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Home My WebLink About19910207.docx MINUTES OF DECISION MEETING FEBRUARY 7, 1991 - 1:30 p.m. In attendance: Commissioners Joe Miller, Ralph Nelson and Marsha H. Smith; staff members in particular: Mike Gilmore, Gary Richardson, Stephanie Miller, Bob Smith, Judy Stokes, Pat Corpus, Bev Barker, Rose Schulte, Birdelle Brown, Belinda Anderson, Lynn Anderson, Lori Mann, Don Howell and Myrna Walters. **Also present were representatives of U. S. West Communications and the public at large. (Names as well as statements given by the public are included in the reporter's transcript). Commissioner Miller opened the public meeting. Said that since there were a number of the public who have not attended decision meetings in the past, would describe for them what we do and how we intend to proceed. Commissioner Miller introduced himself as well as Commissioners Nelson and Smith. Explained that the PUC has weekly meetings of this nature. Usually they are not well-attended by the public. Will provide a brief explanation: Commission refers to these as decision meetings. Matters that have been in progress at the Commission must come up for decision. Once a week commissioners meet in a public meeting. May have seen the published agenda. Usually a decision meeting is a deliberation. They are not for public comment. There is however on the agenda, one matter that has developed some public interest. Have not previously had an opportunity for public comment on this matter. It is U. S. West's market trial called Caller ID. Said before Commission convenes the meeting, if there are any members of the public who want to speak, in a brief sort of way with respect to Caller ID, the Commission would be glad to hear from them. Commission is a servant of the public and if the public wants to speak to the Commission they should have that opportunity. Commissioner Miller then asked for public comments. **The statements of the public witnesses were recorded by Hedrick Court Reporting and a transcript of those is attached hereto. Commissioner Miller then said the public comment period of the decision meeting was concluded. Said there are several other matters on the agenda. Will take a break, will settle the Agenda and reconvene. Reconvened at 2:20 p.m. -2- Commissioner Miller said the following items will be held until the next decision meeting. All others listed on the February 7, 1991 Agenda would be discussed at this time. THOSE HELD WERE: Items 1 and 4 under Uncontested Matters and Tariff Advices; Item 1 under Modified Procedure and Item 1 under Rulemaking. First item then considered was Item 2 under Uncontested Matters and Tariff Advices - 2. Intermountain Gas Company Application for approval of Gas Service Agreement between IGC and Amalgamated Sugar Company - INT-G-91-1 (Proposed Order & Stephanie Miller's 2-6-91 Decision Memorandum. Commissioner Miller said to Scott Woodbury and Stephanie Miller that it seemed quite clear that the incremental revenue is above incremental cost and staff is satisfied with that? Scott Woodbury said there didn't appear to be any peculiar terms. Only the increase in base period. There are very few changes. It is a conditioned on 5.5% incremental transportation rate which was first approved in 1988. They have had that same rate going forward but as the Commission will remember in reviewing its prior orders, Amalgamated sits in an enviable position with respect to its alternative fuel source which is coal and its access to the pipeline. Commissioner Nelson asked if this wasn't the company that when we put this out we said we won't do this forever, but for one year its okay? Scott Woodbury said no, it was Ash Grove. They sit in a better position yet, than Amalgamated. Commissioner Nelson then moved approval of the contract. Commissioner Smith concurred. Scott Woodbury said Intermountain Gas Company did request a January 1991 effective date. Said when he spoke to the company they were not expecting any effective date of the Commission back dated to January but did want February 1 effective which would coincide with "juice flow" date. Spoke to the number of qualifying therms in January. If you were to back date, that would be about 5.7¢. Would recommend that Commission not go back any further than -3- February 1. Company only reads meters once a month. Company could make contract effective the date of the signing of the order. That would send a signal to the company to send in a more timely contract. Received the filing on January 30. There is not yet a "signed" contract. They are asking for prior approval. Commissioner Smith said her opinion is it should be effective the date of the order. Commissioner Nelson spoke to the meter reading. Suggested making it effective February 1. Mike Gilmore said the Supreme Court has come down on IGC about only reading the meter once a month. They can read it in the middle of a month. Stephanie Miller explained that in this matter, any therms that are sold under this incremental contract, the other ratepayers get an immediate benefit. Would therefore support Feb. 1 effective date. Commissioner Nelson said he would go with the staff. Commissioner Miller said he thought going with a signed date would not be a benefit to anyone. Decision was: Approval effective February 1, 1991. Scott Woodbury asked for a period of time to get contract in. Commissioner Nelson said he thought the order should say they might have benefitted had they gotten a contract in here earlier. Scott Woodbury said company's response is Amalgamated was accessing their coal contract. 