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South Dakota Public Utilities Commission Meeting
Tuesday, August 17, 2004 at 9:30 A.M.
Capital Building, Room 412
Pierre, South Dakota
MINUTES OF THE COMMISSION MEETING
Chairman Bob Sahr called the meeting to order. Also present were Vice Chairman Gary Hanson; Commissioner Jim Burg; Executive Director Pamela Bonrud; Deputy Executive Director Heather Forney; Commission Advisor Greg Rislov; Commission Attorneys Rolayne Ailts Wiest and John Smith; Staff Attorney Karen Cremer; Staff Analysts Harlan Best, Dave Jacobson, Sue Schaefer, Jim Mehlhaff, Christine Hibbeler, Michele Farris, Keith Senger, Steve Wegman, and Martin Bettmann; and Administrative Secretary Tina Douglas.
Also present were Darla Rogers, Riter, Rogers, Mayer, Hofer, Wattier & Brown representing Venture Communications Cooperative, Golden West Telecommunications Coop, Cheyenne River Sioux Tribe Telephone Authority, and Tri-County Telcom, Inc.; Bob Miller, South Dakota Electric Utility Companies; David Gerdes, May, Adam, Gerdes and Thompson representing Montana-Dakota Utilities Co. and Midcontinent Communications; Larry Toll, Melissa K. Thompson, and Colleen Sevold, Qwest Corporation; Suzan Stewart, Melanie Acord, and Debra Kutsunis, MidAmerican Energy Company; Richard Coit, South Dakota Telecommunications Association; Mark Benton Midstate Communications, Inc.; Bob Mercer, Newspaper Reporter; and Randy Houdek, Venture Communications Cooperative.
Joining the meeting by telephone were Rachel Torrence, Jeff Carmen, and Tim Goodwin, Qwest Corporation; Mark Meierhenry, Danforth, Meierhenry & Meierhenry, representing Superior Renewable Energy; Karen Huizenga and Mark Rodvold, MidAmerican Energy Company; Marv Truhe, Black Hills FiberCom; Larry Hettinger, Heartland Consulting; Talbot Wieczorek, Gunderson, Paul, Goodsell & Nelson, representing WWC License; Tom Welk, Boyce, Greenfield, Pashby & Welk, LLP, representing Qwest Corporation; Marlene Bennett, Martin Group; Jim Bundell, Western Wireless; Mark Ayotte, Briggs & Morgan, representing Western Wireless; Wendy Harper and Doug Eidahl, Vantage Point Solutions; Chris Clark, Xcel Energy; Mary Lohnes, Midcontinent Communications; Tom Burns, Burns Law Office, representing the City of Watertown and Codington-Clark Electric Cooperative, Inc.; Gene Ward, Codington-Clark Electric Cooperative, Inc.; Jeff Heig, City of Watertown; Dan Larson; James Cremer, Bantz, Gosch & Cremer representing James Valley Cooperative Telephone Co.; and Bill Heaston and Pat Mastel, PrairieWave Telecommunications, Inc.
Administration
1. Approval of the Minutes of the Commission Meetings Held on June 22, July 6, and July 20, 2004. (Staff: Tina Douglas.)
This item was deferred until next meeting.
Consumer Issues
1. Status Report on Consumer Utility Inquiries and Complaints Received by the Commission. (Consumer Affairs: Jim Mehlhaff.)
Mr. Mehlhaff reported that the Commission received a total of 1634 consumer contacts during 2004. Since the last report was prepared for the July 20, 2004, Commission meeting, 166 of these contacts had been received; 58 contacts involved telecommunications services; 27 contacts involved electricity issues; 7 contacts involved natural gas issues; 5 contacts involved gas and electric services; 36 contacts involved cellular phone issues; 7 contacts involved the Do Not Call registry; and 26 contacts involved miscellaneous services not regulated by the PUC. In 2004, 1286 of the 1634 complaints registered have been resolved informally. In 2003, 1989 of the 2579 complaints registered have been resolved informally.
