28497.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF THE PETITION OF IDAHO POWER COMPANY FOR A DECLARATORY ORDER DETERMINING THE JURISDICTION OF THE COMMMISSION OVER THE LEASING OF FIBER OPTIC AND METALLIC CONDUCTOR CABLES )
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CASE NO. IPC-E-00-9

ORDER NO. 28497

On July 6, 2000, Idaho Power Company filed a Petition for Declaratory Order requesting the Commission determine that the leasing of “dark” optical fibers and “dead” metallic conductors in cable owned by Idaho Power is not the provision of telecommunications service subject to the provisions of the Telecommunications Act of 1988 (Idaho Code, Title 62, Chapter 6). The Petition stated that the proposed service for J.R. Simplot Company will not include the electronic equipment which would be required to send or receive data over the communication conductors; hence the terms “dark” fiber and “dead” conductors.
On August 3, 2000, the Commission issued a Notice of Modified Procedure with comments to be filed by August 24, 2000. Order No. 28462. Only Staff filed comments.
Based on the Commission record, the comments and the law, the Commission determines that, given the specific facts in this case, Idaho Power’s leasing of dark fiber does not subject Idaho Power to Commission jurisdiction under Idaho Code, Title 62, Chapter 6.
BACKGROUND
This is the fifth time Idaho Power has petitioned the Commission concerning the provision of dark fiber services. In those cases, the Commission ruled that the provision of dark fiber services by Idaho Power to the state of Idaho, City of Boise, Albertsons, CSHQA, Trus Joist McMillan, the Twin Falls School District and St. Alphonsus Hospital/ Intermountain Imaging Center did not constitute telecommunications services pursuant to Title 62 of the Idaho Code. See Order Nos. 25425, 26514, 26933 and 28154.
More specifically, in Case No. IPC-E-93-31, the Commission ruled that: “Given the specific facts of this case, we agree with the parties that leasing dark fiber that does not access the public switched network to a single-party is not the provision of telecommunications services as defined in Idaho Code §  62-603(9). Our determination in this matter is based strictly upon the particular facts of this case.” Order No. 25425 at p. 4.
Similarly, in Order No. 26514, issued on July 12, 1996, in Case No. IPC-E-96-9, the Commission ruled that leasing of dark fiber by Idaho Power to Albertsons and the City of Boise did not constitute communication services because Idaho Power “was not involved in the transmission of data, nor was it offering the service to the public.” Order No. 26514 at p. 3. The Commission further ruled that although Idaho Power was leasing its dark fiber to more than one customer, it would not be transmitting signals over the optic fiber and, therefore, Idaho Power was acting as a “cable installer” and did not meet the statutory definition of a telephone corporation. Id.
Furthermore, in Order No. 26933, the Commission again ruled that Idaho Power’s dark fiber offering to CSHQA and Trus Joist McMillan was similar to the services provided to the state of Idaho, City of Boise and Albertsons. As a result, it ruled that the leasing of dark fiber service to CSHQA and Trus Joist McMillan by Idaho Power, based on the facts identified in Idaho Power’s Petition, did not constitute the providing of telecommunication services pursuant to Title 62 of the Idaho Code.
Finally, in Order No. 28187, the Commission ruled that the leasing of dark fiber service to the Twin Falls School District or St. Alphonsus Hospital by Idaho Power did not constitute the providing of telecommunication services pursuant to Title 62 of the Idaho Code.
According to Idaho Power’s most recent Petition, Simplot requested Idaho Power to provide “dark” fiber and “dead” metallic conductor cable owned by Idaho Power to it. Idaho Power states that Simplot indicated it would use the dark fiber to link J.R. Simplot’s Agribusiness to J.R. Simplot’s S-16 data network to form a local area network (LAN). The services to be provided over this LAN include, database file transfers, e-mail, Internet and Intranet. The two businesses are located at 418 South 9th Street, Suite 308, Boise, Idaho, and 404 South 8th Street, Suite 170, Boise, Idaho, respectively. The total length of fiber to be leased would be approximately 536 feet.
Idaho Power seeks a declaration from the Commission that leasing one or more dark optical fibers and cable owned by Idaho Power to Simplot does not constitute the provision of telecommunication services under Title 62, Chapter 6 of the Idaho Code.
COMMISSION FINDINGS
The Commission has jurisdiction over this matter by virtue of Idaho Code §§ 61-501, 62-614, and 62-619 and Grever v. Idaho Telephone Co., 94 Idaho 900, 499 P.2d 1256 (1972). Moreover, the Commission has authority to consider the Petition for Declaratory Order pursuant to Rule 101 of the Commission’s Rules of Procedure, IDAPA 31.01.01.
Initially, the Commission finds that Idaho Power’s Petition satisfies the technical requirements of Rule 101. Idaho Power’s Petition in this case does not necessitate that the Commission resolve issues of a factual nature. Rather, the Commission must simply determine whether, based upon the factual scenario posed in Idaho Power’s Petition, Idaho Power’s proposed conduct regarding the leasing of dark fiber or metallic conductors constitutes telecommunication services for purposes of Title 62 of the Idaho Code. Idaho Code § 62603(13) defines the term “telecommunication service” as follows:
(13) “Telecommunication service” means the transmission of twoway interactive switched signs, signals, writing, images, sounds, messages, data, or other information of any nature by wire, radio, lightwaves, or other electromagnetic means (which includes message telecommunication service and access service), which originate and terminate in this state, and are offered to or for the public, or some portion thereof, for compensation. “Telecommunication service” does not include the oneway transmission to subscribers of (i) video programming, or (ii) other programming service, and subscriber interaction, if any, which is required for the selection of such video programming or other programming service, surveying, or the provision of radio paging, mobile radio telecommunication services, answering services (including computerized or otherwise automated answering or voice message services), and such services shall not be subject to the provisions of title 61, Idaho Code, or title 62, Idaho Code.

