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Minutes of Decision Meeting
July 1, 1991 - 1:30 p.m.
In attendance:
Commissioners Joe Miller, Ralph Nelson and Marsha H. Smith and staff members Mike Gilmore, Lori Mann, Brad Purdy, Don Howell, Tonya Clark, Gary Richardson, Birdelle Brown, Bev Barker, Randy Lobb, SYd Lansing and Myrna Walters.
Items discussed were those on the attached July 1, 1991 Agenda.
1. Don Howell's June 18, 1991 Decision Memorandum re: Compliance Investigation Concerning Union Pacific's Freight Agencies, Case No. UP-RR-90-3.
Commissioner Smith said with the exception of Parma they have probably covered themselves okay. Am having a hard time deciding about up north.
Commissioner Nelson said he thought on Bonners Ferry, if they had not been willing to pay their mileage, etc... but with one client, don't think there was a problem with service in Bonners Ferry.
Commissioner Miller said we were probably somewhat ambiguous about actual physical presence (body being there). Certainly weren't suggesting he be there full time.
Don Howell said his recollection was we were being ambiguous. Really never defined local presence. Only time domiciled presence was mentioned was in the '85 order. (Quoted from that order). That issue was never brought up. Nobody ever went back to the '85 order. There was only a single customer in Bonners Ferry.
Commissioner Miller said it is hard to conclude the order was violated with regard to Bonners Ferry.
Commissioner Nelson said he thought customer was adequately served.
Commissioner Miller said in Parma, the order was clearly violated. There the question was: Can the obvious violation of the order be excused by showing notwithstanding violation of the order, there was adequate service?
Tonya Clark reminded the Commissioners that Charlie Clark of UPRR asked specifically about manning the agency.
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Commissioner Smith asked why this wasn't in the case?
Don Howell said it was informal.
Discussed the timing - July 1990.
Commissioner Miller said the question on his mind was - under the penalties sections, there is Section 706 that speaks to the violation of an order ...Section 712 provides for recovery of the penalties - question he has is: Does the Commission under 706 say the amount of the penality and the action under 712 is to cover that amount? Or is it that the Commission authorizes civil action in the amount the court would fix?
Don Howell said he thought you could do it either way.
Commissioner Miller said it looked to him like Commission fixes amount of penalty and subsequent action is to fix the amount if it is not voluntarily paid. Is there any history of these?
Mike Gilmore gave an example of a motor carrier where a $500 penalty was negotiated. Would be real hesitant to say whether Commission can fix that.
Commissioner Miller said if lawyers say we have the authority, am not in favor of setting up civil route. In his opinion, knowing their blatant conduct is in violation of the order is of such seriousness that we can't let people think they decide when to obey a Commission order and not.
Commissioner Smith said especially when there is relief.
Commissioner Miller said another thing we might do is fix penalty amount but suspend it for 30 days to see if railroad did certain things.
Commissioner Nelson said he agreed with everything Commissioner Miller says, but think what they should do is to propose some solution. In some agencies, perhaps someone else could handle those duties.
Tonya Clark said the order allowed that flexibility.
Discussed opening and closing of Parma agencies.
Don Howell quoted testimony. December 1989 they closed it. Gave the background.
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Commissioner Miller asked - when this was initiated it opened?
Don Howell said yes. It was open February 1, 1991. December '89 until February '91. Approximately 13 months. From April '89 to December '89 was when it gets difficult.
Commissioner Miller said railroad should be able to afford $1,000 a month.
Commissioner Smith suggested $2,000.
Commissioner Miller said the amount isn't important, just the failure. $1,000 to $2,000 a month is reasonable. Take into account the apparent fact that there was no serious harm to the public.
Suggested tempering it.
Commissioner Smith said you could suspend half of it on their attempt to eliminate any adverse affect on the public.
They wouldn't avail themselves of legal remedies.
All Commissioners agreed on that.
Commissioner Miller said unfortunately we don't have anything on the record. **Add it is a company of considerable assets.
