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South Dakota Public Utilities Commission Meeting
May 19, 2009 at 9:30 AM.
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, Bob Knadle, Tim Binder, Jon Thurber, Nathan Solem and Dave Jacobson; Consumer Affairs Supervisor Deb Gregg; and Administrative Secretary Demaris Axthelm.
Also present were: Dave Gerdes, May, Adam, Gerdes and Thompson, representing Montana Dakota Utilities; Darla P. Rogers, Riter, Rogers, Wattier & Northrup, representing Midstate Communications, INC.; Margo Northrup, Riter, Rogers, Wattier & Northrup, representing South Dakota Telecommunications Association and Midstate Communications, INC.; Rich Coit, South Dakota Telecommunications Association; Jeff Decker, NorthWestern Energy; Brett Koenecke, May, Adam, Gerdes and Thompson, representing TransCanada Keystone; Mark Benton, Midstate Communications; and Bill Malcolm, Midwest ISO.
Joining the meeting by telephone were: George Thomson and David Ziegler, Qwest Corporation; Pam Bonrud and Sara Dannen, NorthWestern Energy; Todd Hansen, Beresford Telephone; Caitlin Collier, Dakota Rural Action; Paul Blackburn, Plains Justice; Talbot Wieczorek, Gunderson, Palmer, Goodsell and Nelson, representing Alltel; Meredith Moore, 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; and Gene DeJordy, representing Native American Telecom, LLC.
Administration
- Approval of the Minutes of the Commission Meeting Held on March 24, 2009. (Staff: Demaris Axthelm)
Vice Chairman Kolbeck moved to approve the Commission Minutes of the March 24, 2009, meeting. 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 received a total of 96 contacts since the last report was prepared for the May 5, 2009 Commission meeting. 25 contacts involved telecommunications services; 21 contacts involved electrical services; 6 contacts involved natural gas services; 2 contacts involved electrical and natural gas issues; 10 contacts involved cell phone services; 23 contacts involved the Do Not Call Registry; 1 contact involved the Grain Warehouse Division; and 8 contacts involved issues not regulated by the Public Utilities Commission. In 2009, 1,038 of the 1,108 complaints registered have been resolved informally. In 2008, 2,512 of the 2,513 complaints registered have been resolved informally.
Electric
Mr. Jeff Decker briefed the Commission on NorthWestern Energy's (NWE) issues with tankless water heaters being installed on NWE systems. Mr. Decker asked that the Commission approve a language change located within Section 5 of NWE's tariff to exclude tankless water heaters. Ms. Terri LaBrie Baker stated that Staff has no objections to the changes and recommended approving the tariff revisions with an effective date of June 1, 2009.
Chairman Johnson moved to approve the Tariff Revisions with an effective date of June 1, 2009, and conditioned upon further revisions to the wording on sheet 1-B. Motion passed 3-0.
Hydrocarbon Pipeline
On March 12, 2009, TransCanada Keystone Pipeline, LP, (Keystone) filed a siting permit application for the South Dakota portion of the proposed Keystone XL Project (Project). The Project will transport crude oil starting in Hardisty, Alberta, Canada and ending in Port Arthur and East Houston areas of Texas. The proposed route will enter South Dakota at the Montana - South Dakota border in Harding County and will extend in a southeasterly direction through portions of Harding, Butte, Perkins, Meade, Pennington, Haakon, Jones, Lyman, and Tripp counties. Mary Jasper filed an Application for Party Status on April 29, 2009. Paul F. Seamans filed an Application for Party Status on May 4, 2009. Darrell Iversen filed an Application for Party Status on May 5, 2009. The city of Colome and Glen Iversen filed Applications for Party Status on May 8, 2009. Applications for Party Status were filed by Jacqueline Limpert, John H. Harter, Zona Vig, Tripp County Water User District; Dakota Rural Action and David Niemi on May 11, 2009. Dakota Rural Action filed a Motion for Extension of Time to File Application for Party Status on May 11, 2009. Applications for Party Status were filed by Debra Niemi and Lon Lyman on May 12, 2009. Chairman Johnson announced that Mary Jasper,Paul F. Seamans, Darrell Iversen, Carol Moyer on behalf of city of Colome, Glen Iversen, Jacqueline Limpert, John H. Harter, Zona Vig, Craig Covey as Chairman of Tripp County Water User District, Dakota Rural Action, David Niemi, Debra Niemi and Lon Lyman have filed requests for intervention. Ms. Caitlin Collier, representing Dakota Rural Action and David and Debra Niemi stated that Paul Blackburn would be speaking on their behalf. Mr. Blackburn had no comments regarding granting intervention. Mr. Brett Koenecke, representing Keystone had no objections to the requested interventions on today agenda. Ms. Kara Semmler stated that Staff supports granting all requests to intervene. Chairman Johnson noted that the deadline for filing party status was May 11, 2009, and that some parties had filed late interventions.
Commissioner Hanson moved to grant intervention to all requesting parties. Motion passed 3-0.
