20100222_2863.pdf

DECISION MEMORANDUM 1
DECISION MEMORANDUM

TO: COMMISSIONER KEMPTON
COMMISSIONER SMITH
COMMISSIONER REDFORD
COMMISSION SECRETARY
COMMISSION STAFF
LEGAL

FROM: DON HOWELL
DEPUTY ATTORNEY GENERAL

DATE: FEBRUARY 10, 2010

SUBJECT: STAFF RECOMMENDATIONS TO AMEND THE COMMISSION’S
RULES OF PROCEDURE, DOCKET NO. 31-0101-1001

In this Decision Memorandum, the Staff is recommending that the Commission
consider amending several of its Rules of Procedure, IDAPA 31.01.01. The reasons for the
proposed changes can be broken down into several areas: (1) conform the Commission’s
testimony and transcript rules to changes in the Supreme Court’s Appellate Rules; (2) change
Rule 43 (Representation of Parties) to conform to recent Supreme Court opinions regarding the
representation of partnerships and corporations; (3) make it easier to determine when telephone
companies are no longer conducting business in Idaho; and (4) improve the clarity of rules and
make other housekeeping changes.
The Commission last updated its Rules of Procedure two years ago. To facilitate
your review, the reasons for the substantive changes to the Commission’s rules are discussed
before each Rule in chronological order below. To facilitate the legislative review process, Staff
further recommends that the Commission initiate a negotiated rulemaking and conduct a public
workshop.
THE PROPOSED RULE CHANGES
Rule 0: Staff recommends that the Commission update the citations of legal
authority contained in this rule. This rule was last updated in 2000. Since that time, the
Commission has been granted additional authorities in: Stray Current and Remediation Act (61-
801 et seq.); Utility Cost Reduction Bonds Act (61-1601 et seq.); Electric Transmission Facilities
Act (61-1701 et seq.); the Broadband Tax Credit Act (63-3029I); and other statutes.
DECISION MEMORANDUM 2

000. LEGAL AUTHORITY (RULE 0).
These rules are adopted under the general legal authority of the Public
Utilities Law, Chapters 1 through 7, Title 61, Idaho Code,; Chapters 9, 8
through 10, and 13, 15 through 17, Title 61, Idaho Code,; Chapters 3 and 4,
Title 62, Idaho Code,; the Telecommunications Act of 1988, as amended,
Chapter 6, Title 62,; and Chapters 12, Title 62, Idaho Code, Chapter and 13,
Title 62, Idaho Code,; and the particular authority of Sections 56-904, 61-304
through 61-309, 61-501, 61-502, 61-503 through 61-505, 61-507, 61-516, 61-
538, 61-541, 61-601 through 61-607, 61-610 through 61-619, 61-6201
through 61-626, 61-803 through 61-806, 61-902 through 61-905, 61-909, 61-
1003 through 61-1005, 61-1007, 61-1305, 61-1306, 61-1603 through 61-1607,
61-1703 through 61-1709, 62-304, 62-305, 62-424, 62-604, 62- 605, 62-608
through 62-612, 62-610A through 62-610F, 62-614 through 62-616, 62-619,
62-622, 62-622A, 62-1201 through 62-1207, 62-1303, and 62-1304, 63-3029I,
and 67-6528, Idaho Code. (4-5-00)( )

Rule 5: Staff recommends that the Commission add a definition for the term “utility”
as used in the Rules of Procedure.
005. DEFINITIONS (RULE 5).

Terms of art used throughout these rules are defined within the rules
themselves. The term “utility” used in these rules includes every common
carrier, pipeline corporation, gas corporation, electric corporation, telephone
corporation, and water corporation as defined in Chapter 1, Title 61, Idaho
Code, and Section 62-602, Idaho Code. (7-1-93)( )

Rule 16: Currently Subsection 02 of Rule 16 requires utilities to designate a person
for the receipt of service. The recommended changes to the title of the rule and new Subsection
03 sets out the designation requirement more clearly in its own subsection.
016. SERVICE BY COMMISSION – DESIGNATION OF AGENT
(RULE 16).