Don Howell asked Tonya Clark what she wanted to say about the Amalgamated person - if he wanted to testify?
Commissioner Nelson asked - didn't we consider his letter part of the file, not the record.
Don Howell explained why we gave everything exhibit numbers. He only talks about germane issues.
It is part of the secretary's file but not the transcript.
Don Howell asked about telephone numbers.
**Discussed the wording.
Commissioner Miller said he supposed we can say local customer service includes reaching of that location by telephone or say publication of the local telephone number. It was a conscious omission.
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Don Howell commented - didn't set level out in the order.
Commissioner Miller said would like in this instance to have the written order be the way this thing gets announced, not word of mouth today.
3. Tonya Clark's Decision Memorandum dated June 24, 1991 re: Bingo Stamp Issuance to Base State Participants.
Two options set out in the decision memorandum were discussed.
**Agreed to second option - issuance of stamps to only those vehicles not receiving an identifier from a participating base state.
Mike Gilmore suggested writing this into the new Motor Carrier rules.
**Commissioners agreed to that.
4. Tonya Clark's Decision Memorandum dated June 26, 1991 re: Michael P. Nixon dba Blue Mountain Express, M-7677-2.
Commissioner Miller said he didn't see how we could avoid having a hearing.
Decision was to have hearing - find date.
5. Tonya Clark's Decision Memorandum dated June 26, 1991 re: Robert F. & Sheryl Baker dba Roadrunner Towing, M-7678-1.
Commissioner Smith asked - if his rates were excessive why not use someone else?
Tonya Clark suggested we could do this on modified procedure.
Commissioner Miller wondered what the rule is on granting hearing for any protest?
Mike Gilmore said he didn't think we have an alternative.
**Matter will be deferred until tomorrow - someone is to call Conley Ward about the protest.
6. Tonya Clark's Decision Memorandum dated June 26, 1991 re: David L. Hatfield dba Timber Logging, M-7667-2.
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Decision was: reconsideration and give him authority.
7. Regulated Carrier Division Agenda dated July 1, 1991.
Approved.
8. Bill Eastlake's June 25, 1991 Decision Memorandum re: Tariff Advice 91-2 (UPL-PPL).
Briefly discussed the tariffs.
Approved.
10. Mike Gilmore's June 20, 1991 Decision Memorandum re: Preparation of Computer-searchable disks of transcripts.
After discussion, Commission Secretary was asked to contact Hedrick to see if they can provide these and how soon.
**Is also to be discussed with Ed Howell.
12. Letter from Larry Ripley regarding procedural issue of who will become the custodian of depositions taken in PUC proceedings.
After brief discussion, Commission Secretary was instructed to write to Mr. Ripley indicating the Commission Secretary is the custodian of depositions. Copy of the letter will be sent to the parties in this case.
l4. Birdelle Brown's June 11, 1991 Decision Memorandum re: Petition of New Plymouth Residents for Extended Area Service (EAS) to Ontario (MTB-T-90-7).
Commissioner Smith said based on what we have here she would deny the petition.
Birdelle Brown said she was inclined to believe that they can get all their services in Fruitland. On the other hand, there were over 400 petitioners.
Commissioner Smith said a lot of what Commission looks at are in Idaho. If you grant toll free to Ontario, you would be destroying business economics.
It is hard to make a decision from this information. How far down on the list are they on the chart?
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Commissioner Miller said he didn't think Ontario is the community of interest like Payette, New Plymouth or Fruitland.
Commissioner Smith asked do they allege that anything has changed? Has something big happened?
Mike Gilmore said - can distinguish it from other border communities.
Commissioner Miller said the only reason for going further is maybe these 400 people would feel better if we went through a hearing, etc.
**Was decided to deny the petition.
Discussed item 8 further - UPL-PPL Tariff Advice 91-2 - was then approved.
Adjourned at 2:45 p.m., July 1 - reconvened on July 3, 1991 - 1:30 p.m.
