IDCODE

Chapter 1 PUBLIC UTILITIES LAW — APPLICATION AND DEFINITIONS

Sec.

§ 61-101. Title and application.

This act shall be known as “The Public Utilities Law” and shall apply to the public utilities and public services herein described and to the commission herein referred to.

History.

1913, ch. 61, § 1, p. 247; reen. C.L. 106:1; C.S., § 2368; I.C.A.,§ 59-101.

STATUTORY NOTES

Cross References.

Fire protection districts, exemption from tax provisions of act governing,§ 31-1425.

Public utility, definition,§ 61-129.

Compiler’s Notes.

The term “this act” refers to S.L. 1913, ch. 61, which is compiled as§§ 61-101 to 61-121, 61-124 to 61-129, 61-201 to 61-214, 61-301 to 61-315, 61-316 to 61-326, 61-401, 61-403 to 61-406, 61-501, 61-502, 61-503, 61-504, 61-506 to 61-515, 61-517 to 61-529, 61-601 to 61-617, 61-618, 61-619, 61-621, 61-622, 61-624 to 61-626, 61-633 to 61-638, 61-640 to 61-642, 61-701 to 61-712, 61-713, and 61-714.

CASE NOTES

Appeal of Disallowed Claim.

A claim allowed in part and denied in part is equivalent to a decision on the amount allowed, as representing the value of the services, and a failure to bring an action within six months after the rejection will preclude recovery of the disallowed portion. Boise Valley Traction Co. v. Ada County, 38 Idaho 350, 222 P. 1035 (1923).

City’s Right to Take Over Plant.

When the power company purchased the system and franchise of the River Company, it obtained certain equipment and took the property burdened with the condition that the city could exercise its right to purchase according to the terms of the franchise. Boise City v. Idaho Power Co., 37 Idaho 798, 220 P. 483 (1923).

Constitutionality.

Legislature Can Impose Tax.

This is a comprehensive act passed under the police power which is valid as against the following objections: 1. That the legislature had no power to grant to the public utilities commission power to restrict competition; 2. That legislative authority is delegated to said commission in an unconstitutional manner; 3. That said commission is a judicial body established in contravention ofIdaho Const., Art. V, § 2. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914). Legislature Can Impose Tax.

The legislature has the right to impose a business tax for revenue and the mere fact that in some cases the act may work a hardship is not grounds for declaring it unconstitutional, unless it is so unreasonable as to be confiscatory and oppressive in its general operation upon the business. Smallwood v. Jeter, 42 Idaho 169, 244 P. 149 (1926).

Rate-Fixing Statutes.

The rate-fixing statutes applicable to individuals and private corporations exclude municipally owned utilities from their operation. Snake River Homebuilders Ass’n v. City of Caldwell, 101 Idaho 47, 607 P.2d 1321 (1980).

Cited

In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933); In re Pacific Tel. & Tel. Co., 71 Idaho 476, 233 P.2d 1024 (1951); Village of Lapwai v. Alligier, 78 Idaho 124, 299 P.2d 475 (1956).

RESEARCH REFERENCES

ALR.

Abandoned plant, public utility’s right to recover cost of nuclear power plants abandoned before completion. 83 A.L.R.4th 183.

Incidental provision of utility services, by party not in that business, as subject to regulation by state regulatory authority. 85 A.L.R.4th 280.

§ 61-102. Commission.

The term “commission” when used in this act means the Idaho public utilities commission.

History.

1913, ch. 61, § 2a, p. 247; reen. 1915, ch. 62, § 1a, p. 151; reen. 1917, ch. 128, § 1, subd. a, p. 430; reen. C.L. 106:2; C.S., § 2369; I.C.A.,§ 59-102; am. 1951, ch. 100, § 1, p. 225.

STATUTORY NOTES

Cross References.

Definition for air carrier act,§ 61-1102.

Public utilities commission, creation,§ 61-201.

Public utilities commission, duties,§ 61-301 et seq.

Compiler’s Notes.

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 61-103. Commissioner.

The term “commissioner” when used in this act means one of the members of the commission.

History.

1913, ch. 61, § 2b, p. 247; reen. 1915, ch. 62, § 1b, p. 151; reen. 1917, ch. 128, § 1, subd. b, p. 430; reen. C.L. 106:3; C.S., § 2370; I.C.A.,§ 59-103.

STATUTORY NOTES

Compiler’s Notes.

§ 61-104. Corporation.

The term “corporation” when used in this act includes a corporation, a company, an association and a joint stock association, but does not include a municipal corporation, or mutual nonprofit or cooperative gas, electrical, water or telephone corporation or any other public utility organized and operated for service at cost and not for profit, whether inside or outside the limits of incorporated cities, towns or villages.

History.

1913, ch. 61, § 2c, p. 247; am. 1915, ch. 62, § 1c, p. 151; am. 1917, ch. 128, § 1, subd. c, p. 430; reen. C.L. 106:4; C.S., § 2371; I.C.A.,§ 59-104.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Design to Evade Prohibitions.

The creation of the cooperative, its contracts for the purchase of gas and for the sale of its bonds to raise funds for the construction, operation and maintenance of a gas distribution system, and the ordinance of the city of Idaho Falls granting an exclusive franchise for thirty years to the cooperative with the contract provided for by such ordinance were all parts of a plan and design devised to enable the city of Idaho Falls to evade and circumvent the limitations and prohibitions of the constitution and statutes and to exercise powers not granted to a municipality. O’Bryant v. City of Idaho Falls, 78 Idaho 313, 303 P.2d 672 (1956).

Municipally Ordered Removal of Equipment.

Municipally-Owned Utilities.

Unincorporated village was not required to obtain consent of public utilities commission before requiring removal of pipes and apparatus of a private water company, though water company as a public utility was subject to regulation by the commission, since municipalities retain the right to control and maintain their streets and alleys. Village of Lapwai v. Alligier, 78 Idaho 124, 299 P.2d 475 (1956). Municipally-Owned Utilities.

Municipally-owned utilities are not under jurisdiction of public utilities commission and persons affected thereby may sue in court to test reasonableness of rates. Kiefer v. City of Idaho Falls, 49 Idaho 458, 289 P. 81 (1930).

Nonprofit Cooperative.

A nonprofit cooperative corporation organized to serve electric current to its members is not a public service corporation and is not required to serve anyone but its members. Sutton v. Hunziker, 75 Idaho 395, 272 P.2d 1012 (1954).

Rural electrical nonprofit cooperative corporations are not public utilities and are, therefore, not subject to the jurisdiction of the public utilities commission. Clearwater Power Co. v. Washington Water Power Co., 78 Idaho 150, 299 P.2d 484 (1956).

Cited

City of Idaho Falls v. Pfost, 53 Idaho 247, 23 P.2d 245 (1933); Filer Mut. Tel. Co. v. Idaho State Tax Comm’n, 76 Idaho 256, 281 P.2d 478 (1955); Unity Light & Power Co. v. City of Burley, 83 Idaho 285, 361 P.2d 788 (1961); Snake River Homebuilders Ass’n v. City of Caldwell, 101 Idaho 47, 607 P.2d 1321 (1980).

§ 61-105. Person.

The term “person” when used in this act includes an individual, a firm and a copartnership.

History.

1913, ch. 61, § 2d, p. 247; reen. 1915, ch. 62, § 1d, p. 151; reen. 1917, ch. 128, § 1, subd. d, p. 430; reen. C.L. 106:5; C.S., § 2372; I.C.A.,§ 59-105.

STATUTORY NOTES

Cross References.

“Person” defined for air carrier act,§ 61-1102.

Compiler’s Notes.

§ 61-106. Transportation of persons.

The term “transportation of persons” when used in this act includes every service in connection with or incidental to the safety, comfort, or convenience of the person transported and the receipt, carriage and delivery of such person and his baggage.

History.

1913, ch. 61, § 2e, p. 247; am. 1915, ch. 62, § 1e, p. 151; am. 1917, ch. 128, § 1, subd. e, p. 430; reen. C.L. 106:6; C.S., § 2373; I.C.A.,§ 59-106.

STATUTORY NOTES

Cross References.

Aeronautical Administration Act of 1970,§§ 21-131 to 21-150.

Air carrier act, definition of transportation,§ 61-1102.

School transportation,§§ 33-1501 to 33-1512.

Compiler’s Notes.

§ 61-107. Transportation of property.

The term “transportation of property” when used in this act includes every service in connection with or incidental to the transportation of property, including in particular its receipt, delivery, elevation, transfer, switching, carriage, ventilation, refrigeration, icing, dunnage, storage, and handling, and the transmission of credit by express corporations.

History.

1913, ch. 61, § 2f, p. 247; reen. 1915, ch. 62, § 1f, p. 151; am. 1917, ch. 128, § 1, subd. f, p. 430; compiled and reen. C.L. 106:7; C.S., § 2374; I.C.A.,§ 59-107.

STATUTORY NOTES

Compiler’s Notes.

§ 61-108. Street railroad.

The term “street railroad” when used in this act includes every railway and each and every branch or extension thereof, by whatsoever power operated, being mainly upon, along, above or below any street, avenue, road, highway, bridge or public place within any city or county, or city or town, together with all real estate, fixtures and personal property of every kind and description used in connection therewith, owned, controlled, operated or managed for public use in the transportation of persons or property; but the term “street railroad” when used in this act shall not include a railway constituting or used as a part of a commercial or interurban railway.

History.

1913, ch. 61, § 2g, p. 247; am. 1915, ch. 62, § 1g, p. 151; am. 1917, ch. 128, § 1, subd. g, p. 430; compiled and reen. C.L. 106:8; C.S., § 2375; I.C.A.,§ 59-108.

STATUTORY NOTES

Cross References.

Certificates of convenience and necessity,§§ 61-526 to 61-529.

Consent of local authorities required for construction in cities, Idaho Const., Art. XI, § 11.

Intersection with other railroads,§ 62-204.

Power of public utility commission to require adequate service,§ 61-509.

Rates and charges,§ 61-326.

Compiler’s Notes.

CASE NOTES

Cited

In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933); Burlington Out Now v. Burlington N., Inc., 96 Idaho 594, 532 P.2d 936 (1975).

§ 61-109. Street railroad corporation.

The term “street railroad corporation” when used in this act includes every corporation or person, their lessees, trustees, receivers, or trustees appointed by any court whatsoever, owning, controlling, operating or managing any street railroad for compensation within this state.

History.

1913, ch. 61, § 2h, p. 247; reen. 1915, ch. 62, § 1h, p. 152; reen. 1917, ch. 128, § 1, subd. h, p. 430; reen. C.L. 106:9; C.S., § 2376; I.C.A.,§ 59-109.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Common Carriers.

The constitution gives the legislature exclusive control of “railroad companies” and makes them “common carriers” and subject to legislative control. Codd v. McGoldrick Lumber Co., 46 Idaho 256, 267 P. 439 (1928).

Legislative Authority.

The legislature has the authority to designate those carriers or utilities which must secure from the public utilities commission a certificate of convenience and necessity before beginning operations. In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933).

§ 61-110. Railroad.

The term “railroad” when used in this act includes every commercial, interurban and other railway other than a street railroad, and each and every branch or extension thereof, by whatsoever power operated, together with all tracks, bridges, trestles, rights of way, subways, stations, tunnels, depots, union depots, ferries, yards, grounds, terminals, terminal facilities, structures and equipment, and all other real estate, fixtures and personal property of every kind used in connection therewith, owned, controlled, operated or managed for public use in the transportation of persons or property.

History.

1913, ch. 61, § 2i, p. 247; reen. 1915, ch. 62, § 1i, p. 152; reen. 1917, ch. 128, § 1, subd. i, p. 430; reen. C.L. 106:10; C.S., § 2377; I.C.A.,§ 59-110.

STATUTORY NOTES

Cross References.

Assessment for taxation,§ 63-701 et seq.

Railroads,§ 62-101 et seq.

Compiler’s Notes.

CASE NOTES

Common Carrier.

Where a railroad holds out to the public that it will operate as a common carrier, and exercises the right of eminent domain, it cannot contend that it is not a common carrier because it has never operated as such. Codd v. McGoldrick Lumber Co., 46 Idaho 256, 267 P. 439 (1928).

Mere exercise of right of eminent domain by logging railroad did not make it a public highway or common carrier. Codd v. McGoldrick Lumber Co., 48 Idaho 1, 279 P. 298 (1929).

Cited

Burlington Out Now v. Burlington N., Inc., 96 Idaho 594, 532 P.2d 936 (1975).

§ 61-111. Railroad corporation.

The term “railroad corporation” when used in this act includes every corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, owning, controlling, operating or managing any railroad for compensation within this state.

History.

1913, ch. 61, § 2j, p. 247; reen. 1915, ch. 62, § 1j, p. 152; reen. 1917, ch. 128, § 1, subd. j, p. 430; reen. C.L. 106:11; C.S., § 2378; I.C.A.,§ 59-111.

STATUTORY NOTES

Cross References.

Powers and duties of railroad corporation,§ 62-104.

Compiler’s Notes.

§ 61-112. Express corporation.

The term “express corporation” when used in this act includes every corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, engaged in or transacting the business of transporting any freight, merchandise or other property for compensation on the line of any common carrier or stage or auto stage line within this state.

History.

1913, ch. 61, § 2k, p. 247; am. 1915, ch. 62, § 1k, p. 152; am. 1917, ch. 128, subd. k, p. 430; reen. C.L. 106:12; C.S., § 2379; I.C.A.,§ 59-112.

STATUTORY NOTES

Cross References.

Effect of domestic companies consolidating with foreign companies, Idaho Const., Art. XI, § 14.

Regulation and control, Idaho Const., Art. XI, § 5.

Compiler’s Notes.

§ 61-113. Common carrier.

The term “common carrier” when used in this act includes every railroad corporation, street railroad corporation, express corporation, dispatch, sleeping car, dining car, drawing room car, freight line, refrigerator, oil, stock, fruit, car loaning, car renting, car loading and every other car corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, operating for compensation within this state.

History.

1913, ch. 61, § 2 ( l ), p. 247; reen. 1915, ch. 62, § 1 ( l ), p. 152; reen. 1917, ch. 128, subd. l , p. 430; am. 1917, ch. 161, § 1 ( l ), p. 488; am. C.L. 106:13; am. 1919, ch. 172, § 1, p. 546; C.S., § 2380; I.C.A.,§ 59-113; am. 2010, ch. 167, § 1, p. 343.

