Regular Open Meeting Minutes, October 25, 2011

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BEFORE THE
ILLINOIS COMMERCE COMMISSION
PUBLIC UTILITY REGULAR OPEN MEETING
Chicago, Illinois
October 25, 2011
Met, pursuant to notice, at 10:30 a.m.
BEFORE:
MR. DOUGLAS P. SCOTT, Chairman (via
videoconference)
MS. LULA M. FORD, Commissioner
MS. ERIN M. O'CONNELL-DIAZ, Commissioner
MR. SHERMAN J. ELLIOTT, Commissioner
MR. JOHN T. COLGAN, Acting Commissioner (via
videoconference)
SULLIVAN REPORTING COMPANY, by
Auhdikiam Carney, CSR
License No. 084-004658
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CHAIRMAN SCOTT: Pursuant to the provisions of
the Illinois Open Meetings Act, I now convene a
regular Open Meeting of the Illinois Commerce
Commission. With me in Springfield is Acting
Commissioner Colgan, in Chicago are Commissioners
Ford, O'Connell-Diaz, and Elliott, I'm Chairman
Scott.
We have a quorum.
Before moving into the agenda,
according to Section 1700.10 of Title II of the
Administrative Code, this is the time we allow
members of the public to address the Commission.
Members of the public wishing to address the
Commission must notify the Chief Clerk's Office at
least 24 hours prior to the Bench Session. According
to the Chief Clerk's Office, we have no request to
speak at today's session.
Moving into the agenda, Item 1 today
is Docket No. 11-0661. This is American Transmission
Company's Petition for authority to construct a new
345,000 volt transmission line in Lake County.
Before us today is a motion made by Staff to extend
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the statutory deadline for Commission action in this
Docket. ALJ Teague recommends granting the motion.
Is there any discussion?
COMMISSIONER O'CONNELL-DIAZ: Just a real quick
question for Judge Teague.
The additional 75 days then, that's
the statutory deadline?
JUDGE TEAGUE. Yes.
COMMISSIONER O'CONNELL-DIAZ: Thank you.
CHAIRMAN SCOTT: Any further discussion?
(No response.)
Is there a motion to grant our request
an extension?
COMMISSIONER O'CONNELL-DIAZ: So moved.
ACTING COMMISSIONER COLGAN: So moved.
CHAIRMAN SCOTT: Is there a second?
COMMISSIONER ELLIOTT: Second.
CHAIRMAN SCOTT: It's been moved and seconded.
All in fair say "aye."
(Chorus of ayes.)
Any opposed?
(No response.)
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The vote is 5-0 and the request is
granted. We will use a 5-0 vote for the remainder of
today's agenda unless otherwise noted.
Item 2 is Docket No. 09-0269. This is
PlatinumTel Communications' application for
designation as an eligible Telecommunications
Carrier. ALJ Riley recommends entry of an Interim
Order finding that PlatinumTel provide commercial
mobile radio services using a combination of its own
facilities and resold services.
Is there any discussion?
COMMISSIONER O'CONNELL-DIAZ: Chairman, if I
might inquire a simple question.
CHAIRMAN SCOTT: Sure.
COMMISSIONER O'CONNELL-DIAZ: Judge Riley, with
regard to the -- this is obviously an Interim Order
so there will be -- in accordance with your memo and
your recommendation is that the Staff now will do an
investigation relative to this Petition. If there is
a finding that they do not qualify, is there a refund
mechanism for those funds that, I think, will be
flowing based upon this Interim Order?
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JUDGE RILEY: My best answer is, I don't know
of any refund mechanism.
COMMISSIONER O'CONNELL-DIAZ: So that would be
something that we would need to address --
JUDGE WALLACE: Commissioner --
COMMISSIONER O'CONNELL-DIAZ: Yes.
CHAIRMAN SCOTT: Judge Wallace.
JUDGE WALLACE: I believe there is a refund
mechanism, but I'm not sure how it works at this
point.