See Transcript of August 17, 2004, 9:30 a.m. Commission Meeting of CN04-001
Chairman Sahr moved to recess to Executive Session. Commissioner Hanson seconded and Commissioner Burg concurred.
Chairman Sahr moved to reconvene the Commission Meeting. Commissioner Hanson seconded and Commissioner Burg concurred.
Chairman Sahr moved to deny MidAmerican Energy Company's Motion to Dismiss. Commissioner Hanson seconded and Commissioner Burg concurred. Motion passed 3-0.
Telecommunications
See transcript available at the Public Utilities Commission.
Chairman Sahr moved that the Commission find that Western Wireless has met the requirements to be designated as an ETC in the requested ETC service areas. Chairman Sahr further moved that the designation of Western Wireless as an additional ETC in the requested service areas is in the public interest subject to the following conditions:
1. Western Wireless shall comply with the conditions set forth in Findings of Fact 20 through 24 of the Findings of Fact, Conclusions of Law and Order in Docket No. TC98-146. Western Wireless may amend its Compliance Filing in Docket TC98-146 to add the newly designated areas and to use the same service agreements and procedures in the requested service areas as previously filed with the Commission. For any requirement that cannot be fulfilled by amending the previous Compliance Filing, Western Wireless may submit the document in this proceeding. Western Wireless will not have to make a separate compliance filing in order to be designated as an ETC in this docket.
2. Western Wireless shall continue to build out facilities and extend service to meet the statutory objective of offering service "throughout the service area for which the designation is received."
3. In conjunction with, but separate from and in addition to its annual certification filings under 47 C.F.R.. 54.313 and 54.314, Western Wireless shall submit records and documentation on an annual basis detailing its progress towards meeting the statutory objective of offering service throughout the service area for which the designation is received." At a minimum, such information shall detail the capital expenditures made by Petitioner within each RLEC's service area during the preceding annual period and shall include its proposed capital budget for each RLEC's service area for the ensuing year.
4. Western Wireless shall annually submit a proposed plan for the upcoming calendar year which sets forth Western Wireless' proposed facilities expansion and service enhancements to existing facilities. The plan shall be submitted no later than January 1 of each year. Following the filing due January 1, 2005, Western Wireless' subsequent annual filings shall also submit a report stating whether the proposed plan was implemented, any deviations from the previous year's proposed plan, and the reasons for any deviations. Following this annual filing, Western Wireless shall meet with Commission Staff to discuss the proposed plans and any deviations from a previous year's proposed plans.
5 . Western Wireless shall construct the 17 additional cell sites during 2004 that it committed to in this proceeding. If it is unable to construct all 17 cell sites during 2004, Western Wireless shall submit a report detailing the reasons why it is unable to do so and shall thereafter submit monthly reports detailing its progress toward meeting this goal.
6. Western Wireless shall continue to abide by the terms of the Cellular Telecommunications Industry Associates Consumer Code for Wireless Service as it is amended from time to time.
7. By January 1st of each year, Western Wireless shall provide an annual report detailing the consumer complaints that it has received during the previous one year period. This report shall include categories for the complaints.
8. By January 1st of each year, Western Wireless shall provide a report itemizing requests for service from potential customers within each RLEC's service area that went unfulfilled during the previous year, including the steps Western Wireless took to provide service and the reasons why such request went unfulfilled. Following the submission of this report, Western Wireless shall meet with Commission Staff to discuss the report.
Commissioner Hanson seconded and Commissioner Burg concurred. Motion passed 3-0.
Commissioner Burg left the Commission Meeting.
Chairman Sahr moved to deny Qwest's Motion to Permit Post-Hearing Affidavit. Commissioner Hanson seconded. Motion passed 2-0.