3. In the Matter of the Application of J. R. Simplot Company for an Order approving a firm energy sales agreement with Idaho Power Company - IPC-E-91-3. Scott Woodbury said this is a cogeneration facility located in Pocatello. It is considerably larger than 10 mws. The parties have structured it in such a manner that the only qualifying therms will be up to 10 mw. Everything above that will be paid a Schedule 86 non-firm rate. The contract is for 5 years, although David Hawk was in indicating they would like 20 years or longer. Other feature that is different is Simplot is providing letter of credit for overpayment liability. Company has found that -4- that is acceptable in this instance and staff did agree. Commissioner Miller asked if Scott Woodbury had looked at the letter of credit? Scott Woodbury said he had not. They have not decided on a bank. Commissioner Miller said he thought company had enough incentive to see that it is an irrevocable letter. Scott Woodbury said Commission could require that when that part of the contracting is finalized that they provide that documentation to the Commission Secretary. Asked if other Commissioners had any problem with that? Commissioner Nelson said it is a negotiated contract and he didn't have a problem with it. **Decision was: Approve the contract, don't make approval subject to submission of the required documents but do require the filing of them. Tom Faull will look at those. Commissioner Miller said initially there was a dispute and they were going to submit two alternatives. Commissioner Nelson said they came to terms. 1. (Under Modified Procedure). Lynn Anderson's January 28, 1991 Decision Memorandum re: Proposed Notice of Modified Procedure to Remove Portions of Inland Telephone's Certificate. Commissioner Miller said it would have the effect of clearing up problems of boundaries of these two companies. Commissioner Smith asked about modified procedure - why signed by Commissioners rather than Commission Secretary. Mike Gilmore responded it can be done either way - matter of choice. **Decision was to put matter out on modified procedure in form proposed by staff. Under Contested Matters - -5- 1. Birdelle Brown's January 23, 1991 Decision Memorandum r;e: U S West Advice No. 91-1-S Request for Approval of Tariff Revising the Description of Nonpublished Directory Service, to be effective February 17, 1991 ......etc. Commissioner Miller summarized what has happened to date in this regard. It started with the knowledge of a proposed market trial of the service to be proposed for six months. A market trial in Boise. Had informal informational meeting in July. At a December 18 decision meeting Commission reached an informal decision with the company that the Commission would allow the trial to proceed as proposed by the company. Attitude was since it was a trial, would give an opportunity to gather information on customer acceptance or rejection and whether or not it would lead to any private concerns. At that time Commission also recognized that there was a jurisdiction question, would Commission have jurisdiction to prohibit it at all or alter terms as proposed by company? Decided to defer ruling on jurisdiction question until after trial period, thinking that experience during trial period would give information necessary to determine whether it would be necessary to take jurisdiction over the service in the future. Asked the Company to give a Memorandum of Understanding and they did. Then the ACLU who also attended the December 18 meeting submitted a follow-up memo, saying it (the Memorandum of Understanding) did not state the understanding at the December 18 meeting, in particular they suggested that the U S West Memo did not mention the commitment to provide line blocking on a case by case basis for persons with personal safety problem. Have now received a response from U. S. West to the ACLU letter and during the same period of time, Commission has received numerous inquiries. Birdelle Brown has reported there were 177 telephone inquires or complaints. Birdell Brown clarified the count - said it included letters also. Commissioner Miller said the Commissioners have also received a large number of letters. Concluded that that was his understanding of where the Commission is today on this matter. Commissioners Ralph Nelson and Marsha Smith concurred. -6- Commissioner Miller presented a proposal for consideration. Said it appears that this volume of consumer interest in this service which was not, he didn't think, appreciated at the December meeting, perhaps would warrant a change from the decision to defer the jurisdiction issue until the end of the trial period. Appeared to him that everybody would be better off if Commission expressed that opinion now so parties can take appropriate action if they want to. Propose that Commission open a formal case and in the order opening that case do the following. (1) Allow the trial to proceed. Do not attempt to prohibit the trial. Recognizing that it is a six-month trial, do think Commission should try to clarify personal safety matter. Will it be of concern to individuals? (2) Then should try