20031201min.doc

IDAHO PUBLIC UTILITIES COMMISSION

MINUTES OF DECISION MEETING

DECEMBER 1, 2003, 1:30 P.M.

In attendance were Commissioners Paul Kjellander, Dennis Hansen, and Marsha Smith.

Commissioner Kjellander called the meeting to order. The first order of business was approval of the CONSENT AGENDA, items 1—14. Commissioner Hansen commented on item 11, stating there was no Staff recommendation in the Decision Memo, so he moved to adopt an interest rate of 1% for the year 2004. Commissioner Smith stated she would like the minutes to reflect that although she is approving item 1 on the Consent Agenda and recognizes the need for the utility to abide by the Commission majority’s decision in item 1, she did dissent on the Order. There was no further discussion. Commissioner Kjellander made a motion to approve items 1—14, with the above points noted, and it passed unanimously.

The next order of business was MATTERS IN PROGRESS:

Doug Cooley’s November 28, 2003 Decision Memorandum re: Customer Complaint Regarding Qwest Line Extension in Nez Perce County.

Mr. Cooley reviewed his Decision Memo. Commissioner Smith asked if Ms. Kastner-Maras is aware of Staff’s position in this case. Mr. Cooley replied he had expressed his concerns to her about the expense of providing service to this area, which prompted her letter of September 29, 2003 to the Commission. Commissioner Smith commented that in her view, the informal part was now over and she wouldn’t endorse taking further action based on what has been done to date. She said if the people around the reservoir still want service after they are aware of the costs and Staff’s position, then they need to file an application or petition stating their interest remains in spite of the cost. She said that would make it worth the Commission’s time to open a case and go further. There was no further discussion. Based on Commissioner’s Smith comments, Mr. Kjellander made a motion to decline the request to move forward with a full hearing at this point. A vote was taken and the motion carried unanimously.

Marge Maxwell’s November 28, 2003 Decision Memorandum re: Customer Request for the Commission to Require Idaho Power and Qwest to Remove Their Facilities from a Dedicated Right-of-Way.

Ms. Maxwell reviewed her Decision Memo. Commissioner Kjellander asked the Commission’s chief legal counsel, Don Howell, if he concurred that property rights disputes are outside of the Commission’s jurisdiction. Mr. Howell replied that based on his reading of the Decision Memorandum, it does appear that this complaint is a property dispute between the public entity that has access or authority over the right-of-way—the Ada County Highway District—and the property owner. He said in particular, there is a question whether Qwest’s and Idaho Power’s right-of-ways for their facilities are encroaching on private property. He said the Commission does not settle disputes of property right-of-ways, and in addition, this matter is before the court. He said given these circumstances, it is the Legal Department’s recommendation that the Commission not make a decision on this matter, which is currently docketed in the courts. Commissioner Kjellander asked Mr. LaVoie, who was present at the meeting, why he thought the Commission could do something when it seems clear we can’t.

Mr. LaVoie stated he is relying on Idaho statute 62-701a, which is clear in paragraph 2 that all telecommunications providers and other utilities shall be subject to the authority of the city, county, or highway district, and in 62-705, which states they shall first apply to the board of county commissioners for permission. He said the utilities are required by code to put up a bond to hold the county harmless. He said there is no reason why the telecommunications and power people did not follow the right-of-way. He said they are not in his right-of-way but are in Ada County’s right-of-way. He said somehow the right-of-way got misaligned, and they are now punishing him. He said that although we don’t have jurisdiction, the utilities had to come before the Commission for a charter or something, which would give us the jurisdiction to force them to move out of the right-of-way. He said he is on the east side of the right-of-way, and everyone who has encroached is on the west side—the bank, Qwest, and Idaho Power. He said he is innocent but is being penalized wrongfully, and he believes the PUC does have the jurisdiction based on 701a.

Commissioner Kjellander commented that when Mr. LaVoie was quoting 701a, it specifically mentioned some other governmental entities and not the PUC in terms of who has jurisdiction to grant the right-of-way access, which again indicates we don’t have the jurisdiction. Commissioner Kjellander said that even if the PUC came to a decision after fully hearing his case and then rendered a decision, he questioned if that decision would have any bearing at all in the courts. He stated that in interpreting 701a based on Mr. LaVoie’s reading it back to them, it clearly outlines the matter is outside the Commission’s jurisdiction.

Mr. LaVoie asked if the Commission would have any authority if Idaho Power were to put poles down the middle of Washington Street. Commissioner Kjellander said the Commission would not have authority, and it boils down to the fact that the battle would need to be fought with the local jurisdiction because of the Commission’s lack of statutory powers relating to eminent domain and siting. Mr. LaVoie asked if a utility company, when it petitions the PUC for a charter, has to follow the laws of the state of Idaho. Commissioner Kjellander stated that would be a question for the court to determine in regards to this specific issue, and as far as the court is concerned, what the PUC thinks would have no bearing because we have no statutory jurisdiction.

