20030818Comments.pdf

DONALD L. HOWELL, II
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, IDAHO 83720-0074
[phone]
IDAHO BAR NO. 3366
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Street Address for Express Mail:
472 W. WASHINGTON
BOISE, IDAHO 83702-5983
Attorney for the Commission Staff
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION OF
THE CITY OF HEYBURN AND RIVERSIDE
ELECTRIC COMPANY FOR AN ORDER
APPROVING A SERVICE TERRITORY
AGREEMENT PURSUANT TO IDAHO CODE
~ 61-333(1).
CASE NO. GNR-O3-
COMMENTS OF THE
COMMISSION STAFF
COMES NOW the Staff of the Idaho Public Utilities Commission, by and through its
attorney of record, Donald L. Howell, II, Deputy Attorney General, and submits the following
comments in response to Order No. 29304 issued on July 28 2003.
APPLICATION
On July 3 2003, the City of Hey burn and Riverside Electric Company filed an
Application for approval oftheir "Service Area Stabilization Agreement." Riverside is an
electric non-profit corporation organized under the laws of Idaho. The Electric Supplier
Stabilization Act (ESSA) requires that all contracts to allocate territories, consumers, and future
consumers be submitted to the Commission for its review. The City and Riverside are defined as
electric supplier(s)" under the ESSA. Idaho Code ~ 61-332A(2-4).
STAFF COMMENTS AUGUST 18, 2003
The parties' Service Area Stabilization Agreement is dated May 14 , 2003. The
parties state in the Agreement that they had a pre-existing oral understanding relative to their
respective service areas and have now agreed to reduce these understandings to writing.
Agreement at '111.3. As more specifically described in Exhibit A to their Agreement, Riverside
service territory generally is located north and east of the City s service territory. Each party
shall serve all new customers in their respective service territories. Id. at '112.
The Agreement also provides that the parties will exchange two customers-one from
Riverside to the City and the other from the City to Riverside. Id. '113; Exhibit C. The
Agreement states that these two customers have been contacted regarding the proposed transfer
and the "customers have expressed no objection to the change of electric provider....Id. at'll 3.
These customers will not be charged any connection or disconnection fee and all cost of the work
done to accomplish the change in service shall be borne by the parties. Id.
The Agreement also notes that Riverside has acquired a 12.5 KV distribution line
owned by the City. Id. at'll 4. The parties further agree that this line shall not be considered a
service line" for purposes of determining which electric supplier may serve a new consumer
pursuant to Idaho Code ~ 61-332C.
The parties assert that their Agreement comports with the purposes of the ESSA.
More specifically, their Agreement provides for stability of service to consumers , eliminates
duplication of services, and provides for the safety in their respective territories. Application at
'113.
STAFF COMMENTS
In December 2000 and February 2001 , the Idaho Legislature amended portions of the
ESSA. In particular Idaho Code ~ 61-333 was amended to provide that all service agreements
that allocate territory or customers between electric suppliers be filed with the Commission.
Idaho Code ~ 61-333(1) now provides in pertinent part that
the commission shall after notice and opportunity for hearing, review and
approve or reject (such) contracts. ...between municipalities and cooperatives....
The commission shall approve such contracts only upon finding that the allocation
of territories or consumers is in conformance with the provisions and purposes of
this act.
STAFF COMMENTS AUGUST 18, 2003
Idaho Code ~ 61-333(1) (2001). As set out more fully in Idaho Code ~ 61-332 , the purposes of
the ESSA are to: (1) promote harmony among and between electric suppliers; (2) prohibit the
pirating" of consumers served by another supplier; (3) discourage duplication of electric
facilities; (4) stabilize the territory and consumers served by the suppliers; and, (5) actively
supervise certain conduct of the suppliers.
The Agreement appears to provide the least cost service option for customers and
complies with the ESSA by drawing boundaries that partially identify each supplier s service
territory. Staff believes that the Agreement contained in this Application fulfills the purposes
and provisions of the ESSA that have been previously stated.
Paragraph 3 of the Agreement and Exhibit "C" to the Agreement provide for the parties
to exchange two customers currently being served who are physically located in the other
utilities service territory. The City of Heybum confirms that the exchange has taken place.
Under these circumstances, granting an "exception" to the anti-pirating provision of the ESSA
appears reasonable when considering the purposes of the ESSA. Idaho Code ~ 61-334B(I).
Finally, Staff notes that Paragraph 6 of the Agreement provides that the prevailing party
in any action arising under the Agreement is entitled to recover reasonable attorney fees. Prior to
the aforementioned modifications to the ESSA Idaho Code ~ 61-334B provided that any
supplier whose rights under the ESSA are in jeopardy, may bring suit in district court. This
section was repealed and amended in December 2000 and February 2001.
Idaho Code ~ 61-334A now provides that an aggrieved customer or supplier "may file a
complaint with the commission" and the Commission shall resolve the matter. See Idaho Code
~~ 61-334A(2-3); 61-334B(3). In other words, resolution of disputes was removed from the
court's jurisdiction and was to be submitted to the Commission. Under the Public Utilities Law
the Commission does not have authority to award attorney fees other than intervenor funds
pursuant to Idaho Code ~ 61-617 A. See Idaho Power Company v. Idaho P UC 102 Idaho 744
639 P.2d 442 (1981).
STAFF COMMENTS AUGUST 18 2003
ST AFF RECOMMENDATION
Staff recommends approval of the Agreement and granting an exception to the
anti-pirating provision of Idaho Code ~ 61-332B.
Respectfully submitted this /8 day of August 2003.
Donald L. Howe
Deputy Attorney General
Technical Staff: Keith Hessing
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STAFF COMMENTS AUGUST 18, 2003
CERTIFICATE OF SERVICE
HEREBY CERTIFY THAT I HAVE THIS 18TH DAY OF AUGUST 2003
SERVED THE FOREGOING COMMENTS OF THE COMMISSION STAFF, IN
CASE NO. GNR-03-, BY MAILING A COpy THEREOF, POSTAGE PREPAID
TO THE FOLLOWING:
STEVEN A. TUFT
TUFT LAW OFFICES P A
PO BOX 759
BURLEY ID 83318
MAILED TO:
tuftlaw(fYpmt.org
GOODMAN & BOLLAR
PO BOX D
RUPERT ID 83350
Jo~SE RET
CERTIFICATE OF SERVICE