In attendance were: Commissioners Joe Miller, Ralph Nelson and Marsha H. Smith and staff members Scott Woodbury, Brad Purdy, Tonya Clark, Gary Richardson , Birdelle Brown, Lori Mann, Mike Gilmore and Myrna Walters.
Items from the July 1, 1991 Agenda were discussed as follows:
2. Brad Purdy's June 17, 1991 Decision Memorandum re: Gillingham Transport--Common Carrier Authority, M-7665.
Commissioner Nelson, hearing chairman of Gillingham, reviewed the matter.
Protestant is asking Commission to consider economic entry. Think we need to have discussion on whether or not we want to consider economic entry. Other two carriers say they are setting idle. (1) There is already enough competition, (2) Gillingham has no net assets and (3) he is a bad guy. Did not appear to be a forthright, for-hire carrier. First is the money issue. He submitted an incomplete financial statement.
Commissioner Smith asked about insurance?
Commissioner Nelson said he testified he had adequate insurance. Would guess there is no separate banking account for the companies.
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Second ground is: too many carriers.
Commissioner Miller asked if he had some support?
Commissioner Nelson said yes. Explained the situation. Had impression Lampson came to town, found Gillingham and was satisfied with him.
Commissioner Smith said it was pretty well established he was hauling illegally.
Commissioner Nelson spoke to Tolliver's testimony and letter than Commission is not conforming to the mandate of the legislature which speaks to public convenience and necessity.
Mike Gilmore explained prior authority orders. Said statute doesn't say if there is damage to a carrier you have to consider that. Most protestants put on the case that it should be denied if there are sufficient carriers.
Commissioner Nelson said in the case of these particular protestants they didn't show they would loose hauls because they didn't haul for him. What if there is one carrier and a second comes in, do you deny his request?
Commissioner Miller said on the facts of this case you could come out saying when considering the effect on existing carriers, it wouldn't necessarily appear that they are going to suffer great harm and there does appear to be at least one person who wants the services of an additional carrier. That being the case, the new carrier should be able to come in.
Commissioner Smith said the thing that bothers her is the long history of disregard for our rules, overweight, oversize problem, etc.
Commissioner Miller said we could go one year conditional.
Commissioner Smith said she thought this guy needs some special oversight.
Commissioner Nelson asked if we had someway to investigate how many tickets he gets?
Tonya Clark replied we can. Can get print out.
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Commissioner Nelson said we should also say something about his financial condition. In this instance, you could deny it today but he could come back in tomorrow with a different financial statement. He has many. Financing for the individual is not a problem. Should get an accurate financial statement.
Tonya Clark asked if Commission wanted to give him general commodities?
Commissioner Nelson said he thought we should give him what he asked for.
Tonya Clark said on Tolliver's letter, think that needs responding to. It is different from the case. He indicates he will appeal this decision.
Commissioner Nelson said he thought Commission should find that the testimony in the hearing showed that the person who supported Gillingham's application had not done any business with the other two people and it was not shown they would loose business because of that. That gives him something to work on. In the normal course of events you are going to look at what the entry does to the marketplace.
Commissioner Miller said a new entrant is always going to affect the marketplace. That is part of competition.
Commissioner Smith asked if we were in trouble with the Bar allowing non-lawyers in the case?
Mike Gilmore said Commission has let non-lawyer owners but not non-lawyer representatives from outside the company.
Commissioner Miller said we do require letters of support.
Discussed Mr. Tolliver's letter. Brad Purdy is to draft a response.
**Grant authority requested in application but limit it for one year.
Commissioner Miller asked what will happen after that year?
Tonya Clark said - will review his track record.
Mike Gilmore suggested that it be mentioned in the order.
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In attendance at this time were Stephanie Miller and Bev Barker.
5. Tonya Clark's Decision Memo dated June 26, 1991 re: Robert F. & Sheryl Baker dba Roadrunner Towing, M-7678-1.
Tonya Clark spoke to Conley Ward about this.
