19930903.docx

MINUTES OF DECISION MEETING
11:00 a.m., September 3, 1993
In attendance were Commissioner Marsha H. Smith, Joe Miller and Ralph Nelson and staff members Brad Purdy, Lori Mann, Don Howell, Gary Richardson, Belinda Anderson, Birdelle Brown, Bob Smith, Jim Long, Stephanie Miller and Myrna Walters.  Also in attendance were representatives of U S West and Intermountain Gas Company.
Items from the September 3, 1993 Decision Meeting Agenda were discussed and acted upon as follows.
Commission President Marsha H. Smith called the meeting to order.
Items 2 and 4 were held at this time.
 Item 7A - Don Howell's September 3, 1993 Decision Memorandum re:  CPI Complaint Against U S West Concerning the Billing and Provisioning of Centrex, Case No. USW-S-93-3.
Also indicated that Item 7A will not be taken up this morning.  Will decide if it will be considered after lunch or later.
1.  Regulated Carrier Division Agenda dated September 3, 1993.
Approved.
3.  Birdelle Brown's August 30, 1993 Decision Memorandum re:  U S West Advice 93-7-N to Remove 19 Pages of Technical Information, effective September 25, 1993..
Birdelle Brown explained the filing.
Commissioners approved Advice 93-7-N.
5.  Brad Purdy's August 31, 1993 Decision Memorandum re:  Case No. GNR-W-93-2:  Coeur d'Alene Industrial Park Property Owners Association's Request to Withdraw Complaint.
Approved withdrawal.
6.  Brad Purdy's September 1, 1993 Decision Memorandum re:  Case No. PPL-E-93-1:  Procedure in Pacificorp's Application to Change its Demand Meter Intervals for Larger Customers.
Staff recommended modified procedure.
Commissioner Miller asked - in comments, will staff propose an implementation plan?  That appears to be staff's concern.
-2-
Brad Purdy said staff and company are still in the process of coming to an agreement.  May be an agreement during the modified.  Wanted to get it out to the people most likely to be hit by this.
Commissioner Miller asked about irrigators?  Would it affect them?
Brad Purdy said they would fall into that category.
**Decision was to put it out on modified, for comment.
7.  Brad Purdy's September 1, 1993 Decision Memorandum re:  Case No. WWP-E-93-10:  Washington Water Power's Request for an Interim Avoided Cost Rate.
Commissioner Nelson said he liked Option 1.
Commissioner Smith said given the response, first have to have a hearing and they would have to demonstrate some harm in order to get the lower rate.  Didn't know what kind of direction we give them if we solicit comments.  Why will they respond?
Commissioner Miller said he had some of the same thoughts.  If you have a hearing on interim rate, it almost seems that would become the hearing on adjusting the rates.  Another approach would be to deny the interim rate, set the matter for hearing on substance as soon as we possibly can.  Don't see the point of having two hearings.  
Commissioner Nelson said based on the response we got, he would deny the request for interim.
Commissioner Miller said - having done that, should get to the hearing on the real merits as soon as possible.
Brad Purdy will do a notice of scheduling as soon as possible.  Suggested a prehearing conference.
Commissioner Smith said she thought a prehearing would be a warm up.
Brad Purdy said he thought the need was to clarify the issues.
**Can do it in Boise.
Commissioner Nelson said he thought a telephone conference could do scheduling.
-3-
Commissioner Miller said if there are issue clarifications, could do regular prehearing.
Will do regular prehearing.
8.  Terri Carlock's September 1, 1993 Decision Memorandum re:  Intermountain Gas Company's Request to Issue $30,000,000 Senior Debentures; Case No. INT-G-93-2.
Commissioner Miller said he would accept staff recommendation.
Okayed by Commissioners Smith and Nelson also.
9.  Brad Purdy's September 1, 1993 Decision Memorandum re:  Case No. BOI-W-93-1:  Petitions for Reconsideration in Boise Water General Rate Case.
Sharon Ullman's request was okayed.
Commissioner Smith explained Boise Water's request to alter the seasonal timing.
