BEFORE THE PUBLIC SERVICE COMMISSION OF WYOMING
IN THE MATTER OF THE FUNDING REQUIREMENT AND PROPOSED ASSESSMENT FACTOR FOR THE JULY 2011 TO JUNE 2012 FISCAL YEAR OF THE WYOMING UNIVERSAL SERVICE FUND
Docket No. 90072-35-XO-11
(Record No. 12814)
ORDER DENYING QWEST CORPORATIONíS PETITION FOR
LEAVE TO INTERVENE AND REQUEST FOR HEARING
(Issued June 23, 2011)
This matter is before the Wyoming Public Service Commission (Commission) on Qwest Corporationís (Qwest) Petition for Leave to Intervene and Request for Hearing (Petition) and Qwestís Motion to Withdraw as Moot Its Petition to Intervene and Request for Hearing (Motion), in the above-docketed matter. †The Commission, having reviewed Qwestís Petition and Motion, its files concerning the Fund, the documents filed by the WUSF Manager, and applicable Wyoming and federal telecommunications law and rules, FINDS and CONCLUDES:
1.†††††††† The above-captioned matter was initiated by the Commission on April 1, 2011, with the filing of a Confidential Report of the Wyoming Universal Service Fund Manager (Report).† This proceeding is required to establish [i] the weighted statewide average essential local exchange service price (the weighted statewide average); [ii] the 130% benchmark; [iii] the WUSF disbursement amounts for qualifying telecommunication companies; and [iv] the corresponding WUSF assessment level to be effective for the twelve-month period beginning July 1, 2011.† The assessment level is determined under Section 500(l) of the Commissionís Rules.† Because of the highly sensitive, competitively valuable, company-specific information in the Report, it is kept strictly confidential to protect carriersí proprietary information.† Throughout the process, each carrier is allowed access only to that portion of the confidential material containing or applying its own company-specific information.
††††††††††† 2.†††††††† On April 1, 2011, the Commission issued a Notice of Filing and Procedural Notice and Order Setting Hearing (Notice and Order).† Copies of the Notice and Order were sent to each telecommunications company doing business in Wyoming with a copy of the non-confidential version of the Report and a spreadsheet containing confidential information pertaining only to the individual recipient telecommunications companyís proposed calculation and WUSF support (if it qualified for WUSF support).† A Public Notice of the hearing was published once per week for two consecutive weeks in the Casper Star Tribune; and a public service announcement with regard to the hearing was broadcast on radio five times in one week on KTWO in Casper.† The Public Notice and public service announcement stated the proposed weighted statewide average of $25.36, the proposed 130% benchmark of $32.96, and the proposed assessment level of 1.20%.† In the Notice and Order, the Commission set the following procedural schedule:
April 29, 2011, at 4:00 p.m.
Deadline for comments
May 4, 2011, at 9:00 a.m.
Hearing commences in Cheyenne
3.†††††††† On May 4, 2011, the Commission held its duly-noticed legislative hearing on this matter.† Art Schmidt, Fund Manager, summarized his Report, noting the calculations had included some inapplicable information, the removal of which resulted in a revised weighted statewide average of $25.74 ($0.02 less than the April 21, 2011, proposal) and 130% benchmark of $33.46 ($0.03 less than the April 21, 2011, proposal).† This revised information came to his attention on April 28, 2011, and was not sent to the telecommunications companies since it could be presented at the hearing.† Schmidt discussed an Ernst & Young audit that showed Qwest had a reserve of federal universal service funds of about $7 million; he suggested that the Commission could direct Qwest to draw from this FUSF reserve fund instead of receiving WUSF distribution calculated as specified in the Report.† If this suggestion were adopted by the Commission, the proposed assessment could be lowered to 1.0% (as opposed to 1.2%) thereby reducing the assessment paid by all telecommunications consumers in Wyoming.† (Transcript of May 4, 2011, legislative hearing, hereinafter Tr., pp. 6-12.)
4.†††††††† In connection with the Commissionís full consideration of the Report and the Fund Managerís suggestion, Bales asked that public versions of the following documents be placed in the record:
[i]†††††††† WUSF Audits by McBride, Lock & Associates:
[a]††††††† WPSC Report on Agreed Upon Procedures for the Four Years (2004-2007) Ended December 31, 2007;
[b]††††††† WPSC Report on Agreed Upon Procedures for the Year (2008) Ended December 31, 2008;
[ii]††††††† Ernst & Young Audit of Qwest dated April 14, 2009; and
[iii]†††††† a Commission white paper entitled, ďA Report on the Pricing of Basic Telecommunications Service under the Wyoming Telecommunications Act of 1995,Ē dated December 2, 2002.
The Commission approved inclusion of the documents in the record.† (Tr., pp. 16-17.)
