HomeMy WebLinkAbout28187.docBEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE PETITION OF IDAHO POWER COMPANY FOR A DECLARATORY ORDER DETERMINING THE JURISDICTION OF THE COMMMISSION OVER THE LEASING OF FIBER OPTIC AND METALLIC CONDUCTOR CABLES )
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) CASE NO. IPC-E-99-10
ORDER NO. 28187
On August 30, 1999, Idaho Power Company filed a Petition for Declaratory Order, pursuant to Rule 101 of the Commission’s Rules of Procedure, IDAPA 31.01.01, requesting the Commission determine that the leasing of dark optical fibers and “dead” metallic conductors in cable owned by Idaho Power is not the provision of telecommunications service subject to the provisions of the Telecommunications Act of 1988 (Idaho Code, Title 62, Chapter 6). The Petition states that the proposed service for the Twin Falls School District and St. Alphonsus Hospital/Intermountain Imaging Center will not include the electronic equipment which would be required to send or receive data over the communication conductors; hence the terms dark fiber and “dead” conductors.
On September 15, 1999, the Commission ordered the Petition be processed under Modified Procedure. Order No. 28154. On October 18, 1999, U S WEST Communications, Inc. and Staff filed comments. On October 19, 1999, Troy Telephone Company and Potlatch Telephone Company filed joint Comments. On October 19, 1999, Idaho Power filed a response.
Based on the Commission record, the comments and the law, the Commission determines that, given the specific facts in this case, Idaho Power’s leasing of dark fiber and the use of its right-of-way does not subject Idaho Power to Commission jurisdiction under Idaho Code, Title 62, Chapter 6.
BACKGROUND
Idaho Power previously filed three similar Petitions with the Commission relating to dark fiber services provided by Idaho Power to the state of Idaho, city of Boise, Albertsons, CSHQA and Trus Joist McMillan. In those previous cases, the Commission ruled that the provision of dark fiber services did not constitute telecommunication services pursuant to Title 62 of the Idaho Code. See Order Nos. 25425, 26514 and 26933.
In Case No. IPC-E-93-31, the Commission ruled that:
Given the specific facts of this case, we agree with the parties that leasing dark fiber that does not access the public switched network to a single-party is not the provision of telecommunications services as defined in Idaho Code § 62-603(9). Our determination in this matter is based strictly upon the particular facts of this case.
Order No. 25425 at p. 4.
Similarly, in Order No. 26514, issued on July 12, 1996, in Case No. IPC-E-96-9, the Commission ruled that leasing of dark fiber by Idaho Power to Albertsons and the city of Boise did not constitute communication services because Idaho Power “was not involved in the transmission of data, nor was it offering the service to the public.” Order No. 26514 at p. 3. The Commission further ruled that although Idaho Power was leasing its dark fiber to more than one customer, it would not be transmitting signals over the optic fiber and, therefore, Idaho Power was acting as a “cable installer” and did not meet the statutory definition of a telephone corporation. Id.
Finally, in Order No. 26933, the Commission again ruled that Idaho Power’s dark fiber offering to CSHQA and Trus Joist McMillan was similar to the services provided to the state of Idaho, city of Boise and Albertsons. As a result, it ruled that the leasing of dark fiber service to CSHQA and Trus Joist McMillan by Idaho Power, based on the facts identified in the Idaho Power’s Petition, did not constitute the providing of telecommunication services pursuant to Title 62 of the Idaho Code.
IDAHO POWER’S PETITION
According to Idaho Power’s Petition, the Twin Falls School District and St. Alphonsus Hospital requested Idaho Power provide dark fiber and “dead” metallic conductor cable owned by Idaho Power to them. Idaho Power stated that the proposed service for these customers will not include the electronic equipment which would be required to send or receive data over the communication conductors.
Idaho Power stated that the Twin Falls School District intends to use the dark fiber to link its local area network (LAN) to the Twin Falls High School data network to form a wide area network (WAN) to provide E-mail, student administration, Internet access and an educational software database. The total length of fiber to be leased would be approximately 12,900 feet.
St. Alphonsus Hospital and the Intermountain Imaging Center are requesting installation of at least a twelve (12) singlemode fiber optic cable between St. Alphonsus Hospital located on 999 N. Curtis Road, Boise, and the Intermountain Imaging Center at 927 W. Myrtle, Boise. This is a distance of approximately four (4) miles. St. Alphonsus Hospital will lease four (4) singlemode fibers as dark fibers. The fiber optic cable will be attached to Idaho Power’s distribution structures, transmission structures and pulled into innerducts inside Idaho Power’s underground conduit system. Idaho Power does not indicate whether all four (4) miles of twelve (12) singlemode fiber optic cable will be laid in Idaho Power’s right-of-way.