Mr. Blackburn stated that Dakota Rural Action had received expressions of concern from some of its members on the Commission's procedures regarding notice of the public hearings and the right to and procedure for intervention as a party. Mr. Blackburn asked the Commission to extend the deadline and requested that the Commission investigate whether the notice served by Keystone was adequate notice under South Dakota statutory law and the state and federal constitutions' due process requirements. Mr. Blackburn particularly questioned whether the notice adequately described the nature and location of the facility and whether it should have given notice of a person's rights to request intervention as parties as the notices sent out by the Commission did prior to the amendment of the notice statutes in SDCL Chapter 49-41B. Chairman Johnson stated that although he did not agree at this time that adequate notice had not been given, he nevertheless believed it was appropriate to go the extra mile to accommodate public participation in the proceedings and to allow some extra time for intervention. He further stated that he believed the length of the extension requested by Dakota Rural Action was excessive and that an extension to May 31, 2009 was sufficient. Ms. Semmler stated that interested persons would also still be able to file requests for late intervention, which the Commission generally grants if not too late in the proceeding.
Chairman Johnson moved to deny Dakota Rural Action's Motion for Extension of Time to File Application for Party Status as filed but rather to alternatively grant an extension of the intervention deadline to May 31, 2009. Motion passed 3-0.
Pipeline Safety
Ms. Pam Bonrud asked that the Commission grant intervention to NorthWestern Energy Corporation d/b/a NorthWestern Energy (NWE). Mr. Dave Gerdes, representing Montana-Dakota Utilities (MDU) asked that the Commission approve MDU's intervention. Ms. Kara Semmler stated that Staff supports the interventions of NWE and MDU.
Vice Chairman Kolbeck moved to grant Intervention to NorthWestern Energy Corporation d/b/a NorthWestern Energy and Montana-Dakota Utilities Company. 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 TC07-112, TC07-113, TC07-114, TC07-115, and TC07-116
Mr. Talbot Wieczorek, representing Alltel Communications (Alltel), asked that the Commission reconsider three issues. For the first issue, Mr. Wieczorek requested that the Commission adopt, as part of the rate equivalency method, a finding that 24 DS-0s are equivalent to one DS-1 as DS-0s are introduced into the network at the DS-1 level. For the second issue, Mr. Wieczorek asked the Commission to adopt Alltel's corrected interMTA factors. For the third issue, Mr. Wieczorek asked the Commission to allow a netting of the interMTA factor. Ms. Meredith Moore, representing the Petitioners, asked the Commission to deny Alltel's Petition for Reconsideration. Ms. Karen Cremer, representing Staff, recommended denial on all 3 issues.
Chairman Johnson moved to deny Alltel's request for reconsideration regarding Issue 1. Motion passed 3-0.
Chairman Johnson moved to deny Alltel's request for reconsideration regarding Issue 2. Motion passed 3-0.
Chairman Johnson moved to deny Alltel's request for reconsideration regarding Issue 3. Motion passed 3-0.
Mr. George Thomson had no comments. Ms. Kara Semmler stated the amendment has been properly filed, has been properly executed and does not appear to contain discriminatory provisions. No comments were filed, and Staff recommends approval of the Amendment to the Interconnection Agreement.
Commissioner Hanson moved to approve the Amendment to the Agreement. Motion passed 3-0.
3. TC09-013 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 Semmler)
Mr. George Thomson had no comments. Ms. Kara Semmler stated the amendment has been properly filed, has been properly executed and does not appear to contain discriminatory provisions. No comments were filed, and Staff recommends approval of the Amendment to the Interconnection Agreement.
Vice Chairman Kolbeck moved to approve the Amendment to the Agreement. Motion passed 3-0.
Mr. George Thomson stated that Qwest Corporation (Qwest) filed its request for the Commission to consider Qwest's last-submitted CAP based on ARMIS "Net Return" as satisfying PAP Section 12.1 for this and future years. Mr. Thomson further stated that a recent FCC Order grants Qwest forbearance from certain ARMIS reporting requirements and that this eliminates the ARMIS "Net Return" for South Dakota used in PAP Section 12.1. Ms. Terri LaBrie Baker stated that no interveners have filed and staff recommended approving the CAP calculations as filed.
Chairman Johnson moved to approve the PAP Payment Cap Calculation. Motion passed 3-0.
5. TC09-019 In the Matter of the Filing for Approval of an Interconnection Agreement between Midstate Communications, Inc. and Native American Telecom, LLC. (Staff Attorney: Kara Semmler)
Ms. Darla Rogers, representing Midstate Communications, Inc. stated that through negotiations both parties have agreed to the terms and conditions in the agreement and asked that the Commission approve the Interconnection Agreement between Midstate Communications and Native American Telecom, LLC. Mr. Gene DeJordy had no objections. Ms. Kara Semmler stated the agreement was properly filed, properly executed and does not appear to contain discriminatory provisions and Staff recommends approval of the agreement. Commissioner Hanson noted that his approval is conditioned on Native American Telecom not providing service to non-Tribal Members.
Vice Chairman Kolbeck moved to approve the Interconnection Agreement. Motion passed 3-0.
There being no further business, at the hour of 11:39 am the South Dakota Public Utilities Commission Meeting adjourned. The next Commission meeting is scheduled for June 9, 2009.
/S/Demaris Axthelm
Demaris Axthelm
Administrative Secretary
August 11, 2009