COMMISSIONER O'CONNELL-DIAZ: Okay.
CHAIRMAN SCOTT: Is that something that could
be dealt with in the final order?
JUDGE WALLACE: Yes.
COMMISSIONER ELLIOTT: I sort of had a
fundamental question regarding how we make the
decision without the review.
COMMISSIONER O'CONNELL-DIAZ: Yes. It's too
quick.
COMMISSIONER ELLIOTT: If Staff has not had a
full opportunity to review the evidence, then I'm a
little troubled by the fact that we're assuming, at
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least interim-wise, that there's sufficient evidence
to make a finding.
JUDGE RILEY: What the Order is intended to do
is to try to get the company back on solid economic
footing. At the present time the payments have been
stopped -- the universal service fund payments have
been stopped and the company is in imminent danger of
having to close its doors and suspend service, and
they have a substantial number of customers.
COMMISSIONER O'CONNELL-DIAZ: Okay. I see.
JUDGE RILEY: And so what they want to do is
just be able take this Order to the FCC and say, We
are a facilities-based operation. Please get the
universal service fund payments flowing again so we
can continue to provide the services. And then Staff
can do its investigation with the evidence and the
testimony and whatever else it needs.
COMMISSIONER ELLIOTT: But the idea is that the
evidence on it's own unrebutted is sufficient, in
your mind, to make this finding?
JUDGE RILEY: So far, yes. On an interim
basis, absolutely.
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COMMISSIONER O'CONNELL-DIAZ: And Staff has
agreed to that to, haven't they?
JUDGE WALLACE: Yes. That's my understanding.
COMMISSIONER O'CONNELL-DIAZ: In fact, they say
that there can be a threshold finding that there is
sufficient evidence to find so; but they need to make
a more critical analysis in this next proceeding that
we'll be doing; correct?
JUDGE RILEY: Exactly. But the whole idea too
for the present time is to alleviate the economic
emergency for the company.
COMMISSIONER O'CONNELL-DIAZ: Okay. You know,
those universal service funds, there's a lot of money
flowing around and they should go to the right
players and I think sometimes they don't. So we need
to be very cautious. Thank you.
CHAIRMAN SCOTT: Any further discussion?
(No response.)
Is there any objection to entering the
Interim Order?
(No response.)
Hearing none, the Interim Order is
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entered.
Item 3 is Docket No. 11-0597. This is
Infotelecom's complaint against Illinois Bell seeking
interpretation of an Interconnection Agreement. This
item has been noticed for discussion purposes.
ALJ Riley, would you like to give us a
short briefing -- or not so short depending on what
you need.
JUDGE RILEY: Infotelecom and Illinois Bell
entered into a garden-variety negotiated agreement.
An issue arose as to what rate should be paid by
Infotelecom for the termination of this Internet
protocol PSPN traffic. Infotelecom saying that it
was the reciprocal compensation rate, which is lower
than the switched access tariff rate. And what they
agreed to do was to have Infotelecom pay the lower
rate and then calculate on a monthly basis what they
would have paid at the higher right and then escrow
that amount until the FCC -- to whom they have
submitted this dispute -- made a ruling.
And the dispute now arose as to what
is the -- what amount should be escrowed. And
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Infotelecom is saying, We haven't reach -- the
trigger amount was $500,000 per month. And
Infotelecom is saying, We haven't calculated more
than $500,000 in any month in any state involved.
Illinois Bell is saying this is a cumulative amount
and it accumulates month by month over an entire 13
state region, so there are millions of dollars that
should be in escrow right now and nothing is in
escrow. And the written decision that I issued
yesterday finds for Illinois Bell.
COMMISSIONER FORD: But in six states they
already have $6.4 million total?
JUDGE RILEY: Yeah. There's huge sums of money
that Illinois Bell is saying is outstanding.
COMMISSIONER FORD: I see.
COMMISSIONER O'CONNELL-DIAZ: So essentially
you're waiting on the further briefing on this to
give your final recommendation to the Commission?