He is trying to resolve it. Will get back to the Commission.
Mike Gilmore asked about setting it for hearing with protest from non-Idaho protestants?
**Gave Conley Ward until next Friday to get something in.
9. Mike Gilmore's May 28, 1991 Decision Memorandum re: Rulemaking for Telephone Customer Relations Rules 8.2, 9, 10, and 11 --Case No. 31.D-R-89-1 and 31.D-R-91-1.
Commissioner Smith said her first question was on 9.3 - is old equipment grandfathered indefinitely?
Mike Gilmore responded that the way he read the federal rule, that is what is going on. FCC has deadline for importing.
Commissioner Smith said the question arose when she read the explanation. It says our grandfathering is more generous.
**Was correct as proposed. Grandfathering is indefinite.
9.4 - Commissioner Nelson asked about double-branding.
Mike Gilmore explained.
Okayed proposed rule.
9.6 - Splashing.
Commissioner Miller commented it correctly stated what we decided.
Other Commissioners concurred.
9.7 - Informational Filings -- Information on Bills.
Okay.
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10.0 - Definitions.
Okay.
10.1. Approved Instruments -- Operation of Instruments.
Commissioner Smith said she wondered about U S West writing to premise owners that unless they hear from them, the phone will ring.
Mike Gilmore suggested incorporating Commissioner Smith's comments in this.
Commissioner Smith said she would give them plenty of time to do this.
Could require company to contact premise owners about their existing phones ringing.
Other choice is to grandfather existing ones.
Commissioner Nelson said he thought that generally the phone should ring in. Just the fact that it is an inconvenience for the store, don't know if that is a good reason.
Commissioner Miller said he didn't know how legitimate Mary Hobson's response about removing phones is.
Mike Gilmore asked if Commissioners want to grandfather or not? Require all new ones and replacements to ring? How many phones don't ring now?
Commissioner Miller said he would propose that we grandfather - until it is upgraded. New and replacements should ring.
Birdelle Brown will try to get numbers.
**Held this for the timebeing.
10.11 - Connection of Privately-Owned Pay Telephones
Okay.
10.12 - Payment of Billings--Deposits--Privately-Owned Pay Telephones
Okayed.
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10.13 - Responsibility for Compliance--Privately-Owned Pay Telephones
Commissioner Miller questioned saying - see Order No. 22719 in the body of the order.
**Decision was to put it in the comment section.
10.14 - Application for Service--Privately-Owned Pay Telephones
Okay.
SUBRULE C - REPORTING
Okay.
11. PAY TELEPHONES IN AND OPERATOR SERVICES FROM INSTITUTIONS OF CONFINEMENT
11.0 Definitions
Okay.
11.1 Temporary Rule Based on Order No. 23630.
Okay.
Discussed effective date of the rules.
Mike Gilmore suggested October 1.
Commissioners approved.
11. Mike Gilmore's June 26, 1991 Decision Memorandum re: Proposed Safety Rules--IDAPA 31.I-R-91-1.
Should Rule 1 be adopted as proposed(except for proposed effective date of last January 1)?
Yes.
Rule 2 - Should entities referred to in Rule 2 be consistently referred to as gas corporations?
Yes.
Water Power's concern is that language in Rule 2.1 would imply that IPUC rule supercedes existing federal rules - would phrase "except that all reporting requirements regarding accidents contained in these federal rules adopted by reference are replaced for purposes of state reporting by
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the reporting requirements of Rule 3", take care of that concern?
Commissioners agreed that wording would.
Modification of originally proposed sentences in Rules 2.2 and 2.3 - use WWP's alternative?
Commissioners said yes.
Discussed "service standards".
Commissioners asked the background for this.
Mike Gilmore explained. Said he talked to IGC about this. IGC sent in their proposed language. Need to maintain the old ones in place until they are redone (that portion covered by General Order 98).
**Does the Commission wish to propose IGC's revised service standards for gas customers in a further rulemaking?
Leave in place for now.