The Commission Secretary serves all notices, orders, summonses, and
complaints issued by the Commission or by the Secretary. (7-1-93)

01. Service of Orders and Notices. All notices and orders served by the
Commission may be served by United States mail. Notices and orders may
also be served by electronic mail in cases designated by the Commission.
Unless otherwise provided by statute, these rules, order or notice, service of
orders and notices is complete when a copy, properly addressed and stamped,
is either deposited in the United States mail or transmitted electronically. All
DECISION MEMORANDUM 3
orders and notices shall be affixed with the Commission Secretary’s official
service date on the first page. The Commission Secretary will serve all orders
and notices in a proceeding on the representatives of each party designated
pursuant to Rule 41 for that proceeding and upon other persons designated by
these rules or by the Commission or any Commissioner. (3-16-04)

02. Service of Summonses and Complaints. The Commission Secretary
will serve complaints against utilities upon the person designated for that
purpose by the utility. All utilities must maintain on file with the Commission
Secretary a designation of such a person. Summonses and complaints directed
to regulated utilities or other persons shall be served by registered or certified
mail. Writs of summons or subpoena and warrants of attachments directed to
all other persons must be served by a person authorized to serve process by
statute or by the Idaho Rules of Civil Procedure. (4-5-00)( )

03. Designation of Agent for Service. All utilities shall designate a person
as their agent to be served with summons and complaints. Utilities shall be
responsible for maintaining on file with the Commission Secretary the current
name, mailing address and e-mail address of the person designated as the
agent to receive service. ( )

Rule 19: The Idaho State Bar has proposed changing the rule number of the “Limited
Admissions/Pro Hac Vice” rule. The four changes to this section are housekeeping changes to
update the reference to the current Idaho Bar Commission rule number.
019. INCORPORATED BY REFERENCE – IDAHO BAR COMMISSION
RULE (RULE 19).

Rule 43 incorporates by reference Idaho Bar Commission Rule 2227 (Limited
Admission/Pro Hac Vice) effective _______, 2010. Bar Rule 2227 is
promulgated by the Idaho State Bar and adopted by order of the Idaho
Supreme Court. Bar Rule 2227 may be obtained from the Idaho State Bar, PO
Box 895, Boise, ID 83701, or online at www2.state.id.us/isb/
www.isb.idaho.gov under the “Rules” icon. Bar Rule 2227 is also available
for inspection and copying at the Idaho State Law Library or at the offices of
the Idaho Public Utilities Commission. (3-16-04)( )

Rule 20: Staff recommends that the Commission consider adding a new rule
regarding the discontinuance of telecommunications services in Idaho. This rule would require
that a telephone corporation intending to discontinue service notify the Commission of this fact.
This would allow the Commission Staff to keep better track of companies operating in Idaho and
would allow the fiscal division to more easily update its assessment records.
DECISION MEMORANDUM 4
020. (RESERVED). DISCONTINUANCE OF
TELECOMMUNICATIONS SERVICE (RULE 20).

A telephone corporation that intends to discontinue service in Idaho shall file
a notice with the Commission of the date that it intends to cease operations.
The telephone corporation proposing to discontinue service shall also publish
a notice of such discontinuance in a legal newspaper circulated in its service
area pursuant to Section 62-612, Idaho Code. If the telephone corporation
held any customer deposits, the telephone corporation shall indicate in the
notice how the deposits are to be returned to customers. ( )

Rule 43: Staff is recommending that the Commission update Rule 43 to conform to a
recent Idaho Supreme Court opinion. The existing Rule 43 governs the representation of parties
at PUC proceedings. The existing rule generally follows the contours set out by our Supreme
Court in Idaho State Bar Association v. Idaho PUC, 102 Idaho 672, 637 P.2d 1168 (1981). In
that opinion, the Court indicated that it had no objection to the Commission’s procedural rules
regarding representation
To the extent they allow representation of a sole proprietorship by the owner,
or representation of a partnership by the partners, or representation of a
corporation or non-profit organization by the officers of those entities. . . . It
is well settled that in proceedings before a regulatory body such as the
Commission, that third persons unconnected with the entity in acting in a
representative capacity in such proceedings would necessarily be engaged in
the activities commonly associated with the practice of law.