JUDGE RILEY: Well, as a matter of fact, no.
But the statute says in a Section 13-515 case is that
once I've issued my decision -- the memo has a maze
of deadlines in it. What happens now is that the
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party can request a Commission review of the written
decision that I issue, and they have five days to do
that. And then any party may file a response three
days after that. So the time is about as tight as
can get. And 15 days after the issuance of the
written decision, which was yesterday, is November 8.
That is the absolute final date for Commission
action. And the statute also says that the
Commission can either adopt this decision or write
its own.
COMMISSIONER O'CONNELL-DIAZ: So we have until
November 8th to take action in accordance with the
statute?
JUDGE RILEY: Right. And I understand there's
a Bench Session on the 2nd and another meeting on the
8th.
CHAIRMAN SCOTT: So we'll know by the time of
our next session whether or not they filed? They
have to file by Halloween.
JUDGE RILEY: Exactly. Yes.
COMMISSIONER ELLIOTT: Judge, I have a question
with regard to the multistate issue. The issue
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here -- the Commissions in other states were the same
as just being a litigator are free to reach different
conclusions. I guess the end result, assuming that
something of that nature might occur, who is the
ultimate arbiter? Is it the FCC? Because if states
come to different conclusions, is the ultimate
arbiter here the FCC or is it us?
JUDGE RILEY: I think it's -- I'm more inclined
to believe that it would be us because that's going
to determine whether or not the money goes into
escrow.
COMMISSIONER ELLIOTT: If we had two
conflicting decisions by states, does it go to the
courts or does it go to the FCC?
COMMISSIONER O'CONNELL-DIAZ: I think we've got
Mr. Harvey who is the expert on this.
MR. HARVEY: Well, expert is a very generous
assessment. I believe that the matter would be taken
properly to the courts, but that's certainly
something we can find out for you and make some sort
of filing in the case, if that's going to assist the
Commission in reaching their determination.
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COMMISSIONER ELLIOTT: It's a 252 decision. It
would seem to me ultimately it's FCC if there's
disputes among the states. I'm a little confused
about that.
MR. HARVEY: Well, the Federal Courts have very
often reviewed Section 252.
COMMISSIONER ELLIOTT: For multistate
discrepancies?
MR. HARVEY: Well, not even for that, the
individual state interpretations of -- terms and
conditions of ICAs. I can think of a couple of cases
where it's happened here where a litigant has gone to
the Federal Court seeking some sort of an
interpretation of an interconnection agreement. And
in some cases the courts have remanded it back to us
to the extent that they can; in other cases, they've
decided the relevant issues.
There is also, I think, an election
remedies issue here. That the aggrieved party might
have any of several avenues open to it to vindicate
its perceived rights. And we can certainly do some
sort of an analysis for the Commission, if that would
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be helpful.
COMMISSIONER ELLIOTT: It would be helpful, I
think. I'm just trying to figure out where it goes
from here. Not that I disagree with any of the
conclusions, but I'm just wondering where it went
from here.
MR. HARVEY: I cannot, however, assure you that
that will be accomplished in 5 days. We're a little
backed up, but we will get right on that.
COMMISSIONER ELLIOTT: Understood. Thank you.
CHAIRMAN SCOTT: Anything further on that
issue?
(No response.)
Okay. Thank you, Judge Riley.
JUDGE RILEY: Sure.
CHAIRMAN SCOTT: Item 4 is Docket No. 11-0631.
This is PEG Bandwidth's application for a
certificates of authority to provide resold and
facilities based local and interexchange
telecommunications services in Illinois. ALJ Teague
recommends entry of an Order granting the requested
certificates.
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It there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the Order is entered.
Item 5 is Docket No. 11-0668. This is
Dex One's Petition seeking a waiver for the
requirement of Title 83, Section 735.180 sub A, sub
1, and sub D of the Administrative Code pursuant to
Section 13-513 of the Public Utilities Act. ALJ
Riley recommends that the Commission authorize an
investigation of the Petition on its own motion based
upon Staff's request.