STATUTORY NOTES

Cross References.

Air carriers,§ 61-1101 et seq.

All railroad, transportation and express companies are common carriers, Idaho Const., Art. XI, § 5.

Railroads,§ 62-101 et seq.

Amendments.

The 2010 amendment, by ch. 167, rewrote the section, deleting the public utilities commission’s jurisdiction over vessels engaged in the transportation of persons and property in Idaho.

Compiler’s Notes.

CASE NOTES

Imposition of Tax.

The legislature may select what business or incidents of value are to be taxed and such selection is not obnoxious to the constitution, if the imposition operates equally on all within the particular class so selected. Idaho Gold Dredging Co. v. Balderston, 58 Idaho 692, 78 P.2d 105 (1938). Where a railroad holds out to the public that it will operate as a common carrier, and exercises the right of eminent domain, it cannot contend that it is not a common carrier because it has never operated as such. Codd v. McGoldrick Lumber Co., 46 Idaho 256, 267 P. 439 (1928).

Mere exercise of right of eminent domain by logging railroad did not make it a common carrier. Codd v. McGoldrick Lumber Co., 48 Idaho 1, 279 P. 298 (1929).

Railroads.

Where company is organized as railway corporation, it becomes a common carrier under Idaho Const., Art. XI, § 5, irrespective of any intention of its corporators to use it for private purposes only, and it can be compelled to perform its duties as a public service corporation. Connolly v. Woods, 13 Idaho 591, 92 P. 573 (1907).

§ 61-114. Pipeline.

The term “pipeline” when used in this act includes all real estate, gathering lines, fixtures and personal property owned, controlled, operated or managed in connection with or to facilitate the transmission, storage, distribution or delivery of natural gas or manufactured gas, crude oil or other fluid substances except water through pipelines.
“Gathering lines” means fixtures, valves, pipes and other property used to transport, deliver or distribute natural gas, manufactured gas, natural gas condensate, crude oil or other petroleum products from a wellhead to a transmission line.

History.

1913, ch. 61, § 2m, p. 247; reen. 1915, ch. 62, § 1m, p. 152; reen. 1917, ch. 128, subd. m, p. 430; reen. C.L. 106:14; C.S., § 2381; I.C.A.,§ 59-114; am. 2012, ch. 72, § 1, p. 207; am. 2014, ch. 108, § 1, p. 315.

STATUTORY NOTES

Cross References.

Damaging or obstructing gas or water pipe-line, penalty,§ 18-7022.

Eminent domain,§ 7-701.

Rights of way for oil and gas pipelines,§ 62-1101 et seq.

Safety laws for pipelines, violation, civil penalty and compromise,§§ 61-712A, 61-712B.

Use of street, permission of authorities required,§ 62-901.

Amendments.

The 2012 amendment, by ch. 72, designated the existing provisions as subsection (1), inserting “gathering lines” and “natural gas or manufactured gas” therein, and added subsection (2).

The 2014 amendment, by ch. 108, rewrote subsection (2), which formerly read: “’Gathering lines’ means fixtures, valves, pipes and other property used to transport, deliver or distribute natural gas, manufactured gas or crude oil from a wellhead to a treatment facility or a point of interconnection with another gathering line, a transmission line or main line”.

Compiler’s Notes.

The term “this act” refers to S.L. 1913, Chapter 61, which is compiled as§§ 61-101 to 61-121, 61-124 to 61-129, 61-201 to 61-214, 61-301 to 61-315, 61-316 to 61-326, 61-401, 61-403 to 61-406, 61-501, 61-502, 61-503, 61-504, 61-506 to 61-515, 61-517 to 61-529, 61-601 to 61-617, 61-618, 61-619, 61-621, 61-622, 61-624 to 61-626, 61-633 to 61-638, 61-640 to 61-642, 61-701 to 61-712, 61-713, and 61-714.

Effective Dates.

Section 4 of S.L. 2012, ch. 72 declared an emergency. Approved March 20, 2012. Section 3 of S.L. 2014, ch. 108 declared an emergency. Approved March 18, 2014.

RESEARCH REFERENCES

Idaho Law Review.

Idaho Law Review. — A Summary of Revisions to Idaho’s Oil and Gas Conservation Act and Rules: Responding as Production in Idaho Nears Reality, John F. Peiserich and Michael R. Christian. 49 Idaho L. Rev. 497 (2013).

§ 61-115. Pipeline corporation.

The term “pipeline corporation” when used in this act includes every corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, owning, controlling, operating or managing any pipeline for compensation within this state.

History.

1913, ch. 61, § 2n, p. 247; reen. 1915, ch. 62, § 1n, p. 153; reen. 1917, ch. 128, subd. n, p. 430; reen. C.L. 106:15; C.S., § 2382; I.C.A.,§ 59-115.

STATUTORY NOTES

Compiler’s Notes.

§ 61-116. Gas plant.

The term “gas plant” when used in this act includes all real estate, fixtures and personal property owned, controlled, operated or managed in connection with or to facilitate the production, generation, transmission, delivery or furnishing of gas (natural or manufactured) for light, heat or power.

History.

1913, ch. 61, § 2o, p. 247; reen. 1915, ch. 62, § 1o, p. 153; reen. 1917, ch. 128, subd. o, p. 430; reen. C.L. 106:16; C.S. § 2383; I.C.A.,§ 59-116.

STATUTORY NOTES

Compiler’s Notes.

The words enclosed in parentheses so appeared in law as enacted.

CASE NOTES

Jurisdiction.

Public utilities commission had jurisdiction of application of company for a certificate of public convenience and necessity permitting company to transport and distribute natural gas from Canada, even though company might also have to secure a certificate from federal power commission. Application of Trans-Northwest Gas, Inc., 72 Idaho 215, 238 P.2d 1141 (1951).

Cited

In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933).

§ 61-117. Gas corporation.

The term “gas corporation” when used in this act includes every corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, owning, controlling, operating or managing any gas plant for compensation, within this state, except where gas is made or produced on and distributed by the maker or producer through private property alone solely for his own use or the use of his tenants and not for sale to others.

History.

1913, ch. 61, § 2p, p. 247; reen. 1915, ch. 62, § 1p, p. 153; reen. 1917, ch. 128, subd. p, p. 430; reen. C.L. 106:17; C.S., § 2384; I.C.A.,§ 59-117.

STATUTORY NOTES

Cross References.

Certificates of convenience,§§ 61-526 to 61-529.

Consumer complaints against gas companies,§ 61-612.

Duty to furnish gas on application,§§ 62-902, 62-903.

Inspection of meters,§ 62-904.

Mutual gas corporation excluded,§ 61-104.

Compiler’s Notes.

CASE NOTES

Application of Company.

Cited

In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933).

§ 61-118. Electric plant.

The term “electric plant” when used in this act includes all real estate, fixtures and personal property owned, controlled, operated or managed in connection with or to facilitate the production, generation, transmission, delivery or furnishing of electricity for light, heat or power, and all conduits, ducts or other devices, materials, apparatus or property for containing, holding or carrying conductors used or to be used for the transmission of electricity for light, heat or power.

History.

1913, ch. 61, § 2q, p. 247; am. 1915, ch. 62, § 1q, p. 153; am. 1917, ch. 128, subd. 1q, p. 430; reen. C.L. 106:18; C.S., § 2385; I.C.A.,§ 59-118.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Cited

In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933).

§ 61-119. Electrical corporation.

The term “electrical corporation” when used in this act includes every corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, owning, controlling, operating or managing any electric plant for compensation within this state, except where the electricity is:

Generated on or distributed by the producer through private property alone, solely for his own use or the use of his tenants and not for sale to others;
Purchased from a public utility as defined in section 61-129, Idaho Code, to charge the batteries of an electric motor vehicle as provided by order or rule of the commission; or
To be used exclusively in operations incident to the working of metalliferous mines and mining claims, mills, or reduction and smelting plants, and the transmission lines and distribution systems are owned by the consumer or where several consumers severally own their individual distribution systems and jointly own, in their own names or through a trustee, the transmission lines used in connection therewith and transmit such electricity, whether generated by themselves or procured from some other source, over such transmission lines and distribution systems without profit, and to be used for their private uses for the purposes aforesaid in places outside the limits of incorporated cities, towns and villages, and not for resale or public use, sale or distribution.

History.

1913, ch. 61, § 2r, p. 247; am. 1915, ch. 62, § 1r, p. 153; am. 1917, ch. 128, subd. r, p. 430; reen. C.L. 106:19; C.S., § 2386; I.C.A.,§ 59-119; am. 2015, ch. 221, § 1, p. 684.

STATUTORY NOTES

Cross References.

Certificate of convenience and necessity,§ 61-529.

Electricity generating companies, license tax,§§ 63-2701 to 63-2708.

Electric supplier stabilization act,§§ 61-332 to 61-334C.

Mutual electrical corporation excluded,§ 61-104.

Use of highways and streets,§ 62-705.

Amendments.

The 2015 amendment, by ch. 221, added the subsection designations to the existing provisions of the section and added subsection (2).

Compiler’s Notes.

CASE NOTES

Nonprofit Cooperative.

Cited

In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933); Unity Light & Power Co. v. City of Burley, 83 Idaho 285, 361 P.2d 788 (1961).

§ 61-120. Telephone line.

The term “telephone line” when used in this act includes all conduits, ducts, poles, wires, cables, instruments and appliances, and all other real estate, fixtures, and personal property owned, controlled, operated or managed in connection with or to facilitate communication by telephone, whether such communication is had with or without the use of transmission wires.

History.

1913, ch. 61, § 2s, p. 247; am. 1915, ch. 62, § 1s, p. 154; am. 1917, ch. 128, subd. s, p. 430; reen. C.L. 106:20; C.S., § 2387; I.C.A.,§ 59-120.

STATUTORY NOTES

Cross References.

Right to construct and maintain, Idaho Const., Art. XI, § 13.

Compiler’s Notes.

CASE NOTES

Cited

In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933); Filer Mut. Tel. Co. v. Idaho State Tax Comm’n, 76 Idaho 256, 281 P.2d 478 (1955).

§ 61-121. Telephone corporation — Telecommunication services.

The term “telephone corporation” when used in title 61, Idaho Code, means every corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, providing telecommunication services for compensation within this state. Except as otherwise provided by statute, telephone corporations providing radio paging, mobile radio telecommunication services, answering services (including computerized or otherwise automated answering or voice message services), or one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and subscriber interaction, if any, which is required for the selection of such video programming or other programming service or surveying are exempt from any requirement of title 61, or chapter 6, title 62, Idaho Code, in the provision of such services.
“Telecommunication service” means the transmission of two-way interactive switched signs, signals, writing, images, sounds, messages, data, or other information of any nature by wire, radio, lightwaves, or other electromagnetic means (which includes message telecommunication service and access service), which originate and terminate in this state, and are offered to or for the public, or some portion thereof, for compensation. Except as otherwise provided by statute, “telecommunication service” does not include the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and subscriber interaction, if any, which is required for the selection of such video programming or other programming service, surveying, or the provision of radio paging, mobile radio telecommunication services, answering services (including computerized or otherwise automated answering or voice message services), and such services shall not be subject to the provisions of title 61, Idaho Code, or title 62, Idaho Code.

History.

1913, ch. 61, § 2t, p. 247; am. 1915, ch. 62, § 1t, p. 154; am. 1917, ch. 128, subd. t, p. 430; reen. C.L. 106:21; C.S., § 2388; I.C.A.,§ 59-121; am. 1983, ch. 172, § 2, p. 479; am. 1988, ch. 195, § 2, p. 358; am. 1999, ch. 114, § 1, p. 341.

STATUTORY NOTES

Cross References.

Effect of consolidation with foreign company, Idaho Const., Art. XI, § 14.

Mutual telephone corporation excluded,§ 61-104.

Telegraph and telephone companies, acceptance and transmission of messages,§§ 62-801 to 62-805.

Legislative Intent.

Section 1 of S.L. 1983, ch. 172 read: “Section 1. The legislature hereby finds that the regulation of the rates, charges and service of mobile telephone service should be removed from the jurisdiction of the Idaho public utilities commission because the forces of the competitive market place can provide better regulation. The legislature declares that the purpose of this act is to end all regulation of mobile telephone companies as public utilities.”

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Section 4 of S.L. 1988, ch. 195 read: “On or before January 1, 1991, the commission shall report to the legislature on the effect of this act on telecommunication services within the state of Idaho, together with the commission’s recommendations for changes in the law, if any.”

Effective Dates.

Section 7 of S.L. 1999, ch. 114 declared an emergency. Approved March 18, 1999.

CASE NOTES

Cited

In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933); In re Pacific Tel. & Tel. Co., 71 Idaho 476, 233 P.2d 1024 (1951); Filer Mut. Tel. Co. v. Idaho State Tax Comm’n, 76 Idaho 256, 281 P.2d 478 (1955).

§ 61-122, 61-123. Telegraph line and corporation. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

These sections, which comprised 1913, ch. 61, §§ 2u, 2v, p. 247; am. 1915, ch. 62, §§ 1u, 1v, p. 154; am. 1917, ch. 128, subd. u and v, p. 430; reen. C.L. 106:22 and 23; C.S., §§ 2389, 2390; I.C.A.,§§ 59-122, 59-123, were repealed by S.L. 1982, ch. 5, § 1.

§ 61-124. Water system.

The term “water system” when used in this act includes all reservoirs, tunnels, shafts, dams, dikes, headgates, pipes, flumes, canals, structures and appliances, and all other real estate, fixtures and personal property, owned, controlled, operated or managed in connection with or to facilitate the diversion, development, storage, supply, distribution, sale, furnishing, carriage, apportionment or measurement of water for power, irrigation, reclamation or manufacturing, or for municipal, domestic or other beneficial use for hire.

A water system which consists of a canal system, or irrigation project constructed pursuant to the act of congress known as the Carey act and the statutes of this state relating thereto, shall not be considered a public utility under the terms of this act, and neither such water system nor the corporation, company or association owning or managing the same shall be under the jurisdiction, control or regulation of the commission.

History.

1913, ch. 61, § 2w, p. 247; reen. 1915, ch. 62, § 1, p. 154; 1915, ch. 105, § 1, p. 246; reen. 1917, ch. 128, § 1, p. 430; compiled and reen. C.L. 106:24; C.S., § 2391; I.C.A.,§ 59-124.