Id. at 676, 637 P.2d at 1172. The Court also recognized that many proceedings before the
Commission “often involve matters more administrative than judicial in nature, [consequently]
some relaxation of the traditional rule against the practice of law by lay persons is appropriate.”
Id.
In 1985, the Court had an occasion to revisit the issue of representing another entity
before a public agency. In Kyle v. Beco Corporation, 109 Idaho 267, 707 P.2d 378 (1985), the
Court was asked to invalidate an Industrial Commission practice (subsequently a rule) which
restricted the representation of a corporation to Idaho licensed attorneys. In the underlying
administrative proceeding, an Industrial Commission referee denied the president and sole
shareholder of Beco Corporation the opportunity to cross-examine witnesses and present a
closing argument in a worker’s compensation proceeding. In affirming the Industrial
Commission’s decision, the Court stated that
DECISION MEMORANDUM 5
The general rule among this and other states has been that representation of
another person before a public agency or service commission constitutes the
unauthorized practice of law, where the proceedings before those tribunals are
held for purposes of adjudicating the legal rights or duties of a party.

Id. at 271, 707 P.2d at 382 (emphasis added).
In dissent, Justice Bakes voiced surprise that the majority cited the Idaho State Bar
case as its lead authority to support its holding. He noted that the Court in the State Bar opinion
relaxed the traditional rule of representation in administrative proceedings before the PUC.
Justice Bakes urged Beco to seek rehearing so that “sole owner and officer of a small family-
held corporation” could represent his business in the Industrial Commission proceeding. Kyle v.
Beco, 109 Idaho at 272-73, 707 P.2d at 383-84 (J. Bakes, Dissenting). The Court subsequently
denied rehearing.
More recently in Indian Springs v. Indian Springs Land Investment, the Court again
had an opportunity to review the question of who may represent a business entity. 147 Idaho
737, 215 P.3d 457 (2009) (rehearing denied). In Indian Springs, non-attorney principals sought
to represent a limited liability company, a partnership, and two trusts in a civil action filed in
Idaho District Court. After reviewing the issue of representation, the Court stated that
the law in Idaho is that a business entity, such as a corporation, limited
liability company, or partnership must be represented by a licensed attorney
before an administrative body or a judicial body. . . . It is fairly well-
established that a trustee’s duties in connection with his or her office do not
include the right to present an argument pro se in the courts.

Id. at 744-45, 215 P.3d at 464-65 (emphasis added). The Court did not reference or acknowledge
the Idaho State Bar case.
Based upon Kyle and Indian Springs, Staff recommends that the Commission refine
the requirements of its Rule 43. In administrative proceedings (e.g., tariff advices, tariff
schedules, price lists, interconnection agreements), Staff believes that these type of
administrative filings may be made by “a natural person pro se, a partner in a partnership, an
employee or officer of a corporation, or an attorney.” However, in quasi-judicial proceedings
“for the purpose of adjudicating the legal rights or duties of a party,” a partnership, corporation,
governmental agency, non-profit organization, or other entity must be represented by a licensed
attorney.

DECISION MEMORANDUM 6
043. REPRESENTATION OF PARTIES AT PROCEEDINGS (RULE
43).

Recognizing that pProceedings before the Commission are sometimes
administrative in nature or quasi-judicial in nature, appearances and.
(3-16-04)( )

01. Administrative Proceedings. Administrative proceedings before the
Commission include matters such as the filing of tariff schedules, tariff
advices, price lists, certificates to provide local exchange service,
interconnection agreements, written comments in modified procedure, or
written comments provided at a customer hearing. These filings may be made
by a natural person pro se, a partner in a partnership, an employee or officer of
a corporation, or a licensed attorney. ( )

02. Quasi-Judicial Proceedings. The representation of parties at quasi-
judicial proceedings for the purpose of adjudicating the legal rights or duties
of a party is restricted as set out below. Quasi-judicial proceedings before the
Commission include matters such as formal complaints, petitions, motions,
applications for modified procedure or technical/evidentiary hearings.
Representation of parties at these types of proceedings shall be as follows:( )

