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South Dakota Public Utilities Commission Meeting
January 15, 2013 at 2:30 P.M. CST
Room 413, Capitol Building

Pierre, South Dakota

MINUTES OF THE COMMISSION MEETING

Chairman Chris Nelson called the meeting to order. Present were: Commissioners: Kristie Fiegen and Gary Hanson; Commission Counsel: John Smith and Rolayne Wiest; Commission Advisor: Greg Rislov; Staff Attorneys: Karen Cremer and Kristen Edwards; Staff Analysts: Brittany Mehlhaff, Brian Rounds, Jon Thurber, and Jim Mehlhaff; Consumer Affairs Supervisor: Deb Gregg; and Staff: Sherry Dickerson

Also present were:
Brett Koenecke, May, Adam, Gerdes & Thompson, representing Montana-Dakota Utilities Co; Rich Coit, South Dakota Telecommunications Association; Bill VanCamp, Olinger, Lovald, McCahren & Reimers, P.C., representing AT&T Communications of the Midwest, Inc.; Jim Wilcox, Northern States Power Company dba Xcel Energy; Mark Moreno, Schmidt, Schroyer, Moreno, Lee & Bachand, P.C., representing GCC Dacotah, Inc., Rapid City Regional Hospital, Inc., Rushmore Forest Products, Inc., Spearfish Forest Products, Inc., and Pete Lien and Sons, Inc.; Lee Magnuson, Lindquist, Vennum, PLLP, representing Black Hills Power, Inc; and Chris Kilpatrick and Chuck Loomis, Black Hills Power, Inc.

Joining the meeting by telephone were:
Staff Analyst: David Jacobson; Rita Mulkern, Montana-Dakota Utilities Co.; Wauneta Browne, AT&T Communications of the Midwest, Inc.; Winafred Brantl and Anne Sokolin-Maimon, MCC Telephony of the Midwest, LLC; Jason Topp and Paula Hustead, Qwest Corporation dba CenturyLink QC; Carey Roesel, Technologies Management, Inc., representing Onvoy, Inc. dba Onvoy Voice Services; Andrew Moratzka, Mackall, Crounse & Moore, PLC, representing GCC Dacotah, Inc., Rushmore Forest Products, Inc., Spearfish Forest Products, Inc., Rapid City Regional Hospital, and Pete Lien and Sons, Inc.; Jessica Fyhrie, Otter Tail Power Company; Tom Snyder, Kutak Rock, LLP, Steve Chriss, Walmart; Larry Janes, SD One Call; Bayardo Medrano, NET TALK.COM, Inc.; Tom Forte, Matrix Telecom, Inc. dba Matrix Business Technologies also dba Trinsic Communications; Kari Valley, Northern States Power Company dba Xcel Energy; and Kate Stem, Access Point, Inc.

Administration

1.    Approval of the Minutes of the Commission Meetings Held on December 4, 2012, and December 18, 2012 (Staff: Joy Irving)

     Commissioner Hanson moved to approve the minutes of December 4, 2012, and December 18, 2012. Motion carried 3-0.

Consumer Reports

1.     Status Report on Consumer Utility Inquiries and Complaints Received by the Commission (Consumer Affairs: Deb Gregg)

The Commission received a total of 155 contacts since the last report was prepared for the December 18, 2012 Commission meeting.

30 of the contacts involved telecommunication services, 39 of the contacts involved electrical services, 15 contacts involved natural gas service, 11 contacts involved cell phone service, 33 contacts were related to the Do Not Call Registry, 1 contact was related to One Call and 26 contacts were related to issues not regulated by the PUC.

1,955 of the 1,956 complaints received in 2012 have been resolved.

49 of the 61 complaints received in 2013 have been resolved.

Electric

1.     EL11-023     In the Matter of the Petition of Northern States Power Company dba Xcel Energy for Approval of a Credit Mechanism for a Department of Energy Settlement Payment Along with Deferred Accounting and Approval to Depart from Its Fuel Clause Tariff, as Necessary (Staff Analyst: Jon Thurber, Staff Attorney: Karen Cremer)

Ms. Kari Valley, Northern States Power Company dba Xcel Energy (Xcel), requested that the Commission suspend the requirement in the Order Approving Credit Mechanism that Xcel use a one-time bill credit for future settlement proceeds to customers within 90 days of receipt from the Department of Energy until the Commission renders its decision in Docket EL12-046. Ms. Karen Cremer, staff attorney, stated that staff believes the method being proposed by Xcel in EL12-046 was previously decided by the Commission in Docket 11-023. However staff does not object to the suspension if the Commission wants to consider an alternative mechanism.