STATUTORY NOTES

Cross References.

Irrigation and water rights,§§ 42-101 to 43-2207.

Federal References.

For the “Carey act,” referred to in this section, see 43 U.S.C.S. § 641.

Compiler’s Notes.

The term “this act” in the first paragraph refers to S.L. 1913, ch. 61, which is compiled as§§ 61-101 to 61-121, 61-124 to 61-129, 61-201 to 61-214, 61-301 to 61-315, 61-316 to 61-326, 61-401, 61-403 to 61-406, 61-501, 61-502, 61-503, 61-504, 61-506 to 61-515, 61-517 to 61-529, 61-601 to 61-617, 61-618, 61-619, 61-621, 61-622, 61-624 to 61-626, 61-633 to 61-638, 61-640 to 61-642, 61-701 to 61-712, 61-713, and 61-714.

CASE NOTES

Cited

Public Utils. Comm’n v. Natatorium Co., 36 Idaho 287, 211 P. 533 (1922); In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933).

§ 61-125. Water corporation.

The term “water corporation” when used in this act includes every corporation or person, their lessees, trustees, receivers or trustees, appointed by any court whatsoever, owning, controlling, operating or managing any water system for compensation within this state.

History.

1913, ch. 61, § 2x, p. 247; reen. 1915, ch. 62, § 1x, p. 154; reen. 1917, ch. 128, subd. x, p. 430; reen. C.L. 106:25; C.S., § 2392; I.C.A.,§ 59-125.

STATUTORY NOTES

Cross References.

Mutual water corporation excluded,§ 61-104.

Compiler’s Notes.

CASE NOTES

Limited Number of Users.

Where the service is performed and the commodity delivered directly to the public or some portion thereof, and where the service is performed or the commodity delivered to any corporation or corporations, or any person or persons, who in turn, either directly or indirectly or mediately or immediately, performs the services or delivers such commodity to or for the public or some portion thereof; and
Where a pipeline corporation delivers the commodity to any corporation, person, their lessees, receivers or trustees regardless of whether it offers the pipeline service or commodity to the public or some portion thereof. Such pipeline shall be subject to the safety supervision and regulation of the commission only, unless and until such pipeline corporation makes application to the commission to be regulated generally as a public utility.

History.

1913, ch. 61, § 2bb, p. 247; am. 1915, ch. 62, § 1bb, p. 555; am. 1917, ch. 128, subd. bb, p. 430; reen. C.L. 106:29; C.S., § 2396; I.C.A.,§ 59-129; am. 1967, ch. 6, § 1, p. 9; am. 1982, ch. 5, § 2, p. 8; am. 2010, ch. 167, § 3, p. 343; am. 2012, ch. 72, § 2, p. 207; am. 2014, ch. 108, § 2, p. 315.

STATUTORY NOTES

Cross References.

Annual fees payable to commission by public utilities and motor carriers,§ 61-1001.

Right of every public utility to issue securities,§§ 61-901 to 61-908.

Amendments.

The 2010 amendment, by ch. 167, near the beginning, deleted “and wharfinger” following “water corporation.”

The 2012 amendment, by ch. 72, divided the existing provisions of the section, designating a portion thereof as subsection (1), added subsection (2), and made stylistic changes.

The 2014 amendment, by ch. 108, added “only, unless and until such pipeline corporation makes application to the commission to be regulated generally as a public utility” at the end of subsection (2).

Compiler’s Notes.

Effective Dates.

Section 2 of S.L. 1967, ch. 6 declared an emergency. Approved February 2, 1967.

Section 4 of S.L. 2012, ch. 72 declared an emergency. Approved March 20, 2012.

Section 3 of S.L. 2014, ch. 108 declared an emergency. Approved March 18, 2014.

CASE NOTES

Eminent Domain.

Mere exercise of right of eminent domain by logging railroad did not make it a common carrier. Codd v. McGoldrick Lumber Co., 48 Idaho 1, 279 P. 298 (1929).

Extent of Control.

Implicit in this section and the rate-making sections is the idea that the operative factor for jurisdictional purposes is the receipt of services and anyone receiving services from a public utility is subject to public utility regulations and control. United States v. Utah Power & Light Co., 98 Idaho 665, 570 P.2d 1353 (1977).

The Idaho public utilities commission (IPUC) has the authority and the jurisdiction to engage in a case-by-case analysis under applicable statutory law for the standards and requirements pursuant to implementation of the public utility regulatory policies act: thus, all case decisions issued by the IPUC are potentially applicable to, and may have an impact on, a qualifying facility’s project. Rosebud Enters., Inc. v. Idaho Public Utils. Comm’n, 128 Idaho 609, 917 P.2d 766 (1996).

Test of Public Utility.

To hold that property has been devoted to public use “is not a trivial thing.” Such dedication is not presumed without evidence of unequivocal intention. Stoehr v. Natatorium Co., 34 Idaho 217, 200 P. 132 (1921).

Corporation becomes public service corporation, and therefore subject to regulation as public utility, only when and to the extent that business becomes devoted to public use. Stoehr v. Natatorium Co., 34 Idaho 217, 200 P. 132 (1921).

When the appellant sunk its wells and developed and diverted the subterranean water upon its property and began to sell, rent and distribute the same for compensation, it devoted it to a use, which the constitution declares to be a public use and subject to regulation and control by the state. Public Utils. Comm’n v. Natatorium Co., 36 Idaho 287, 211 P. 533 (1922). Test for determining whether company is public utility depends upon whether it has held itself out as ready, able and willing to serve public generally or some portion thereof. Humbird Lumber Co. v. Public Utils. Comm’n, 39 Idaho 505, 228 P. 271 (1924).

Furnishing water to one person or corporation under contract does not constitute delivery of water to public or some portion thereof. Humbird Lumber Co. v. Public Utils. Comm’n, 39 Idaho 505, 228 P. 271 (1924).

Cited

William H. Banks Whses., Inc. v. Jean, 96 F. Supp. 731 (D. Idaho 1951); In re Pacific Tel. & Tel. Co., 71 Idaho 476, 233 P.2d 1024 (1951); Unity Light & Power Co. v. City of Burley, 83 Idaho 285, 361 P.2d 788 (1961); Snake River Homebuilders Ass’n v. City of Caldwell, 101 Idaho 47, 607 P.2d 1321 (1980); Afton Energy, Inc. v. Idaho Power Co., 107 Idaho 781, 693 P.2d 427 (1984); Empire Lumber Co. v. Washington Water Power Co., 114 Idaho 191, 755 P.2d 1229 (1988); Idaho Power Co. v. New Energy Two, LLC, 156 Idaho 462, 328 P.3d 442 (2014).

OPINIONS OF ATTORNEY GENERAL

Cities in Idaho almost certainly have authority under current state law to franchise cable television companies. With general franchising authority under state law, federal law allows cities to regulate the basic cable television service rate and charge a franchise fee, both subject to the conditions of federal law.OAG 94-5.

Counties in Idaho probably have authority under current state law to franchise cable television companies. With general franchising authority under state law, federal law allows counties to regulate the basic cable television service rate and charge a franchise fee, both subject to the conditions of federal law.OAG 94-5.

RESEARCH REFERENCES

Idaho Law Review.

Am. Jur. 2d.

C.J.S.

74 C.J.S., Railroads, § 3.

ALR.

Amount of attorneys’ compensation in matters involving guardianship and trusts. 57 A.L.R.3d 550.

Amount of attorneys’ fees in tort actions. 57 A.L.R.3d 584.

Amount of attorneys’ compensation in proceedings involving wills and administration of decedents’ estates. 58 A.L.R.3d 317.

Landlord supplying electricity, gas, water or similar facility to tenant as subject to utility regulation. 75 A.L.R.3d 1204.

Incidental provision of utility services, by party not in that business, as subject to regulation by state regulatory authority. 85 A.L.R.4th 894.

Incidental provision of transportation services, by party not primarily in that business, as common carriage subject to state regulatory control. 87 A.L.R.4th 638. Excessiveness or adequacy of attorneys’ fees in matters involving real estate — modern cases. 10 A.L.R.5th 448.

Excessiveness or adequacy of attorneys’ fees in domestic relations cases. 17 A.L.R.5th 366.

Excessiveness or inadequacy of attorneys’ fees in matters involving commercial and general business activities. 23 A.L.R.5th 241.

Calculations of attorneys’ fees under Federal Tort Claims Act — 28 USCS § 2678. 86 A.L.R. Fed. 866.

§ 61-130. Reference to other statutes and laws.

Wherever the words “public utilities commission of the state of Idaho,” or the words “public utilities commission” or “commission,” are used in the existing laws or statutes of the state of Idaho, or in any laws enacted at the thirty-first session of the legislature of the state of Idaho, with respect to the administration of the public utilities law and refer to and mean the public utilities commission of the state of Idaho, said words shall be read and construed to mean the Idaho public utilities commission created by this act.

History.

1951, ch. 100, § 4, p. 225.

STATUTORY NOTES

Cross References.

Commission, definition,§ 61-102.

Public utilities commission, creation,§ 61-201.

Compiler’s Notes.

The term “this act” refers to S.L. 1951, ch. 100, which is compiled as§§ 61-102, 61-130, 61-201, and 61-209.

Effective Dates.

Section 5 of S.L. 1951, ch. 100 declared an emergency. Approved March 9, 1951.

Chapter 2 PUBLIC UTILITIES COMMISSION

Sec.

§ 61-201. Creation — Appointment and term of office of members of the Idaho public utilities commission — Filling of vacancies.

There is hereby created a state commission to be known and designated as the Idaho public utilities commission. The commission shall be comprised of three (3) members appointed by the governor, with the approval of the senate. Not more than two (2) members of said commission shall belong to the same political party. The members of the first commission after taking effect of this act shall be appointed for terms beginning with the effective date of this act and expiring as follows: Two (2) commissioners for a term expiring the second Monday in January, 1953, and one (1) commissioner for a term expiring the second Monday in January, 1955. Each of the commissioners shall hold office until his successor is appointed and qualified. On the second Monday in January, 1961, the governor shall appoint one (1) commissioner for a four (4) year term and one (1) commissioner for a six (6) year term, and on the second Monday in January, 1963, the governor shall appoint one (1) commissioner for a six (6) year term. On the second Monday in January of each second year after the year of 1963, the governor shall appoint one (1) commissioner for a six (6) year term. Whenever a vacancy in the office of commissioner shall occur, the governor shall forthwith appoint a qualified person to fill the same for the unexpired term. If any appointment is made during the recess of the legislature it shall be subject to confirmation by the senate during its next ensuing session.

History.

1913, ch. 61, parts of §§ 3a, 3b, p. 247; compiled and reen. C.L. 106:30; C.S., § 2397; I.C.A.,§ 59-201; am. 1951, ch. 100, § 2, p. 225; am. 1959, ch. 192, § 1, p. 423.

STATUTORY NOTES

Cross References.

Appointment by governor,§ 59-904.

Commission, definition,§ 61-102.

Compensation of members,§ 61-212.

Oath of office,§ 61-207.

Qualifications,§ 61-207.

Compiler’s Notes.

The phrase “the effective date of this act” in the fourth sentence refers to the effective date of S.L. 1951, ch. 100, which was effective March 9, 1951. The members of the public utilities commission were, by 1913, ch. 57, p. 167, made ex officio a state board of tax commissioners. In Blomquist v. Board of County Comm’rs. , 25 Idaho 284, 137 P. 174 (1913), it was held that the powers of the tax commission were merely advisory and the law was thereafter repealed by S.L. 1915, ch. 30, § 85. For present law regarding the state tax commission, see§ 63-101.

CASE NOTES

Authority of Commission.

The public utilities commission is a creature of statute, with limited authority. McGuire Estates Water Co. v. Idaho Pub. Utils. Comm’n, 111 Idaho 341, 723 P.2d 885 (1986).

Although the water company had failed to obtain an operating certificate from the public utilities commission, the commission did not have the authority to prohibit a utility, charging reasonable rates, from collecting on its past due accounts, where the commission’s order did not tie the water company’s ability to collect to the company’s initial efforts toward obtaining certification or to the company’s actual certification. McGuire Estates Water Co. v. Idaho Pub. Utils. Comm’n, 111 Idaho 341, 723 P.2d 885 (1986).

Legislative Authority.

Cited

McElroy v. Boise Valley Traction Co., 40 Idaho 44, 230 P. 1012 (1924); Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 744, 639 P.2d 442 (1981).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 61-202. Removal of commissioners.

The governor may remove any one or more of said commissioners from office for dereliction of duty or corruption or incompetency upon filing with the secretary of the commission charges against such commissioner or commissioners, setting forth the grounds of such contemplated removal and giving an opportunity for such commissioner or commissioners to be heard in regard thereto.

History.

1913, ch. 61, § 3b, last part, p. 247; compiled and reen. C.L. 106:31; C.S., § 2398; I.C.A.,§ 59-202.

§ 61-203. President.

On the first Monday of April, 1981, and every two (2) years thereafter, the commissioners shall elect one (1) of their members to be president. Should the president be unable to fulfill his term because of death, resignation, absence, disability, removal from office or refusal to act, the commission shall elect one (1) of their members to be president for the remainder of the unexpired term.

History.

1913, ch. 61, § 3a, last part, p. 247; compiled and reen. C.L. 106:32; C.S., § 2399; I.C.A.,§ 59-203; am. 1981, ch. 11, § 1, p. 20.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 1981, ch. 11 declared an emergency. Approved March 5, 1981. March 5, 1981.

§ 61-204. Attorney general attorney of commission.

It shall be the right and the duty of the attorney general to represent and appear for the people of the state of Idaho and the commission in all actions and proceedings involving any question under this act or under any order or act of the commission and, if directed to do so by the commission, to intervene, if possible, in any action or proceeding in which any such question is involved; to commence, prosecute, and expedite the final determination of all actions and proceedings directed or authorized by the commission; to advise the commission and each commissioner, when so requested, in regard to all matters connected with the powers and duties of the commission and the members thereof; and generally to perform all duties and service as attorney to the commission which the commission may require of him.

History.

1913, ch. 61, § 4, p. 247; reen. C.L. 106:33; C.S., § 2400; I.C.A.,§ 59-204.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Designation of hearing examiner to represent commission in lieu of an attorney appointed by the attorney general,§ 61-211.

