2000825_cc.doc

DECISION MEMORANDUM

TO: COMMISSIONER HANSEN
COMMISSIONER SMITH
COMMISSIONER KJELLANDER
MYRNA WALTERS
LOU ANN WESTERFIELD
BILL EASTLAKE
LYNN ANDERSON
RANDY LOBB
DON HOWELL
TONYA CLARK
RON LAW
TERRI CARLOCK
JOE CUSICK
BEV BARKER
WORKING FILE

FROM: CHERI C. COPSEY

DATE: AUGUST 25, 2000

RE: 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; IPC-E-00-9

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.
BACKGROUND
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 telecommunications services pursuant to Title 62 of the Idaho Code. See Order Nos. 25425, 26514, 26933 and 28154.
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.
IDAHO POWER’S PETITION
According to Idaho Power’s 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.
STAFF RECOMMENDATION
Staff recommends that Idaho Power’s Petition be approved.
Commission Decision
Does the Commission want to approve this Petition?

Cheri C. Copsey

Staff: Terri Carlock

M:ipce009_cc-final

DECISION MEMORANDUM 3