19960906_3.docx

Minutes of Decision Meeting
September 6, 1996 - 1:30 p.m.
In attendance at this time were Commissioners Ralph Nelson, Marsha H. Smith and Dennis Hansen. Also in attendance were staff members Scott Woodbury, Don Howell, Keith Hessing, Weldon Stutzman, Stephanie Miller, Bill Eastlake, Gary Richardson, Randy Lobb, Bev barker and Myrna Walters. Also in attendance were Tom Dukich of WWP; Wayne Booe and Ben Hepler of United Water; Jeannette Bowman of Idaho Power Company; Jim Wozniak of U S West; Sharon Ullman, Intervenor in UWI pending rate case and Neil Colwell of WWP.
Items from the September 6, 1996 Agenda were discussed and acted upon as follows.
1. Case No. UWI-W-96-3 Motion to Disqualify; Company Reply; Request for Oral Argument Motion to Compel (Alternate Motions to Extend file date/to vacate hearing) Motion/Stipulation to Bifurcate (Revenue Requirement/hook-up fee)
Commissioner Nelson said there was a question of whether we are going to have an oral argument and he was not sure if Ms. Ullman’s complaint should be discussed here today.
Scott Woodbury said it is a Bar Association rule but the decision is with the tribunal. Commission could make that determination. Don’t think it is necessary to go the Bar Commission to proceed.
Don Howell added his concurrence. Said for lack of a better term, the Commission is the tribunal to decide.
Commissioner Nelson asked if there was any issue in the prior case that would make this case a continuation?
Scott Woodbury replied it was Mr. Miller’s participation in the private deliberations on prior cases that is at issue.
Commissioner Smith said the Commission makes their determination on the basis of the records.  Commission doesn’t consideration additional information. There was no information available in the Commission’s discussion of that record that wasn’t available to everyone who read the transcript.
Commissioner Nelson said the complaint is there is an occurrence of impropriety. Could accept that in some person’s mind there is impropriety, but that doesn’t reach to this case. In his mind he can’t see that oral argument would give us any new information on which to base this decision.
Scott Woodbury said oral argument would provide the Commissioners and Ms. Ullman to express concerns in a manner that hasn’t been afforded Ms. Ullman at this time. It is just a due process concern.
Commissioner Hansen said he wasn’t involved with the two prior United Water cases that Mr. Miller sat on as a Commissioner. His being involved in this case, as far as he was concerned isn’t going to have any impact on him at all, the fact that he was in the other cases. He has seen several ex Commissioners participate in PUC cases. To him we have to look at whats in the record. So far having prior commissioners in a case hasn’t had an effect on him. Don’t see it as a real issue here.
Commissioner Smith asked if Commissioner Nelson wanted to do an oral argument? Think her mind is made up and it wouldn’t be changed. TO her it is a new case. Every state has different statutes. Idaho statute says you can’t run for office in the state.
Commissioner Hansen said he didn’t feel that oral argument would make that much difference.
Commissioner Smith said it seemed to her that we can find that there isn’t a violation of the rule.  Explained what our rule said.
Commissioner Nelson said if this was the same case (such as avoided cost) going on for years, it might be different. Think in this matter and looking at that Bar Association Rule, this situation does not apply.
Commissioner Smith said she agreed. She would give Ms. Ullman her personal assurance that we (the Commissioners) decide on the record and there is no information brought in at the last minute.   The record is the basis for the decision. If you are in the hearing  you know what we are considering.
Sharon Ullman asked - why are those meetings not public?
Commissioner Nelson said if you get into those meeting and not everyone agrees and there is a lot of discussion, if the press were there and they were reporting where it was going, there is a reason why there is a portion of the record that isn’t..issued, no one is to be discussing the order.
Commissioner Smith said appeals from our decisions go directly to the Supreme Court.
Next item was the Motion to Compel from Ms. Ullman. Was inclined to grant the extension request (one week).  
Scott Woodbury said he has talked to Joe Miller and Ms. Ullman. She would like a one week delay and no one objects. Filing date will change for Ms. Ullman from the 16th to the 9th.
Stipulation to Bifurcate Issues.
Commissioner Smith said she objected. Don’t see any point in bifurcating it. Should be able to talk about anything in the case. Don’t understand bifurcating if you aren’t going to do a cost of service rate case. Don’t see how this could delay. If the revenue requirement issues are considered, personally the only way to spread those are to spread them equally across the board.
Commissioner Nelson asked if you would make the hook-up charge part of this case?
Commissioner Smith said she thought the question is if you are just focusing on revenue requirement you come out with a % for all services. Rate that is in effect is the one proposed in the last case.