Duty of attorney general upon request of the commission to aid in enforcement of public utilities law,§ 61-701.

Compiler’s Notes.

CASE NOTES

Assistant Attorney General.

The requirements of this section are fulfilled by the appearance and representation of the people of Idaho before the commission by an assistant attorney general. Idaho Underground Water Users Ass’n v. Idaho Power Co., 89 Idaho 147, 404 P.2d 859 (1965).

§ 61-205. Secretary — Appointment — Duties.

The commission shall appoint a secretary, who shall hold office during its pleasure. It shall be the duty of the secretary to keep a full and true record of all proceedings of the commission, to issue all necessary process, writs, warrants and notices, and to perform such other duties as the commission may prescribe.

History.

1913, ch. 61, § 5, p. 247; reen. C.L. 106:34; C.S., § 2401; I.C.A.,§ 59-205.

CASE NOTES

Secretary Not Member.

Secretary is not a member of commission and his act in certifying record is not an act of commission. McElroy v. Boise Valley Traction Co., 40 Idaho 44, 230 P. 1012 (1924).

§ 61-206. Employees.

The commission shall have power to employ, during its pleasure, such officers, experts, engineers, statisticians, accountants, inspectors, clerks and employees as it may deem necessary to carry out the provisions of this act or to perform the duties and exercise the powers conferred by law upon the commission.
In addition to the number of nonclassified employees provided by other provisions of law, the commission shall have the authority to employ not more than three (3) nonclassified employees as regulatory policy strategists reporting directly to the commission and one (1) nonclassified pipeline safety specialist.

History.

1913, ch. 61, § 6, p. 247; reen. C.L. 106:35; C.S., § 2402; I.C.A.,§ 59-206; am. 1998, ch. 147, § 1, p. 517; am. 2001, ch. 108, § 1, p. 372.

STATUTORY NOTES

Cross References.

Compensation of employees,§ 61-212.

Compiler’s Notes.

Effective Dates.

Section 2 of S.L. 1998, ch. 147 declared an emergency. Approved March 20, 1998.

Section 2 of S.L. 2001, ch. 108 declared an emergency. Approved March 22, 2001.

§ 61-207. Commissioners and employees — Oath — Qualifications — Restrictions on political activity.

Each commissioner shall devote his entire time to the duties of his office and shall, together with each person appointed to a civil executive office by the commission, before entering upon the duties of his office, take and subscribe to an oath to the effect that he will support the Constitution of the United States and the state of Idaho, and faithfully and impartially discharge the duties of his office as required by law and that he is not interested directly or indirectly in any public utility embraced within the provisions of this act; or any of its stocks, bonds, mortgages, securities or earnings.

Compiler’s Notes.

Effective Dates.

Section 2 of S.L. 1923, ch. 99 declared an emergency.

Section 2 of S.L. 1945, ch. 192 provided that the act should take effect July 1, 1945.

Section 2 of S.L. 1969, ch. 409 provided that the act should take effect on and after July 1, 1969.

§ 61-213. Expenses — Audit and payment.

All expense incurred by the commission pursuant to the provisions of this act, including the actual and necessary traveling and other expenses and disbursements of the commissioners, their officers and employees, incurred while on business of the commission, shall be paid from the funds appropriated for the use of the commission, after being approved by the commission upon claims therefor to be audited as provided by law.

History.

1913, ch. 61, § 10b, p. 247; reen. 1915, ch. 115, § 1, subd. b, p. 261; reen. C.L. 106:42; C.S., § 2409; I.C.A.,§ 59-213.

STATUTORY NOTES

Compiler’s Notes.

RESEARCH REFERENCES

C.J.S.

§ 61-214. Annual report of commission.

The commission shall make and submit to the governor on or before the first day of December of each year, a report containing a full and complete account of its transactions, and proceedings for the preceding fiscal year, ending June thirtieth, together with such other facts, suggestions, and recommendations as it may deem of value to the people of the state.

History.

1913, ch. 61, § 11, p. 247; reen. C.L. 106:43; C.S., § 2410; I.C.A.,§ 59-214.

STATUTORY NOTES

Cross References.

Reports by public utilities to commission,§ 61-401 et seq.

§ 61-215. Salaries of public utilities commissioners.

Each member of the public utilities commission shall devote full time to the performance of his/her duties. Commencing on July 1, 2020, the annual salary of members of the public utilities commission shall be one hundred twelve thousand two hundred seventy-five dollars ($112,275) and shall be paid from sources set by the legislature.

History.

I.C.,§ 61-215, as added by 1987, ch. 60, § 1, p. 108; am. 1990, ch. 115, § 1, p. 239; am. 1993, ch. 45, § 1, p. 117; am. 1998, ch. 358, § 2, p. 1121; am. 1999, ch. 18, § 1, p. 26; am. 2000, ch. 359, § 1, p. 1195; am. 2001, ch. 253, § 1, p. 918; am. 2004, ch. 281, § 1, p. 774; am. 2006, ch. 368, § 1, p. 1106; am. 2007, ch. 121, § 1, p. 370; am. 2008, ch. 285, § 1, p. 807; am. 2012, ch. 224, § 1, p. 610; am. 2014, ch. 316, § 1, p. 780; am. 2015, ch. 120, § 1, p. 305; am. 2016, ch. 247, § 1, p. 661; am. 2017, ch. 316, § 1, p. 831; am. 2018, ch. 174, § 3, p. 384; am. 2019, ch. 108, § 3, p. 365; am. 2020, ch. 119, § 3, p. 370.

STATUTORY NOTES

Amendments.

The 2006 amendment, by ch. 368, substituted the current second sentence for “Commencing on July 1, 2004, the annual salary of members of the public utilities commission shall be eighty-two thousand seven hundred forty dollars ($82,740) and shall be paid from sources set by the legislature.”

The 2007 amendment, by ch. 121, substituted “July 1, 2007” for “July 1, 2006” and “eighty-nine thousand four hundred eighty-three dollars ($89,483)” for “eighty-five thousand two hundred twenty-two ($85,222).”

The 2008 amendment, by ch. 285, in the last sentence, substituted “July 1, 2008” for “July 1, 2007” and “ninety-two thousand one hundred sixty-seven dollars ($92,167)” for “eighty-nine thousand four hundred eighty-three dollars ($89,483).”

The 2012 amendment by ch. 224, substituted “Commencing on July 1, 2012, the annual salary of members of the public utilities commission shall be ninety-four thousand ten dollars ($94,010)” for “Commencing on July 1, 2008, the annual salary of members of the public utilities commission shall be ninety-two thousand one hundred sixty-seven dollars ($92,167)” in the second sentence.

The 2014 amendment, by ch. 316, substituted “2014” for “2012” and “ninety-four thousand nine hundred fifty dollars ($94,950)” for “ninety-four thousand ten dollars ($94,010).”

The 2015 amendment, by ch. 120, in the second sentence, substituted “July 1, 2015” for “July 1, 2014” and substituted “ninety-seven thousand seven hundred ninety-nine dollars ($97,799)” for “ninety-four thousand nine hundred fifty dollars ($94,950)”.

The 2016 amendment, by ch. 247, in the second sentence, substituted “July 1, 2016” for “July 1, 2015” and “one hundred thousand seven hundred thirty-three dollars ($100,733)” for “ninety-seven thousand seven hundred ninety-nine dollars ($97,799).” The 2017 amendment, by ch. 316, rewrote the last sentence, which formerly read: “Commencing on July 1, 2016, the annual salary of members of the public utilities commission shall be one hundred thousand seven hundred thirty-three dollars ($100,733) and shall be paid from sources set by the legislature”.

The 2018 amendment, by ch. 174, in the second sentence, substituted “July 1, 2018” for “July 1, 2017” near the beginning and substituted “one hundred six thousand eight hundred sixty-eight dollars ($106,868)” for “one hundred three thousand seven hundred fifty-five dollars ($103,755)” near the end.

The 2019 amendment, by ch. 108, rewrote the last sentence, which formerly read: “Commencing on July 1, 2018, the annual salary of members of the public utilities commission shall be one hundred six thousand eight hundred sixty-eight dollars ($106,868) and shall be paid from sources set by the legislature.”

The 2020 amendment, by ch. 119, rewrote the last sentence, which formerly read: “Commencing on July 1, 2019, the annual salary of members of the public utilities commission shall be one hundred ten thousand seventy-four dollars ($110,074) and shall be paid from sources set by the legislature.”

Compiler’s Notes.

Section 7 of S.L. 2014, ch. 316 provided: “Notwithstanding any other provision of law to the contrary, commissioner salaries referenced in Sections 1 [this section], 2 and 3 of this act shall be increased by the equivalent of 1% for the period July 1, 2014, through June 30, 2015.”

Chapter 3 DUTIES OF PUBLIC UTILITIES

Sec.

§ 61-301. Charges just and reasonable.

All charges made, demanded or received by any public utility, or by any two (2) or more public utilities, for any product or commodity furnished or to be furnished or any service rendered or to be rendered shall be just and reasonable. Every unjust or unreasonable charge made, demanded or received for such product or commodity or service is hereby prohibited and declared unlawful.

History.

1913, ch. 61, § 12a, p. 247; reen. C.L. 106:44; C.S., § 2411; I.C.A.,§ 59-301.

STATUTORY NOTES

Cross References.

Equal transportation rights guaranteed, Idaho Const., Art. XI, § 6.

Right of legislature to control transportation rates, Idaho Const., Art. XI, § 5.

CASE NOTES

Appellate Review.

The supreme court’s review of whether the evidence presented to the public utilities commission is competent and substantial must be tempered by a consideration of whether a proposed new rate structure is also just and reasonable as required by§§ 61-315 and 61-502 and this section. Grindstone Butte Mut. Canal Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 175, 627 P.2d 804 (1981).

Commission’s Authority.

The public utilities commission has authority to fix rates which are just and equitable, both to the people and to the corporation. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

A company is required by law to file with the public utilities commission its rates and charges, and to charge without change, modification, variance or rebate the rates set forth in its approved schedule. Boise Valley Traction Co. v. Ada County, 38 Idaho 350, 222 P. 1035 (1923).

Criteria for Rate Differentiation.

Since the commission has power to regulate and fix charges and rates, but a utility is enjoined from establishing rates or charges which are preferential or discriminatory, it follows by implication that the commission’s authority may only be exercised in such a way as to fix nondiscriminatory, and nonpreferential rates and charges. Idaho State Homebuilders v. Washington Water Power, 107 Idaho 415, 690 P.2d 350 (1984). Criteria for Rate Differentiation.

As between classes of service, whether those classes be as between schedules or as between customers within a schedule, valid considerations for rate differentiation are the quantity of the utility used, the nature of the use, the time of use, the pattern of use, the differences in the conditions of service, the costs of service, the reasonable efficiency and economy of operation, the actual differences in the situation of the consumers for the furnishing of the service, contribution to peak load, costs of service on peak demand days, costs of storage and economic incentives; one criterion is not necessarily more essential than another nor is the list of criteria exclusive. Grindstone Butte Mut. Canal Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 175, 627 P.2d 804 (1981).

Legislative Authority.

The legislature has authority to designate those carriers or utilities which must secure from the public utilities commission a certificate of convenience and necessity before beginning operations. In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933).

Rate Making Generally.

Rate making principles applied to electric rates. Idaho Power Co. v. Thompson, 19 F.2d 547 (D. Idaho 1927).

State has the right to regulate rates charged by public service corporations. Hatch v. Consumers’ Co., 17 Idaho 204, 104 P. 670 (1909), aff’d, 224 U.S. 148, 32 S. Ct. 465, 56 L. Ed. 703 (1912).

Valuation for rate making purposes. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925).

Rate making for municipally-owned public utility. Kiefer v. City of Idaho Falls, 49 Idaho 458, 289 P. 81 (1930).

Reasonable Classifications.

An order of the public utility commission imposing a nonrecurring charge of $50.00 per kilowatt on the installation of or conversion to electric space heating after a fixed date exceeded the commission’s authority to fix and regulate rates, since it discriminatorily differentiated between classes of new and old customers without reference to the pattern, nature, and time of usage, quantity, cost of service, or difference in condition of service as between the two classes. Idaho State Homebuilders v. Washington Water Power, 107 Idaho 415, 690 P.2d 350 (1984). Where cost of servicing all water customers increased due to several factors including passage of a federal act, court held no particular group of customers should bear the burden of additional expense occasioned by changes in federal law that imposed new water quality standards; as such, it was unlawfully discriminatory to charge new customers hook-up fees based on an allocation of the incremental cost of new plant construction required by growth and passage of the federal act, while not assessing any charges to existing customers. Building Contractors Ass’n v. Idaho Public Utils. Comm’n, 128 Idaho 534, 916 P.2d 1259 (1996).

Reasonableness of Rates.

Where the public utilities commission revised rates without hearing evidence on the cost of service analysis, the rates were not unjust and unreasonable under this section and§§ 61-315 and 61-502, since, although cost of service is an important criterion which in certain cases may be largely dispositive, it is not a per se essential element without which rate making is invalid. Grindstone Butte Mut. Canal Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 175, 627 P.2d 804 (1981).

Cited

Coeur d’Alene & St. Joe Transp. Co. v. Ferrell, 22 Idaho 752, 128 P. 565 (1912); In re Pacific Tel. & Tel. Co., 71 Idaho 476, 233 P.2d 1024 (1951); In re Union Pac. R.R., 81 Idaho 300, 340 P.2d 1103 (1959); Agricultural Prods. Corp. v. Utah Power & Light Co., 98 Idaho 23, 557 P.2d 617 (1976); Afton Energy, Inc. v. Idaho Power Co., 107 Idaho 781, 693 P.2d 427 (1984); General Tel. Co. v. Idaho Pub. Utils. Comm’n, 109 Idaho 942, 712 P.2d 643 (1986); Stevenson v. Prairie Power Coop., 118 Idaho 52, 794 P.2d 641 (Ct. App. 1989).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

ALR.

Water, regulation making payment a charge upon property irrespective of person who enjoyed service. 19 A.L.R.3d 1227.

Electricity, gas or water furnished by public utility as “goods” within provisions of Uniform Commercial Code Article 2 on Sales. 48 A.L.R.3d 1060.

§ 61-302. Maintenance of adequate service.

