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South Dakota Public Utilities Commission Meeting
June 23, 2009, at 9:30 A.M. with the continuation of Docket EL08-030 at 1:30 A.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, Bob Knadle, Tim Binder, Jon Thurber, Nathan Solem and Dave Jacobson; Consumer Affairs Supervisor Deb Gregg; and Administrative Secretary Demaris Axthelm.
Also present were: Casey Jacobson, Basin Electric Power Cooperative, Inc.; Dave Gerdes, May, Adam, Gerdes and Thompson, representing Midcontinent Communications; Steve Willard, South Dakota Electric Utility Companies; Mark Benton, Midstate Communications, Inc. and Midstate Telecom, Inc.; Rod Bowar, Kennebec Telephone Company; Mary Lohnes, Midcontinent Communications; Keith Hainy; Tim Huber, and Marietta Lakness; James Seurer, Michael Nealon, Kelly Dennison,, Glacial Lakes Corn Processors; Margo Northrup, Riter, Rogers, Wattier & Northrup, representing RC Communications, Inc., Midstate Communications, INC. and Cheyenne River Sioux Tribe Telephone; Talbot Wieczorek, Gunderson, Palmer, Goodsell and Nelson, representing Sprint Communications Company L.P. and Alltel Communications, Inc.; 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 Jennifer Winningham-Floden, Kyle Sem, Ron Spangler, Jason Grenier, Bernadeen Brutlag, Pete Beithon, Tom Brause, Dave Prazak and Bruce Gerhardsan, Otter Tail Power Company.
Joining the meeting by telephone were: Jim Cremer, Bantz, Gosch & Cremer LLC. representing, Northern Valley Communications, L.L.C.; Tom Welk, Boyce, Greenfield, Pashby & Welk LLP., representing Qwest Communication Companies; James Groft, Northern Valley Communications, L.L.C.; Dave Peterson and Bob Towers, Staff consultants.
Administration
- Approval of the Minutes of the Commission Meeting Held on April 7, 2009. (Staff: Demaris Axthelm)
Vice Chairman Kolbeck moved to approve the Commission Minutes of the April 7, 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 108 contacts since the last report was prepared for the June 10, 2009 Commission meeting. 20 contacts involved telecommunications services; 28 contacts involved electrical services; 8 contacts involved natural gas services; 14 contacts involved cell phone services; 1 contact was related to the Keystone Pipeline; 19 contacts involved the Do Not Call Registry; 1 contact involved wind energy; 1 contact involved the Grain Warehouse Division; and 16 contacts involved issues not regulated by the Public Utilities Commission. In 2009, 1,308 of the 1,357 complaints registered have been resolved. In 2008, 2,512 of the 2,513 complaints registered have been resolved.
Consumer Complaints
Mr. Talbot Wieczorek, representing Sprint Communications Company L.P. (Sprint) stated Sprint is not the initiating carrier and cannot be considered for the purpose of a slamming complaint. Ms. Kara Semmler stated Staff supports Mr. Wieczorek's statement and recommended the Commission dismiss Sprint from the Docket. Ms. Semmler further stated she spoke with Brian Hankel and he is working on a resolution with the other two companies.
Vice Chairman Kolbeck moved to dismiss Sprint Communications Company L.P. from the complaint. Motion passed 3-0.
Chairman Johnson announced that the Commission would take a 45 minute break and then continue the Commission Meeting at 2:00 pm.
Electric
See link to view transcript of Docket EL08-030; http://www.puc.sd.gov/commission/dockets/electric/2008/el08-030/transcript.pdf
Chairman Johnson moved to adopt the Settlement Stipulation, to waive ARSD 20:10:13:04 regarding the tariff layout to allow Otter Tail's tariff layout to be consistent across state jurisdictions and to approve Otter Tail's proposed tariff sheets subject to correction of sheet numbers and with an effective date of July 1, 2009 for the new rates, terms and conditions. Motion passed 3-0.
Ms. Casey Jacobson requested that the Commission allow the filing of all data, exhibits, and related testimony in support of its application at a date mutually agreed upon by the PUC staff, Basin, and the Intervenors. Ms. Karen Cremer stated that Staff agrees with Basin's request so long as the Company is willing to extend the statutory deadline by 60 days if it is needed by Staff. Ms. Jacobson stated that Basin agrees to an extension of the deadline for action if Staff deems it necessary at the time due to the later pre-filing of applicant's initial testimony.
Commissioner Hanson moved to grant Basin's request that pre-filed testimony in support of the application be at a time set by Commission following the intervention period. Motion passed 3-0.