Electricity
Mr. Chris Clark, Xcel Energy, stated that on July 16, 2004, Xcel Energy (Xcel) filed a Petition to Intervene. Mr. Clark stated this is a very late intervention and that it would be very beneficial to the docket and public to grant intervention. Mr. Clark also stated that Xcel will not cause unduly delays in the docket if the Commission grants its late intervention. Mr. David Gerdes, Montana-Dakota Utilities Co., had no objection to Xcel's intervention. Mr. Mark Meierhenry, Superior Renewable Energy, objected to Xcel's intervention, stating the same reasons that were stated at the last meeting. Ms. Karen Cremer stated that May 28, 2004, was the due date for interventions in this docket and recommended that Xcel be granted intervention in this docket.
Chairman Sahr moved to grant late intervention to Xcel Energy in EL04-016. Commissioner Hanson seconded. Motion passed 2-0.
Mr. Tom Burns indicated that Codington-Clark Electric Cooperative, Inc. (Codington-Clark) and the City of Watertown supported the Petition for Approval of Addendum to Agreement Regarding Assigned Service Area. Ms. Farris stated that on December 18, 1990, Codington Clark and the City of Watertown entered into an agreement to modify assigned service area. On December 3, 1993, Codington Clark and the City of Watertown again entered into an agreement to modify assigned service area. An addendum to the agreement was submitted for approval on July 27, 1998. The addendum included an expiration date for the agreement of July 23, 2001. In 2001, the agreement was again approved until July, 2004. The addendum Codington Clark and the City of Watertown are seeking approval for today is the same agreement approved in 1998. The addendum extends the expiration date of the existing agreement to July 23, 2007. The agreement between Codington Clark Electric Cooperative and the City of Watertown has been in effect for over ten years and appears to be mutually beneficial to the parties as well as in the public interest. Ms. Farris recommended the Commission approve the request for approval of the addendum to the Agreement to Modify Assigned Service Area with an effective date of July 23, 2004.
Commissioner Hanson moved to approve the Addendum to the Agreement regarding Assigned Service Area between Codington-Clark and the City of Watertown with an effective date of July 23, 2004. Chairman Sahr seconded. Motion passed 2-0.
Telecommunications
See Transcript of August 17, 2004, 9:30 a.m. Commission Meeting of TC04-077
Chairman Sahr moved to approve the Stipulation, incorporate its terms, and close the docket in TC04-077. Commissioner Hanson seconded. Motion passed 2-0.
See Transcript of August 17, 2004, 9:30 a.m. Commission Meeting of TC04-085
Chairman Sahr moved to approve the Stipulation, incorporate its terms, and close the docket in TC04-085. Commissioner Hanson seconded. Motion passed 2-0.
3. In the Matter of the Establishment of Switched Access Revenue Requirements for Dockets TC04-111, TC04-112, TC04-114, TC04-115, TC04-116, TC04-117, TC04-118, TC04-119, TC04-120, TC04-121, TC04-122, TC04-123, TC04-124, TC04-125
Mr. Best stated that under the administrative rules the Commission can assess a filing fee not to exceed $100,000.00. Mr. Best recommended that dockets TC04-111, TC04-112, TC04-114, TC04-115, TC04-116, TC04-117, TC04-118, TC04-119, TC04-120, TC04-121, TC04-122, TC04-123, TC04-124, and TC04-125 be assessed a filing fee not to exceed $100,000.00 with an initial deposit of $1,000.00 and that West River Telecommunications Cooperative be allowed to use GVNW's cost study model.
Chairman Sahr moved to assess a filing fee not to exceed $100,000.00 with an initial deposit of $1,000.00 in TC04-111, TC04-112, TC04-114, TC04-115, TC04-116, TC04-117, TC04-118, TC04-119, TC04-120, TC04-121, TC04-122, TC04-123, TC04-124, and TC04-125, and that West River Telecommunications Cooperative use GVNW's cost study model. Commissioner Hanson seconded. Motion passed 2-0.
4. In the Matter of Approving Agreements in TC04-113, TC04-129, TC04-130, TC04-131, and TC04-132.
Ms. Wiest recommended approval of the Agreements in TC04-113, TC04-129, TC04-130, TC04-131, and TC04-132.
Chairman Sahr moved to approved the Agreements in TC04-113, TC04-129, TC04-130, TC04-131, and TC04-132. Commissioner Hanson seconded. Motion passed 2-0.