Idaho Power seeks a declaration from the Commission as to whether the leasing to the Twin Falls School District and St. Alphonsus Hospital of one or more dark optical fibers and cable owned by Idaho Power constitutes the providing of telecommunication services under Title 62, Chapter 6 of the Idaho Code. If the Commission determines it is the provision of telecommunication services under Title 62, Chapter 6 of the Idaho Code, Idaho Power requests the Commission indicate what regulatory requirements must be met by Idaho Power. Idaho Power also requested the order not be limited to this particular transaction but be a general order determining that this type of activity is not the provision of telecommunication services, obviating the need to file future Petitions for Declaratory rulings.
COMMENTS
1. Staff
Staff commented that the services proposed to be furnished to the Twin Falls School District and to St. Alphonsus Hospital by Idaho Power are basically the same as those approved by the Commission in earlier cases. Therefore, Staff recommended the Commission issue a generic declaratory Order finding that leasing or laying dark fiber and “dead” metallic conductor cable is not a telecommunications service subject to Titles 61 or 62 of the Idaho Code provided Idaho Power is not involved in the transmission of data or signals over the optic fiber, does not access the public switched network to a single-party, the service does not include the electronic equipment which would be required to send or receive data over the communication conductors and is not offering that type of service to the public for compensation. Staff recommended that the declaratory Order be generic to obviate the need to create a new case for each additional provision of dark fiber.
Because Idaho Power is using its own right-of-way, conduits and fiber, Staff further recommended that the Order clarify that this Order does not affect the need for an Application pursuant to Idaho Code § 61-328 in appropriate cases – where the electric utility is leasing or otherwise transferring the “operation, management or control” of its own fiber, conduits (or portion thereof) and/or right-of-way. Staff pointed out that Idaho Code § 61-328 provides, in relevant part, as follows:
No electric public utility or electrical corporation as defined in chapter 1, title 61, Idaho Code, owning, controlling or operating any property located in this state which is used in the generation, transmission, distribution or supply of electric power and energy to the public or any portion thereof, shall sell, assign or transfer, directly or indirectly, in any manner whatsoever, any such property or interest therein, or the operation, management or control thereof, . . . except when authorized to do so by order of the public utilities commission of the state of Idaho. . . .
Idaho Code § 61-328 (emphasis added). Staff argued that where the right-of-way and dark fiber are property owned by the utility, the lease or transfer of the control, operation or management of that property is subject to Idaho Code § 61-328 and the utility can only proceed after the Commission authorizes the use of this utility property. Moreover, Staff noted that at least one other power company has created a subsidiary to provide telecommunications services in Idaho and that there is no indication that it has applied to the Commission to transfer or lease utility property pursuant to Idaho Code § 61 328. In addition, if the Commission issues an order, Staff stated it will send copies of the order to all electric utilities.
Finally, Staff reviewed Idaho Power’s analysis concerning the Twin Falls School District and St. Alphonsus Hospital/Intermountain Imaging Center requests. Based on that review, Staff concluded that these contracts require lease payments sufficient to cover Idaho Power’s costs including a return. Staff further recommended that the Order make clear that the Order does not constitute formal approval of rate base treatment for dark fiber services provided by Idaho Power either in this Petition or in future activities
2. U S WEST
U S WEST opposes Idaho Power’s request and, just as it did in Case No. IPC E 97 1, contends that Idaho Power is providing a service which competes directly with “private line” services provided by U S WEST and others regulated by the Commission under Title 62. As it did in the previous case, U S WEST concedes that private line services do not technically meet the statutory definition of “telecommunication services” in that they do not involve the transmission of two-way, interactive, switched signals. Instead, it argues that this is inconsistent with the Commission’s decision in Case No. GNR-T-91-10.
Because in providing the facilities, Idaho Power will be using its rights-of-way secured pursuant to its public utility status, U S WEST argues that in this respect, Idaho Power is in a unique position with an advantage over other competitors who might attempt to meet the needs of customers like St. Alphonsus and the Twin Falls School District. U S WEST points out that any other cable construction or installation firm would lack access to a public right-of-way that Idaho Power, as a regulated electric utility, now has. Moreover, any telephone corporation that could gain access to such rights-of-way would be subject to the Commission’s regulation under Titles 61 and/or 62 of the Idaho Code. U S WEST Comments at 6. This is the same argument made by U S WEST in Case No. IPC E 97 1.