Commissioner Miller said staff recommends we are so close to the end of the season we can ask them to file next year to accomplish this.  It would be better to do that rather than hold back the summer rate, given the customer confusion.  Said he preferred to tell the company to get a tariff in here that works for next year.
Commissioner Nelson said he thought it was a good idea.
Commissioner Smith said to thank them for clearing up mis-information and say we are excited about that and think we can have something in place for next season that will be convenient.
**Deny Boise Water's petition.  Grant Sharon Ullman's.
Commissioner Miller asked how important it was to do CPI today?
Don Howell explained.  The individuals involved serve apartments at Ricks College.  Originally thought it could be handled before students arrived.
Commissioner Miller said he didn't think he had enough information to decide.
Don Howell said company has provided us with some information.
-4-
Commissioner Miller asked - do we have to make a decision today?
Asked if Don Howell was asking to have it decided on the merits of the pleadings or do something further?
Don Howell said the main issue is - is CPI a reseller?
Commissioner Miller asked what would happen if we defer on CPI until the 14th?
Commissioner Miller asked about MPC being deferred until the 14th.
**Concern is that he is going to continue doing what he is doing.
Commissioner Miller said he guessed he could discuss this, this afternoon, can preliminarily discuss it.
Meeting was adjourned, to be reconvened at 1:00 p.m.
Reconvened at 1:00 p.m., September 3, 1993.
In attendance at this time were Commissioners Marsha H. Smith, Joe Miller and Ralph Nelson and staff members Eileen Benner, Lori Mann, Brad Purdy, Don Howell, Mary Friddle, Jim Long, Belinda Anderson, Bev Barker, Stephanie Miller, Joe Cusick and Myrna Walters.
First item of business was that Commissioner Smith announced the Commission has adopted a Policy and Procedure re  Notice of Public Meetings.  It will be circulated to all staff members.  It states that we must give notice of meetings at least 7 days in advance of meetings.  There is a process here for folks setting up meetings to speak to more than one Commissioner at a time.  Myrna Walters, Commission Secretary, is going to send a letter to our utilities list to help them better plan for appointments.
Commissioners then considered Item 2 from the Agenda.  Caldwell Transportation Company - Case No. M-7203-10 - Application for authority to suspend a portion of their authority.
Commissioner Smith asked if the Chair had a recommendation?
Commissioner Miller said the Chair will exercise letting the other Commissioners speak.
-5-
Commissioner Nelson said he thought the majority of the testimony two weeks ago went to the proposition that yes there was some competition for Caldwell Transportation but it was effective competition because it was cheaper and more convenient; that the reason they weren't riding the bus was because it was more expensive and less convenient.  Felt as far as the application goes there was adequate showing that Caldwell Transportation was losing money on the route and should be allowed to suspend service.
Commissioner Smith said her thoughts were that she would like there to be bus service and it is useful, but that we could not require Caldwell Transportation to continue in a line of business that is essentially not profitable for them and while the staff made an argument that you could look at the business as a whole and as long as the business as a whole was not losing money, you could require this service, just thought in this case where even if you don't allocate overhead and common and joint costs to this service, it still loses money; and that that wasn't a wise thing to do.  Would not change our decision to allow them to voluntarily suspend the service.  Whether you limit that to one year... it just seems we could direct the staff to work with Mr. Behnke or Caldwell Bus or whoever will still be working on the problem.  Think there are enough people who would like to find a solution.  Don't think we need to have it expire in a year.  Bus company desires to get back in the business if they do not lose money.  Think that effort ought to continue even though we allow the suspension.
**Have staff continue to work with them.
Commissioner Miller said he was frustrated by our institutional limits in that there are all sorts of public interest reasons why that service ought to exist and where there ought to be better public transportation, more in the nature of non-automotive mass transportation in the Boise/Caldwell/Nampa corridor.  Is frustrated by allowing this service to be discontinued we would take away a service that ought to be there.  Is concerned that by allowing the service to be continued you create a high probability that it will not be revived.  Service will shift to other things.  For a variety of other reasons, even though he thought the staff/task force idea is good, wish there was more we could do.  Don't know if PUC has enough capability to bring together the people to make this work.  Think we should try.  Perhaps it will work.  Maybe there is nothing more that can be done.  To him, it would be better before we approve the termination or suspension, to have something clearer in mind of what we are going to try to accomplish;
-6-
rather than just turning it over to a task force, there is real potential for it just dying a slow death otherwise.  Didn't know what could be done here.  Said - what if you allowed it to be suspended and say there is a group in place looking at the possibility of creating a successful substitute for the service?  Maybe nothing can be done along those lines.
