20100426Comments.pdf

DONALD L. HOWELL, II
DEPUTY ATTORNEY GENERALL
IDAHO PUBLIC UTILITIES COMMISSION
472 WEST WASHINGTON STREET
PO BOX 83720
BOISE, ID 83720-0074
Idaho Bar No. 3366
Tele: [phone]
Fax: [phone]
E-mail: don.howell§puc.idaho.gov
~~.EC~,E J
20ID APR 26 PI" 2: 2'
Attorney for Commission Staff
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE NEGOTIATED
RULEMAKING TO EXAMINE DRAFT
CHANGES TO THE COMMISSION'S
RULES OF PROCEDURE, IDAPA
31.01.01.000
)
) IDAPA DOCKET NO. 31-0101-1001
) IPUC CASE NO. RUL-U-I0-0l
)
)
) COMMENTS OF THE
) COMMISSION STAFF
COMES NOW the Staff of the Idaho Public Utilties Commission by and through its
attorney of record, Donald L. Howell, II, and hereby submits these comments in support of the
Commission's proposed changes to its Procedural Rules. On March 11,2010, the Commission
initiated a negotiated rulemakingprocess to examine various amendments to its Rules of
Procedure, IDAP A 31.01.01. On April 7, 2010, the Commission also caused to be published in
the Idaho Administrative Bulletin a Notice of Negotiated Rulemaking. Both Notices stated that
the Commission would hold an informal public workshop for the purpose of reviewing and
discussing the proposed changes to its Rules of Procedure.
THE PUBLIC WORKSHOP
On April 21, 2010, interested persons met in the Commission Hearing Room or
participated by telephone in the negotiated rulemaking workshop. As set out in the Notices, the
reasons for the proposed changes include: (1) conforming the Commission's testimony and
transcript rules (Rules 231 and 286) to changes in the Idaho Supreme Court's Appellate Rules;
(2) changing Rule 43 (Representation of Paries) to conform to Supreme Cour Opinions
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regarding the representation of parnerships, corporations and other entities; (3) adding Rule 20
to make it easier to determine when telephone companies are no longer conducting business in
Idaho; and (4) making other changes to improve clarity (Rules 5, 16, 125, 301) and correcting
citations (Rules 0, 19, 21). Notice at p. 1, Administrative Bulletin, VoL. 10-4, at p. 25.
Representatives from Idaho Power Company, Commission Staff, Qwest Corporation, PacifiCorp
dba Rocky Mountain Power and United Water attended and paricipated in the workshop.
STAFF COMMENTS
Except as noted below, the workshop paricipants agreed or did not object to most of
the rule changes proposed by the Commission. More specifically, the participants had no
objections to the changes to Rules 16, 19, 125,231,286, and 301.
Based upon the comments and suggestions of the workshop paricipants, Staff
recommends that the Commission review and approve several changes to the proposed rules. To
facilitate the Commission's review of the proposed changes, the reasons for the changes are
discussed before each rule in numeric order below.
Rule 0: Although the paricipants generally agreed with the proposed changes to
Rule 0 (Legal Authority), Qwest commented that several references to Title 62 statutes appear to
be inadvertently omitted. The Staff agrees and recommends that the Commission adopt the
proposed changes shown in bold italics below.
000. LEGAL AUTHORITY (RULE 0).
These rules are adopted under the general legal authority of the Public
Utilities Law, Chapters 1 through 7, Title 61, Idaho Code,i Chapters 9. ~
through 1 O~ aH 13, 15 through 17, Title 61, Idaho Code,i Chapters 3 and 4,
Title 62, Idaho Code,i the Telecommunications Act of 1988, as amended,
Chapter 6, Title 62,; aH Chapterâ 12, Title 62, Idaho Code, Chapter and 13,
Title 62, Idaho Code,; and the paricular authority of Sections 56-904, 61-304
through 61-309,61-501, 61 502,61 503 through 61-505, 61-507, 61-516, 61-
538, 61-541, 61-601 through 61-607, 61-610 through 61-619, 61-6201
through 61-626, 61-803 through 61-806, 61-902 through 61-905, 61-909, 61-
1003 through 61-1005,61-1007,61-1305,61-1306, 61-1603 through 61-1607,
61-1703 through 61-1709,62-304, 62-305, 62-424, 62-60£4, 61 605, 6260S
through 62 612, 62 61fJA thl'ugh 61 61fJ.P', 62 614 thl'ugh 62-616A, 62-
619, 62-622, 62-622A, 62-1201 through 62-1207, 62-1303, aH 62-1304, 63-
30291, and 67-6528, Idaho Code. (4 5 00)( )
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Rule 5: Qwest noted a typo in the proposed text. The correct citation to the
definitions in Title 62 is Section 62-603. Staff agrees and recommends that the Commission
adopt the change reflected below.
