect and points of interconnection as presented by the parties in dockets TC07-112, TC07-113, TC07-114, TC07-115 and TC07-116.
Regarding the reciprocal compensation rate, Chairman Johnson moved that the Commission require McCook, Kennebec, Santel, and West River to revise and refile their cost studies with a new projection of forecasted demand and that Alltel would have the opportunity to respond to the revisions made to the cost studies made by the parties and stated that the parties should work together on a procedural schedule. Motion passed 3-0.
Vice Chairman Kolbeck moved that the Commission require McCook, Kennebec, Santel, and West River to revise and refile their cost studies to reflect a rate equivalency method as the basis for the assignment of transport costs and require that the parties work together on a procedural schedule. Motion passed 3-0.
Chairman Johnson moved that the Commission require McCook, Kennebec, Santel, and West River to eliminate the costs associated with the Web-Self Care system, the CALEA license, and the Centrex license; and require that Alltel would have the opportunity to respond to the revisions made to the cost studies; and require that the parties should work together on a procedural schedule. Motion passed 3-0.
With respect to the appropriate Percent InterMTA Use factor, Commissioner Hanson moved to accept McCook's, Beresford's, Kennebec's, Santel's, and West River's SS7 studies and the results of the studies. Motion passed 2-1. (Chairman Johnson, dissenting)
Chairman Johnson moved that the Commission reject Alltel's contention that land-to-mobile interMTA traffic should be offset against mobile-to-land traffic. Motion passed 3-0.
Commissioner Hanson moved that the Commission find McCook's, Beresford's, Kennebec's, Santel's, and West River's intrastate switched access rates shall be applied to intrastate interMTA traffic and their interstate switched access rates shall apply to interstate interMTA traffic. Motion passed 3-0.
Vice Chairman Kolbeck moved that the Commission reject Alltel's contention that calls to Beresford subscribers from Alltel numbers rated to Beresford should be treated as local calls subject to reciprocal compensation. Motion passed 3-0
Regarding the calculation and billing of intraMTA traffic, Chairman Johnson moved that the Commission accept Alltel's proposed net billing system and use the factors as set forth by Alltel for the calculation and billing of interMTA traffic for McCook and Santel. Motion passed 2-1. (Vice Chairman Kolbeck, dissenting)
Regarding the definitions of intraMTA and interMTA traffic, Vice Chairman Kolbeck moved that the Commission accept the definitions as proposed by Alltel for McCook, Beresford, Kennebec, Santel, and West River. Motion passed 3-0.
Regarding the issue with respect to direct points of interconnection, Vice Chairman Kolbeck moved that the Commission accept the direct points of interconnection as proposed by McCook, Beresford, Kennebec, Santel, and West River. Motion passed 3-0.
Chairman Johnson opened the floor for comments regarding the motions.
Mr. Talbot Wieczorek representing Alltel Communications stated that 1C may require the LECs to go back and break out the cost items as they are currently lumped together.
Chairman Johnson moved that the Commission instruct the petitioners to revise the cost items that were excluded. Motion passed 3-0.
Mr. Dave Gerdes, representing Midcontinent, stated that Midcontinent has agreed to a procedural schedule and requested that he Motion to Deem the Rural Exemption Waived be defined. Ms. Rolayne Wiest, Commission Attorney, stated that the Commission could proceed with the procedural schedule and the Commission could defer the amended motion on rural exemption. Ms. Meredith Moore, representing Alliance Communications Cooperative, stated that the Commission can deem that the rural exemption has not been waived by Alliance as of this time, subject to any later amendments or renewal of Midcontinent's motion. Mr. Rich Coit, SDTA, stated that SDTA concurred with Ms. Moore's comments. Ms. Wiest, Commission Attorney, recommended the Commission's motion could find that the rural exemption be waived or held in abeyance, and to proceed with the question for the Commission to approve the Stipulation for Scheduling Order. Ms. Karen Cremer, Staff Attorney, stated that the Staff agreed with Ms. Wiest.
Chairman Johnson moved that the Commission approve the Stipulation for Scheduling Order. Motion passed 3-0.
