28962.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

CABLE ONE, INC.,

Petitioner, Complainant,

v.

IDAHO POWER COMPANY, INC.

Respondent. )
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CASE NO. GNR-E-01-2

ORDER NO. 28962

This case was initiated on October 30, 2001, when Cable One, Inc. (Cable One) filed a petition for declaratory ruling and complaint for determination of pole attachment rates under Idaho Code § 61-538. That statute provides that “whenever a public utility and a cable television company are unable to agree upon the rates, terms or conditions for pole attachments or the terms, conditions or costs of production of space needed for pole attachments, then the commission shall establish and regulate the rates, terms and conditions.” Cable One asserted in its petition and complaint that it was unable to agree on the rates for pole attachments with Idaho Power Company. Cable One also asserted it is entitled to a pole attachment rate as determined by a formula approved by the Commission in 1984 in Case No. U-1008-206, In the Matter of the Washington Water Power Company v. Benewah Cable Company, et al.
Idaho Power filed an answer in which it admitted “that Cable One and Idaho Power have been unable to agree as to an appropriate pole attachment rate and that the Commission has jurisdiction to resolve the dispute.” Idaho Power Answer p. 3. Idaho Power requested that the Commission establish the appropriate pole attachment rate to be charged Cable One. A Petition to Intervene was also filed by the Idaho Cable Telecommunications Association (ICTA), which was approved by the Commission in Order No. 28915, issued December 12, 2001.
Thereafter, on December 19, 2001, the parties filed a Stipulation setting forth an agreement on limited procedural matters. According to the Stipulation, Cable One, Idaho Power and ICTA agree that an initial issue can be presented to and determined by the Commission, identified as follows:
Whether Cable One is entitled to pole attachment rates based on a ‘cable only’ formula and the formula set forth In the Matter of the Washington Water Power Company v. Benewah Cable Company, et al, Case No. U-1008-206, Order No. 19229; or whether Idaho Power may charge pole attachment rates based on a different formula.

Stipulation p. 3. The parties agreed to a briefing and hearing schedule on the initial issue, pursuant to which the Commission convened an oral argument on February 25, 2001 to hear the parties’ arguments.
In their argument on the effect of the Benewah decision, Cable One and the ICTA argued that the Benewah decision provides a ratemaking methodology and that, “although not originally promulgated in accordance with Idaho Administrative Procedures Act (IDAPA) requirements, the methodology has become, in effect, a ‘rule’ within the meaning of the Act.” Cable One and ICTA thus argued that the methodology of the Benewah case has become a rule of general applicability and has “binding effect” on pole attachment rate determinations. Opening Brief of Cable One p. 10. Cable One concluded that in the present dispute, “Idaho Power has no choice but to use the methodology set forth in Benewah.” Opening Brief of Cable One p. 11.
In its response, Idaho Power contends the Benewah decision does not constitute a rule that is dispositive of the rate dispute between Cable One and the Company. As for a pole attachment rate methodology, the Company points to Idaho Code § 61-538 and Commission Rules of Procedure 151 and 152 setting forth a time table for the Commission’s resolution of pole attachment disputes. Regarding the legal effect of the Benewah decision, Idaho Power contends the Commission never issued a notice that it regarded the proceedings in Benewah as being a rulemaking, no notice was ever provided to companies not involved in the case that the Commission considered the Benewah proceeding to be dispositive of future rate disputes, and Idaho Power has not used the Benewah decision to establish pole attachment rates. Idaho Power contends the Commission should determine an appropriate pole attachment rate based on the positions of the parties and evidence submitted. The Company asserts it “should be free to submit for consideration by the Commission any evidence or any formula that it deems appropriate for the determination of Idaho Power’s pole attachment rates to be charged Cable One.” Idaho Power Company’s Reply Brief pp. 4-5.
The Commission cannot find in the Benewah decision itself or in the proceedings in that case any indication that the Commission intended the rate formula approved in that decision to be dispositive for all future pole attachment rate disputes. Nor did the Commission following the Benewah decision take steps to formalize the formula used there in a rulemaking proceeding for general application in future rate disputes. Accordingly, the Commission cannot conclude that the rate formula approved in the Benewah case must apply to the dispute between Idaho Power and Cable One. The Commission thus will proceed to a hearing to establish a record for the determination of the appropriate rate for Cable One to attach to Idaho Power’s poles.
Commission Rule of Procedure 151 requires pole attachment disputes to be resolved by the Commission within 30 days, unless the Commission, upon reasonable notice, extends the period for considering the complaint or petition “an additional thirty (30) days plus five (5) months and, for good cause shown on the record, an additional sixty (60) days.” This case was initiated by a petition filed on October 30, 2001. The initial 30 days plus 5-month period ends on May 29, 2002. Unless the parties agree that the time period should be extended an additional 60 days from May 29, the parties should submit to the Commission a procedural schedule for concluding a hearing no later than May 10, 2002.
Given the arguments raised by the parties in this case regarding the Benewah decision, it is apparent the Commission should consider establishing a pole attachment rate formula or formulas to be utilized to determine future pole attachment rates. Accordingly, the Commission will initiate a separate proceeding to establish, through workshops for industry participants, pole attachment rate formulas that can be adopted by the Commission in a rulemaking proceeding.
O R D E R
IT IS HEREBY ORDERED that the pole attachment rate formula approved in the Benewah decision does not control the pole attachment rate dispute between Cable One and Idaho Power. The parties are directed to provide a procedural schedule to conclude a hearing in this case in a timely manner so the Commission may reach a determination within the time period established in its Rules of Procedure.
THIS IS AN INTERLOCUTORY ORDER. Any person interested in this Order may file a petition for review within twenty-one (21) days of the service date of this Order with regard to any matter decided in this Order. A petition to review may request that the Commission: (1) rescind, clarify, alter, amend; (2) stay; or (3) finalize this Interlocutory Order. After any person has petitioned for review, any other person may file a cross-petition within seven (7) days. See Rules 321, 322, 323.03, 324, 325 (IDAPA 31.01.01.321-.325).
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this
day of February 2002.

PAUL KJELLANDER, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

DENNIS S. HANSEN, COMMISSIONER

ATTEST:

Jean D. Jewell
Commission Secretary

bls/O:GNRE0102_ws2

ORDER NO. 28962 1

Office of the Secretary
Service Date
February 27, 2002