Mary Friddle explained that was why they recommended a one-year suspension.
Commissioner Nelson asked - how are you going to get past the fact that the figures show without full bus, they are still losing money?
Mary Friddle said she thought there were other suggestions - subsidization, billboards, etc. - cost reductions.
Commissioner Smith said the thing that she would think about is, do we want this only directed at making Caldwell Transportation run a bus?  Seemed some of the options do not involve this company and yet would be an adequate substitute.  If she really wanted to be a devil's advocate, would say the van pool has already provided an adequate alternative for previous bus customers.  Nearly all of them have found places on vans.  Agree from a public policy point of view, mass transportation ought to be there.  Liked the scheduled rate, the pay per ride, wonder who we are creating it for when they didn't use it before.
Mary Friddle said they would have to increase ridership and bring cost down.  
Bob Smith said currently General Brooks is the Mayor's consultant on public transportation.  He intends to bring in the county governments to look at the mass transportation issue as a whole for the Treasure Valley.
Mary Friddle said she was also going to talk to him.
Commissioner Miller said we are not a transportation planning agency.
Bob Smith said the costs could be nearly half if they could eliminate that deadhead from Boise back to Caldwell.
Mary Friddle said - or if they could haul freight back.
Commissioner Miller said he liked staff's suggestion of a year suspension and staff, etc. looking at ways to revise it.
-7-
Commissioner Smith said - or we could require staff to report back and make recommendation.
Commissioner Miller said - can't compel it to continue to operate with the ridership, etc.  It is frustrating that this is the end of it at the PUC.  Wish we had broader authority.  
4.  Belinda Anderson and Jim Long's September 1, 1993 Decision Memorandum re:  Staff's Investigation and Consumer Complaints against Mountain Phone Company-West (MPC West).
Commissioner Smith said Belinda Anderson wants the Commission to disconnect him - can we do that?
Brad Purdy said we can.
Belinda Anderson pointed the Commissioners to Rule 213.
Commissioner Miller said he was unsure with the way these rules are written, could you terminate those stations found to be in violation or could terminate all of them even if they weren't in violation.
Brad Purdy said - (1) the rules provide for termination; (2) general statutory authority to seek a permanent injunction for violation of these rule, order, etc.  If you go the latter avenue you can look at the rule, and technically any violation of any rule can be prosecuted in District Court.
Commissioner Miller asked if Brad Purdy had looked to see if Title 61 remedies applied to companies like these?  Payphones are Title 62s.
Don Howell said he thought one of the latter sections of the Telecommunications Act says Commission can use any remedy under 61.
62-620 is the Section.
Commissioner Miller said there is no injunctive relief in 62.
Brad Purdy said if that is the case, that takes us back to the rules violation.  
Belinda Anderson spoke to OPS and payphone rules.
Commissioner Miller asked if the Job Corps was in compliance?
Jim Long said they were not.
-8-
Commissioner Miller said putting aside the customer complaints, because of staff investigation - quoted violations.  If we had to focus on what we had to prove, those are the instances?
Jim Long said today.  Beyond that we would have to rely on customer complaints.
Commissioner Miller asked Brad Purdy what they would take to court?
Brad Purdy said staff has talked to a prior employee about violations he has observed.  This employee if he is subpoened, will testify.  That would be our direct evidence.  That and staff's testimony.
Stephanie Miller asked if the first step would be to issue an order to this company, for them to show cause why they shouldn't be disconnected totally?  Utilities don't have the same thing as motor carriers.  Seems we have a fitness question here.  Can we work with that?  We have to create a record here to show that this guy should not be in the business like he is.