3. TC08-110 In the Matter of the Application of Native American Telecom, LLC for a Certificate of Authority to Provide Local Exchange Service on the Crow Creek Indian Reservation. (Staff Analysts: Bob Knadle/Terri LaBrie Baker, Staff Attorney: Karen Cremer)
Mr. Talbot Wieczorek, representing Native American Telecom, LLC (NAT), stated that the tribal government should have exclusive jurisdiction over its members, but acknowledges there is a gray area for nonmembers. Mr. Wieczorek further stated that tribes have the inherent power under federal law to regulate their members and consensual contractual relationships with their nonmembers. Mr. Wieczorek requested that the Commission allow the withdrawal of the application and acknowledge the tribe's jurisdiction it has with their members. Ms. Darla Pollman Rogers, representing Midstate Communications and Venture Communications Cooperative, stated that NAT does not address providing services to non-tribal members and if NAT does intend to provide services to non-tribal members residing on the Crow Creek Reservation, she reminded the Commission it has jurisdiction and regulatory oversight over NAT's provisioning of telecommunications services to non-tribal members. Ms. Rogers further stated the Intervenors urge the Commission to find that it has concurrent jurisdiction over NAT, and requested the Commission to deny Native Telecom's Motion to Dismiss. Mr. Rich Coit, SDTA, stated that SDTA concurred with Ms. Rogers. Ms. Karen Cremer, Staff Attorney, stated Staff recommended that the Commission grant the Motion to Dismiss without prejudice. Mr. Wieczorek stated that the Commission should rule on the COA application only, and not address the jurisdiction issue. Mr. Smith, Commission Attorney, recommended that the Commission rule on the Motion to Dismiss the COA application and not rule on the adjudication of the merits of the jurisdictional issues.
Chairman Johnson moved that the Commission dismiss the docket without prejudice. Motion passed 3-0.
Karen Cremer, Staff Attorney, stated that there had been three changes made to the Stipulation dates. The changes include: January 15, 2009, was changed to January 25, 2009; in paragraph 3, January 29, 2009, was changed to February 9, 2009; and February 13, 2009, was changed to February 23, 2009. Staff recommended that the Commission approve the Joint Proposed Procedural Schedule.
Chairman Johnson moved that the Commission approve the Joint Proposed Procedural Schedule. Motion passed 3-0.
Chairman Johnson stated that Docket TC08-137 was moved to the last item of the Agenda.
6. TC08-140 In the Matter of the Filing for Approval of an Amendment to an Interconnection Agreement between Qwest Corporation and Verizon Wireless f/k/a CommNet Cellular, Inc. (Staff Attorney: Kara Semmler)
Ms. Kara Semmler stated that the amendment had been properly filed, had been properly executed and did not appear to contain discriminatory provisions. No comments were filed, and Staff recommended approval of the Amendment to the Interconnection Agreement.
Vice Chairman Kolbeck moved to approve the Amendment to the Interconnection Agreement in Docket TC08-140. Motion passed 3-0.
Ms. Terri LaBrie Baker, Staff Analyst, stated that on December 19, 2008, 321 Communications, Inc., filed an application for a certificate of authority to provide local exchange services in South Dakota. 321 Communications requested a waiver from ARSD 20:10:32:03:12 as it applies to providing the cash flow statement and agreed to the restrictions. Staff recommended granting a Certificate of Authority, subject to the condition that 321 Communications not offer any prepaid services (including prepaid calling cards) and not accept or require any deposits or advance payments without prior approval of the Commission, and subject to rural safeguards, and granting the waiver.
Chairman Johnson moved to grant a certificate of authority to 321 Communications, Inc., subject to the conditions that 321 Communications not offer any prepaid services (including prepaid calling cards) and not accept or require any deposits or advance payments without prior approval of the Commission, and subject to rural safeguards, and granting the waiver. Motion passed 3-0.
Jon Thurber, Staff Analyst, stated that AT&T Communications of the Midwest, Inc. (AT&T) requested to withdraw the filing and that the company will file at a later date. Staff recommended granting the withdrawal.
Vice Chairman Kolbeck moved that the Commission grant the withdrawal and close the docket. Motion passed 3-0.
Ms. Darla Pollman Rogers, representing Fiber Ring Revenue-Pooling Association (FRRPA), stated that the amended FRRPA contracts approved by the Commission on November 2, 2005, expire December 31, 2008. FRRPA, its LEC participants and SDN have negotiated and executed new contracts to become effective January 1, 2009. FRRPA requested approval from the Commission of the revised contracts as the revised agreements extend the terms of the SRP and RUL contracts, and include revisions to recognize recent network updates. Staff recommended approval of the Amended Revenue Pooling Documents with an effective date of January 1, 2009, and stated that approval in this docket does not preclude the Commission from making any adjustments in the individual switched access cost studies related to FRRPA's revenues, expenses or plant.
Chairman Johnson moved that the Commission approve FRRPA's Petition requesting approval of the amended revenue pooling documents, subject to the condition that approval in this docket does not preclude the Commission from making any adjustments in the individual switched access cost studies related to FRRPA's revenues, expenses or plant. Motion passed 3-0.
There being no further business, at the hour of 5:08 pm the South Dakota Public Utilities Commission Meeting adjourned. Next Commission meeting is scheduled for February 10, 2009.
_/S/Demaris Axthelm____
Demaris Axthelm
Administrative Secretary
April 7, 2009