Moreover, Idaho Code § 62603(14) defines a “telephone corporation” as “every corporation . . . providing telecommunication services for compensation within this state.” Furthermore, § 62-605(3) of the Idaho Code permits competition as to those services which have been excluded from regulation under Title 61 of the Code.
In Case No. IPC-E-93-31, Idaho Power petitioned this Commission for a declaratory Order that the leasing of dark optical fibers to the state of Idaho did not constitute telecommunication services under Title 62 of the Idaho Code. In Order No. 25425 issued on March 11, 1994, the Commission stated: “Given the specific facts of this case, we agree with the parties that leasing dark fiber that does not access the public switched network to a single-party is not the provision of telecommunications services as defined in Idaho Code § 62-603(9). Our determination in this matter is based strictly upon the particular facts of this case.” Order No. 25425 at p. 4.
Similarly, in Order No. 26514, issued on July 12, 1996, in Case No. IPC-E-96-9, the Commission ruled that leasing of dark fiber by Idaho Power to Albertsons and the City of Boise did not constitute, communication services because Idaho Power “was not involved in the transmission of data, nor was it offering the service to the public.” Order No. 26514 at p. 3. The Commission ruled that although Idaho Power was leasing its dark fiber to more than one customer, this fact was not determinative because it was undisputed that Idaho Power would not be transmitting signals over the optic fiber. Consequently, Idaho Power fell into the category of a “cable installer” and did not meet the statutory definition of a telephone corporation. Id. Finally, in Order Nos. 26933 and 28187, the Commission ruled that Idaho Power’s dark fiber offerings to CSHQA, Trus Joist McMillan, the Twin Falls School District and St. Alphonsus Hospital did not constitute the providing of telecommunication services pursuant to Title 62 of the Idaho Code. See Order Nos. 26933 and 28187 at pp. 8, respectively.
This case presents facts similar to those facts found in each of the preceding cases. Nothing in the Petition indicates that the services being proposed by Idaho Power to be furnished to Simplot are significantly different from those described in earlier cases. Because the cases are factually similar and because the law has not changed since those earlier orders, the Commission reaches the same legal conclusion. The Commission finds that leasing dark fiber to Simplot by Idaho Power to link J.R. Simplot’s Agribusiness to J.R. Simplot’s S-16 data network to form a local area network (LAN) does not constitute the providing of telecommunication services pursuant to Title 62 of the Idaho Code.
The Commission makes no judgment at this time concerning the treatment of the costs and revenues related to the dark fiber service in determining Idaho Power’s electric rates.
O R D E R
IT IS HEREBY ORDERED that leasing dark fibers and metallic conductors to J.R. Simplot Company, as specifically proposed in Idaho Power’s Petition in this case, does not constitute the provision of telecommunication services pursuant to Title 62 of the Idaho Code.
IT IS FURTHER ORDERED that this authorization is without prejudice to the regulatory authority of this Commission with respect to rates, service, accounts, valuation, estimates, or determination of costs, or any other matter that may come before this Commission pursuant to this jurisdiction and authority as provided by law.
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally decided by this Order) or in interlocutory Orders previously issued in this Case No. IPC-E-00-9 may petition for reconsideration within twenty-one (21) days of the service date of this Order with regard to any matter decided in this Order or in interlocutory Orders previously issued in this Case No. IPC-E-00-9. Within seven (7) days after any person has petitioned for reconsideration, any other person may cross-petition for reconsideration. See Idaho Code § 61626.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho, this
day of August 2000.

DENNIS S. HANSEN, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

PAUL KJELLANDER, COMMISSIONER

ATTEST:

Myrna J. Walters
Commission Secretary

O:ipce009_cc-final

ORDER NO. 28497 1

Office of the Secretary
Service Date
September 1, 2000