to make speedy decision on question of jurisdiction. Originally thought Commission could decide that later but now think Commission should get to it now. Think public and company want an answer as to what Commission opinion on this is. Might even be able to discuss today, be able to make a preliminary finding giving everyone opportunity to know what Commissioners are thinking so that in preparation of briefs, everybody will know what is on the Commissioners' minds. Think there should be a very short briefing period for people to submit briefs on jurisdiction question and decide that question in the next 10 days to 2 weeks. Thinking of 7 days for briefing. If we come to the conclusion that we have jurisdiction would not be inclined to exercise that jurisdiction to prohibit the trial period. If we find we have jurisdiction, might modify but would not vote to prohibit the trial. Asked Commissioner Smith about this. Commissioner Smith said she thought that was a reasonable way to proceed and to give people out there that may not like what we are doing an opportunity to go where they need to go to straighten Commission out. Commissioner Nelson said he agreed with what has been said. Would like to say something further on safety. Whether or not we have jurisdiction over the service offering, we do have jurisdiction over safety. Don't think that although U. S. West says they will consider safety reasons as a reason for per-line blocking, they don't appear to have done it yet. Think we need to require them that if someone shows concern, that per line blocking should be granted, fairly liberally. Don't think there would be enough of those people that it would jeopardize the integrity of the trial. For that reason, and we have had a lot of letters from people, saying U S West was not responding to it, think U. S. West needs someone here in -7- Boise who is authorized to review those requests and when there appears to be a personal safety concern it should be granted in this trial (the per-line blocking). Think it is a small number of customers and would rather err on the side of allowing it in those cases where there is personal safety involved rather than not allow. Commissioner Smith said on personal safety - that ties into our jurisdiction question. Said it was her very strong belief that we do not have jurisdiction over Caller ID as a service under the Telecommunications Act which became effective July 1, 1988 and upon U. S. West's allegations under that law the only thing left for regulation of U. S. West is basic local exchange service as Title 62 defines it - (read from Title 62). Said it was her belief that we don't have jurisdiction over the company to tell them how to provide it and how much to charge for it. But under our jurisdiction, Section 61-302 states "Every public utility shall furnish, provide and maintain such service, instrumentalities, equipment and facilities as shall promote the safety, health, comfort and convenience of its patrons, employees and the public, and as shall be in all respects adequate, efficient, just and reasonable. Believe the Commission has responsibility under that Section to see that service to customers does that - promotes their safety and in that way since you sign up for LEC services with that company if part of what happens to you is that your number is in this Caller ID service, also then we have responsibility for the safety concerns of those customers and to see that they are taken care of adequately. That was her focus in this. It comes down to whether per-line block or limited line blocking is sufficient to balance the interests of the people we heard who want the service and those who do not want their numbers in that service. That is where she is. Commissioner Miller asked Commissioner Nelson his thoughts on the jurisdiction issue. Commissioner Nelson said he agreed with Commissioner Smith because she was actually reading the definition of basic local telephone service from the Code. At this point think we are restricted to two-way interactive switched signs....etc. (from Telecomm. Act.) Commissioner Miller said his initial reaction is along the same lines. These are initial thoughts but based on what we have been able to look at, these are our initial comments. Think there could be public policy arguments that -8- Commission should have jurisdiction over all the terms and conditions of service. That would conform with public expectations. Think we certainly can't expect that the public understands the ins and outs of the Deregulation Act and what that did to Commission jurisdiction. But public does know that this is a service provided by a local exchange company and the public knows that we are the PUC. Public feels they should be able to come to a public agency to have those decisions made. There are personal safety reasons. Think the Commission better than any other institution in government would be well-situated to make this type of decision. We have experience and institutional competence in balancing competing wishes. Finally there is a potential for a symmetry in results within our state because if U. S. West can offer the service on terms they want and others on terms we prescribe because of their Title 62 argument, there is the potential for different offerings in the state. That could lead to customer division. But do agree with the other Commissioners