01a. Natural Person. A natural person must may represent himself or herself
or be represented by a duly authorized employee, or an licensed attorney.
(3-16-04)( )

02b. Partnership. A partnership or corporation must shall be represented by a
partner, duly authorized employee, or an licensed attorney. (7-1-93)( )

03. Corporation. A corporation must be represented by an officer, duly
authorized employee, or an attorney. (7-1-93)

04c.Other Entity. A municipal corporation,; a state, federal, tribal, or local
government agency,; or entity, an unincorporated association,; or a non-profit
organization, or other entity must shall be represented by an officer, a duly
authorized employee or an licensed attorney. (7-1-93)( )

053. Attorney Representation. Only an active member of the Idaho State Bar
may represent a party as an attorney except as provided by Idaho Bar
Commission Rule 2227 (Limited Admission/Pro Hac Vice). The Commission
adopts by incorporation Bar Rule 2227 as modified below. (3-16-04)

a. Given the administrative nature of many proceedings, lLimited admission
by out-of-state attorneys will not be necessary in conjunction with
administrative filings such as tariff schedules, tariff advices, price lists,
certificates to provide local exchange service, and interconnection agreements.
DECISION MEMORANDUM 7
Out-of-state attorneys representing the same party in one (1) or more quasi-
judicial cases proceedings (such as formal complaints, motions, petitions, and
applications that request modified procedure or an evidentiary hearing), must
request limited admission at least one (1) time per calendar year.(3-16-04)( )

b. An attorney applying for limited admission to appear before the
Commission in a representative capacity shall file a written motion with the
Commission Secretary and serve a copy on all parties. The motion shall be
substantially in the form set out in Bar Rule 2227(1) with references to the
Commission instead of the court. (3-16-04)( )

c. A copy of the written motion shall be submitted to the Idaho State Bar
accompanied by the fee prescribed by in Bar Rule 2227(j). (3-16-04)( )

Rules 231 and 286: The Commission Staff is recommending changes to these two
rules based upon recent amendments to the Idaho Appellate Rules. In particular, the Idaho
Supreme Court no longer requires that transcripts be submitted in “ASCII” format.
Consequently, Staff is recommending that this computer format be deleted from Rule 231.05.
See I.A.R. 24(a) (deleting the language about a computer searchable disk in ASCII format).
In addition, the recently amended Appellate Rules now allow for “compressed
transcripts.” As recommended below, Staff proposes that any party may request a compressed
transcript with no more than four pages of regular transcript on each page. I.A.R. 26(m) and (p).
231.PREPARED TESTIMONY AND EXHIBITS (RULE 231).

01. Prepared Testimony May Be Required. Order, notice or rule may
require a party or parties to submit prepared testimony and exhibits to be
presented at hearing. (7-1-93)

02. Format for Prepared Testimony. (7-1-93)

a. Prepared testimony and exhibits must be accompanied by a cover sheet
showing the case caption and case title, the person testifying, the party for
whom the testimony is offered, and the nature of the testimony (direct,
rebuttal, etc.). (7-1-93)

b. The first page of prepared testimony should contain testimony only (i.e., it
should begin with the first question to the witness and not repeat the
information on the cover page). (7-1-93)

c. Prepared testimony must be submitted on white eight and one-half by
eleven inch (8-1/2” x 11”) paper, be double-spaced (except for quoted
material and tables or other collections of numerical data), and contain no
DECISION MEMORANDUM 8
more than ten (10) characters per inch and no more less than twenty-five (25)
lines of double-spaced testimony or more than thirty (30) lines per page. Each
page may be printed on the front and back (duplexed). (5-8-09)( )

d. Each line of prepared testimony must be numbered at the left margin
(except single spaced quotations or tables of numerical data, which may be
numbered at the left margin as though they were double spaced). Each page of
testimony must have a one and one-half (1-1/2) inch left margin that will
allow the page to be bound on its left side without obscuring the printed
material. Indentations for paragraphing and for “Q” and “A” must be seven
(7) spaces. (7-1-93)

e. Each page of prepared testimony must be numbered at the lower right
corner and must be blank in the center of the bottom margin to allow the
reporter to insert transcript page numbers there. Each page of prepared
testimony must have at least a one-inch (1”) top and bottom margin. (7-1-93)

f. Each page of prepared testimony must contain the witness’s surname
followed by the designation “Di” (signifying direct testimony) or “Di-Reb”
(signifying direct testimony on rebuttal) and the name of the party sponsoring
the testimony printed in the lower right margin. For example, the marginal
notation on page 5 of the testimony of the witness Lynn Accountant of ABC
Company would be:
(7-1-93)