Wendy Harper, Vantage Point Solutions, representing Midstate Telcom, Inc., stated that Midstate Telcom, Inc. has filed for revisions to its tariff rates. Ms. Farris stated that on July 2, 2004, Midstate Telecom, Inc. (MTI) submitted, for approval, revised pages to MTI's Switched Access Tariff No. 1. MTI's revised tariff rates are based on a statewide average in accordance with ARSD 20:10:27:12. MTI was granted exemption from developing intrastate switched access rates based on company specific costs in Docket TC02-032 and these rates are subject to refund with interest. Ms. Farris recommended that the revisions to the intrastate switched access tariff be approved subject to refunds with interest.
Chairman Sahr moved to approve the tariff revisions in TC04-126 subject to refunds with interest. Commissioner Hanson seconded. Motion passed 2-0.
Wendy Harper, Vantage Point Solutions, representing Northern Valley Communications, stated that Northern Valley Communications has filed for revisions to its tariff rates. Ms. Farris stated that on July 2, 2004, Northern Valley Communications (NVC) submitted, for approval, revised pages to NVC's Intrastate Switched Access Tariff No. 1. NVC's revised tariff rates are based on a statewide average in accordance with ARSD 20:10:27:12. NVC was granted exemption from developing intrastate switched access rates based on company specific costs in Docket TC02-170 and these rates are subject to refund with interest. Ms. Farris recommended that the revisions to the intrastate switched access tariff be approved subject to refunds with interest.
Chairman Sahr moved to approve the tariff revisions in TC04-127 subject to refunds with interest. Commissioner Hanson seconded. Motion passed 2-0.
Commissioner Burg rejoined the Commission Meeting.
Ms. Melissa K. Thompson, Qwest Communications Corporation, stated that on April 22, 2004, Qwest Communications Corporation (QCC) filed an application for a Certificate of Authority to provide competitive local exchange services in South Dakota. QCC plans to provide a broad range of interLATA and intraLATA telecommunications services for voice and data applications to businesses and residences throughout South Dakota. QCC will provide competitive local exchange telecommunications service, in conjunction with interexchange telecommunications services and operator services, within South Dakota by means of resale, the leasing of facilities, and/or the construction of its own facilities on a statewide basis which is in the best interest for the citizens of South Dakota. It will provide increased competition for the State of South Dakota. QCC is seeking a waiver of the rural safeguards which applies only to the rules with respect to this Certificate of Authority. It is not seeking a waiver of the rural safeguards on a going forward basis. QCC is not seeking status as a Eligible Telecommunications Carrier. QCC is seeking authority to provide local exchange service on a statewide basis. QCC wants statewide authority in order to market to customers having locations throughout the state and to avoid waiting 90 days before the Certificate of Authority is amended.
Mr. Rich Coit, South Dakota Telecommunications Association (SDTA), stated that SDTA filed a Petition to Intervene on May 14, 2004, and was granted intervention on May 24, 2004. SDTA has some concerns with regards to rural safeguards. It appears to SDTA that the rural safeguard rules state that when entering rural markets QCC must be in a position to satisfy Eligible Telecommunications Carrier requirements as a precondition before actually being granted entry into that particular area. QCC should not be able to ask for a waiver without addressing the obligations that are required by statute. Mr. Coit stated that what QCC wants to do amounts to cherry picking.
Ms. Farris stated that QCC's finances are consolidated under the parent company and it is requesting a waiver from 20:10:32:03:11. QCC is currently bonded with the Commission. Ms. Farris stated that the Commission in the past has granted other CLEC's Certificate of Authority subject to rural safeguards. Ms. Farris recommended that QCC be granted its Certificate of Authority to provide service in existing Qwest Territory, with rural safeguards, with the $25,000.00 continuing bond requirements and grant the waiver from 20:10:32:03:11. Another issue that was raised in this filing is the possibility of confusion for the customer on which company they are dealing with Qwest the CLEC and/or Qwest the ILEC. Staff feels that this issue was not answered sufficiently ensure that the customer would not be confused regarding which company they were dealing with in the Qwest territory. Staff has no recommendation regarding the name issue. Ms. Thompson stated that Qwest has spent a lot of time and money regarding a brand name. When a customer calls the 800 number it is stated immediately which entity they have contacted and the same for billing.