- EL09-005 In the Matter of the Filing by Xcel Energy for Approval of its 2008 Economic Development Annual Report and 2009 Economic Development Plan. (Staff Analysts: Tim Binder/Dave Jacobson, Staff Attorney: Karen Cremer)
Mr. Jim Wilcox asked the Commission to approve Xcel Energy‘s 2008 Economic Development Annual Report and 2009 Economic Development Plan. Mr. Tim Binder stated that Staff reviewed the 2008 expenditures and they matched what was approved last year. The 2009 budget plan for next year is the same as the 2008 budget plan. Mr. Binder further stated that Staff recommends approving Xcel Energy's 2008 Economic Development Annual Report and 2009 Economic Development Plan.
Vice Chairman Kolbeck moved to approve Xcel Energy's 2008 Economic Development Annual Report and the 2009 Economic Development Plan. Motion passed 3-0.
Grain Buyers
- GD09-001 In the Matter of the Request of Glacial Lakes Corn Processors for Approval of a Waiver of ARSD 20:10:12:15. (Staff Analyst: Jim Mehlhaff, Staff Attorney: Kara Semmler)
Mr. Jim Seurer, CEO of Glacial Lakes Corn Processors (GLCP), briefed the Commission on the background and GLCP's current financial position. Mr. Seurer also presented a power point presentation See link to view the presentation:
http://www.puc.sd.gov/commission/dockets/graindealer/2009/gd09-001/presentation.pdf . Maritta Lakness, Tim Huber, Craig Atkins, president of Focus Watertown and Keith Hainy of North Central Farmers Elevator were present and spoke on behalf of GLCP. Mr. Jim Mehlhaff commented that GLCP had demonstrated a responsible track record in paying for corn that had been delivered to their facilities and recommended granting a waiver of the financial criteria set out in ARSD 20:10:12:15 with the condition that Glacial Lakes not be allowed to write voluntary credit sales contracts until its financial status is in compliance with the administrative rule. A discussion took place as to what producer risks are associated with VCS contracts and what restrictions if any would be appropriate to place on a conditional license. At the conclusion of the discussion the following motion was made.
Chairman Johnson moved to waive the working capital requirements set forth in ARSD 20:10:12:15, and issue a license to Glacial Lakes Corn Processors with the following conditions. Glacial Lakes shall provide notice to each seller of grain under a voluntary credit sale (VCS) contract, in a form approved by the Director of the Grain Warehouse Division, that GLCP is operating under a conditional license. GLCP shall obtain a receipt of such notice executed by each VCS seller under each VCS transaction and keep a record of all such receipts for all VCS purchases. GLCP shall provide monthly reports to the Commission detailing GLCP's current grain payables, the balance of company-owned grain for which payment has not been made and the VCS contract report for such period. Should GLCP's working capital position fall below one million dollars, it would be required to report on a weekly basis. Such reports shall be in addition to any other reports required to be provided to the Commission or its Grain Warehouse Division by statute or rule or by the Commission or its Grain Warehouse Division acting under their investigative and enforcement authority.
A discussion of the motion as to weather it is appropriate to require monthly or weakly reporting ensued in which Commissioner Johnson pointed out that the violation of ARSD 20:10:12:15 resulted due to the technical decision by a conservative independent auditor and that in reality GLCP was not in a negative working capital position.
Commissioner Hanson made an alternate motion to waive the requirements of ARSD 20:10:12:15 and issue the license with the conditions of the original motion, but to require reporting on a weekly basis rather than on a two tiered system. Motion passed 2-1 (Johnson dissenting)
Vice Chairman Kolbeck moved to amend the motion to require that GLCP must continue to pay for grain on a weekly basis. Motioned passed 2-1 (Hanson dissenting)
After additional discussion, Commissioner Johnson reiterated where the discussions of the motion and amendments had concluded. A final amended motion was made incorporating all that had been discussed and agreed to and adding language stating that at such time that GLCP comes into compliance with ARSD 20:10:12:15, it may come before the commission and request a non-conditional license. Motion passed 3-0
Telecommunications
- 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
Ms. Meredith Moore, representing the petitioners, stated that they previously agreed to a Stipulation for a scheduling order with Alltel in this matter for the continuation of discovery to support the revised flex study. Ms. Moore further stated that the dates have been agreed upon and asked that the Commission approve the stipulation. No comments were made by Alltel. Ms. Karen Cremer stated that Staff recommends approving the Amended Scheduling order.
Commissioner Hanson moved to approve the Stipulation for Amended Scheduling Order. Motion passed 3-0.
- TC08-031 In the Matter of the Complaint filed by Kennebec Telephone Company, Inc., against Alltel Communications, Inc. Regarding Nonpayment of Transiting Charges. (Staff Analyst: David Jacobson, Staff Attorney: Kara Semmler)
Ms. Meredith Moore, representing Kennebec Telephone Company, Inc. (Kennebec) briefed the Commission on the history of transit traffic relationships between Kennebec and Alltel Communications, Inc. (Alltel). Ms. Moore stated that a contract had been established through party conduct. Alltel received and accepted a service or a benefit, and Kennebec is consequently entitled to payment. Kennebec has not been paid and is entitled to a judgment and therefore requests the Commission to grant the Motion for Summary Judgment. Mr. Talbot Wieczorek, representing Alltel stated that Kennebec objects to the Motion for Summary Judgment. He stated Kennebec filed this over a year ago and this matter has sat until a Motion for Summary Judgment was filed by Kennebec. Mr. Wieczorek further stated that Alltel already pays Qwest for the delivery of the calls in question. Mr. Wieczorek asked the Commission to reject the Motion for Summary Judgment. Ms. Kara Semmler stated there are some unknown facts. Ms. Semmler further stated that additional discovery is needed and recommended that the Commission go forwarded with a hearing.
