20050509min.doc

IDAHO PUBLIC UTILITIES COMMISSION

MINUTES OF DECISION MEETING

May 9, 2005 – 1:30 P.M.

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

Commissioner Kjellander called the meeting to order. The first order of business was approval of the CONSENT AGENDA, items 1 - 9. Commissioner Kjellander stated that if there was no objection, item 1 would be moved to FULLY SUBMITTED MATTERS. There was no objection. Commissioner Kjellander made a motion to approve the Consent Agenda items 2-9. There was no discussion. A vote was taken on the motion and it carried unanimously.

The next order of business was MATTERS IN PROGRESS:

Kira Dale Pfisterer’s May 6, 2005 Decision Memorandum re: Application of Western Wireless for ETC Designation, Case No. WST-T-05-1.

Ms. Pfisterer reviewed her Decision Memo. Commissioner Smith asked if it was possible to make a decision on the issue of granting ETC status for non-rural areas, based on the comments the PUC had received. Ms. Pfisterer replied that immediate designation in the non-rural areas is o.k. but there is a public interest determination that applies to the non-rural areas. She said the new FCC guidelines apply to non-rural areas, so staff recommended that non-rural areas not be considered under the old guidelines. She stated that if the Commission wanted Western Wireless to comply with some of the new guidelines, then immediate designation in the non-rural areas is not recommended.

Commissioner Hansen asked if Western Wireless had requested ETC status in the non-rural areas. Ms. Pfisterer replied that the company had requested immediate designation for the non-rural areas and for those rural areas where it serves the entire study area, and in those areas where it is seeking re-definition to the wire center level, it had requested conditional designation. Commissioner Kjellander asked if there is anything pressing, such as a grant, that would be affected if ETC designation isn’t granted promptly as it relates to the non-rural portion of the request. Ms. Pfisterer replied that the company won’t be eligible for federal USF funds in the non-rural areas but it could be eligible for Link Up and Lifeline.

Commissioner Hansen asked why the company is requesting ETC status in the non-rural areas if it doesn’t qualify to participate in any of the funding. Ms. Pfisterer replied that it would be eligible for the Lifeline and Link-Up funding even if it is not for federal USF funding. Commissioner Smith clarified that Lifeline and Link Up funding goes to the customers, not the company. Mr. Hart clarified that a company is reimbursed for Lifeline and Link-Up expenses if it is an ETC, so it would be reimbursed with federal dollars. Commissioner Kjellander asked if that reimbursement applied to both landline and wireless customers. Mr. Hart replied that under the federal criteria, both types of service would qualify for this benefit.

Commissioner Hansen stated that he didn’t have a problem granting ETC status for the non-rural areas, but he questioned whether granting rural ETC status is in the public interest and what requirements Western Wireless, or any other company, should be held to. He said as a Commission we need to take a second look at what standards we may want to impose in granting ETC status in rural areas, and we need to put the new suggested requirements recently set by the FCC out for public comments so we can gather additional information as to what others think of them. He said he thought a hearing is necessary for the request of Western Wireless because we need to determine what is in the public interest. He said the first step is to open a comment period to get comments on what the FCC has recommended.

Commissioner Kjellander made a motion to approve the request for non-rural ETC designation by Western Wireless. There was no discussion on that motion. A vote was taken on the motion and it carried unanimously.

Commissioner Kjellander stated he thought the Commission needed to hold a technical hearing on the entire request for ETC status, and not just a specific piece of it that deals only with the public interest. He said we are at a point of needing some additional clarification as to how the Commission can incorporate pieces and parts of the FCC’s recommendations that have been distributed in just the last several weeks and what the best approach might be to accomplish that.

Ms. Pfisterer stated that the Notice of Application the PUC sent out asked for comments on the new FCC rules, with a 28-day comment period. She said that what the Commission chooses to do with the FCC rules depends on how the Commission wants to use the guidelines and if the Commission just wants to apply them to this application to help inform the public interest. She said if the Commission decides to incorporate all of the FCC rules, then the Commission might have to do so through rulemaking; however, it is not entirely clear that rulemaking is required because the statute that provides the Commission with the authority to implement the Telecommunications Act states that the Commission may promulgate rules and/or procedures necessary to carry out the duties authorized or required by the federal Telecommunications Act of 1996.

Commissioner Smith stated that the Commission ought to do everything in its power to avoid a rulemaking, but the industry might benefit if the Commission issued an order outlining the issues it feels are important when it considers these applications so that persons preparing applications can then tailor them to provide the necessary information that the Commission will look to in considering approval.

Don Howell stated that he didn’t think the Commission had allowed Western Wireless to comment on the FCC’s standards. He stated in its motion the company had stated that the standards did not apply, so out of fairness, if the matter is going to hearing, the order should direct the company, as the applicant, to address those things the Commission may or may not consider, so there would be a fully developed record as it relates to the current application.
Commissioner Hansen stated that ITA hadn’t responded to the FCC’s rules, so he thought we should still put it out for comment, and if they have already commented, then they get a second chance. He said he didn’t think there had been a fair opportunity for everyone to comment on the new rules. Commissioner Kjellander noted that the Commission has a history of granting as much procedure as is necessary.

Commissioner Kjellander stated that the Commission could go ahead and conduct an evidentiary hearing on the case and at the same time issue notice to all interested parties to submit comments in relationship to the FCC’s guidelines. He made a motion to hold an evidentiary hearing on the application of Western Wireless and issue an order requesting that interested parties in the case comment on the FCC’s guidelines that have been recently released and their relevance to this specific case.

Commissioner Smith commented that the notice the Commission sends out needs to be broader than just the parties in the case and should be sent to all industry lists. She recommended that before the Commission actually accepts prefiled testimony and the matter goes to hearing, the Commission should review the comments it receives on the FCC guidelines and issue an order with some of its thoughts about what is most important and what it wants to look at so that the testimony that is filed can be tailored to address those issues.

Commissioner Kjellander amended his motion to reflect the recommendations made by Commissioner Smith. There was no further discussion. A vote was taken and the motion carried unanimously.

Commissioner Kjellander stated that the only other items before the Commission were items 1 and 9 under FULLY SUBMITTED MATTERS and the Commission would deliberate on those items privately. He then adjourned the meeting.

DATED this _____ day of May, 2005.

____________________________________
COMMISSION SECRETARY

3