03. References to Exhibits. All references to exhibits in prepared testimony
must refer to the exhibits by their number as assigned by the Commission
Secretary. Exhibits accompanying prepared testimony must be consecutively
numbered from the first exhibit number assigned to the party by the
Commission Secretary if the party has not previously identified exhibits, or
from the highest exhibit number previously identified by that party. Exhibits
must be filed on eight and one-half by eleven inch (8-1/2” x 11”) paper unless
it is impractical to make them that size. Exhibits accompanying prepared
testimony must comply with Rule 267. (7-1-93)

04. Number of Copies -- Filing and Service. Unless otherwise provided by
order, notice or agreement of the parties, nine (9) legible copies of prepared
testimony and exhibits must be filed with the Commission Secretary and
copies filed on all parties pursuant to Rules 61, 62, 63 and 64 at least fourteen
(14) days before the hearing at which they will be presented. The original, if
there is an original, or one (1) of the copies, if there is not, must be
specifically designated as the reporter’s copy by cover sheet, attached note or
otherwise, and be included with the copies filed with the Commission
DECISION MEMORANDUM 9
Secretary. In special circumstances, notice or order may provide that the
reporter’s copy of prepared testimony and exhibits be served directly on the
reporter rather than the Commission Secretary. (7-1-93)

05. Computer-Searchable Copies of Testimony. In addition to the paper
copies of prepared testimony, the Commission Secretary may also require or
the parties may agree that some or all of the prepared testimony to be
submitted to the Secretary, parties and the reporter in computer searchable
CD-ROM without password protection. The CD-ROM shall be in standard
ASCII format, Adobe Acrobat (PDF), or other searchable format agreed upon
by the reporter and the parties. Each CD-ROM shall be labeled with the
Commission’s case number, case name, the name of each witness and the
sponsoring party. (5-8-09)( )

286. TRANSCRIPTS (RULE 286).

01. Form of Transcripts -- Cover Sheet. Transcripts must be prepared on
white eight and one-half by eleven inch (8 1/2” x 11”) paper. The line of each
page shall be double-spaced with a minimum of twenty-five (25) lines and a
maximum of thirty (30) lines per page. Quotations, citations and parenthetical
notes may be single-spaced. Each line shall be numbered on the left margin.
The cover page of each volume of transcript must show the title of the
proceeding, the case number, the presiding officer, the time and place of
hearing, and other information as shown in the following example:

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
(7-1-93)( )

02. Volumes of Transcript -- Indices to Volumes. Each day of hearing must
be transcribed in a volume or volumes separate from other days of hearing.
Each volume of transcript must begin with a list of the parties who appeared
that day and their representatives at hearing that day. This list must be
followed with a list of all witnesses whose testimony is reported in that
volume, showing the pages at which each witness’s testimony begins, what
party (if any) called the witness, the pages upon which each other party’s
examination begins, the pages upon which each Commissioner’s or hearing
examiner’s examination begins, and the pages upon which redirect
DECISION MEMORANDUM 10
examination or any party’s, Commissioner’s or hearing examiner’s re-
examination begins. These lists must be followed with a list showing all
exhibits identified in that volume of transcript (including exhibits
accompanying prepared testimony), the pages upon which they are first
identified, and, if any exhibits are denied admission, the pages upon which the
exhibits are denied admission. (7-1-93)

