28462.mod.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

NOTICE OF MODIFIED PROCEDURE

ORDER NO.  28462

NOTICE OF PETITION FOR DECLARATORY ORDER
YOU ARE HEREBY NOTIFIED that 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).
YOU ARE FURTHER NOTIFIED that the Petition states that the proposed service for J.R. Simplot 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.
YOU ARE FURTHER NOTIFIED that Idaho Power has previously filed four similar petitions with the Commission relating to dark fiber services provided 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. In those previous cases, the Commission ruled that the provision of dark fiber services did not constitute telecommunication services pursuant to Title 62 of the Idaho Code. See Order Nos. 25425, 26514, 26933 and 28154.
YOU ARE FURTHER NOTIFIED that according to the 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, email, 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.
NOTICE OF MODIFIED PROCEDURE
YOU ARE FURTHER NOTIFIED that the Commission has determined that the public interest may not require a formal hearing in these matters and will proceed under Modified Procedure pursuant to Rules 201 through 204 of the Idaho Public Utilities Commission's Rules of Procedure, IDAPA 31.01.01.201 through -.204.
YOU ARE FURTHER NOTIFIED that any person desiring to state a position on this Petition for Declaratory Order may file a written comment in support or opposition with the Commission within twenty-one (21) days from the date of this Notice. The comment must contain a statement of reasons supporting the comment. Persons desiring a hearing must specifically request a hearing in their written comments. Written comments concerning this revision shall be mailed to the Commission and Idaho Power at the address reflected below:

COMMISSION SECRETARY LARRY RIPLEY
IDAHO PUBLIC UTILITIES COMMISSION IDAHO POWER COMPANY
PO BOX 83720 P.O. BOX 70
BOISE, IDAHO 83720-0074 BOISE, IDAHO. 83707

Street Address for Express Mail:
Attorney for Idaho Power Company

WASHINGTON ST
BOISE, IDAHO 83702-5983

These comments should contain the case caption and case number shown on the first page of this document.
YOU ARE FURTHER NOTIFIED that if no written comments are received within the time limit set, the Commission will consider these matters on their merits and enter its Order without a formal hearing. If written comments are received within the time limit set, the Commission will consider them and, in its discretion, may set the same for formal hearing.
YOU ARE FURTHER NOTIFIED that Petition and its supporting documents has been filed with the Commission and is available for public inspection during regular business hours at the Commission offices.
YOU ARE FURTHER NOTIFIED that all proceedings in this case will be held pursuant to the Commission's jurisdiction under Title 61 of the Idaho Code and that the Commission may enter any final Order consistent with its authority under Title 61.
YOU ARE FURTHER NOTIFIED that all proceedings in this matter will be conducted pursuant to the Commission’s Rules of Procedure, IDAPA 31.01.01.000 et seq.
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.
Preliminarily, the Commission finds that Idaho Power’s Petition satisfies the technical requirements of Rule 101 and Idaho Power’s Petition in this case does not necessitate that the Commission resolve issues of a factual nature. Rather, it appears that 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 telecommunications services for purposes of Title 62 of the Idaho Code (the Telecommunications Act of 1988). Therefore, the Commission finds that this Petition may be considered under Modified Procedure.
O R D E R
IT IS HEREBY ORDERED that upon review of the filings in this case and determination of the Commission, that this Case No. IPC-E-00-9 shall be processed by Modified Procedure, Commission Rules of Procedure 201-204, IDAPA 31.01.01.201-04.

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

NOTICE OF MODIFIED PROCEDURE
ORDER NO. 28462 1

Office of the Secretary
Service Date
August 3, 2000