Every public utility shall furnish, provide and maintain such service, instrumentalities, equipment and facilities as shall promote the safety, health, comfort and convenience of its patrons, employees and the public, and as shall be in all respects adequate, efficient, just and reasonable.

History.

1913, ch. 61, § 12b, p. 247; reen. C.L. 106:45; C.S., § 2412; I.C.A.,§ 59-302.

CASE NOTES

Discrimination.

Railroad company, engaged in the business of common carrier, is bound under the common law to receive and carry, within the class of goods it is engaged in carrying, such goods as are tendered for that purpose; and, in absence of a special contract, to carry them with the full common-law liability of a common carrier. McIntosh v. Oregon R.R. & Nav. Co., 17 Idaho 100, 105 P. 66 (1909).

Equal Facilities.

Contract entered into by railroad company granting to steamboat company the exclusive right to receive and discharge freight and passengers at dock or wharf which was a part of and connected with its depot and station grounds, and which afforded the only means and facility for approaching the station grounds by means of the water highway, and excluding all competitors of such steamboat company from like or similar privileges at any time or at all, was undue and unreasonable discrimination in favor of one company and against its competitors, which was in violation of Idaho Const., Art. XI, § 6. Coeur d’Alene & St. Joe Transp. Co. v. Ferrell, 22 Idaho 752, 128 P. 565 (1912).

Evidence.

There was not substantial and competent evidence to support a finding that power company acted with gross negligence, deviating from the reasonable standards of conduct of the industry and expected by their customers, to support an award of punitive damages when it relocated condominiums’ transformers from underground vaults to above ground locations, thus punitive damages award was reversed and award of attorney fees was vacated and remanded to redetermine if condominiums continued to be prevailing party. New Villager Condominium Ass’n v. Idaho Power Co., 129 Idaho 551, 928 P.2d 901 (1996).

Hearing Requirement.

Where the record disclosed that zoning requirements and pollution and health regulations would be met by proposed railroad classification yard and where a plan had been agreed upon for road rearrangement, safer highway-railway crossings and grade separations, the utilities commission did not abuse its discretionary power in finding that a full scale hearing and investigation into the proposed construction of the classification yard was not justified. Burlington Out Now v. Burlington N., Inc., 96 Idaho 594, 532 P.2d 936 (1975).

Negligence.

Where the conclusion to be drawn from defendant water company’s evidence was that the cause of rupture in its water mains could have been a defect in manufacture of the main or damage to the main in installation which reasonable inspection at that time would have revealed and that such condition permitted corrosion to weaken the main permitting the rupture to give rise to a reasonable inference of negligence under the doctrine of res ipsa loquitur, the conclusion was in harmony with the duty imposed by statute upon a public utility. C.C. Anderson Stores Co. v. Boise Water Corp., 84 Idaho 355, 372 P.2d 752 (1962).

Railroad Marshaling Yards.

This section gives the public utilities commission authority to assume jurisdiction over a proposed classification and marshaling yard of a railroad corporation, if it has reason to believe there is a real or genuine threat specifically to the health or safety of the public. Burlington Out Now v. Burlington N., Inc., 96 Idaho 594, 532 P.2d 936 (1975).

Rate Making.

Service.

— Abandonment.

On an application by a railroad to abandon a portion of its service and substitute service of another sort in lieu thereof, the burden of proof rests on the railroad to show that the proposed substitute service would be adequate, efficient, just and reasonable. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943). Where the total revenue from passenger trains over a certain branch line for eighteen months was $11,473.80 as against an expense of $23,063.46, the use of the passenger train service by the public being negligible, and there were adequate and efficient means of transportation over another railroad and by bus service, the public utilities commission erred in denying the railroad’s application to discontinue passenger train service and to substitute, in lieu thereof, mixed trains consisting of a passenger car and a baggage car on existing freight trains. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943).

No fixed rule can be applied in determining whether or not a railroad is entitled to discontinue a portion of its service and substitute in lieu thereof a different class of service, and each case must be considered in the light of all of its facts. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943).

— Cost.

In determining whether patronage justifies expense of operation of passenger trains on a railroad’s branch line, it is proper to take into consideration the expense of furnishing passenger service, but that is not the most important question, the controlling question being the necessity and reasonableness of the service to the public. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943).

— Right to Require.

A railroad was entitled to permission to substitute a caretaker for agency service for community on a branch line having 800 voters, where such substitution would not be a material detriment to the community and would lessen the expense and release a telegraph operator for more necessary service. In re Union Pac. R.R., 64 Idaho 529, 134 P.2d 599 (1943).

If the service rendered by a railroad is adequate, efficient, just and reasonable as required by statute, it is neither just nor reasonable to impose an unreasonable and unjust economic loss on the railroad, and indirectly, on the public by requiring unnecessary and useless expenditures. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943).

— Sufficiency.

It is the duty of the public utilities commission, when an application to discontinue an agency and substitute a caretaker to furnish all substantial service previously furnished, to consider whether the substituted service would be “adequate, efficient, just and reasonable service,” in the light of the facts. In re Union Pac. R.R., 64 Idaho 529, 134 P.2d 599 (1943).

Warning of Danger.

Company had duty to add odorant to odorless butane gas which it was furnishing as a warning of a dangerous condition. Doxstater v. Northwest Cities Gas Co., 65 Idaho 814, 154 P.2d 498 (1944).

Cited

In re Pacific Tel. & Tel. Co., 71 Idaho 476, 233 P.2d 1024 (1951); Agricultural Prods. Corp. v. Utah Power & Light Co., 98 Idaho 23, 557 P.2d 617 (1976).

§ 61-303. Rules and regulations just and reasonable.

All rules and regulations made by a public utility affecting or pertaining to its charges or service to the public shall be just and reasonable.

History.

1913, ch. 61, § 12c, p. 247; reen. C.L. 106:46; C.S., § 2413; I.C.A.,§ 59-303.

CASE NOTES

Commission’s Authority to Fix Rates.

The public utilities commission has not only the authority but the duty to fix just and reasonable rates, both to the people and to the corporation. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

Rules Valid if Reasonable.

Railroad company owning and maintaining a dock or wharf on its station grounds may adopt and enforce such reasonable rules and regulations as will prevent blocking and interfering with its business or with public traffic, and, so long as such rules and regulations are reasonable and do not amount to an undue or unreasonable discrimination between competitors, the same may be enforced and observance thereof required. Coeur d’Alene & St. Joe Transp. Co. v. Ferrell, 22 Idaho 752, 128 P. 565 (1912).

Cited

In re Pacific Tel. & Tel. Co., 71 Idaho 476, 233 P.2d 1024 (1951).

§ 61-304. Schedules of common carriers to contents — Posting — Form.

Every common carrier shall file with the commission and shall print and keep open to the public inspection schedules showing the rates, fares, charge and classification for the transportation between termini within this state of persons and property from each point upon its route to all other points thereon and from all points upon its route to all points upon every other route leased, operated or controlled by it; and from each point on its route or upon any route leased, operated or controlled by it to all points upon the route of any other common carrier, whenever a through route and a joint rate shall have been established or ordered between any two (2) such points. If no joint rate over a through route has been established, the schedules of the several carriers in such through route shall show the separately established rates, fares, charges and classifications applicable to the through transportation.

The schedule printed as aforesaid shall plainly state the places between which such property and persons will be carried, and shall also contain the classification of passengers or property in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the commission may require to be stated, all privileges or facilities granted or allowed, and all rules or regulations which may in any wise change, affect or determine any part, or the aggregate of, such rates, fares, charges and classifications, or the value of the various services rendered to the passenger, shipper or consignee. Subject to such rules and regulations as the commission may prescribe, such schedules shall be plainly printed in large type and a copy thereof shall be kept by every such carrier readily accessible to and for inspection by the public in every station or office of such carrier where passengers or property are respectively received for transportation when such station or office is in charge of an agent, and in every station or office of such carrier where passenger tickets or tickets for sleeping, parlor car or other train accommodations are sold or bills of lading or waybills or receipts for property issued. Any or all of such schedules kept as aforesaid shall be immediately produced by such carrier for inspection upon the demand of any person.

A notice printed in bold type and stating that such schedules are on file with the agent and open to inspection by any person, and that the agent will assist any person to determine from such schedules any rates, fares, rules, or regulations in force, shall be kept posted by the carrier in two (2) public and conspicuous places in every such station or office.

History.

1913, ch. 61, § 13a, p. 247; compiled and reen. C.L. 106:47; C.S., § 2414; I.C.A.,§ 59-304.

STATUTORY NOTES

Federal References.

Act of February 4, 1887, referred to in the last paragraph, was repealed by Act Oct. 17, 1978, P.L. 95-473.

Compiler’s Notes.

The term “this act” in the last paragraph refers to S.L. 1913, ch. 61, which is compiled as§§ 61-101 to 61-121, 61-124 to 61-129, 61-201 to 61-214, 61-301 to 61-315, 61-316 to 61-326, 61-401, 61-403 to 61-406, 61-501, 61-502, 61-503, 61-504, 61-506 to 61-515, 61-517 to 61-529, 61-601 to 61-617, 61-618, 61-619, 61-621, 61-622, 61-624 to 61-626, 61-633 to 61-638, 61-640 to 61-642, 61-701 to 61-712, 61-713, and 61-714.

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

ALR.

Discontinuing service, refusal to pay for past service rendered at another address. 73 A.L.R.3d 1292.

§ 61-305. Schedules of others than common carriers.

Under such rules and regulations as the commission may prescribe, every public utility other than a common carrier shall file with the commission within such time and in such form as the commission may designate, and shall print and keep open to public inspection schedules showing all rates, tolls, rentals, charges and classifications collected or enforced, or to be collected or enforced, together with all rules, regulations, contracts, privileges and facilities which in any manner affect or relate to rates, tolls, rentals, classifications or service. The rates, tolls, rentals and charges shown on such schedules when filed by a public utility as to which the commission by this act acquires the power to fix any rates, tolls, rentals or charges, shall not within any portion of the territory as to which the commission acquires as to such public utility such power, exceed the rates, tolls, rentals or charges in effect on the second day of January, 1913, the rates, tolls, rentals and charges shown on such schedules when filed by any public utility as to any territory as to which the commission does not by this act acquire as to such public utility such power, shall not exceed the rates, tolls, rentals and charges in effect at the time the commission acquires as to such territory and as to such public utility, the power to fix rates, tolls, rentals or charges. Nothing in this section contained shall prevent the commission from approving or fixing the rates, tolls, rentals or charges, from time to time, in excess or less than those shown by said schedules.

History.

1913, ch. 61, § 13b, p. 247; compiled and reen. C.L. 106:48; C.S., § 2415; I.C.A.,§ 59-305.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Classification by Commission.

Public utilities commission, in the exercise of its authority to see that rates, both as a whole and for each particular service, are just to the utility and reasonable to the consumer, and nondiscriminatory as between consumers, may not only fix rates for each class, but may classify. Idaho Power Co. v. Thompson, 19 F.2d 547 (D. Idaho 1927) (various rate-making principles discussed and applied).

Constitutionality of Regulation.

Any regulation which operates as a confiscation of private property or constitutes an arbitrary or unreasonable infringement of personal or property rights is void as repugnant to the constitutional guaranties of due process and equal protection of the laws. Osborn Utils. Corp. v. Public Utils. Comm’n, 52 Idaho 571, 17 P.2d 333 (1932).

§ 61-306. Schedules — Change in form.

The commission shall have the power, from time to time, in its discretion, to determine and prescribe by order such changes in the form of the schedules referred to in the two (2) preceding sections as it may find expedient, and to modify the requirements of any of its orders, rules or regulations in respect to any matter in this section referred to.

History.

1913, ch. 61, § 13c, p. 247; reen. C.L. 106:49; C.S., § 2416; I.C.A.,§ 59-306.

§ 61-307. Schedules — Change in rate and service.

Unless the commission otherwise orders, no change shall be made by any public utility in any rate, fare, toll, rental, charge or classification, or in any rule, regulation or contract relating to or affecting any rate, fare, toll, rental, charge, classification or service, or in any privilege or facility except after thirty (30) days’ notice to the commission and to the public as herein provided. Such notice shall be given by filing with the commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force, and the time when the change or changes will go into effect. The commission, for good cause shown, may allow changes without requiring the thirty (30) days’ notice herein provided for, by an order specifying the changes so to be made and the time when they shall take effect, and the manner in which they shall be filed and published. When any change is proposed in any rate, fare, toll, rental, charge or classification, or in any form of contract or agreement or in any rule, regulation or contract relating to or affecting any rate, fare, toll, rental, charge, classification or service, or in any privilege or facility, attention shall be directed to such change on the schedule filed with the commission by some character to be designated by the commission, immediately preceding or following the item.

History.

1913, ch. 61, § 14, p. 247; reen. C.L. 106:50; C.S., § 2417; I.C.A.,§ 59-307.

STATUTORY NOTES

Cross References.

Finding of commission necessary for increase in rate,§ 61-622.

CASE NOTES

Applicability of Administrative Procedures Act.

When the public utilities commission is engaged in a legislative function, such as rate-setting for a cogenerator or small power producer, it need not act pursuant to the administrative procedures act, but need only fulfill the notice requirements imposed on it by the public utility regulation statutes. A.W. Brown Co. v. Idaho Power Co., 121 Idaho 812, 828 P.2d 841 (1992).

Change in Rates.

Jurisdiction.

This section is not the section which grants jurisdiction or powers to the Idaho public utilities commission. Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979).

Municipal Utilities.

Not Applicable to Counties.

This provision is not binding on counties, in view of§ 61-312. Boise Valley Traction Co. v. Ada County, 38 Idaho 350, 222 P. 1035 (1923).

Notice.

If the commission returns an application for correction or dismisses it without prejudice prior to the issuance of a suspension order, the 30 days’ notice provision does not begin to run until the application is returned to the commission in correct form, but the effect of a “return,” after issuance of a suspension order, is to toll the running of the time period which begins to run from the point at which it was interrupted once the application is corrected and refiled. Intermountain Gas Co. v. Idaho Pub. Utils. Comm’n, 98 Idaho 718, 571 P.2d 1119 (1977).

Service.

— Expense.