RULE 3 - Reporting of Accidents
Commissioner Miller said one question here is our reporting requirement. The comments propose a number of relatively minor changes and clarification and the big issue in terms of content of the written report; requirement of corrective action taken, if any. Wonder if we want to address all the minor things and have hearing on corrective action or have hearing on the entire rule and do all the minor things after we have addressed the big issue.
Mike Gilmore commented he didn't think the utilities will object to reporting but the corrective action is what they are concerned with. Contents are not admissible in court. Only way Commission can speak to safety is through reporting. Can see a legitimate safety reason for such a requirement.
Discussed the WWP accident.
After discussion Commissioner Miller suggested public hearing.
Commissioner Smith asked about Industrial Commission accident report or OSHA reports - what do they look like?
Commissioner Nelson said those are things we should find out.
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Commissioner Miller asked about adopting everything else up to Rule 3, then set some kind of public hearing on that.
Commissioner Nelson indicated that was okay with him.
Commissioner Smith asked what kind of witnesses there would be?
Mike Gilmore suggested requiring intervention.
Okayed.
Commissioner Miller said the other approach would be to back off and not include corrective action requirement. Just avoid the whole problem by taking that out.
Commissioner Nelson said that is why we are holding the hearing.
**Agreed to hearing.
Mike Gilmore will check for hearing date - September 9 or 10.
EXTRA ITEM - Gem State Utilities Advice No. 91-3 - Elimination of Multi-party Service and Other Minor Changes - GEM-T-90-1. (Eileen Benner's 7-2-91 Decision Memo attached)
Approved.
13. Lori Mann's Decision Memorandum dated April 24, 1991 re: Case No. GNR-T-90-1; Privacy Investigation in Telecommunications Services.
Commissioner Miller commented that on the portion that dealt with ANI and calling party ID, we are beyond all of that, the way it works; not sure there is anything we want to do in that area. First it was information gathering, now we have that information. Until Commission decides U S West issues, it is preliminary to do anything more on Caller ID. Don't want to put us in a box with U. S. West.
That takes us to generalized privacy concerns and whether we want to do something like Colorado or New York, or whether we would simply like to use the stuff filed in this case as stuff that advances knowledge; puts us in a better position to respond in the future.
Other specific issue that is associated with second part is CPNI or use of phone companies of information about their customers for their other marketing endeavors.
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The FCC has proposed rules on that in the Computer III case. They are not as stiff as some people would like. The things we would consider are general privacy principles, whether to address CPNI by rule or consider rule that tends to address these comprehensively.
Commissioner Smith said she would just as soon not do anything right now. Let Caller ID play out here and in other states. Some of those cases are already at the Appellate level. We are going to have some Appellate Court decisions to tell us more. CPNI, am not anxious to charge off and do something in. If and when someone complains about the company we could look at it.
Commissioner Miller said that is really more of a competitive matter. If LEC can use information about their customers, other providers may be at a disadvantage. To his knowledge that is not a concern in Idaho. We are going to have a pretty good sized presentation at the next ROC meeting.
Commissioner Smith said if the FCC is already in the field, let's wait for them.
Commissioner Miller said problems that are not yet problems aren't necessary at this time.
Bev Barker asked about the request she had from Research, Inc. about U. S. West records.
Commissioner Smith said she sees a big difference between a service and selling credit worthiness to a service.
Bev Barker explained in order to find bad credit customers utilities have to use a service like this. Our rules allow them to do that. You can use other credit information from other utilities. Ours is only for other utilities, not everybody.
Explained that California mandated using a vendor to accumulate information on all utility customers. Idaho utilities have said it is too expensive. Research Inc. is asking for a statement from the Commission saying we don't object to sharing of information by the utilities.
Commissioner Smith suggested that Bev Barker write to them.
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Meeting adjourned.
DATED at Boise, Idaho this day of August, 1991.
PRESIDENT
COMMISSIONER
COMMISSIONER
ATTEST:
Commission Secretary
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