005. DEFINITIONS (RULE 5).
Terms of ar used throughout these rules are defined within the rules
themselves. The term "utilty" used in these rules includes every common
carier, pipeline corporation, gas corporation, electric corporation, telephone
corporation, and water corporation as defined in Chapter 1, Title 61, Idaho
Code, and Section 62-6023, Idaho Code. (7 1 93)( )
Rule 20: Qwest and Verizon suggested that the new Rule 20 set out below be
clarified to indicate that the rule applies to the discontinuance of basic local exchange service or
message telecommunications service (i.e., long-distance callng). Staff concurs and recommends
that the Commission adopt the changes reflected below.
020. (RESERVED). DISCONTINUANCE OF
TELECOMMUNICATIONS SERVICE (RULE 20).
A telephone corporation that intends to discontinue service in Idaho shall fie
a notice with the Commission at least ninety (90) days in advance of the date
that it intends to cease operations. The telephone corporation proposing to
discontinue basic local exchange or message telecommunications services
shall also publish a notice of such discontinuance in a legal newspaper
circulated in its service area pursuant to Section 62-612, Idaho Code. If the
telephone corporation held any customer deposits or advance payments, the
telephone corporation shall indicate in the notice how the deposits are to be
returned to customers. See also IDAPA 31.41.01.312 ( )
Rule 43: This rule attracted the most discussion among the paricipants. Most of the
discussion centered on the distinction between the types of "administrative proceedings" and
"quasi-judicial proceedings" set out below. In paricular, the paricipants questioned whether
rulemaking proceedings under Commission Rule 401 (IDAP A 31.01.401) would require
representation by attorneys. After discussing this matter with the Idaho State Bar Counsel, Staff
believes that rulemaking is more legislative than judiciaL. Accordingly, Staff recommends that
"rulemaking" be added to the list of administrative proceedings under Subsection 0 1 below.
The paricipants also discussed whether in-house counsel for utilties might be
exempt from the Pro Hac Vice requirements in Rule 43.03 below. Staff believes that Idaho law
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requires that utilities be represented by Idaho licensed attorneys in quasi-judicial proceedings.
As the Idaho Supreme Cour recently noted in Indian Springs v. Indian Springs Land Investment,
147 Idaho 737, 744-45, 215 P.3d 457,464-65 (2009): "the law in Idaho is that a business entity,
such as a corporation, limited liabilty company, or parnership must be represented by a licensed
attorney before an administrative body or a judicial body." Staff believes that the current Pro
Hac Vice rule in effect since 2004 strikes the appropriate balance by requiring out-of-state
licensed attorneys to request limited admission at least one (1) time per calendar year. See Rule
43.03 below.
043. REPRESENTATION OF PARTIES AT PROCEEDINGS (RULE
43).
Reoognizing that pl.roceedings before the Commission are sometimes
administrative in nature or quasi-judicial in nature, appeafanoes and.:
(3 16 04)( )
01. Administrative Proceedings. Administrative proceedings before the
Commission include matters such as the filing of tariff schedules, tariff
advices, price lists, certificates to provide local exchange service,
interconnection agreements, rulemaking! wrtten comments in modified
procedure, or written comments provided at a customer hearing. These fiings
may be made by a natural person pro se, a parner in a parnership, an
employee or officer of a corporation, or a licensed attorney. ()
02. Quasi-Judicial Proceedings. The representation of paries at quasi-
judicial proceedings for the purose of adjudicating the legal rights or duties
of a pary is restricted as set out below. Quasi-judicial proceedings before the
Commission include matters such as formal complaints, petitions, motions,
applications for modified procedure or technical/evidentiar hearingâ.
Representation of paries at these types of proceedings shall be as follows:( )
M!. NatuFal PeFSoB. A natural person HH may represent himself or
herself or be represented by a duly auorized employee, or an licensedattorney. (3 16 04)( )
Gill. PaFtBeFShip. A partnership or corporation HH shall be represented by
a parer, duly auhorized employee, or an licensed attorney. (7 193)( )
03. COFpoFatioB. A oorporation must be represented by an offioer, duly
auhorized employee, or an atorney. (7 1 93)
04£. OtheF EBtity. A municipal corporation,~ state, federal, tribal, or local
governent agency,; or entity, an unincorporated association,; er f! non-profit
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organization, or other entity HH shall be represented by an offioer, a duly
autorized employee or an licensed attorney. (7 1 93)( )
Ol~. Attorney Representation. Only an active member of the Idaho State
Bar may represent a party as an attorney except as provided by Idaho Bar
Commission Rule 2221 (Limited Admission/Pro Hac Vice). The Commission
adopts by incorporation Bar Rule 2221 as modified below. (3-16-04)
a. Given the administrative nature of many prooeedings, ll)mited admission
by out-of-state attorneys wil not be necessary in conjunction with
administrative fiings suoh as tafiff sohedules, tafiff advioes, prioe lists,
oertifioates to provide looal e,whange servioe, and interoonnection agreements.