In determining whether patronage justified the expense of operating passenger trains on a railroad’s branch line, it was proper to consider the expense of furnishing passenger service, but that was not the most important question; the controlling question being the necessity and reasonableness of the service to the public. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943). In considering the question of whether or not a railroad should be compelled to continue the operation of a branch line passenger service, the entire revenues of the whole system are to be taken into account, and not merely the direct return of the branch line itself, which is sought to be abandoned. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943).

— Maintenance.

Where the public utilities commission issued an order to show cause, pursuant to which the railroad served therewith appeared, and testimony was offered as to why a certain class of service should be continued which the railroad proposed to abandon, and a full hearing was had and without objections on the part of the state or protestants the controversy was decided by the commission as effectively as if the railroad itself had instituted proceedings under this section, and the commission had jurisdiction to grant the railroad relief, notwithstanding the railroad’s failure to comply with this section. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943).

— Negligible Use by Passengers.

Where the total revenue from passenger trains over railroad’s branch line for eighteen months was $11,473.80 as against an expense of $23,063.46, the use of the passenger train service by the public being negligible, and there were adequate and efficient means of transportation over another railroad and by bus service, the public utilities commission erred in denying the railroad’s application to discontinue passenger trains and to substitute in lieu thereof mixed trains consisting of a passenger car and a baggage car on existing freight trains. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943).

— Right to.

By the running of a mixed train consisting of freight and passenger cars, a railroad does not discharge its duties to the public of furnishing transportation to passengers under all circumstances and in all cases. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943).

During war emergency inconvenience of the public because of discontinuance of passenger trains on a railroad is a subordinate matter to national defense. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943).

— Suspension or Abandonment.

Public utilities commission has power to make an order permitting telephone company to eliminate four-party service. Coeur d’Alene v. Public Utilities Comm’n, 29 Idaho 508, 160 P. 751 (1916).

Where a system of railroads under one management is solvent and prosperous, it cannot escape performance of its charter duty of furnishing transportation over one portion of its road by showing that such portion does not pay, when all parts of the system are so interwoven that an accurate ascertainment of the profits of any one portion of the road is impracticable. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943).

— Unreasonable and Unjust Economic Loss.

No fixed and definite rule can be applied in determining whether or not a railroad is entitled to discontinue a portion of its service and substitute in lieu thereof a different class of service, but each case must be considered in the light of all of its facts. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943). — Unreasonable and Unjust Economic Loss.

If passenger service furnished by railroad is in all respects adequate, efficient, just and reasonable as required by statute, it is neither just nor reasonable to impose an unreasonable and unjust economic loss on the railroad, and, indirectly, on the public, to require unnecessary and useless expenditures. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943).

Where a railroad applies to abandon passenger service on branch lines and to substitute in lieu thereof mixed trains consisting of passenger and baggage cars on existing freight trains, it is the duty of the public utilities commission to consider the inconvenience the public would suffer by reason of such change in service by transmitting mail, express, and baggage, as well as passengers on the same train. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943).

Cited

Bunker Hill Co. v. Washington Water Power Co., 98 Idaho 249, 561 P.2d 391 (1977); Citizens Utils. Co. v. Idaho Pub. Utils. Comm’n, 99 Idaho 164, 579 P.2d 110 (1978); Afton Energy, Inc. v. Idaho Power Co., 107 Idaho 781, 693 P.2d 427 (1984).

RESEARCH REFERENCES

C.J.S.

§ 61-308. Schedules — Joint rates.

The names of the several public utilities which are parties to any joint tariff, rate, fare, toll contract, classification or charge shall be specified in the schedule or schedules showing the same. Unless otherwise ordered by the commission, a schedule showing such joint tariff, rate, fare, toll, contract, classification or charge need be filed with the commission by only one (1) of the parties to it: provided, that there is also filed with the commission in such form as the commission may require a concurrence in such joint tariff rate, fare, toll, contract, classification or charge by each of the other parties thereto.

History.

1913, ch. 61, § 15, p. 247; compiled and reen. C.L. 106:51; C.S., § 2418; I.C.A.,§ 59-308.

§ 61-309. Schedules — Filing by common carriers a precedent to do business.

No common carrier subject to the provisions of this act shall engage or participate in the transportation of persons or property, between points within this state, until its schedules of rates, fares, charges and classifications shall have been filed and published in accordance with the provisions of this act.

History.

1913, ch. 61, § 16a(1), p. 247; reen. 1915, ch. 113, § 1, subd. 16a(1), p. 257; compiled and reen. C.L. 106:52; C.S., § 2419; I.C.A.,§ 59-309.

STATUTORY NOTES

Compiler’s Notes.

§ 61-310. Only schedule rates to be charged.

No common carrier except as in this act otherwise provided shall charge, demand, collect or receive a greater or less or different compensation for the transportation of persons or property, or for any service in connection therewith than the rates, fares and charges applicable to such transportation as specified in its schedules filed and in effect at the time; nor shall any such carrier refund or remit in any manner or by any device any portion of the rates, fares or charges so specified except upon order of the commission as hereinafter provided, nor extend to any corporation or person any privilege or facility in the transportation of passengers or property except such as are regularly and uniformly extended to all corporations and persons.

History.

1913, ch. 61, § 16a(2), p. 247; reen. 1915, ch. 113, § 1, subd. 16a(2), p. 258; reen. C.L. 106:53; C.S., § 2420; I.C.A.,§ 59-310.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Not Applicable to Counties.

This provision is not binding on counties, in view of§ 61-312. Boise Valley Traction Co. v. Ada County, 38 Idaho 350, 222 P. 1035 (1923).

§ 61-311. Passes — Restricted to certain persons.

No common carrier shall directly or indirectly issue or give any free ticket, free pass or free transportation for passengers except to its employees and their families, its officers, agents, surgeons, physicians and attorneys at law; to ministers of religion, traveling secretaries of railroad Young Men’s Christian Associations, inmates of hospitals and charitable and eleemosynary institutions and persons exclusively engaged in charitable and eleemosynary work; to indigent, destitute and homeless persons, and to such persons when transported by charitable societies or hospitals, and the necessary agents employed in such transportation; to inmates of national homes or state homes for disabled volunteer soldiers, and of soldiers’ and sailors’ homes, including those about to enter and those returning home after discharge; to veterans of the civil war; to necessary caretakers of livestock, poultry, milk and fruit; to employees on sleeping cars, express cars and to linemen of telegraph and telephone companies; to railway mail service employees, post-office inspectors, customs inspectors and immigration inspectors; to newsboys on trains, baggage agents, witnesses attending any legal investigation in which the common carrier is interested; to persons injured in wrecks and physicians and nurses attending such persons: provided, that this provision shall not be construed to prohibit the interchange of passes for the officers, agents and employees of common carriers, and their families, nor to prohibit any common carrier from carrying passengers free with the object of providing relief in cases of general epidemic, pestilence or other calamitous visitations: provided further, that these provisions shall not be construed to prohibit the privilege of passes or franks, or the exchange thereof, with each other, for the officers, agents, employees, and their families, of telegraph, telephone and cable lines, and the officers, agents, employees, and their families of common carriers, subject to the provisions of this act: provided further, that the term “employees” as used in this paragraph shall include furloughed, pensioned and superannuated employees, persons who have become disabled or infirm in the service of any such common carrier, and the remains of a person killed in the employment of a carrier, and ex-employees traveling for the purpose of entering the service of any such common carrier, and the term “families” as used in this paragraph shall include the families of those persons named in this proviso; also the families of persons killed, and the widows during widowhood and the minor children during minority, of persons who died while in the service of any such common carrier: provided further, that nothing herein contained shall prevent the issuance of mileage and commutation tickets or excursion passenger tickets: provided further, that nothing in this section shall be construed to prevent the issuance of free or reduced transportation by any street railroad company for mail carriers or policemen or members of fire departments of any municipality or other department of the government: provided further, that it shall also be lawful for any common carrier to issue a free ticket or other form of transportation to former employees who have been in the employ of such common carrier for a period of not less than twenty (20) years and to those dependent upon such former employees.

History.

1913, ch. 61, § 16a(3), p. 247; am. 1915, ch. 113, § 1, subd. 16a(3), p. 258; compiled and reen. C.L. 106:54; C.S., § 2421; am. 1923, ch. 68, § 1, p. 74; I.C.A.,§ 59-311.

STATUTORY NOTES

Compiler’s Notes.

Effective Dates.

Section 3 of S.L. 1923, ch. 68 declared an emergency. Approved February 26, 1923.

§ 61-312. Property handled free — Reduced rates for dependents.

Nothing in this act shall prevent the carriage, storage or handling of property free or at reduced rates for the United States, state, county or municipal governments, or for charitable purposes, or for relief in cases of general epidemic, pestilence or other calamitous visitation, or property to or from fairs and expositions for exhibition thereat, or the free carriage of destitute and homeless persons transported by charitable societies, and the necessary agents employed in such transportation, or the issuance of mileage, excursion or commutation passenger tickets; nothing in this act shall be construed to prohibit any common carrier from giving reduced rates to ministers of religion, or to municipal governments for the transportation of indigent persons, or to inmates of the national homes or state homes for disabled volunteer soldiers, and of soldiers’ and sailors’ orphan homes, including those about to enter and those returning home after discharge, under arrangements with the boards of managers of said homes, or to veterans of the civil war; nothing in this act shall be construed to prevent a common carrier from transporting, storing or handling free or at reduced rates the household goods and personal effects of its employees, or persons entering or leaving its service, and of persons killed or dying while in its service, or exchanging passes or tickets with other railroad companies for their officers and employees; nothing in this act shall prevent the issuance of joint interchangeable mileage tickets, with special privileges as to the amount of free baggage that may be carried under such mileage tickets: provided further, that passenger transportation may issue to the proprietors and employees of newspapers and magazines and the members of their immediate families, in exchange for advertising space in such newspapers or magazines at full rates, subject, however, to such reasonable restrictions as the commission may impose.

History.

1913, ch. 61, § 16a(4), p. 247; am. 1915, ch. 113, § 1, subd. 16a(4), p. 259; reen. C.L. 106:57; C.S., § 2424; I.C.A.,§ 59-312.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Construction.

This section contemplates the fixing of a reduced rate by agreement between the carrier and a government within the excepted classes, and it does not give those in the excepted classes the right to fix the rate themselves. Boise Valley Traction Co. v. Ada County, 38 Idaho 350, 222 P. 1035 (1923).

§ 61-313. Schedule charges only permitted.

Except as in this act otherwise provided, no public utility shall charge, demand, collect or receive a greater or lesser or different compensation from any product or commodity furnished or to be furnished or for any service rendered or to be rendered than the rates, tolls, rentals and charges applicable to such product or commodity or service as specified in its schedules on file and in effect at the time, nor shall any such public utility refund or remit, directly or indirectly, in any manner or by any device, any portion of the rates, tolls, rentals and charges so specified nor extend to any corporation or person any form of contract or agreement or any rule or regulation of any facility or privilege except such as are specified in such schedules and as are regularly and uniformly extended to all corporations and persons: provided, that messages by telephone or cable, subject to the provisions of this act, may be classified by the utility into day, night, repeated, unrepeated, letter, commercial, press, government and such other classes of messages: provided further, that nothing in this chapter shall be construed to prevent telephone and cable companies from entering into contract with common carriers for the exchange of service at rates common to all common carriers of like class.

History.

1913, ch. 61, § 16b, p. 247; reen. 1915, ch. 113, § 1, subd. 16b, p. 260; reen. C.L. 106:58; C.S., § 2425; I.C.A.,§ 59-313; am. 1984, ch. 106, § 1, p. 246; am. 2017, ch. 58, § 31, p. 91.

STATUTORY NOTES

Amendments.

The 2017 amendment, by ch. 58, substituted “greater or lesser” for “greater or less” near the beginning, and substituted “specified nor extend” for “specified nor extended” near the middle.

Compiler’s Notes.

§ 61-314. Schedule of rates within and without state.

Every common carrier and every telephone corporation shall print and file or cause to be filed with the commission, schedules showing all rates, fares, tolls, rentals, charges and classifications for the transportation of persons or property or the transmission of messages or conversations between all points within this state and all points without the state upon its route, and between all points within this state and all points without the state upon every route leased, operated or controlled by it, and between all points on its route or upon any route, leased, operated or controlled by it within this state and all points without the state upon the route of any other common carrier or telephone corporation whenever a through route and joint rate shall have been established between any two (2) such points.

History.

1913, ch. 61, § 17, p. 247; reen. C.L. 106:59; C.S., § 2426; I.C.A.,§ 59-314; am. 1984, ch. 106, § 2, p. 246.

§ 61-315. Discrimination and preference prohibited.

No public utility shall, as to rates, charges, service, facilities or in any other respect, make or grant any preference or advantage to any corporation or person or subject any corporation or person to any prejudice or disadvantage. No public utility shall establish or maintain any unreasonable difference as to rates, charges, service, facilities or in any other respect, either as between localities or as between classes of service. The commission shall have the power to determine any question of fact arising under this section.

History.

1913, ch. 61, § 18, p. 247; reen. C.L. 106:60; C.S., § 2427; I.C.A.,§ 59-315.

STATUTORY NOTES

Cross References.

Unequal transportation rates, Idaho Const., Art. XI, § 6.

CASE NOTES

Criteria for Differentiation.

Discrimination.

Furnishing water to one who does not pay regular rate paid by other users of supply is positively prohibited. Rowland v. Kellogg Power & Water Co., 43 Idaho 643, 253 P. 840 (1927). An order of the public utility commission imposing a nonrecurring charge of $50.00 per kilowatt on the installation of or conversion to electric space heating after a fixed date exceeded the commission’s authority to fix and regulate rates, since it discriminatorily differentiated between classes of new and old customers without reference to the pattern, nature, and time of usage, quantity, cost of service, or difference in condition of service as between the two classes. Idaho State Homebuilders v. Washington Water Power, 107 Idaho 415, 690 P.2d 350 (1984).

In view of the fact that the commission is not required to create equality of rates among classes of the utility’s customers if the rates set are reasonable, the commission’s order granting a 4.4% increase for residential service, a 10.3% increase for most other rate schedules, and a 16% increase for irrigation and soil drainage pumping service was reasonable and proper where exhibits showed that irrigation users produced a lower rate of return than other customers. Grindstone Butte Mut. Canal Co. v. Idaho Power Co., 98 Idaho 860, 574 P.2d 902 (1978).

Differences in rates charged to different classes of customers is not per se unreasonable or unlawful. Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979).

