19920110.docx

MINUTES OF DECISION MEETING
January 10, 1992 - 1:30 p.m.
In attendance:
Commissioners Marsha H. Smith, Joe Miller and Ralph Nelson and staff members, Mike Gilmore, Belinda Anderson, Tonya Clark, Birdelle Brown, Lynn Anderson, Gary Richardson, Syd Lansing, Eileen Benner and Myrna Walters.
Commissioner Smith announced that this was a continuation of the January 7, 1992 Decision Meeting.
Commissioner Smith asked Birdelle Brown if Tariff Advice Nos. 91-8-S and 91-11-N now looked okay to her?
Birdelle Brown said she didn't see anything that is an issue big enough to argue over.
Commissioner Nelson asked if based on the projected revenues, don't see any reason to now approve it?
Commissioner Miller asked about customer notice, has there been any?
Birdelle Brown said there hasn't been any customer notice.  Company indicates they have a promotion plan ready as soon as the Commission approves the tariffs.
It doesn't have any effect on anything in existence now.
Commissioner Miller asked - so we really don't know if the potential customers for this service agree with the configuration or not?
Commissioner Nelson said there are only potential customers.
Birdelle Brown said it is her understanding that customers have asked for this.  To her knowledge there are no existing customers.
Commissioner Miller suggested approving it and if there are any problems we will hear about it.
All commissioners agreed.
Commissioner Smith said the next held item to be considered is:  GNR-T-91-10--The "Private-Line Investigation" for AT&T Service between Lewiston and Moscow.
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Commissioner Miller suggested reviewing the matter.  Said at prehearing conference, AT&T raised the jurisdiction issue and proposed settlement.  Since Commissioner Smith wasn't there, deferred the jurisdiction question and at the same time asked staff and anybody else interested to file a brief on AT&T's questions.  Staff did that.  Then the question came back for the Commissioners in a decision meeting.  As to the actual settlement, agree, for three customers.  At that time the Commission wasn't ready to grapple with jurisdictional issues but approved settlement on an interim basis pending further decision on the jurisdiction question.
Jurisdiction question is essentially that AT&T argues that by virtue of a close reading of the language of the statute, what the legislature actually did is remove private line service from Title 61 and not only from its apparent status as '62 but removed it entirely from Commission regulation.  Under AT&T's theory there are three services - Title 61, Title 62 and those that are nothing.  That theory applies to services that existed at the time of the enactment of the statute.  The question before the Commission is how to proceed upon that argument?  Seems like the Commission's options are to say, you are right, that is what the legislature intended or say that is a very interesting question and we don't have to take it up now.  Or to say no, we are not sure what the legislature intended but know they didn't intend a third category; therefore the only outcome would be to say AT&T would have to file a tariff for this service as a Title 61 service and file supporting cost justification to allow us to conclude that the settlement is reasonable and the rates charged are appropriate to Title 61.
Commissioner Nelson said we are now at the point where we have said the settlement is reasonable to be determined at a later date and have to decide which way to go.
Commissioner Miller said his preferred option is the third option.  Just don't think that the legislature intended that result and even though it is our general practice not to decide anymore than we have to in any one case and avoid as many confrontations with the companies as we can, at some time we have to assert ourselves and think this question needs to be answered and this is a good place to get it answered.
Commissioner Nelson said this instant case is one in which to decide the question.
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Commissioner Smith said it is her impression and her memory that at the time the Telecommunications Act was discussed, and the Commission was given the authority if there were complaints on services previously regulated, that the Commission couldn't look at that.  Don't think it was ever contemplated.
Discussed requiring tariff filing - don't want to stop settlement process - don't think this order should reject that.
Could require tariff setting out rates proposed by settlement.
Commissioner Nelson asked if finding has to be made to  bring it back under Title 61?
Commissioner Miller said they are arguing that it left 61 and went to never, never land.
Commissioner Nelson said by prior definition it was Title 61.
Mike Gilmore said there were no services defined, only telephone operating plant.
They argued to move their operation to Title 61.
Commissioner Miller said telecommunication services is a term defined in the statute and it is switched two-way interactive and on the surface did not appear to include private line service so when they create this new definition of what are telephone services and are moved to 62, everything then being offered that was not moved, stayed in 61.  AT&T's theory is everything else is moved to Title 62, everything else that wasn't went into the third category, nothing.
Mike Gilmore clarified.  
Commissioner Nelson said if we construe the order the way Commissioner Miller suggests, we are bound to get a lot of help on definitions.
Commissioner Smith said she would like Mike Gilmore to take a shot at an order and commissioners can fine tune the theory and language.
**All Commissioners are agreed on their general direction.
Commissioner Smith said it seemed to her telecommunications service should either be 61 or 62.
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Don't think anyone contemplated these.
Mike Gilmore said private line is a telephone service but not a telecommunications service.
Adjourned the meeting.
Dated at Boise, Idaho, this 11th day of February, 1992.
Myrna J. Walters
Commission Secretary
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