I just should note that this was
noticed up in the agenda as being for discussion
only, but the request that's being made of us -- or
at least the recommendation is that we authorize an
investigation of the Petition on our own motion based
on Staff's request. So we checked with Judge Wallace
and, Judge, you were fine with us being able to take
it up as the recommendation is, even though it was
noticed up as just being for discussion only
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purposes?
JUDGE WALLACE: Yes. The item is properly
listed on the agenda for Commission action. The tag
lines are something that we as Staff put up and the
Commission would not be bound by our tag lines. An
example would be that sometimes we recommended not
investigating a tariff, but then the Commission goes
ahead and investigates the tariff, things like that.
So the tag lines are just something that we as staff
put on there and I don't believe they bind the
Commission at all.
CHAIRMAN SCOTT: Thanks. I just wanted to make
sure that that was cleared up in case that was a
question that anybody had.
Is there a discussion on this
particular issue?
(No response.)
Is there a motion to authorize an
investigation of the Petition?
COMMISSIONER ELLIOTT: So moved.
CHAIRMAN SCOTT: Is there a second?
COMMISSIONER O'CONNELL-DIAZ: Second.
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CHAIRMAN SCOTT: It's been moved and seconded.
All in favor say "aye."
(Chorus of ayes.)
Any opposed?
(No response.)
The vote is 5-0 and the investigation
is authorized.
Item 6 is Docket Nos. 11-0059,
11-0141, and 11-0142 consolidated. This item will be
held for disposition at a future proceeding, but does
anyone have questions for ALJ Teague on this item
today?
COMMISSIONER O'CONNELL-DIAZ: The deadline for
that is November 17th?
JUDGE TEAGUE: Yes.
CHAIRMAN SCOTT: November 17th on one and
November 23rd on the other two.
JUDGE TEAGUE: Yes.
COMMISSIONER O'CONNELL-DIAZ: Thank you.
JUDGE TEAGUE: I just wanted to update the
Commission on the number of public comments that have
been received in this docket. There have been 19
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public comments received regarding Great Northern's
increase, 67 regarding Camelot's and 2 regarding Lake
Holiday's.
COMMISSIONER FORD: Thank you.
CHAIRMAN SCOTT: Thank you.
Any further discussion on that item
today?
(No response.)
Our final item today is Item 7, which
involves pending litigation and we'll go into closed
session to address it.
Is there a motion to go into closed
session?
COMMISSIONER O'CONNELL-DIAZ: So moved.
CHAIRMAN SCOTT: Is there a second?
COMMISSIONER FORD: Second.
CHAIRMAN SCOTT: It's been moved and seconded.
All in favor say "aye."
(Chorus of ayes.)
Any opposed?
(No response.)
The vote is 5-0 and the Commission
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will go into closed session. Please let me know when
the room is ready in Chicago.
(Whereupon at this point pages
19 - 30 of the proceedings are
contained in a separate closed
transcript.)
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CONTINUATION OF PROCEEDINGS
CHAIRMAN SCOTT: In closed session the
Commission discussed litigation involving TracFone
Wireless.
I would move to grant Staff its
requested authority in this matter.
Is there a second?
ACTING COMMISSIONER COLGAN: Second.
CHAIRMAN SCOTT: It's been moved and seconded.
All in favor say "aye."
(Chorus of ayes.)
Any opposed?
(No response.)
The vote is 5-0 and the requested
authority is granted.
Judge Wallace, is there any other
matters to come before the Commission today?
JUDGE WALLACE: No. That's all, Mr. Chairman.
CHAIRMAN SCOTT: Hearing none, the meeting
stands adjourned.
Thank you, Mr. Harvey.
MR. HARVEY: Thank you very much, Mr. Chairman,
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and commissioners.
(And those were all the
proceedings had.)