03. Matters Included in Transcript. The transcript must contain all
discussions on the record while the hearing is in order. Unless otherwise
directed by the Commission, the presiding officer, or the Commission
Secretary, prepared testimony must be included in the transcript without
change or retyping. Witness’s corrections to prepared testimony should be
made by distributing replacement pages to the reporter and describing those
corrections on the record and/or distributing an errata sheet; unless otherwise
directed, no corrections other than replacement pages will be made in the
prepared testimony before it is incorporated in the transcript, except the
reporter may make minor corrections by interlineation in the prepared
testimony. Witnesses may have seven (7) days after hearing to distribute
replacement pages to all parties and to the reporter, unless the Commission,
the presiding officer or the Commission Secretary otherwise directs. (7-1-93)

04. Margin Notes. The testimony of all witnesses reported in the transcript
must be designated in the lower right margin by the witness’s surname and the
party sponsoring the witness’s testimony. Witnesses not sponsored by any
party must be designated “Public.” The type of testimony must be shown
following the witness’s surname as “Di” (direct or redirect), “X” (examination
by any party not sponsoring the witness), or “Com” (examination by a
Commissioner or hearing examiner). Examples of the designations required
by this Rule follow:

Discussions on the record that are not testimony or examination may be
labeled “argument,” “decision,” “colloquy,” etc., to describe what is reported.(7-1-93)

05. Volume Size -- Number of Pages. Transcript volumes should not exceed
three hundred (300) pages unless the transcript can be completed in three
hundred fifty (350) pages or less. Transcript volumes and pages of all
proceedings on the record, including prehearing conferences, hearings,
arguments, and any other proceedings on the record, must be numbered
consecutively. For example, if a prehearing conference on the record preceded
a hearing, the transcript volume and page numbers of the hearing would be
numbered consecutively with that of the prehearing conference. (3-16-04)

06. Number of Copies -- Binding. The reporter shall prepare an original and
one (1) copy of the transcript for the Commission. The original of each
DECISION MEMORANDUM 11
transcript shall be filed with the Commission Secretary unbound but each
volume shall be separated (if applicable). Copies of the transcript shall be
fastened at the left margin in spiral or plastic-type binding, so as to open as
flat as possible. (3-16-04)

07. Compressed Transcript. Any party may request a compressed transcript
having no more than four (4) pages of regular transcript on a page. Each
volume of compressed transcript shall contain no more than two hundred
(200) pages unless the transcript can be completed in two hundred fifty (250)
pages or less. A compressed transcript may be duplexed. The pagination shall
be horizontal as follows: ( )

08. Computer-Searchable Transcript. Any party may request a computer-
searchable disk of the written transcript. The disk shall be in Adobe Acrobat
(PDF) or other searchable format agreed upon by the reporter and the party
ordering the disk. ( )

079. Purchase of Transcript. Any party or other person may request and pay
for a copy of a transcript or portions of the transcript from the reporter.(3-16-04)

Rule 301: Staff is recommending that the title to this rule be amended to more
clearly reflect the content of the rule.
301. FAILURE TO ANSWER OR APPEAR AT HEARING –
DEFAULTS (Rule 301).

After an applicant’s, petitioner’s, complainant’s or moving party’s failure to
appear at the time and place set for hearing, the Commission may dismiss the
petition, application, complaint or motion. When a respondent that has been
properly served fails to answer or appear at hearing, the Commission may
order any relief against the respondent authorized by law. (7-1-93)

STAFF RECOMMENDATION
Staff recommends that the Commission consider utilizing the negotiated rulemaking
process. Staff recommends that the Commission convene a public workshop and that the draft
changes be distributed to interested persons prior to the workshop. Staff also envisions opening
a PUC rulemaking docket and serving interested persons, the Bar, cities and chambers of
commerce with the proposed changes.
DECISION MEMORANDUM 12
If the Commission decides to initiate a negotiated rulemaking, Staff envisions that it
would report the results of the public workshop to the Commission. The Commission could then
decide whether it desires to initiate a rulemaking with the proposed negotiated rules.
COMMISSION DECISION
Does the Commission desire to open a negotiated rulemaking? Does the Commission
desire to have Staff convene a public workshop so that interested persons may discuss the draft
changes set out above? Does the Commission wish to open its own rulemaking docket? Does
the Commission wish to make any changes to the draft rules set out above?

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