     Commissioner Nelson moved that the Commission deny Xcel's request and to require that payment of the Settlement proceeds be made as expeditiously as possible. Motion carried 3-0.

2.     EL12-060     In the Matter of the Filing by Otter Tail Power Company for Approval of Tariff Revisions (Staff Analyst: Matthew Tysdal, Staff Attorney: Kristen Edwards)

Ms. Jessica Fyhrie, Otter Tail Power Company (Otter Tail), requested that the Commission approve a revised Section 16.00, Sheet No. 4 of its Tariff Book. Ms. Fyhrie explained that the municipal service agreement, currently listed as a contract with deviations between Otter Tail and the City of Waubay will expire on January 2, 2013, and the new agreement for municipal services brings rates within Otter Tail's current tariff on file with the Commission. Mr. Matthew Tysdal, staff analyst, recommended that the Commission grant approval designating an effective date of January 8, 2013.

     Commissioner Fiegen moved to approve the tariff revisions with an effective date of January 8, 2013. Motion carried 3-0.

3.     EL12-061     In the Matter of the Application of Black Hills Power, Inc. for Authority to Increase its Electric Rates (Staff Analysts: Jon Thurber, Brittany Mehlhaff, Patrick Steffensen, Staff Attorneys: Karen Cremer, Kristen Edwards)
        
Mr. Andrew Moratzka, Mackall, Crounse & Moore, PLC, representing Black Hills Industrial Interveners, stated since the petition to intervene was filed so recently, he would defer to the Commission's discretion and Black Hills Power, Inc, (BHP), as to whether or not to grant intervention at this time. Mr. Lee Magnuson, Lindquist, Vennum, PLLP, representing BHP, stated he has not had an opportunity to discuss it with BHP, and therefore was not prepared to respond. Commissioners deferred intervention to any parties that may have filed until the January 30, 2013, Commission meeting.

Ms. Karen Cremer, staff attorney, recommended pursuant to SDCL 49-1A-8 the Commission assess a filing fee up to the statutory limit of $250,000 for expenses related to the general rate case and up to the statutory limit of $50,000 for expenses related to the transmission facility cost recovery tariff and to suspend the operation of the schedule of rates proposed by BHP pursuant to SDCL 49-34A-14 for 180 days after the Application filing date of December 17, 2012, and give the Executive Director authority to enter into necessary consulting contracts.       

     Commissioner Hanson moved to suspend the imposition of the tariff for 180 days beyond December 17, 2012, assess a filing fee for actual expenses related to the general rate case not to exceed $250,000, assess a filing fee for actual expenses related to the transmission facility cost recovery tariff not to exceed $50,000 and give the Executive Director authority to enter into necessary consulting contracts.  Motion carried 3-0.

4.     EL12-062     In the Matter of the Application of Black Hills Power, Inc. for the Phase in of Rates Regarding Construction Financing Costs of Cheyenne Prairie Generating Station (Staff Analysts: Jon Thurber, Brittany Mehlhaff, Patrick Steffensen, Staff Attorneys: Karen Cremer, Kristen Edwards)

Mr. Andrew Moratzka, Mackall, Crounse & Moore, PLC, representing Black Hills Industrial Interveners, requested that the Commission grant its petition to intervene. Mr. Lee Magnuson, Lindquist, Vennum, PLLP, representing Black Hills Power, Inc, had no objection. Ms. Karen Cremer, staff attorney, recommended that the Commission grant intervention.

     Commissioner Fiegen moved to grant intervention to all parties that have filed petitions to intervene as of this time. Motion carried 3-0.

Ms. Karen Cremer, staff attorney, recommended that the Commission assess a filing fee for actual expenses related to the phase in rate plan up to the statutory limit of $250,000 and give the Executive Director authority to enter into necessary consulting contracts.

     Commissioner Nelson moved to assess a filing fee for actual expenses related to the phase in rate plan not to exceed $250,000 and give the Executive Director authority to enter into necessary consulting contracts. Motion carried 3-0.

Mr. Lee Magnuson, Lindquist, Vennum, PLLP, representing Black Hills Power, Inc, requested that the Commission grant the Joint Motion for Approval of Stipulation Regarding Effective Date of Interim Phase In Rates. Ms. Karen Cremer, staff attorney, recommended that the Commission grant the joint motion and adopt the stipulation without modification.

     Commissioner Hanson moved to grant approval of the Joint Motion for Approval of Stipulation Regarding Effective Date of Interim Phase In Rates and adopt the stipulation without modification. Motion carried 3-0.