Chairman Johnson moved to deny the Motion for Summary Judgment. Motion passed 3-0.
Ms. Margo Northrup, representing Cheyenne River Sioux Tribe Telephone Authority, stated that a Joint Stipulation and Proposed Procedural Schedule have been provided on behalf of both parties. Ms. Northrup further stated that the parties had agreed to a minor change in paragraph 3.a. to change dates from June 22 to June 24 and asked for approval of the Stipulation. Mr. Talbot Wieczorek, representing Alltel Communications, LLC, agreed with the changes set forth by Ms. Northrup. Ms. Karen Cremer stated that Staff recommends approving the Joint Stipulation and Proposed Procedural Schedule as modified.
Chairman Johnson moved to approve the Joint Stipulation and Proposed Procedural Schedule as Modified by Agreement of the Parties. Motion passed 3-0.
Ms. Margo Northrup, representing Midstate Telecom, Inc. (Midstate), asked for approval of the interim rate that is currently on file. Ms. Northrup further stated that the rate is in the tariff and based upon the filed rate doctrine and that this rate would stay in effect until there is further action by the Commission. Mr. Dave Gerdes, representing Midcontinent Communications, asked that Midstate revert to the incumbent rate until such time that the matter can be heard in full and all evidence on the issue be submitted. Ms. Karen Cremer stated that staff recommends granting the Motion for Temporary Approval of Switched Access Rates.
Chairman Johnson moved to Grant the Motion for Temporary Approval of Switched Access Rates. Motion passed 3-0.
Ms. Margo Northrup, representing RC Communications, Inc., stated that according to the filed rate doctrine this rate will stay in effect until there is further action. Mr. Dave Gerdes, representing Midcontinent Communications asked that the Commission deny the Motion. Ms. Karen Cremer stated that Staff recommends granting the Motion for Temporary approval of Switched Access Rates.
Vice Chairman Kolbeck moved to Grant the Motion for Temporary Approval of Switched Access Rates. Motion passed 3-0.
Mr. Tom Welk, representing Qwest Communication Companies (Qwest), asked that the Commission grant Intervention to Qwest. Mr. Dave Gerdes, representing Midcontinent Communications (Midcontinent) asked that the Commission grant Intervention to Midcontinent. Mr. Jim Cremer, representing Northern Valley Communications, L.L.C., asked that the Commission deny Midcontinent's and Qwest's Petitions to Intervene. Ms. Karen Cremer stated that Staff recommends granting intervention to Midcontinent and Qwest.
Commissioner Hanson moved to grant Intervention to Qwest Communication Companies and Midcontinent Communications. Motion passed 3-0.
Mr. Jim Cremer asked that the Commission grant the Request for Temporary Approval of Switched Access Rates. Mr. Tom Welk stated that Qwest had no objections. Mr. Dave Gerdes stated that Midcontinet opposes the Motion. Ms. Karen Cremer stated that Staff recommends granting the Request for Temporary approval of Switched Access Rates.
Commissioner Hanson moved to Grant the Request for Temporary Approval of Switched Access Rates. Motion passed 3-0.
Ms. Kara Semmler stated the agreement was properly filed, properly executed and does not appear to contain discriminatory provisions. No comments were filed and Ms. Semmler recommended approval of the interconnection agreement.
Chairman Johnson moved to approve the interconnection agreement. Motion passed 3-0.
8. TC09-041 In the Matter of the Filing for Approval of a Resale Agreement between Qwest Corporation and NSW Telecom, Inc. (Staff Attorney: Kara Semmler)
Ms. Kara Semmler stated that NSW Telecom, Inc. (NSW) does not have a Certificate of Authority to provide service in the State of South Dakota but does intend to provide service in the state and was under the impression that approval of the agreement would authorize it to provide service. Staff recommends denying the agreement or, if the agreement is approved, making the order explicit as to the need to obtain a certificate of authority before commencing service.
Vice Chairman Kolbeck moved to deny the agreement between Qwest and NSW Telecom, Inc. Motion passed 2-1 (Johnson dissenting).
There being no further business, at the hour of 4:11 pm the South Dakota Public Utilities Commission Meeting adjourned. The next Commission meeting is scheduled for July 14, 2009.
/S/Demaris Axthelm____
Demaris Axthelm
Administrative Secretary
November 24, 2009