Modification of electric power company’s line extension tariff to be set on a per single-phase transformer basis, rather than on a per lot basis, did not violate this section with respect to line extensions in and outside of subdivisions or with respect to new and old customers. Bldg. Contrs. Ass’n v. Idaho PUC, 151 Idaho 10, 253 P.3d 684 (2011).

— Reasonableness.

A rate scale under which large volume “firm service” natural gas users pay a minimum monthly charge plus the commodity charge for gas actually used, whereas others including large volume interruptible customers, are credited for the amounts actually used against their minimum monthly charges, so that their bills are the higher of (1) actual use or (2) the minimum charge, and not both, is not an “unreasonable difference” within the meaning of this section and must be sustained. Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979).

This section bars only unreasonable differences as to rates and grants the commission power to determine what constitutes unreasonable rate discrimination. Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979).

The supreme court’s review of whether the evidence presented to the public utilities commission is competent and substantial must be tempered by a consideration of whether a proposed new rate structure is also just and reasonable as required by§ 61-301, this section and§ 61-502. Grindstone Butte Mut. Canal Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 175, 627 P.2d 804 (1981).

Discriminatory Collection.

Where the public utilities commission revised rates without hearing evidence on the cost of service analysis, the rates were not unjust and unreasonable under§ 61-301, this section and§ 61-502, since, although cost of service is an important criterion which in certain cases may be largely dispositive, it is not a per se essential element without which rate making is invalid. Grindstone Butte Mut. Canal Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 175, 627 P.2d 804 (1981). Discriminatory Collection.

The public utilities commission order, which prohibited the water company from collecting any bills more than one month in arrears as of the date of the order, discriminated against those customers who were diligent in the payment of the water bills and was illegal. McGuire Estates Water Co. v. Idaho Pub. Utils. Comm’n, 111 Idaho 341, 723 P.2d 885 (1986).

Where cost of servicing all water customers increased due to several factors including passage of a federal act, court held no particular group of customers should bear the burden of additional expense occasioned by changes in federal law that imposed new water quality standards; as such, it was unlawfully discriminatory to charge new customers hook-up fees based on an allocation of the incremental cost of new plant construction required by growth and passage of the federal act, while not assessing any charges to existing customers. Building Contractors Ass’n v. Idaho Public Utils. Comm’n, 128 Idaho 534, 916 P.2d 1259 (1996).

Jurisdiction of Commission.

Public utilities commission, in the exercise of its authority to see that rates, both as a whole and for each particular service, are just to the utility and reasonable to the consumer, and nondiscriminatory as between consumers, may not only fix rates for each class, but may classify. Idaho Power Co. v. Thompson, (1927) (various rate-making principles discussed and applied).

The public utilities commission cannot abrogate the terms of a contract in order to create uniform rates unless it first examines all relevant factors of service to comparable customers and expressly finds that a continuation of the rate specified in the contract would be adverse to the public interest. Bunker Hill Co. v. Washington Water Power Co., 98 Idaho 249, 561 P.2d 391 (1977).

Where one of two telephone companies bound by a long-distance toll division agreement issued credit cards to persons outside its own service area who were employed by its parent corporation, the court refused to adopt the position that settlement amounts paid to such company when the credit cards were used outside its service area had the effect of lowering the parent corporation’s rates and, thereby, constituted unreasonable discrimination under this section, since to adopt such a position would give the commission jurisdiction over any revenue producing procedure as long as one customer held stock in the utility. Lemhi Tel. Co. v. Mountain States Tel. & Tel. Co., 98 Idaho 692, 571 P.2d 753 (1977).

Not Applicable to Counties.

This provision is not binding on counties, in view of§ 61-312. Boise Valley Traction Co. v. Ada County, 38 Idaho 350, 222 P. 1035 (1923).

Rates.

The public utilities commission is not under a duty to set rates for different classes of customers which are either equal or uniform provided the rates set are just and reasonable. FMC Corp. v. Idaho Pub. Utils. Comm’n, 104 Idaho 265, 658 P.2d 936 (1983). Since the commission has power to regulate and fix charges and rates, but a utility is enjoined from establishing rates or charges which are preferential or discriminatory, it follows by implication that the commission’s authority may only be exercised in such a way as to fix nondiscriminatory, and nonpreferential rates and charges. Idaho State Homebuilders v. Washington Water Power, 107 Idaho 415, 690 P.2d 350 (1984).

Cited

In re Pacific Tel. & Tel. Co., 71 Idaho 476, 233 P.2d 1024 (1951); Afton Energy, Inc. v. Idaho Power Co., 107 Idaho 781, 693 P.2d 427 (1984); General Tel. Co. v. Idaho Pub. Utils. Comm’n, 109 Idaho 942, 712 P.2d 643 (1986); Hulet v. Idaho PUC, 138 Idaho 476, 65 P.3d 498 (2003).

RESEARCH REFERENCES

ALR.

Discrimination Against Credit Applicant on Basis of Race or National Origin Under Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.). 13 A.L.R. Fed. 3d 9.

Discrimination Based on Marital Status Under Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.) as Defense to Liability for Financial Obligations. 16 A.L.R. Fed. 3d 9.

§ 61-315A. Certain inverted residential electrical rate structures prohibited — Expiration.

All inverted rate structures imposed on residential electric customers which have not been formally approved by the commission prior to July 1, 1981, are hereby prohibited effective July 1, 1982. The prohibition provided herein shall automatically expire July 1, 1984, unless extended by further action of the legislature.

History.

I.C.,§ 61-315A, as added by 1982, ch. 370, § 1, p. 929.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 1982, ch. 370 declared an emergency. Became law without the governor’s signature, April 5, 1982.

§ 61-316. Profits.

Nothing in this act shall be taken to prohibit any public utility from itself profiting, to the extent permitted by the commission, from any economies, efficiencies or improvements which it may make, and from distributing by way of dividends or otherwise disposing of the profits to which it may be so entitled, and the commission is authorized to make or permit such arrangement or arrangements with any public utility as it may deem wise for the purpose of encouraging economies, efficiencies, or improvements and securing to the public utility making the same such portion, if any, of the profits thereof, as the commission may determine.

History.

1913, ch. 61, § 19, p. 247; reen. C.L. 106:61; C.S., § 2428; I.C.A.,§ 59-316.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Profits.

If stockholders prefer to apply net revenue to payment of exorbitant salaries rather than to payment of dividends they have the right to do so. Couer d’Alene v. Public Utils. Comm’n, 29 Idaho 508, 160 P. 751 (1916).

Rate of Return.

Relation established by law between utility and consumer is that consumer must pay fair return on value of assets reasonably acquired and necessary for accomplishment of utility’s object. Federal Mining & Smelting Co. v. Public Utils. Comm’n, 26 Idaho 391, 143 P. 1173 (1914).

§ 61-317. Sliding scale of charges — Automatic adjustment.

Nothing in this act shall be taken to prohibit a corporation or person engaged in the production, generation, transmission or furnishing of heat, light, water or power, or telephone service, from establishing a sliding scale of charges: provided, that a schedule showing such scale of charges shall first have been filed with the commission and such schedule and each rate set out therein approved by it. Nothing in this act shall be taken to prohibit any such corporation or person from entering into an arrangement for a fixed period for the automatic adjustment of charges for heat, light, water or power or telephone service, in relation to the dividends to be paid to stockholders of such corporation, or the profit to be realized by such person: provided, that a schedule showing the scale of charges under such arrangements shall first have been filed with the commission and such schedule and each rate set out therein approved by it. Nothing in this section shall prevent the commission from revoking its approval at any time and fixing other rates and charges for the product or commodity or service, as authorized by this act.

History.

1913, ch. 61, § 20, p. 247; reen. C.L. 106:62; C.S., § 2429; I.C.A.,§ 59-317; am. 1984, ch. 106, § 3, p. 246.

STATUTORY NOTES

Compiler’s Notes.

§ 61-318. Interchange of traffic — Duty of establishing joint rates.

Every common carrier shall afford all reasonable, proper and equal facilities for the prompt and efficient interchange and transfer of passengers, tonnage and cars, loaded or empty, between the lines owned, operated, controlled or leased by it, and the lines of every other common carrier, and shall make such interchange and transfer promptly without discrimination between shippers, passengers or carriers either as to compensation charged, service rendered or facilities afforded. Every railroad corporation shall receive from every other railroad corporation at any point of connection, freight cars of proper standard and in proper condition, and shall haul the same either to destination, if the destination be upon the lines owned, operated or controlled by such railroad corporation, or to a point of transfer according to route billed, if the destination be upon the line of some other railroad corporation.

Nothing in this section contained shall be construed as in any other wise limiting or modifying the duty of a common carrier to establish joint rates, fares and charges for the transportation of passengers and property over the lines owned, operated, controlled or leased by it and the lines of other common carriers nor as in any manner limiting or modifying the power of the commission to require the establishment of such joint rates, fares and charges.

History.

1913, ch. 61, § 21a, p. 247; reen. C.L. 106:63; C.S., § 2430; I.C.A.,§ 59-318.

CASE NOTES

Dock a Public Facility.

Where a railroad company acquired twenty acres of station grounds under the provisions of the act of congress of March 3, 1875, chapter 152, 18 Stat. 482 (U.S.C. tit. 43, §§ 934 to 939), for occupation and use as a common carrier, and such grounds were so situated as to abut upon a navigable lake or body of water, and such company constructed thereon a dock or wharf for use in receiving and discharging freight and passengers from boats and for forwarding through freight and passengers, and the same was, in fact, used both in carrying on through business and local business, such dock or wharf was a public “facility” for the transportation of freight and passengers within the purview and meaning of Idaho Const., Art. XI, § 6, and such railroad company could not make any undue or unreasonable discrimination between competing boat lines engaged in the same kind or class of business with such railroad company. Coeur d’Alene & St. Joe Transp. Co. v. Ferrell, 22 Idaho 752, 128 P. 565 (1912).

§ 61-319. Interchange of telephone messages.

Every telephone corporation operating in this state shall receive, transmit, and deliver, without discrimination or delay, the conversations and messages of every other telephone corporation with whose line a physical connection may have been made, or ordered by the commission.

History.

1913, ch. 61, § 21b, p. 247; reen. C.L. 106:64; C.S., § 2431; I.C.A.,§ 59-319; am. 1984, ch. 106, § 4, p. 246.

STATUTORY NOTES

Cross References.

Unlawful for telegraph or telephone company to refuse to accept and transmit messages to their final destination,§ 62-801.

§ 61-320. False billing — Transportation at less than scheduled rates prohibited.

STATUTORY NOTES

Cross References.

Telegraph and telephone companies, acceptance and transmission of messages,§ 62-801 et seq.

Compiler’s Notes.

§ 61-324. Railroads — Switch connection.

Any railroad company subject to the provisions of this act, upon application of any lateral, branch line of railroad or of any shipper tendering traffic for transportation, shall construct, maintain and operate upon reasonable terms a switch connection with any such lateral, branch line of railroad or private sidetrack, which may be constructed to connect with its railroad, where such connection is reasonably practicable and can be put in with safety, and will furnish sufficient business to justify the construction and maintenance of the same; and shall furnish cars for the movement of such traffic to the best of its ability, without discrimination in favor of or against any such shipper.

History.

1913, ch. 61, § 24a, p. 247; reen. C.L. 106:69; C.S., § 2436; I.C.A.,§ 59-324.

Abandonment or Forfeiture.

While the language of§§ 61-327 to 61-331 is very broad in forbidding any transfer “directly or indirectly, in any manner whatsoever” of electric utility property (§ 61-328), such sections are inapplicable to abandonment or forfeiture of a water right. If those sections were applied to abandonment or forfeiture of a water right used to generate electricity, the attorney general would be required to file an action to have such an escheat decreed, and thereafter there would be a court ordered sale of the property; such a scheme is totally inconsistent with§ 42-222(2), which provides that if a water right is abandoned or forfeited it reverts to the state, following which third parties may perfect an interest therein. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

Acquisition of Subordinated Rights.

Where power company acquired only subordinated water rights at Hells Canyon hydroelectric complex, there was no transfer, and§§ 61-327 to 61-331 did not apply. Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

§ 61-328. Electric utilities — Sale of property to be approved by commission.

No electric public utility or electrical corporation as defined in chapter 1, title 61, Idaho Code, owning, controlling or operating any property located in this state which is used in the generation, transmission, distribution or supply of electric power and energy to the public or any portion thereof, shall merge, sell, lease, assign or transfer, directly or indirectly, in any manner whatsoever, any such property or interest therein, or the operation, management or control thereof, or any certificate of convenience and necessity or franchise covering the same, except when authorized to do so by order of the public utilities commission.
The electric public utility or electrical corporation shall file a verified application setting forth such facts as the commission shall prescribe or require. The commission shall issue a public notice and shall conduct a public hearing upon the application.
Before authorizing the transaction, the public utilities commission shall find:
1. That the transaction is consistent with the public interest;
2. That the cost of and rates for supplying service will not be increased by reason of such transaction; and
3. That the applicant for such acquisition or transfer has the bona fide intent and financial ability to operate and maintain said property in the public service.
The commission shall have power to issue said authorization and order as prayed for, or to refuse to issue the same, or to issue such authorization and order with respect only to a part of the property involved. The commission shall include in any authorization or order the conditions required by the director of the department of water resources under section 42-1701(6), Idaho Code. The commission may attach to its authorization and order such other terms and conditions as in its judgment the public convenience and necessity may require.

The applicant shall bear the burden of showing that standards listed above have been satisfied.

History.

1951, ch. 3, § 2, p. 4; am. 2000, ch. 224, § 2, p. 619.

STATUTORY NOTES

Cross References.

Electric plant and electrical corporation defined,§§ 61-118, 61-119.

Effective Dates.

Section 4 of S.L. 2000, ch. 224 declared an emergency. Approved April 12, 2000.

CASE NOTES

Water Rights.

§ 61-329. Unlawful transfer or acquisition — Escheat.

Any such property or interest in property hereafter transferred or acquired in violation of this act shall escheat to the state of Idaho. The attorney general of the state shall institute proceedings in the district court of any county in which such property, or any portion thereof, is situated, to have such escheat adjudged and decreed. If the property is operating property, the court shall continue the operation thereof under a receiver appointed by and under the control and supervision of the court, pending final determination of the action and the sale and disposition of the property. When the court has entered judgment escheating the property to the state, the court shall thereupon order a sale of the property, or interest therein, in the same manner as prescribed by the laws of the state of Idaho for the sale of real estate under mortgage foreclosure. Out of the proceeds arising from such sale, any valid liens or claims of third parties shall be paid, and the balance shall be paid into the state treasury for the credit of the school fund [public school permanent endowment fund].