Grain

1.     GW12-002     In the Matter of the Grain Dealer's Bond of Anderson Seed Co., Inc. (Staff Analyst: Jim Mehlhaff, Staff Attorney: Kristen Edwards)

A lengthy discussion took place regarding docket GW12-002. The transcript can be found on the PUC website under Commission Actions: Commission Minutes: 2013 http://puc.sd.gov/commission/minutes/2013/transcript/011813transcriptgw12-002.pdf. An audio of the discussion can be found on the PUC website under Commission Actions, Commission Meeting Archives, 2013, January 15, 2013, recording located at: http://puc.sd.gov/commission/media/2013/puc01152013.mp3.

     Commissioner Nelson moved to deny the Martinmaas claim. Motion carried 2-1. Commissioner Hanson dissenting.

     Commissioner Nelson moved to approve the plan presented by staff to distribute the bond proceeds. Motion carried 3-0.

     Commissioner Hanson moved that the Executive Director and General Counsel be authorized to seek approval from the Spink County Circuit Court to execute the distribution of the bond proceeds. Motion carried 3-0.

Natural Gas

1.    NG12-008     In the Matter of the Application of Montana-Dakota Utilities Co. for Authority to Increase its Natural Gas Rates (Staff Analysts: Jon Thurber, Brittany Mehlhaff, Patrick Steffensen, Staff Attorney: Kristen Edwards)

Mr. Jon Thurber, staff analyst, recommended that the Commission assess a filing fee up to the statutory limit of $250,000 for expenses related to the general rate case pursuant to SDCL 49-1A-8, suspend the operation of the schedule of rates proposed by MDU for 180 days after the Application filing date of December 21, 2012, pursuant to SDCL 49-34A-1A, and give the Executive Director authority to enter into necessary consulting contracts.

     Commissioner Fiegen moved to suspend the imposition of the tariff for 180 days beyond December 21, 2012 assess a filing fee for actual expenses not to exceed $250,000, and give the Executive Director authority to enter into necessary consulting contracts. Motion carried 3-0.

One Call

1.     OC12-012     In the Matter of the Complaint Filed by Watertown Municipal Utilities, Watertown, South Dakota, Against Stromseth Construction, Watertown, South Dakota, for an Incident Occurring on July 28, 2012, in Watertown, South Dakota (One Call Executive Director: Larry Janes, Staff Attorney: Kristen Edwards)

Mr. Larry Janes, SD One Call Board Executive Director, requested that the Commission bring an action in the name of the State of South Dakota pursuant to SDCL 49-7A-28 for the collection of the penalty assessed by the SD One Call Board for violations of One Call laws and regulations.

     Commissioner Hanson moved to bring an action in the name of the State of South Dakota pursuant to SDCL 49-7A-28 for the collection of the penalty. Motion carried 3-0.

Telecommunications

1.     In the Matter of the Failure of Certain Telecommunications Companies to Timely Pay their Gross Receipts Tax (Finance Manager: Cindy Kemnitz)

Ms. Cindy Kemnitz, Finance Manager, stated that NET TALK.COM, Inc. had sent in payment. Ms. Kemnitz requested that NET TALK.COM, Inc. be removed from the list and Access Point, Inc. had also been in contact with her and asked the Commission to defer action at this time. Ms. Kemnitz stated that the following companies have failed to timely pay their gross receipts tax as required by SDCL 49-1A:

Local Exchange providers:
321 Communications, Inc.

Long Distance Providers:
Momentum Telecom, Inc.
Pulse Telecom, LLC
Main Street Telephone Company
Hawk Relay, LLC
Pac-West Telecom, Inc.
Univance Telecommunications, Inc.

Ms. Kemnitz requested that the Commission issue an Order to Show Cause to the above  companies, for failure to timely pay their gross receipts tax as required by SDCL 49-1A.

     Commissioner Hanson moved to defer action against NET TALK.COM, Inc. and Access Point, Inc. Commissioner Hanson moved to issue an Order to Show Cause as to why the Commission should not fine 321 Communications, Inc., Momentum Telecom, Inc., Pulse Telecom, LLC, Main Street Telephone Company, Hawk Relay, LLC, Pac-West Telecom, Inc., and Univance Telecommunications, Inc. Motion carried 3-0.

2.     TC12-121     In the Matter of the Filing by Matrix Telecom, Inc. dba Matrix Business Technologies also dba Trinsic Communications for Approval of Revisions to its Access Services Tariff No. 5 (Staff Analyst: Patrick Steffensen, Staff Attorney: Karen Cremer)

Mr. Patrick Steffensen, staff analyst, explained that staff reviewed the Matrix Telecom, Inc. tariff revisions for compliance with the transitional terminating switched access rate provisions of the recent FCC order. Mr. Steffensen stated that Matrix has elected to set its intrastate access rate elements at or below its interstate counterparts and have set originating rates equal to terminating, thus no waivers are required in this docket.  Mr. Steffensen stated that Matrix has agreed to refund customers any overages associated with this new rate and recommended approval of the tariff revisions with a January 16, 2013 effective date.

