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HomeMy WebLinkAbout19910805.docx Minutes of Decision Meeting August 5, 1991 - 1:30 p.m. In attendance were: Commissioners Joe Miller, Ralph Nelson and Marsha H. Smith; staff members Mike Gilmore, Lori Mann, Gary Richardson, Eileen Benner, Bev Barker, Terri Carlock, Tonya Clark, Eileen Benner, Lynn Anderson and Myrna Walters.  Also in attendance were members of the public and media. Items discussed were those on the August 5, 1991 Agenda, in the following order. 1.  Regulated Carrier Division Agenda dated August 5, 1991. Approved. 2.  Tonya Clark's August 2, 1991 Decision Memorandum re:  Joan's DMG, Inc., Lewiston, Idaho. Tonya Clark explained that Joan's is asking for time to work this out with the Deputy AG.  Asked for a week extension. Commissioner Smith moved we hold it until next week. Other Commissioners concurred. Item 3 - Gary Richardson's July 19, 1991 Decision Memorandum re:  Draft Public Information Policy was held at this time. Item 4 - Lynn Anderson's August 2, 1991 Decision Memorandum re:  U S West Caller ID Line Blocking (USW-T-91-2) Transmittal No. 91-10-SC was deferred until after discussion of Item 9. 5.  Terri Carlock's August 2, 1991 Decision Memorandum re:  Citizens Utilities Debt Issuance Amendment - CUC-S-89-1. Commissioner Nelson said he would suggest giving them a 90 day extension on that.  Don't know why FERC only gave them a month. Terri Carlock said they asked for a month before this Commission also.  They don't know about filing of the Form S-3. Commissioner Miller asked what they agreed to pay for ATU? -2- Commissioner Nelson said if we give them a different extension they will be all fowled up. Commissioner Miller asked why the interest rates are going up? Terri Carlock explained it was just for that week. After discussion, approve extension til September 15 - same as FERC extension. 6.  Terri Carlock's August 2, 1991 Decision Memorandum re:  Medium Term Note Authority - Case No. WWP-S-89-1. Commissioner Nelson said he would move approval of that extension. Other Commissioners agreed. 7.  Mike Gilmore's August 1, 1991 Decision Memorandum re:  Final Version of Motor Carrier Rules Revision--Case No. 31.B-R-91-2 was held until next week's decision meeting. 8.  Mike Gilmore's August 1, 1991 Decision Memorandum re:  B&B Press Services, Inc.'s Formal Complaint against AT&T - Case No. GNR-T-91-4. Commissioner Miller asked Mike Gilmore if he had talked to B&B? Mike Gilmore said he had not in the last week.  Talked to them a lot while writing brief.  Parties now want to pull out. Commissioner Miller asked how it would be handled. Mike Gilmore suggested having Commission Secretary do a Notice of Withdrawal - not an order signed by the Commissioners. **Commissioners agreed to that procedure. 9.  Discussion of Proposed Findings of Fact and Conclusions of Law suggested by Parties in their Briefs and Reply Briefs in Cases USW-T-91-2&6. (CALLER ID) Commissioner Smith, Chairman of the USW-T-91-2&6 cases explained that she tried to assemble the proposed findings. Parties were asked to include some findings in their brief.  She thanked those who were here and did that.  Tried -3- to assemble them by issue.  Divided them into 4 major issues.  First major issue on consideration was:  Is Caller ID service within the definition of "basic local exchange service" as defined in Idaho Code 62-603(1)? Proposed findings of the parties are on the first 3 1/2 pages of Commissioner Smith's hand-out (attached hereto). Essentially the ACLU and the ICC both argued that it is a basic local exchange service within the definition.  Staff said it is not specifically included or excluded but Caller ID would not fall under 61.  Separated out the issue of blocking.  Blocking is Issue II.   The parties in their briefs distinguished whether Caller ID itself was a basic local exchange service or blocking was separate.  Tried to take out all the blocking and put it in a separate issue. Commissioner Nelson said he cannot find that Caller ID is part of the basic local exchange.  It is not necessary for provision of access lines or associated transmission of two-way interactive switching communication.  While it is part of SS7 and SS7 is used to provide local service, it goes right along with it but it is a separate transmission as he sees it. Commissioner Miller said he thought notwithstanding everyone's efforts to get Caller ID into that statute, the violence to the statute to get Caller ID into it even if you want to get it, it is impossible to do.  Staff's effort to create an inequity and solve that based on customer expectation as to high quality service is a good effort but first he thought, really the statute is not ambiguous and don't think you would resolve it in legal question by determining what most people think the law ought to be.  If we go through the staff's arguments, they are relevant to other topics, but don't think that can get you into Title 62 jurisdiction. Commissioner Smith said she basically concurred.  Words of the statute mean what they say "provision of access lines to residential and small business customers with the associated transmission of two-way interactive switched voice communication within a local exchange area".  To her, Caller ID just doesn't make it in that definition.  Would suggest that what we need to do is look at the findings proposed by US West and see if they meet what we think they ought to, or add or subtract but use them as the basis for decision on that issue. -4- Commissioner Miller said he would rewrite some of them to take the telephonease and advocacy out of them.  Wouldn't use 7 and 8.  When we get to the thought in #7, have other ideas.  Didn't think #8 was relative.  Disagreed with #11 that these classes are like other custom calling services.  They are much different in terms of service they provide and the issues they impact.  Don't think it is really necessary to make that finding to get to where we want to be.  Would want to take out #26, #27 and #29.   