Scott Woodbury said it was his understanding that there will be no additional cost of service, however, if the Commission has looked at the supplemental filing with respect to hook-up, it was essentially...there wasn’t much to it. Was asking interim rate be made permanent. Randy Brown has been working on this and company would like to make a more extensive filing. Randy Lobb has been talking to them. All parties with compressed time frame would like additional time to present a better case. Better case provides for better decisions.
Commissioner Hansen said since he has been here hook-up fees have been a hot item. Agrees with Scott Woodbury, That is where he is coming from. Think Commissioner smith brought out good points but think he was on the other side of the coin on this one.
Commissioner Nelson said he thought it was reasonable to consider. Thought it was appropriate to take some time to consider this. Would go along with the bifurcation.
Two to one decision to bifurcate - Commissioner smith dissents.
2. Case No. WWP-E-96-2 Schedule 26 - Experimental Direct Access Delivery Service.
Commissioner Hansen said he was the reason this was held over. Wanted to look at legal aspects.  Did feel there was a couple areas of concern. In this experiment we did need those participating to file some sort of modified certificate to serve and think staff made recommendation that he would accept. Was concerned about Commission’s involvement if co-ops and municipals got involved because of jurisdiction of the Commission would have over them, if disputes arose. Was able to get that resolved where this would be more of a contract. That sufficed his concerns.  From his standpoint that was the reasoning. With the order we put out, with experiments you aren’t able to include all groups at one time. Is now in support of this. Thought staff did an excellent job of addressing those issues and we are on pretty good grounds.
Commissioner Smith said staff proposed certificate requirements is adequate for this experimental process. Question was: do we need this to do anything to get anyone else’s comments on this proposed criteria - Potlatch, company or public? Essentially it is what we would require for any certificate. Since we are following statute, maybe that is what is necessary.  
Scott Woodbury said as far as the parties, they get decision memos. Parties could ask for reconsideration.
All three commissioners agreed to approve the filing.
**Company reporting will be required as proposed by staff.
3. UWI August 29, 1996 Letter request to extend facilities into uncertificated area. Discussion re:  procedure.
Normally it would be staff’s recommendation that it go formal. Mike Spink is proposing to keep it informal for them to discuss it.
**Hold until next decision meeting.
Commissioner Smith said her concern is, does Eagle Water have sufficient flow for water service?
4. Decision Memorandum form Bev Barker and Don Howell regarding implementation of the mediation, arbitration and review of interconnection agreements under the Telecommunications Act of 1996.
Don Howell explained the circumstances that brought about the decision memo. One of the questions that comes up is - is the Commission going to be the arbitration panel? When the Act was written there was an assumption that most commissions have hearing examiners and they could be the arbitrators rather than the whole commission. Think it is staff’s position that we would want to maintain flexibility. If all parties could agree on an arbitrator and they would pay for it and commission felt comfortable with using an arbitrator - ?
Commissioner Hansen asked if that was realistic?
Don Howell replied parties shouldn’t be ...there would be an increased workload. We have never done this.
Commissioner Nelson said this is a good start. (1) Whether Phoenix Fiberlink made a request of U S West in Idaho and have they pursued negotiations?
Don Howell said response of other parties could be that they are not really negotiating. We do not know Phoenix Fiberlink’s position on all the issues. We really do not know where the parties are.
Commissioner Smith said - so on September 24 we may get a reply from U S West. On the flow chart, the time doesn’t start until the 24th. March 29 would be the starting day of the 300 days.
Bev Barker said what tends to be happening is the parties have not engaged in state-specific negotiations (they are multi-states). They are finding difficult with the negotiation process because they haven’t been discussed specifically with the states. They do a blanket filing.
Commissioner Smith said Idaho would only have authority for unbundling issues.
Commissioner Nelson suggested holding it until the next decision meeting.
** Hold until September 17.
Extra Item:
Union Pacific Railroad’s notification that they will file on September 19 for abandonment of the Gay Branch. Under the notice process we need a 20 day advance notice and then it is published in the federal register and that is the abandonment date. Our initial examination in February did not lead us to believe there wouldn’t be adverse effect on Idaho shippers. Since we do still have a certificate to examine abandonment, wonder if the Commission wants to do this on short-term modified procedure?
**Didn’t think they have mined out of there for two years.
Commissioner Hansen asked about the tribe?
Don Howell said we had advised the tribe in February of 1994 of the forthcoming abandonment.  Other than know we notified the tribe, they were also served this notice.
**Will do modified.
Meeting was adjourned.
Dated at Boise, Idaho, this 20th day of September, 1996.
Myrna J. Walters
Commission Secretary