     Commissioner Nelson moved to approve the proposed tariff changes an effective date of January 16, 2013. Motion carried 3-0.

3.     TC12-134     In the Matter of the Filing by TC Systems, Inc. for Approval of its Access Service Tariff (Staff Analyst: Patrick Steffensen, Staff Attorney: Karen Cremer)

Mr. Patrick Steffensen, staff analyst, explained that on September 11, 2012, TC Systems, Inc. (TC Systems) filed its Access Services Tariff for approval. Mr. Steffensen stated that staff has reviewed the tariff, and TC Systems has satisfactorily replied to all data requests. Furthermore, by setting its intrastate originating and terminating rates equal to its interstate rates, it has eliminated the recent VoIP and transitional rate concerns. Staff recommends approval of the TC Systems tariff with a November 1, 2012 effective date.

     Commissioner Fiegen moved to approve TC Systems, Inc.'s Access Services Tariff. Motion carried 3-0.

4.     TC12-186     In the Matter of the Filing by Onvoy, Inc. dba Onvoy Voice Services for Approval of Revisions to its Access Services Tariff No. 1 (Staff Analyst: David Jacobson, Staff Attorney: Kristen Edwards)

         Mr. David Jacobson, staff analyst, recommended that the Commission approve Onvoy, Inc. dba Onvoy Voice Services (Onvoy's) revisions to its Access Services Tariff No. 1. The purpose of this filing is to update the definitions and switched access service sections. Onvoy requests an effective date for this filing of November 9, 2012.

         Commissioner Hanson moved to approve Onvoy, Inc. dba Onvoy Voice Services' tariff revisions with an effective date of November 9, 2012. Motion carried 3-0.

5.     TC12-188     In the Matter of the Filing by MCC Telephony of the Midwest, LLC for Approval of Revisions to its Access Services Tariff No. 1 and Waiver to ARSD §§ 20:10:29:10, 20:10:29:12 and 20:10:29:16 (Staff Analyst: David Jacobson, Staff Attorney: Kristen Edwards)

Mr. David Jacobson, staff analyst, recommended that the Commission approve MCC Telephony of the Midwest, LLC's tariff revisions and request for waiver of ARSD §§ 20:10:29:10, 20:10:29:12 and 20:10:29:16.

     Commissioner Nelson moved to approve MCC Telephony of the Midwest, LLC's tariff revisions and request for waiver of ARSD §§ 20:10:29:10, 20:10:29:12 and 20:10:29:16. Motion carried 3-0.

6.     TC12-190     In the Matter of the Filling by Qwest Corporation dba CenturyLink for Approval of Waiver of the Utilization Threshold Requirements in Sioux Falls, South Dakota (Staff Analyst: David Jacobson, Staff Attorney: Kristen Edwards)

Mr. Jason Topp, Qwest Corporation dba CenturyLink (CenturyLink), requested that the Commission approve CenturyLink's request for Waiver of Utilization Threshold Requirements. Mr. David Jacobson, staff analyst, stated that the numbers are expected to be utilized and recommended that the Commission approve CenturyLink's request.

     Commissioner Hanson moved to approve the request for Waiver of Utilization Threshold Requirements. Motion carried 3-0.

Leadership

1.     Election of a Chairperson and Vice-Chairperson of the Commission. (General Counsel: John Smith)

South Dakota Codified Law 49-1-8 states in part that, "The members of the Commission shall elect a chairperson by majority vote and prescribe his duties." SDCL 49-1-12 requires that, "Every vote and official action of the Public Utilities Commission shall be entered of record and its proceedings shall be public upon the request of either party or any person interested." SDCL 1-25-1 requires that all official meetings of Commission be open to the public. Accordingly, the determination of the Commission's leadership structure shall be made at this public meeting.

     Commissioner Nelson moved to nominate Commissioner Hanson for the position of Chairman. Motion carried 3-0.


     Commissioner Hanson moved to nominate Commissioner Nelson for the position of Vice Chairman. Motion carried 3-0. 

     There being no further business, at the hour of 4:06 p.m. the South Dakota Public Utilities Commission meeting adjourned.

/S/Joy Irving
Joy Irving
Administrative Assistant
puc@state.sd.us
January 15, 2013