that the matter of jurisdiction is not a personal opinion but is what the law tells us. It does appear that Caller ID is a Title 62 service. If a person can get the plain language of the statute, might be difficult, and get to legislative intent, you might be able to make an argument that Caller ID is really a product of dial tone and dial tone is part of basic service. Should look at blocking as a separate service. Caller ID is Title 62 and blocking should be Title 61 on legislative intent. Said from his understanding of the Act, the legislative intent was that for competitive services the company should be free to offer them without regulation. Caller ID probably does fall into that category. Caller ID would compete against answering machine. But no one else can provide blocking except the LEC. It is not discretionary. But to get to that you would have to get past the language of the Act. That is his initial reaction. Do we want a preliminary finding in the order to that effect or if we have done it publicly, is that sufficient? Commissioner Nelson said he thought Commission should make a preliminary finding. We have jurisdiction under 61-302 for safety and that we think U. S. West needs to liberalize on-line blocking for safety considerations. Commissioner Miller said assume the Consumer Division would continue to work with company and customers in negotiating and resolving per-line availability? Bev Barker responded - if that is what Commission wants them to do, they will, but it has to be a two-way thing. -9- It wouldn't do any good to say it is available and deny it in the majority of the cases where people indicate they have need and the "standard" to justify line blocking, how far does the customer have to go to prove there is a legitimate concern? Is it when customer says, staff says, when they produce a court order, what? What is the threshold? Commissioner Nelson said if the person is in a position where they are dealing with someone where their safety may be in jeopardy and they feel it is, that has to be reflected. They may fabricate it and you may know that, but think that is going to be real rare. Commissioner Miller said Commission has two letters from individuals in comparable but different circumstances, both think they are entitled to line blocking. All three Commissioners have agreed there should be line blocking. Could give these letters to be used as benchmark. Commissioner Smith said they are both professional people dealing with unstable people. One of the public witnesses expressed his support for the service but recognized in certain professions, are at some risk and would encourage line blocking for them. - Said that is how she feels - personal safety is a concern. Commissioner Nelson said a good example we haven't heard from is a guard at the prison who wants line blocking on his own line. Bev Barker said she can tell the Commission what the Company's response would be. Those concerns can be adequately addressed by per-call blocking. That has been the position they have taken. Commissioner Nelson said probably it can be on a per-call basis, but if those people actually fear for their safety, that that number might get out, there is probably some basis for that. Mike Gilmore asked if the Commission would like to address if someone locally could address those? It was his understanding that there wasn't a local person now who could respond. Commissioner Nelson said he thought he had expressed that. Commissioner Miller asked Dan Poole of U. S. West if he would care to comment. -10- Dan Poole said as he looks at it, all company said in its response letter to the Commission, is what we have focused on is personal injury to a person in law enforcement or people in domestic violence agencies or shelter homes. Went on to say what the company will do in these situation. Then went through the fact that we have contacted 41 of these agencies and have had two requests. Quoted further from U. S. West's letter. Said company is committed to working with customers. That is their position. Believe they are acting in a manner consistent with that. Think there are concerns about jurisdiction. Don't want to go down that path, but may have to. Said Commissioners have no facts before them. Am not sure of the letters you spoke to. Have requested information from staff. They have been concerned about customer confidentiality. Don't know whether those would have been viewed as being entitled to per-line blocking. Commissioner Miller said these are public records and in the public file and company is welcome to them. Dan Poole said question is one of facts. If someone has demonstrated a problem, we are willing to talk about what standards apply. Do have people in Idaho that can decide that. Commissioner Nelson said he thinks the difference is someone who is in "imminent" danger or they "may be" in danger during this period because of their occupation. Is that the difference? Dan Poole said that is the difference. Perceived risk versus demonstrated risk. Said question he would like to address in regard to jurisdiction is, don't know where it is going to come out but do believe that when you are talking about adequacy of service and safety, if you are going to tell a company how to do business, its best for someone to demonstrate that the way a company is doing business in not adequate, does not meet a safety