Chairman Sahr moved to defer action on TC04-083. Commissioner Burg seconded and Commissioner Hanson concurred. Motion passed 3-0.
Ms. Farris stated that on June 16, 2004, DakotaComm, LLC (DakotaComm) filed an application for a Certificate of Authority to provide telecommunication services in South Dakota. DakotaComm intends to provide local exchange services, intraLATA services and interLATA services through a combination of reseller and facilities-based provisioning. Initially, telecommunication services will be offered to residents and businesses located in the Qwest exchange of Vermillion, South Dakota. DakotaComm is a startup company so it has requested a waiver from 20:10:24:02:08 and 20:10:32:03:11. DakotaComm has made all changes to its proposed tariff requested by staff. DakotaComm has submitted a $25,000.00 surety bond. Ms. Farris recommended the Commission approve the Certificate of Authority for DakotaComm, LLC with the requirement of the continuous $25,000.00 bond and grant waiver from 20:10:24:02:08 and 20:10:32:03:11.
Commissioner Burg moved to grant waivers of ARSD 20:10:24:02:08 and 20:10:32:03:11 and to approve from DakotaComm, LLC's application for certificate of authority subject to a continuous $25,000.00 surety bond. Commissioner Hanson seconded and Chairman Sahr concurred. Motion passed 3-0.
Administrative
1. Telecommunications Outages (Staff Analyst: Jim Mehlhaff)
It was discussed by the Commission that recent events involving two South Dakota telecommunication providers have raised questions about how telecommunications providers, in general, communicate with the Commission about service outages and what type of redundancy is provided within their infrastructure. Each event involved a fiber cut that resulted from a contractor or individual who was conducting work for a third party not connected to the telecommunication provider. As a result of each fiber cut, telecommunication services for extended areas in South Dakota were affected. In both cases, the ability of law enforcement personnel at the federal, state or local levels were impacted, along with state government communications. The Commission recommended that the staff and the companies open up communications on how to avoid, if possible, the problems that arose with the outages, and possible come up with some solutions on how to better manage the situations when they arise.
ADDENDUM
Natural Gas
Suzan Stewart, MidAmerican Energy Company, stated that on May 12, 2004, MidAmerican filed an economic development report for 2003 and proposed economic development budget for 2004 in accordance with docket NG01-010. In addition they provided additional supporting documentation. The Commission approved $100,586 for economic development expenses for 2003. MidAmerican spent $84,487, resulting in a deficiency of $16,099. The shortfall occurred primarily due to less than anticipated allocation of staff salaries from the retirement and non-replacement of two staff vice presidents. There is a carryover of $16,099, which MidAmerican proposes to use mainly for Location One Online System data assembly, for a total budget of $116,099 for 2004 economic development expenses. The economic development costs of $100,000 will continue to be split equally between the shareholders and the ratepayers. Ms. Farris recommended approval the 2003 economic development report and its proposed 2004 economic development budget.
Commissioner Hanson moved to approve the 2003 Economic Development Report and the 2004 Economic Development Plan. Chairman Sahr seconded and Commissioner Burg concurred. Motion passed 3-0.
AGENDA
Natural Gas
Mr. Jacobson stated that the Commission was provided with a proposal from Chesapeake Regulatory Consulting. In the past the Commission has used Chesapeake as consultants. Mr. Jacobson recommended approval of the contract. David Gerdes, Montana-Dakota Utilities Co., had no objection to the contract.
Commissioner Burg moved to approve the contract for Chesapeake Regulatory Consulting in NG04-004. Chairman Sahr seconded and Commissioner Burg concurred. Motion passed 3-0.
Meeting adjourned.
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Tina Douglas
Administrative Secretary