5.†††††††† Those appearing before the Commission expressed a desire to comment on the suggestion.† Therefore, Commission Staff was directed to put the Fund Managerís suggestion in writing, e-mail it to the individuals present at the hearing and post it on the Commissionís website by noon that day, with a requirement that any responsive comments be filed with the Commission by noon on May 6, 2011.† The text of the Fund Managerís suggestion was:
Notice of Fund Manager suggestion made at the Wyoming Universal Service Fund legislative public comment meeting on May 4, 2011:
††††† 1.†††††††† That Qwest be required to draw its monthly WUSF support for fiscal year 2011-2012 from its federal Universal Service Fund (FUSF) reserve instead of receiving a distribution from Wyoming Universal Service Fund (WUSF). Amount would be that determined by Fund Manager for Qwestís fiscal year 2011-2012 WUSF support.
††††† 2.†††††††† Qwest would report quarterly to the Commission on FUSF credits applied by zone from its FUSF reserve and its FUSF reserve balance.
††††† 3.†††††††† If suggestion adopted, Fund Manager advocates reducing the fiscal year 2011-2012 assessment from 1.20% to 1.00% for all Wyoming telecommunications subscribers.
6.†††††††† Transcripts of the legislative hearing were filed with the Commission on May 5, 2011.
7.†††††††† On May 6, 2011, the Commission received Qwestís Petition, which reiterated that Qwest had not been financially disadvantaged by the Fund Managerís method of determining WUSF support this year, but believes Qwestís WUSF support amount was incorrectly calculated giving it more WUSF support than it should receive.† Qwest further argued that the Fund Managerís suggestion would require the Commission to determine adjudicative facts.
8.†††††††† On May 10, 2011, the Commission received Qwestís Motion, in which it stated that the issues in Petition have been rendered moot by the disposition of the above-captioned proceeding in deliberations.
††††††††††† 9.†††††††† Qwestís Petition and Motion came before the Commission pursuant to due notice at the open meeting on May 17, 2011.† OíKelley Pearson, Qwestís local counsel, appeared on behalf of Qwest.† She stated that, the Commission declined in deliberations to adopt the Fund Managerís recommendation. †Qwestís Petition became moot and it filed its Motion.
††††††††††† 10.†††††† The Commission has established that the WUSF proceeding is not conducted as a contested case, but is instead conducted as a legislative hearing.† In Docket No. 90072-29-XO-09, the Commission addressed Qwestís Petition for Leave to Intervene and Request for Hearing in an Order Denying Qwest Corporationís Petition for Leave to Intervene and Request for Hearing (2009 Order Denying) issued on May 15, 2009.† The Commission stated at paragraph 7 of the 2009 Order Denying,
After the conclusion of oral argument, the Commission deliberated and determined it would deny Qwestís Petition because a legislative-type hearing allows Qwest to participate, gives due process and there is no need to intervene.† The Commission will proceed with a legislative-type hearing and not a contested case format in the instant case.
11.†††††† In 2010 in Docket No. 90072-32-XO-10, the Commission addressed Qwestís Petition for Leave to Intervene and Request for Hearing its July 8, 2010, Order Denying Qwest Corporationís Petition for Leave to Intervene and Request for Hearing (2010 Order Denying).† The Commission stated at paragraph 3 of the 2010 Order Denying,
Chairman Minier stated that the Commission has ruled on these same issues and it understands Qwest is simply preserving its position. The Commission then denied Qwestís Petition for all the reasons set forth in the orders in Docket No. 90072-29-XO-09 (Sub 29), which explain the reasons why there are no parties to WUSF dockets and why such dockets are not conducted as contested case proceedings. The orders from Sub 29 should be incorporated herein by reference.
††††††††††† 12.†††††† The Commission denied Qwestís Petition because WUSF proceedings are conducted as legislative hearings, not contested cases and therefore, there are no parties to WUSF proceedings.† The Commission determined that by denying Qwestís Petition, there was not a need to address Qwestís Motion.
IT IS THEREFORE ORDERED:
1.†††††††† Pursuant to hearing action taken by the Commission on May 17, 2011, Qwest Corporationís Petition for Leave to Intervene and Request for Hearing is denied.
2.†††††††† The orders issued in Docket Nos. 90072-29-XO-09 and 90072-32-XO-10, which set forth the reasons why there are no parties to Wyoming Universal Service Fund dockets and why such dockets are not conducted as contested case proceedings, are hereby incorporated by reference.
3.†††††††† This Order is effective immediately.
MADE and ENTERED at Cheyenne, Wyoming, on June 23, 2011.
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Public Service Commission of Wyoming
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ALAN B. MINIER, Chairman
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† STEVE OXLEY, Deputy Chairman
(SEAL)†††††††††††††††††††††††††††††††††††††††††††††† KATHLEEN A. LEWIS, Commissioner
J. BLAIR BALES, Assistant Secretary