Finally, U S WEST contends that the increasing use by large customers of alternative telecommunications arrangements, including those at issue in this case, will have an effect on universal service considerations.
In its conclusion, U S WEST does not ask the Commission to deny Idaho Power’s Application in this case. Rather, based upon the foregoing concerns, it urges this Commission to continue its case-by-case approach in this docket, delay decision until there is more information regarding the facts in this case and initiate a rulemaking concerning provision of dark fiber services.
3. Troy Telephone Company and Potlatch Telephone Company
Troy and Potlatch both adopt U S WEST’s arguments. They request any decision be limited to the specific facts and suggest that rather than issuing a generic order, the Commission should establish its policy on dark fiber through a rulemaking proceeding. Like U S WEST, Troy and Potlatch request the Commission to delay its decision in this case to allow the record to be more fully developed.
4. Idaho Power Response
Idaho Power disagreed with Staff’s contention that Idaho Code § 61-328 requires electric utilities to apply for approval from the Commission before transferring the control or management of utility property right of ways or fiber to any other party. In support of its position, Idaho Power cited Idaho Power Co. v. State, 661 P.2d 741, 104 Idaho 575 (1983) for the proposition that the Idaho Supreme Court ruled that “§§ 61-327 to 61-331 must be read reasonably and in light of the results which are desired to be obtained, i.e., regulation of utility service.” Idaho Power Response at 2. Idaho Power argued that the Legislature only intended to “regulate the transfer of utility operating property to entities which are not subject to the jurisdiction of the State of Idaho and/or the Idaho Public Utilities Commission” and suggested that the statute only applies when title transfers to another entity. Finally, Idaho Power suggested that Idaho Code § 61-538 is a “recognition by the Idaho legislature that over the years public utilities have permitted the use of its [sic] rights of way and facilities for communication service.” Idaho Power Response at 3.
Idaho Power also disagreed with U S WEST’s Comments. It suggested that the issues raised by U S WEST are essentially policy issues that should be considered by the state and federal legislative bodies.
Therefore, Idaho Power requested the Commission issue a generic order declaring that providing dark fiber or dead metallic conductor cable is not a telecommunications service subject to Title 61 or Title 62 provided the service does not include the electronic equipment which would be required to send or receive data over the communications conductors. It recognized that the order would not constitute final approval of rate-based treatment for dark fiber service. It also requested that the Commission reject Staff’s position that such service may be subject to the requirements of Idaho Code § 61-328 and find that providing dark fiber and dead metallic conductor cables is not the transfer of property subject to that statutory requirement.
FINDINGS
The Commission has jurisdiction over this matter by virtue of Idaho Code §§ 61-501, 62-614, and 62-619 and Grever v. Idaho Telephone Co., 94 Idaho 900, 499 P.2d 1256 (1972). Moreover, the Commission has authority to consider the Petition for Declaratory Order pursuant to Rule 101 of the Commission’s Rules of Procedure, IDAPA 31.01.01.
Initially, the Commission finds that Idaho Power’s Petition satisfies the technical requirements of Rule 101. Idaho Power’s Petition in this case does not necessitate that the Commission resolve issues of a factual nature. Rather, the Commission must simply determine whether, based upon the factual scenario posed in Idaho Power’s Petition, Idaho Power’s proposed conduct regarding the leasing of dark fiber or metallic conductors constitutes telecommunication services for purposes of Title 62 of the Idaho Code. Idaho Code § 62 603(13) defines the term “telecommunication service” as follows:
(13) “Telecommunication service” means the transmission of two way interactive switched signs, signals, writing, images, sounds, messages, data, or other information of any nature by wire, radio, lightwaves, or other electromagnetic means (which includes message telecommunication service and access service), which originate and terminate in this state, and are offered to or for the public, or some portion thereof, for compensation. “Telecommunication service” does not include the one way transmission to subscribers of (i) video programming, or (ii) other programming service, and subscriber interaction, if any, which is required for the selection of such video programming or other programming service, surveying, or the provision of radio paging, mobile radio telecommunication services, answering services (including computerized or otherwise automated answering or voice message services), and such services shall not be subject to the provisions of title 61, Idaho Code, or title 62, Idaho Code.
Moreover, Idaho Code § 62 603(14) defines a “telephone corporation” as “every corporation . . . providing telecommunication services for compensation within this state.” Furthermore, § 62-605(3) of the Idaho Code permits competition as to those services which have been excluded from regulation under Title 61 of the Code.