standard. Don't think you can do that without factual basis. Commissioner Smith said that is why all commissioners think the trial should go on. But the decision that commissioners made to have trial period was before she was a commissioner, was before the ACLU opposed it. On jurisdictional question, in a hurry, right now, if the Commission finds that we do not have jurisdiction over Caller ID, the subject is open for the people to go to the Legislature and tell them why the Telecommunications Act is not adequate. It is not fair to those people that in 6 months we find no jurisdiction and they are left with 6 months more. -11- Dan Poole said he didn't have any problem with that. If Commission initiated a docket and says briefs are asked for - on question of Title 62 services, think that is just fine. That is a different question than what other findings or order you may issue including directing standard of availability for per-line blocking without a factual record for doing that. Don't think you can do that. The point in that is what I would like to suggest instead that we made the commitment to work with Commission staff and individual customers and problems. Would hope that we could work through those on a "demonstrated personal risk" basis and if there are cases of "personal" line blocking will work through that if we find a standard. Think that can be done without the Commission ordering it. Commissioner Miller said Bev Barker told Commissioners that only person that can make determination on call-blocking is Ms. Ford and people in Phoenix. Bev Barker said she got the information today that they are forming a committee. Pat Corpus said she had an inquiry that she wanted to remain anonymous, asked what the company would consider. Was told a restraining order was a start and then it would go to a committee. Commissioner Nelson asked who told her that? Pat Corpus said Trish of U S West told her that. Bev Barker said that is evolving in-house. Commissioner Miller asked who the "in house" group was? Dan Poole said someone from Wozniak's area and the supervisor of service reps in this area. Commissioner Miller asked if the Committee existed right now? Dan Poole said the positions exist right now. That is the problem with dealing with individuals, coming up with determination of "standard". Want to do it with uniformity. Am willing to work with staff on that. Basically, see that as a good vehicle to getting thru customer situation on this end in jurisdiction question. Asked Commission to think about what they really want to put in an order in regard to safety .. as the basis for making evidentiary finding. -12- Commissioner Miller said he understood company's position but also agreed with Commissioner Smith. We are the PUC. We have an obligation to be sure that something doesn't happen to utilities we regulate, that jeopardizes safety of people in our state. Commissioner Smith said there are two separate questions Legal question of analysis of Section 61-302, depending on your finding on that. Think there is also a factual question - two separate questions - legal and factual. Dan Poole said if you are going to approach it as adequacy of service, first have to make a finding that it is inadequate. Commissioner Smith said we won't know that until after the trial period. Dan Poole said then can't order a standard. Commissioner Smith asked what standard is "risk of personal injury"? Commissioner Nelson said it is an interpretation of the standard. Think it should be liberal, don't think company is being liberal. Think Consumer Division and U. S. West need to work together. Dan Poole said his parting comment is: what we have asked for in this is work this through on a cooperative basis as opposed to contested. We still want to do that. We are offering that in working with staff. Think staff is going to ask for direction as to what is demonstrated risk or personal danger. Would like to work through it on a case-by-case basis. Think that can work. Then can go ahead with jurisdiction question. Commissioner Smith said a thought occurred to her. In most ordinary circumstances when customers come to complaint investigators and they negotiate, then the final authority is the Commission. Maybe in this instance it needs to be the other way around. That if it is the company's trial and their standard, should the company be the final arbitrator or the Commission? Commissioner Nelson said if Bev Barker and the company can't agree on the standard, we are going to get involved early. Commissioner Miller said if it is something besides -13- personal danger and it is personal preference and an agreement can't be reached on that, then since it is a trial, then the company should be able to run it, then in that circumstance they should make final determination. Theoretically, if it is a matter of personal safety and if private parties can't agree on what is necessary to protect safety, the government should make that decision versus private entity. Theoretically, we could make it. Asked Bev Barker about the standard, can we make some progress on that? Bev Barker said the standard set forth by the company, is being interpreted very strictly (demonstrated safety concern). Sometimes demonstrating that a person is at physical risk is an extremely hard standard to meet. What does that mean? Don't think that the company agrees that