990910Decision Memo.doc

DECISION MEMORANDUM

TO: COMMISSIONER HANSEN
COMMISSIONER SMITH
COMMISSIONER KJELLANDER
MYRNA WALTERS
STEPHANIE MILLER
TONYA CLARK
RON LAW
TERRI CARLOCK
JOE CUSICK
WAYNE HART
BEV BARKER
WORKING FILE

FROM: CHERI C. COPSEY

DATE: SEPTEMBER 10, 1999

RE: 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; IPC-E-99-10

On August 30, 1999, Idaho Power Company filed a Petition for Declaratory Order 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 customers 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..
BACKGROUND
Idaho Power has 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 telecommunications 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, Twin Falls School District and St. Al’s Hospital requested Idaho Power to provide “dark” fiber and “dead” metallic conductor cable owned by Idaho Power to them. Idaho Power states that Twin Falls School District indicated it would use the dark fiber to link its local area network (LAN) to the Twin Falls High School data network to forma a wide area network (WAN) to provide email, student administration, internet access and an educational software database. The total length of fiber to be leased would be approximately 12,900 feet.
St. Al’s Hospital and the Intermountain Imaging center are requesting installation of at least twelve (12) singlemode fiber optic cable between St. Al’s 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. Al’s Hospital will be leasing 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 also requested the order should not be limited to this particular transaction but be a general order determining that this type of activity is not the provision of telecommunications service.
STAFF RECOMMENDATION
Staff recommends that Idaho Power’s Petition be considered under the Commission’s Modified Procedure.
Commission Decision
Does the Commission order this Petition be considered under Modified Procedure?

Cheri C. Copsey

Staff: Wayne Hart

M:ipce9910_cc1

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