Brad Purdy said - you talk about a first step, this is new to him.  In terms of what to do for a first step, technically don't know if show cause is specifically provided for.  You could adopt that as an intermediate step.  You can give the provider any way you want to to come forward.  The problem with this guy is he has the ability to program his phones from his desk.  He programs them so that after hours and weekend he does these things.  Monday morning it comes on line so the violations aren't there.    Staff has checked them after hours.  If you have him come forward he can remedy everything and go back to his office and create the same violations in a matter of minutes.  He can come up with a clean system.
Commissioner Miller said he wondered if you should look at, our enforcement authority is pretty limited.  Wonder if AG's office - Consumer Protection Division isn't a better arena.  This is really consumer fraud.  It is an unfair and deceptive business.
Commissioner Miller said - discriminatory practices.  All those things add up to disceptive treatment practices.
Brad Purdy said there is a private attorney trying to get a RICO action against him.  Don't think this prevents you from terminating service.
Commissioner Smith asked - could we somehow tell this company that based on their past practices that any time
-9-
we find a phone that doesn't comply, we will disconnect it.  Can we immediately shut the phone off?
Belinda Anderson spoke to the consent agreement.  Spoke to subpoena of International Pacific's records.  Then we could clearly see what complaints were logged during that time period.  He did sign the consent agreement.
Brad Purdy said we want to be comfortable with this decision.  Think you could get an injunction and you could disconnect.
Brad Purdy said if you need some more time to think about it, he could talk to someone else at the AG's office.
Commissioner Smith said maybe what you need is a complaint listing their violations and the Consumer Protection Act - a cooperative-joint effort with the AG's office.
**Complaint will be drafted.
Don Howell spoke to the sanctions that the AG's office can get.
Brad Purdy said that would accomplish essentially what staff would like to accomplish - joint action will cover every angle.
Commissioner Nelson asked - couldn't we order those phones that had violations during the consent to be disconnected?
Commissioner Smith asked - what kind of proceeding are we going to establish to prove the allegations are true?
Belinda Anderson said one thing we have to consider is we have to look at what he is doing for emergency services so he can know longer block emergency services.  Think you can permanent suspend that.
Commissioner smith said we have to give him due process.  He gets to counter what he has been charged with.
**Get a hearing set up on his alleged violation of 911.
Commissioners will join with AG's office.  Have them include our allegations in their process.  They can carry the ball if they so choose.
Eileen Benner asked - would it be possible to include in that suspension hearing, giving a suspension to the 7 day notice so he can be disconnected immediately?  When Jim Long checks it and gives him 7 days notice, it will be corrected.  Say it can be immediately disconnected and it cannot be reconnected.  Nothing has been done to start forcing him off the system.
-10-
Will have to look at waiving that rule for one pay phone operator.
Don Howell said what we really want is permanent injunction  against him.
Belinda Anderson said comments on rulemaking are until the 29th.
Commissioner Miller said he thought the best course is a speedy proceeding here to deal with o-waiver, ask Brad and Don to explore possibility of joint prosecution with the AG's office as a Consumer Protection Act disceptive practice.  We are not set up to be a broad enforcement agency.  All it takes for them to provide service is to file a price list.
Commissioner Smith said - consolidated complaint would be much more effective.
Brad Purdy said in the meantime he would schedule a hearing on his exemption.
**Two phones will be disconnected that do not comply with the rules.  
Question from the audience:  what happens to the consumer in the meantime?  Shouldn't the Commission be concerned about that?
Commissioner Smith said - we are concerned about that.  We do have the authority to do something about that - we could order refunds.
Belinda Anderson said - we could order his billings from his billing agencies.  Get copies of the billing tabs.
Commissioner Smith said - we clearly have authority over prices on price lists.
Birdelle Brown asked who the subscriber was?  Is it an end user?
The subscriber is the long distance provider.  Has been giving refunds.  
**We can continue to process those kinds of complaint.
Commissioner Smith said it seemed like if you got enough of those you could use that as an injunctive action.

-11-
Brad Purdy will talk to Consumer Protection.
Commissioner Miller said - want to be sure we are doing it the right way.
Adjourned at 2:00 p.m.
Dated at Boise, Idaho, this 16th day of November, 1993.
Myrna J. Walters
Commission Secretary
0173M