doctors and lawyers meet that standard. Commissioner Smith said whats been suggested is we will give you these two letters and will let the staff and Task Force see where they fit on your scale, and work out a scale that is comfortable to them. Asked if that sounded reasonable? Dan Poole responded - yes. Company has concerns. If any lawyer or doctor asks for it, we don't think that is a good policy. That is not how we think the service should roll out. One also has to recognize that there are certain risks with per-line blocking. Gave examples of that. Commissioner Smith asked about *67 working the other way? Dan Poole said the decision Company made is that if it is a blocked line, it is a blocked line, it cannot be unblocked without a work order. Jim Wozniak responded to that. Decision was made locally to fix that. Dan Poole said as a result, people asking for line-blocking said okay. Gave example of person who makes decision that they will not speak unless the person is identified. Commissioner Miller said he thinks Commission has come as far as it can here. What the company should be hearing the Commission saying is we do not intend to interfere with company's market trial and company has a right to do it here. But at the same time, simply cannot permit undue risk of personal safety problems in the conduct of that trial. Commissioners feel strongly about that. -14- Commissioner Smith said one thing that should be considered while building a standard, is the level of sophistication of the users. There are various levels of sophistication of the customers and equipment, gave example of programmable phones. Think you have a number of things you have to look at for people who have personal safety concerns and dealing with the system as you are putting it out. Janet Kreps representing ACLU said they would like to know the next time they would be able to find out how the review is going so they can keep abreast of whether people with safety concerns are getting line-block and if people who are asking, get it. Commissioner Miller said perhaps Bev Barker can give report at the next decision meeting and at any other decision meeting after that, when she thought Commissioners need to know something. Commissioner Smith asked about the effective date of the tariff filing - U S West Advice No. 91-1-S? Birdelle Brown said the issue is still open. That is the tariff that adds the phrase to the nonpublished service that says their identification may be disclosed to people who have Caller ID on a call-by-call basis, is still at issue. Commissioner Smith said so what is before the Commission is the addition of that to the tariff? Birdelle Brown explained what the tariff was held until this time. Dan Poole said the purpose of the filing was to impose upon the company the obligation of telling the nonpublished about the line-blocking. Birdelle Brown said the question is it expands it to - is the company at obligation to inform them of line-blocking? Commissioner Miller said - initial opinion is that we did have authority to order per-line blocking for those nonpublished subscribers just on that basis. So unless briefing change his mind, at which time we could require tariff to be modified, this seems to conform to what he thought the law will be. Birdelle Brown said she didn't think the question is notification to the customer. -15- Commissioner Nelson said he thought commission should approve the tariff. Commissioner Smith asked if information has already gone out? **Some information has gone out to customers. Commissioner Nelson said he still thought the tariff should be approved and Commission can always open it up later. Commissioner Smith said that was okay with her. Commissioner Miller asked Birdelle Brown what she would like it to say? Add the per line blocking availability if there is a personal safety problem? Birdelle Brown responded that she didn't have a problem with the wording U. S. West used. Would personally like to see another sentence or phrase to cause people to be informed. Marsha Smith asked if it has already gone out, are we asking the company to reinform? Commissioners asked Lynn Anderson what the percentage of nonpublished numbers was? Lynn Anderson responded it was 5 to 10%. Commissioner Miller said his thought is: What we are trying to create is this main safety net so people with safety concerns are protested. People who have safety concerns will know that without the company informing them of their right. They will know their concerns. In a sense it has already gone out or is ready to go out. Commissioner Nelson said they already have notice. Marsha Smith said that is why so many people came. After discussion, Commissioners approved Tariff Advice 91-1-S. Commissioner Miller noted that some of the letters have been designated "formal complaints". Asked if Commission should hold those pending the settling of the jurisdiction question? Mike Gilmore said he thought response to people could be that their complaint is being handled in this manner. It will also let them know they are not carrying the burden themselves. -16- **Commissioner Miller said anybody who hasn't seen the letters addressed to the Commission are welcome to copies of those. Decision Meeting was adjourned at 3:35 p.m. DATED at Boise, Idaho this day of February, 1991. PRESIDENT COMMISSIONER COMMISSIONER ATTEST: Commission Secretary 0022M