In Case No. IPC-E-93-31, Idaho Power petitioned this Commission for a declaratory Order that the leasing of dark optical fibers to the state of Idaho did not constitute telecommunication services under Title 62 of the Idaho Code. In Order No. 25425 issued in that case on March 11, 1994, the Commission stated: “Given the specific facts of this case, we agree with the parties that leasing dark fiber that does not access the public switched network to a single-party is not the provision of telecommunications services as defined in Idaho Code § 62-603(9). Our determination in this matter is based strictly upon the particular facts of this case.” Order No. 25425 at p. 4.
Similarly, in Order No. 26514, issued on July 12, 1996, in Case No. IPC-E-96-9, the Commission ruled that leasing of dark fiber by Idaho Power to Albertsons and the city of Boise did not constitute, communication services because Idaho Power “was not involved in the transmission of data, nor was it offering the service to the public.” Order No. 26514 at p. 3. The Commission ruled that although Idaho Power was leasing its dark fiber to more than one customer, this fact was not determinative because it was undisputed that Idaho Power would not be transmitting signals over the optic fiber. Consequently, Idaho Power fell into the category of a “cable installer” and did not meet the statutory definition of a telephone corporation. Id.
In Order No. 26933, the Commission ruled that Idaho Power’s dark fiber offering to CSHQA and Trus Joist McMillan was similar to the services provided to the state of Idaho, city of Boise and Albertsons. Therefore, the Commission found that the same legal conclusion should be reached in that proceeding; that is, that the leasing of dark fiber service to CSHQA and Trus Joist McMillan by Idaho Power Company, based on the facts identified in Idaho Power’s Petition, did not constitute the providing of telecommunication services pursuant to Title 62 of the Idaho Code. Order No. 26933 at 8.
This case presents facts similar to those facts found in each of the preceding cases. Nothing in the Petition indicates that the services being proposed by Idaho Power to be furnished to the Twin Falls School District or St. Alphonsus Hospital are significantly different from those described in earlier cases. Because the cases are factually similar and because the law has not changed since those earlier orders, the Commission finds that the same legal conclusion should be reached in this proceeding; that is, that the leasing of dark fiber service to the Twin Falls School District or St. Alphonsus Hospital by Idaho Power does not constitute the providing of telecommunication services pursuant to Title 62 of the Idaho Code.
The Commission further finds that it makes no judgment at this time concerning the treatment of the costs and revenues related to the dark fiber service in determining Idaho Power’s electric rates.
The Commission shares U S WEST’s, Troy’s and Potlatch’s concerns that it not issue a generic order and that it continue to review these activities case-by-case. While there is merit to Idaho Power’s and Staff’s request that a more generic order be issued, the Commission is mindful of Staff’s concern about the fact that many electric utilities are moving into the telecommunications arena. Therefore, the Commission believes that it is more appropriate to continue to require utilities that lease dark fiber, dead metallic conductors or right-of-ways to parties to request a declaratory order finding that such activities are not the provision of telecommunication services pursuant to Title 62 of the Idaho Code.
The Commission does not reach the issue of whether an electric utility subject to this Commission’s jurisdiction that leases or otherwise makes available electric utility property, including dark fiber, “dead” metallic conductors or the utility right-of-way, “used in the generation, transmission, distribution or supply of electric power and energy to the public” to another entity is required to apply for approval to do so pursuant to Idaho Code § 61-328.
O R D E R
IT IS HEREBY ORDERED that the leasing of dark fibers and metallic conductors to the Twin Falls School District and St. Alphonsus Hospital/Intermountain Imaging Center, as specifically proposed in Idaho Power’s Petition in this case, does not constitute the provision of telecommunication services pursuant to Title 62 of the Idaho Code.
IT IS FURTHER ORDERED that this authorization is without prejudice to the regulatory authority of this Commission with respect to rates, service, accounts, valuation, estimates, or determination of costs, or any other matter that may come before this Commission pursuant to this jurisdiction and authority as provided by law.
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally decided by this Order) or in interlocutory Orders previously issued in this Case No. IPC-E-99-10 may petition for reconsideration within twenty-one (21) days of the service date of this Order with regard to any matter decided in this Order or in interlocutory Orders previously issued in this Case No. IPC-E-99-10. Within seven (7) days after any person has petitioned for reconsideration, any other person may cross-petition for reconsideration. See Idaho Code § 61 626.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this day of October 1999.
DENNIS S. HANSEN, PRESIDENT
MARSHA H. SMITH, COMMISSIONER
PAUL KJELLANDER, COMMISSIONER
ATTEST:
Myrna J. Walters
Commission Secretary
O:ipce9910_cc2
ORDER NO. 28187 1
Office of the Secretary
Service Date
October 29, 1999