Could discuss blocking first, though.  Want to get to under 61-302, we do have some authority.  Have some findings there. Issue II.  Is Caller ID blocking within the definition of "basic local exchange service" as defined in Idaho Code 62-603(1)? The arguments were all the same as the previous issue.  Set out those arguments.  Staff did conclude that it needs to be regulated.   Commissioner Miller said he thought the same reasons you could not fit Caller ID into it, you can't fit blocking into it either. Commissioner Nelson said he thought there may be a need to have some control over blocking under the safety and convenience statute, but whether the service itself is part of basic local service, don't think it is. Commissioner Miller said so he did with some editorial changes, make the findings on Page 4 under US West.  Having made those, have shown you some proposed additional findings that have the effect of confirming our jurisdiction under 61-302.  (Passed out those findings to the parties)  Basic argument is that a consumer's right to control the way in which information about himself is relayed is part of that customer's comfort, safety and convenience and just as we have previously determined ;we can cover safety, we also have authority to protect health, safety, etc.  Protests in writing and at various public hearings and meetings confirm that people believe that the control of information about themselves comes within that definition and think we have authority to when the company alters the way local telephone service is provided, to assure that that is done in a way that is consistent with safety, health, comfort and convenience, for the public.  In his mind, they have altered the way in which some people now receive local exchange service and Commission has authority to make sure service -5- is offered for the safety, health, etc. of customers.  Under that standard, have authority over the basic local exchange. If the manner in which you propose to do that has some requirements or blocking and how the company provides it, then we probably have a strong ground on which to do that. Mike Gilmore said he would alter that.  It is a different kind of oversight.  It is eliminated, it is still there. Commissioner Smith said to use her comments, modified per Mike Gilmore's suggestion. Commissioner Nelson said that way he is able to get to some control of the fee charge - if we can control part of it. Commissioner Smith said if the service had done nothing to alter how they got local service, but the way they are providing it, does alter basic local service.  We have to look at that. Commissioner Miller said he is comfortable with that. Commissioner Smith asked - what are we supposed to do with blocking so we can get where we want to be? Commissioner Miller said having gotten this far, you could recognize that there are a large number of potential outcomes or ways to structure it, ideas of how blocking should be provided.  At a minimum, per call should be available without charge.  Think the way in which we have tried to protect safety is not sustainable for a long period of time.  To require people to go through this application process, with the embarrassment of it, and require regulators to make individual decisions about who is entitled and who is not is not fair to the people who need it most.  Personal opinion to date, indicates that is not the best way to do it.  Good thing about regulation is once you try something and it doesn't work, you can try something else.  The way he comes out is that per call blocking is probably adequate for most people but there are people who should have access to per line blocking and have already concluded that the application process is not the right way.  In his opinion, a monthly recurring charge is not appropriate there since once it is turned on, nothing is necessary to keep it open.  Monthly charge is only to serve as deterrent to the service.  Also think person who needs this proviso does impose cost of the initial installation.  Can't be more than charge to install Caller ID.  Would   -6- allow per line blocking for a one-time installation charge.  Charge wouldn't have to be more than set-up for Caller ID set-up charge.  DOn't know if comfort, safety jurisdiction give us rate jurisdiction but if it does, that is the way he was thinking about it.  There is no benefit balance in this system, it does maximize customer choice, it is available to everyone, one time monthly charge for enhanced disclosure protection is appropriate because there are costs.  Assume that if it was in the neighborhood of the Caller ID charge it would not be unreasonable.  That is how he gets thru that. Commissioner Smith said another benchmark could be service order charge.  There are some costs associated anytime you make a change in your service. Commissioner Nelson said one of the arguments against that one-time fee is there is no additional charge for any of the class service, but the rationale is different.  Blocking should not be a revenue enhancer. Commissioner Smith said she was assuming the Commission decision only goes to residential and small business.  Asked what other Commissioners wanted to do about pricing?  Leave it up to the company? Commissioner Miller asked Commissioner Smith what she thought. Commissioner Smith said she would favor a service order charge.  Asked Lynn Anderson what that charge was? Lynn Anderson said it varies.  Minimum is $5 or $6. Discussed the various charges. Commissioner Miller asked about ordering Call Waiting, Call Forwarding, etc.? Lynn Anderson said those were $5 to $7. Mike Gilmore said on jurisdiction for pricing, gave 9-1-1 example.  Think Commission has pricing authority.  Think you have residual pricing authority. Commissioner Smith said if it was just safety, would waive it.  but since there are those that speak to privacy, think it is appropriate to have them pay a one-time charge to set that up, whether that is $7, $123, $30 or $35, don't know. -7- Commissioner Nelson said he likes the $12 to $15 range. Eileen Benner responded that most custom-calling charges are $12. **Decision on $12 charge was unanimous. Issue III.  