Commissioner Smith noted the differences between the Arizona Commission and the Idaho Commission. She said the Arizona Commission is actually a constitutional agency that probably has powers beyond the Idaho Commission, which is a statutory legislative agency. She said the Arizona commissioners are elected and they are a constitutional body, while ours is a statutory body and a legislative agency that has only the powers the Legislature has chosen to give us, and they have not chosen to give us authority over poles and streets. She said utility companies must abide by the law but the question is what entity gets to oversee and decide whether they are abiding by the law. She said in this case, it is the court or county commission, or the county planning and zoning, or the Ada County Highway District that have oversight. Mr. LaVoie stated that the law he quoted mentioned the Commissioners and that is what he was relying on. Commissioner Smith stated the code was perhaps referring to the county commissioners.

Commissioner Kjellander stated that in some states, utility commissions do have siting authority, but in Idaho the Legislature has chosen to keep it at the local government level. Commissioner Kjellander stated he would make sure Mr. LaVoie receives a copy of the minutes.

Commissioner Kjellander made a motion not to initiate a formal investigation regarding Mr. LaVoie’s request. There was no further discussion. A vote was taken on the motion and it carried unanimously.

Qwest’s Motion for Issuance of Commission Subpoenas (filed November 21, 2003); Qwest’s Motion for Order Relating to Disclosure of Third Party Information (filed November 26, 2003), Case No. GNR-T-03-23. No Memo.

Mr. Stutzman reviewed his Decision Memo. Commissioner Kjellander asked if the subpoena request was a blanket request. Mr. Stutzman stated there were specific individuals named. Commissioner Hansen asked if any of the parties have refused any requests by Qwest so far in this case. Mr. Stutzman replied that Qwest has not yet made the requests for depositions but anticipates there may be resistance or objection, and asks for a subpoena to precede the process. Commissioner Hansen asked if confidentiality is already covered by the protective order. Mr. Stutzman replied that the protective order does provide extensive means to protect confidential information. He said the Commission doesn’t ordinarily issue protective orders but did so in this case because it is an unusual proceeding, and it does provide the means for anyone who participates in the case to ensure their information remains confidential.

Commissioner Smith stated that she has no objection to issuing subpoenas and sometimes they are a protection for the people answering the questions as well as a convenience for the people asking the questions. She said in her experience, a subpoena can be issued by any commissioner, and she suggested a chairman should be assigned to the case to deal with the subpoenas.

Mary Hobson, Qwest’s legal counsel, stated the subpoenas will be going to individuals who are not parties to the case, such as CLECs who are facility-based competitors with Qwest but haven’t participated in the case. She said as a technical matter, they will use a 30B6 subpoena so the subpoenas don’t go to individuals but to the companies, so it is up to the companies to determine what individuals will respond. She said the other motion is being made by Qwest because staff’s questions seek information that is in Qwest’s possession that is not proprietary to Qwest but is proprietary to its wholesale customers—i.e. companies that compete with Qwest but buy certain products and facilities from Qwest. She said that although the protective order allows an individual company to declare that its information is proprietary and controls how that information will be treated once it is disclosed, it doesn’t address whether Qwest can turn over someone else’s proprietary information even if it is treated as proprietary. She said it is an unusual process because they are not dealing with people who are participating in the case but with entities that aren’t here to defend themselves. She said the second motion is a protection for Qwest and the first motion is designed to give the Commission the information it needs. She said in response to Commissioner Hansen’s last point, although Qwest hasn’t asked any of its competitors directly if they would like to turn over information to the Commission, they are not parties who are participating in the case and Qwest has no reason to believe they will want to participate without the Commission’s subpoena.

Commissioner Kjellander asked if documents will be signed by a party receiving the information. Ms. Hobson said the subpoena will be specific to Qwest, and the information will be turned over as proprietary and will be controlled by the protective order. Ms. Hobson said the motion deals with the information of the other companies, and those companies aren’t here to protect themselves, but the protective order will protect the information once it’s turned over, and what Qwest is asking for is protection for itself for disclosing the information at all, because under federal law they are not allowed to disclose it unless there is an order to do so.

There was no further discussion. Commissioner Smith made a motion to approve Qwest’s motion for a protective order and that a chairman be assigned to the case who will issue subpoenas as deemed appropriate and necessary. A vote was taken on the motion and it carried unanimously.

Weldon Stutzman’s November 24, 2003 Decision Memorandum re: Qwest’s Unbundled Network Elements (UNEs) Cost Docket; Two Motions Filed by Qwest—Motion to Withdraw and Substitute Testimony; Motion for Approval of Negotiated Rates, Case No. QWE-T-01-11.

Mr. Stutzman reviewed his Decision Memo. There was no discussion. Commissioner Kjellander moved to approve both motions. A vote was taken on the motion carried unanimously.

The only other item on the agenda was under FULLY SUBMITTED MATTERS, and Commissioner Kjellander stated it would be deliberated privately. He then adjourned the meeting.

DATED this ______ day of December, 2003.

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COMMISSION SECRETARY

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