Out-of-state attorneys representing the same party in one (1) or more quasi-
judicial ea proceedings (suoh as formal oomplaints, motions, petitions, and
applioations that request modified prooedure or an e:yidentiar heafing), must
request limited admission at least one (1) time per calendar year.(3 16 04)( )
b. An attorney applying for limited admission to appear before the
Commission in a representative capacity shall fie a written motion with the
Commission Secretar and serve a copy on all paries. The motion shall be
substantially in the form set out in Bar Rule 2221(1) with references to the
Commission instead of the court. (3 16 04)( )
c. A copy of the written motion shall be submitted to the Idaho State Bar
accompanied by the fee prescribed by in Bar Rule 22210). (3 16 04)( )
Rule 121: Qwest proposed that the scope of this rule be clarified. Staff and the other
participants agreed. Accordingly, Staff is recommending that the Commission adopt the change
to Rule 121.01 noted below.
121. FORM AND CONTENTS OF APPLICATION TO CHANGE
RATES (RULE 121).
01. Utilty Applications to Change Rates. Applications by any public utility
subject to Title 61. Idaho Code. to increase, decrease or change any rate, fare,
toll, rental or charge or any classification, contract, practice, rule or regulation
resulting in any such increase, decrease or change must include the followingdata: (4 5 OfJ)( )
a. An exhibit showing in full each proposed change in rates, tolls, rentals,
charges, rules or regulation by striking over proposed deletions to existing
tariffs and underlining proposed additions or amendments to existing tariffs,
except applications to increase or decrease all or almost all rates and charges
by a uniform percentage or by a uniform amount may be made by fiing a
tariff listing the proposed change and all unchanged rates and charges or rates
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and charges not changed by a uniform percentage or a uniform amount, or by
use of another designation previously approved by the Commission that
clearly calls attention to all proposed changes in numbers or wording. (7-1-93)
b. If the application is subject to Rule 122, a complete justification of the
proposed increase in the form of testimony and exhibits or a narativeexposition. (7-1-93)
c. If the application is subject to Rule 122, when a general ohange in
reouring rates is proposed, a statement showing how the application has been
brought to the attention of affected customers under IDAPA 31.21.02.102 or
31.41.02.102 and a copy of the press release and customer notice required byRule 125. (7 1 93)( )
d. A statement that the applicant stands ready for immediate consideration ofthe application. (7-1-93)
e. If the application is subject to Rule 122, testimony and exhibits showing
financial statements, cost of capital and appropriate cost of service studies.
(7-1-93)
f. Workpapers or documentation showing how test year data were adjusted.
(7-1-93)
g. If the applicant provides utilty service in states other than Idaho or utility
service subject to federal regulation, a jurisdictional separation of all
investments, revenues and expenses allocated or assigned in whole or in part
to Idaho intrastate utilty business regulated by this Commission showingallocations or assignments to Idaho. (7-1-93)
02. Proposals Based upon Computer Modeling. In addition, in any
application in which a computer model is used to represent or simulate
processes from which the revenue requirement is derived or upon which
allocations of the revenue requirement to different customer classes are based,
complete documentation of all those computer models must be supplied to the
Staff, upon request, and be available in the utilty's offce or other depository.
The Staff may request that the computer model itself be provided. A computer
model includes the representation or simulation of a process, but does not
mean or include the compilation of actual data. The application must state that
the documentation of the models already on file in the applicant's office or
other depository fully describes the models or that necessary updates or
additions to previous documentation that wil fully describe the models is onfie and wil be supplied on request. (4-5-00)
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03. Grounds for Returning or Dismissing Application. Failure to comply
with Rule 121.01 and 121.02 of this rule is grounds to retur or dismiss an
application under Rule 65. (7-1-93)
STAFF RECOMMENDATION
In summar, Staff recommends that the Commission adopt the proposed changes set
out above and the initially proposed changes to Rules 16, 19, 125, 231, 286, and 301. Staff
further recommends that the Commission formally propose these changes and issue a Notice of
Proposed Rulemaking in IDAPA Docket No. 31-0101-1001.
RESPECTFULLY submitted this 2'~ T' day of April 2010.
Donald L. How I, II
Deputy Attorney General
blslN:3 i -0 i 0 i - i 00 i _Staff Comments _ dh
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