Does the Commission have jurisdiction to consider whether Caller ID is consistent with the policies adopted by the legislature as expressed in the statutory requirements of I.C. 18-6701 et seq? Issue IV is other major issue on rehearing - trace and trap. In review:  Staff position was that the devise itself falls under the definition but took no position. Commissioner Smith said the first question is:  Does Commission even have jurisdiction to consider whether this is a violation of a criminal statute? Commissioner Miller said he thought ICC findings were adoptable on Page 5.  As ACLU has argued in other places, the purpose of this inquiry is not to enforce a criminal statute.  The fact they sometimes find their way into a criminal statute does not lock us out of making that determination.  We look at other types of law.  It was not hard for him to get to the conclusion that we have the authority to investigate and then make our recommendation or request to the appropriate enforcement agency if we thought it was appropriate.  For those reasons, do not have problem with that. Commissioner Nelson said with that definition, almost any private citizen has that authority.  Can go that far.  That gets us back to Commissioner Smith. Commissioner Smith said everyone thinks we have jurisdiction.  Commission always has jurisdiction to determine its own jurisdiction. Mike Gilmore said he would hate to advise you to ignore criminal law. Commissioner Smith said then we get to the issue of whether it is a trap and trace device and prohibited by the section.  Staff said that the equipment constitutes trap and trace but did not take a position on allowance being applicable. -8- Reviewed the ACLU and ICC findings on this.    U S West made alternative recommendations.  Reviewed those. Alternative proposed findings suggest that even if we were to find that it is trap and trace, fit within all the exceptions based on its various attributes.  Have a range of comments. Commissioner Nelson said he leaned toward U S West Exception C.  18-6720  Think it fits the definition of the statute but it is definitely provided by a wire communication service and it has to have the consent of one user.  If we are going to concent of one party being enough, we are there.  Get there on the concent route.  Am there on the obvious concent of the answerer.  Consent of one party is enough in Idaho. Mike Gilmore said it is not a crime in Idaho to record their own conversations.  Statute says one party. Commissioner Miller said he also thought, given the background of the statute, that you shouldn't work too hard to make it cover this service.  As he understands it, federal statute covered Smith v. Maryland.  What it was driving at is coverting government surveillance...The exact language of the statute may make it difficult to see the federal thrust of it.  That is what the statute meant to do.  On what the statute was designed to accomplish, would be very surprised if there was any legitimate intent to get to this.  Know what the drift of it was.  With that knowledge, when you then read the statute, you would construe it to achieve that legislative purpose and not some purpose that wasn't intended.  When I do that, have a hard time saying it is illegal under this statute.  Do think ACLU made as persuasive an argument as could have been made.  Never get over the hurdle of what the statute is designed to do. Commissioner Smith said that is kind of where she comes down also.  Even then, if she were to assume that it is a trap and trace device, believe that she can get there under consent of the user, very easily.  Disagree with whatever party said that the user of the service had to be the calling party not the called party.  Think the called party is a user of the service. Commissioner Nelson said he agreed with that. -9- Commissioner Smith said she thought it was covered by the exception.  Would find that it is not illegal under the statute. Commissioner Miller said if we were roughly going to follow findings 8 and 9, thought 6 and 7 stretched that Greenfield case too far.  Would leave that out. Mike Gilmore asked if commissioners want to speak to trap and trace, using the concent argument? Commissioner Smith said U. S. West wants alternative findings, asked if that would make for a more complete appeal? Mike Gilmore said he personally wouldn't.  Would just find consent. Commissioner Smith said - and let the court decide. Commissioner Miller said he thought Commission should make finding that we think we are supported by the evidence and should not just go out of our way to make findings we do not believe in.  Would be comfortable with Mike Gilmore's approach of making the legislative intent finding and even if it is trap and trace, consent takes care of it. Commissioner Nelson asked where consent is found in the statute? **It is 18-6701 and 6702(d). Item 4 - Lynn Anderson's August 2, 1991 Decision Memorandum re:  U S West Caller ID Line Blocking Transmittal No. 91-10-SC. Commissioner Smith said this could be in place for their Title 62 customers.  Decision made on Caller ID previously was for residential and small business. **Company needs to be told to refile. Mike Gilmore commented that the order the Commissioners sign here should leave little question that it speaks to this transmittal. Commissioner Smith said the Commission's decision on charge for residential and small business in outlined in the order and we will be directing the Company to file a price list - leaving out residential. **$12 charge will be prospective. -10- Commissioner Miller said on the effective date of the order, would have certification cease. Meeting adjourned at 2:40 p.m.         DATED at Boise, Idaho this       day of August, 1991.                           PRESIDENT                           COMMISSIONER                           COMMISSIONER ATTEST:                               Commission Secretary 0058M