History.

1951, ch. 3, § 3, p. 4.

STATUTORY NOTES

Cross References.

Attorney general,§ 67-1401 et seq.

Public school fund, composition,§ 33-902.

State treasurer, custodian of school fund, Idaho Const., Art. IX, § 3.

Compiler’s Notes.

The term “this act” refers to S.L. 1951, ch. 3, which is codified as§§ 61-327 to 61-331.

The bracketed insertion at the end of this section was added by the compiler to reflect the 1998 renaming of the public school fund to the public school permanent endowment fund. See Idaho Const., Art. IX, § 3 and§ 33-902.

CASE NOTES

Water Rights.

§ 61-330. Evasions of act — Conclusive presumptions.

Every conveyance or transfer of property, or any interest therein, in violation of the provisions of this act, whether voluntary or involuntary, or though colorable in form, or if made with the intent or purpose to evade or avoid the provisions of this act, shall be void as to the state, and the property or interest thereby conveyed or transferred, shall escheat to the state as in this act provided. A conclusive presumption that the conveyance or transfer is made with the intent or purpose to evade or avoid the provisions of this act shall arise upon proof of any of the following facts:

a. The purchase, acquisition or taking of the property, or interest therein, in the name of a person or party other than persons or parties referred to in section 61-327[, Idaho Code], if the consideration is paid, guaranteed or otherwise secured, or agreed or understood to be paid, guaranteed or otherwise secured, directly or indirectly, by a government or municipal corporation, quasi-municipal corporation, or governmental or political unit, subdivision or corporation referred to in section 61-327[, Idaho Code].
b. The taking of the property in the name of a company, association, organization or corporation, if the shares of stock therein, or other evidence of ownership, membership or other interest therein, or in the property thereof, held by any government or municipal corporation, quasi-municipal corporation, or governmental or political unit, subdivision or corporation, or any other company, association, organization or corporation, referred to in section 61-327[, Idaho Code], together with such shares or other evidence of ownership, membership or interest held by others but paid for, guaranteed or otherwise secured, directly or indirectly, by any such government or municipal corporation, quasi-municipal corporation, or governmental or political unit, subdivision or corporation, amount to a majority of the issued stock or other evidence of ownership, membership or other interest therein, or in the property thereof.
c. The purchase, acquisition or holding of the majority of the issued stock, or other evidence of ownership, membership or other interest therein, or the voting control of any such stock or other evidence of ownership, membership or interest, either directly or indirectly, by any government or municipal corporation, quasi-municipal corporation, or governmental or political unit, subdivision or corporation, or any other company, association, organization or corporation, referred to in section 61-327[, Idaho Code], in any company, association, organization or corporation now or hereafter owning, holding or operating any property located in this state which is used in the generation, transmission, distribution or supply of electric power and energy to the public or any portion thereof.

The enumeration in this section of certain presumptions shall not be construed as to preclude other presumptions or inferences that reasonably may be made as to the existence of intent or purpose to evade or avoid the provisions of this act, or escheat as provided for herein.

History.

1951, ch. 3, § 4, p. 4.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” refers to S.L. 1951, ch. 3, which is codified as§§ 61-327 to 61-331.

The bracketed insertions were added by the compiler to conform to the statutory citation style.

§ 61-331. Violation of act — Criminal penalty.

If any person, or two (2) or more persons, act, negotiate, participate, attempt, arrange or conspire to make or effect, or to receive or take, a transfer of any real or personal property used for the purposes specified in section 61-327[, Idaho Code,] or section 61-328[, Idaho Code], or of any interest therein, in violation of the prohibitions contained in section 61-327[, Idaho Code,] or of any other provision of this act, each, any or all of such persons, upon conviction thereof, shall be punished by imprisonment in the county jail or state penitentiary not exceeding two (2) years or by a fine not exceeding $5000, or by both such fine and imprisonment.

History.

1951, ch. 3, § 5, p. 4.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” refers to S.L. 1951, ch. 3, which is codified as§§ 61-327 to 61-331.

The bracketed insertions were added by the compiler to conform to the statutory citation style.

Section 6 of S.L. 1951, ch. 3 read: “All portions and provisions of this act are hereby declared to be separable. If any section, paragraph, clause or provision of this act, or the application thereof to any person or party, or under any facts or circumstances, shall be declared by the courts to be unconstitutional, inoperative or void, the remainder of this act and its application, and the application of any such provision, to other persons or parties, or under other facts and circumstances, shall not be affected thereby. The legislature hereby declares that it would have passed this act, and each section, paragraph, clause or provision thereof, irrespective of the fact that any one or more other such provisions might be held to be unconstitutional, inoperative or void.”

Effective Dates.

Section 7 of S.L. 1951, ch. 3 declared an emergency. Approved January 23, 1951.

CASE NOTES

Cited

Idaho Power Co. v. State, 104 Idaho 575, 661 P.2d 741 (1983).

§ 61-332. Purpose of electric supplier stabilization act.

This act includes sections 61-332 through 61-334C, Idaho Code, and shall be referred to herein as “this act” and may be cited and referred to as the “Electric Supplier Stabilization Act.”
This act and its amendments are designed to promote harmony among and between electric suppliers furnishing electricity within the state of Idaho, prohibit the “pirating” of consumers of another electric supplier, discourage duplication of electric facilities, actively supervise certain conduct of electric suppliers as it relates to this act, and stabilize the territories and consumers served with electricity by such electric suppliers.

History.

I.C.,§ 61-332, as added by 1970, ch. 141, § 2, p. 417; am. 2000, 1st Ex. Sess., ch. 1, § 2, p. 3; am. 2001, ch. 29, § 3, p. 35.

STATUTORY NOTES

Cross References.

Duty to obtain certificate of convenience and necessity,§ 61-526.

Prior Laws.

Former§ 61-332, which comprised S.L. 1957, ch. 133, § 1, p. 226, was repealed by S.L. 1970, ch. 141, § 1.

Legislative Intent.

Section 1 of S.L. 2000, 1st Ex. Sess., § 1 read: “The provision of a safe and reliable supply of electricity in a manner that prohibits the ‘pirating’ of consumers and discourages duplication of facilities is essential to the well-being of Idaho’s citizens and its economy. It was for these and other reasons that the legislature passed the Electric Supplier Stabilization Act in 1970. The legislature has been advised of federal antitrust litigation alleging that conformance with the provisions of this act does not confer federal antitrust immunity upon parties in compliance with the act. The legislature finds that a negative judicial ruling would have the effect of repealing applicable provisions of the act, undercutting the purposes for which this act was enacted. It is and has been the intention of the legislature to confer antitrust immunity upon parties acting in compliance with the act under what is known as the state action doctrine. While the legislature believes that compliance with the existing provisions of this act confers such immunity, it has determined to amend the act to more fully address this issue. The legislature therefore finds that it is in the public interest to enact the following amendments.”

Compiler’s Notes.

Effective Dates.

Section 16 of S.L. 2001, ch. 29 declared an emergency. Approved February 28, 2001.

CASE NOTES

In General.

The electric supplier stabilization act (ESSA) was not intended to provide consumers with an express statutory mechanism by which they would be able to take their disputes with one or more utilities before the public utilities commission (IPUC), nor was it intended to provide an alternative forum for disputes between two public utilities more appropriately heard by the IPUC. Rather, the legislature’s purpose was to vest district courts with jurisdiction to address service territory disputes between utilities and either cooperatives or (later) municipalities not subject to the jurisdiction of the IPUC. Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 112 Idaho 10, 730 P.2d 930 (1986), cert. denied, 484 U.S. 801, 108 S. Ct. 44, 98 L. Ed. 2d 9 (1987).

State had a significant and legitimate public purpose in passing amended legislation shielding the electric power company from a federal antitrust violation: the prohibiting of unrestrained competition for retail electric customers and the avoidance of the wasteful duplication of electrical suppliers; accordingly, the electricity retailer could not show that the electric power company violated the law in acting in an anti-competitive manner in its dealing with the electricity retailer. Snake River Valley Elec. Ass’n v. Pacificorp, 357 F.3d 1042 (9th Cir.), cert. denied, 543 U.S. 956, 125 S. Ct. 416, 160 L. Ed. 2d 317 (2004).

Pirating.

The term “pirating,” as used under the Idaho electric supplier stabilization act (IESSA) (§ 61-332 et seq.) means providing electrical service to a customer who is receiving electricity from another electrical supplier or who had previously received electricity from that supplier. Kootenai Elec. Coop. v. Washington Water Power Co., 127 Idaho 432, 901 P.2d 1333 (1995).

Cited

Snake River Valley Elec. Ass’n v. PacifiCorp, 238 F.3d 1189 (9th Cir. 2001).

§ 61-332A. Definitions for electric supplier stabilization act.

As used in this act, unless the context requires otherwise:

“Public utility” means an electric utility regulated by the Idaho public utilities commission.
“Cooperative” means a cooperative corporation furnishing electric service in the state of Idaho to its consumer-members who own and operate the cooperative.
“Municipality” means any municipal corporation or quasi-municipal corporation furnishing electric service to the consumers of the municipality in the state of Idaho.
“Electric supplier” means any public utility, cooperative, or municipality supplying or intending to supply electric service to a consumer.
“Electric service” means electricity furnished to an ultimate consumer by an electric supplier.
“Consumer” is any person, firm, corporation, or other entity receiving or intending to receive electric service at a specific service entrance.
“Service entrance” means the location on the consumer’s property where the consumer’s main disconnect switch, fuses or other disconnect equipment exists, and which are intended to provide the means of cutoff of the supply.
“New service entrance” means a service entrance not previously served with electricity. A change, improvement, replacement, enlargement, or change in location of a service entrance shall not be deemed a “new service entrance” if utilized to serve any service or utilization equipment previously served with electricity from the former service entrance, but for the provisions of this act shall be deemed the former “service entrance.” A change in consumer shall not be construed to make an existing service entrance a “new service entrance.” A change, enlargement, or other modification of service or utilization equipment served from an existing service entrance shall not be construed to make it a “new service entrance.”
“Transmission line,” for the purposes of this act, means any electric line of an electric supplier carrying a voltage of sixty-nine (69) KV or more.
“Service line,” for the purposes of this act, means any single or multi-phase electric line of an electric supplier used for carrying less than sixty-nine (69) KV and used or capable of use to provide electric service for a consumer.
“Existing service line” means any electric service line in existence at the time of the event in question and constructed to supply a consumer that could be lawfully served by that electric supplier under this act. It shall not mean any service line constructed to obtain an advantage under this act, or to evade its purpose or terms.
“Commission” means the Idaho public utilities commission.

History.

I.C.,§ 61-332A, as added by 1970, ch. 141, § 3, p. 417; am. 2000, 1st Ex. Sess., ch. 1, § 3, p. 3; am. 2001, ch. 29, § 4, p. 35.

STATUTORY NOTES

Legislative Intent.

Compiler’s Notes.

2000 1st Ex. Sess., ch. 1 made some changes to this section, effective December 8, 2000, and others effective March 1, 2001. However, S.L. 2001, ch. 29 § 1 repealed 2000 1st Ex. Sess., ch. 1 effective February 28, 2001. Consequently, the 2000 1st Ex. Sess., ch. 1 changes that were effective December 8, 2000, were repealed effective February 28, 2001, and the changes that were to take effect March 1, 2001, never took effect.

For meaning of the term “this act,” see§ 61-332.

Effective Dates.

Section 16 of S.L. 2001, ch. 29 declared an emergency. Approved February 28, 2001.

Section 22 of S.L. 2001, 1st Ex. Sess., ch. 1 declared an emergency. Approved December 8, 2000.

CASE NOTES

Existing Service Line.

Cited

Snake River Valley Elec. Ass’n v. PacifiCorp, 238 F.3d 1189 (9th Cir. 2001).

§ 61-332B. Electric supplier prohibited from serving consumers or former consumers of another electric supplier.

No electric supplier shall supply or furnish electric service to any electric service entrance that is then or had at any time previously been lawfully connected for electric service to facilities of another electric supplier except as provided in this act.

History.

I.C.,§ 61-332B, as added by 1970, ch. 141, § 4, p. 417; am. 2000, 1st Ex. Sess., ch. 1, § 4, p. 3; am. 2001, ch. 29, § 5, p. 35.

STATUTORY NOTES

Prior Laws.

Former§ 61-332B, which comprised I.C.,§ 61-332B, as added by 1970, ch. 141, § 4, p. 417; am. 2000, 1st Ex. Sess., ch. 1, § 4, was repealed by S.L. 2000, 1st Ex. Sess., ch. 1, § 13, effective March 1, 2001.

Legislative Intent.

Compiler’s Notes.

For meaning of the term “this act”, see§ 61-332.

Effective Dates.

Section 22 of S.L. 2000, 1st Ex. Sess., ch. 1 declared an emergency. Approved December 8, 2000.

Section 16 of S.L. 2001, ch. 29 declared an emergency. Approved February 28, 2001.

CASE NOTES

Feeder Tie Construction.

Fact that the feeder tie line was built in accord with various engineering and prudent utility practices does not mean that a court is precluded from considering the electric supplier’s motives for moving it. Otherwise, if an electric supplier seeks to gain service territory all it need do is construct a feeder tie through the territory and then prove that the line has an engineering purpose. Such an approach does not further the purpose of the legislature as set forth in this section. Kootenai Elec. Coop. v. Washington Water Power Co., 127 Idaho 432, 901 P.2d 1333 (1995).

Even though power company did show that it had legitimate reasons for installing the feeder tie through the industrial park, one of its significant purposes was to obtain an advantage over second power company, and, thus, the feeder line cannot be considered an existing service line in order to determine which supplier’s lines are nearest to the new service entrance for selecting which supplier has the right to supply the new consumers. Kootenai Elec. Coop. v. Washington Water Power Co., 127 Idaho 432, 901 P.2d 1333 (1995).

Although the electric supplier stabilization act authorized a power utility to refuse to allow a non-profit cooperative to use the power utility’s transmission facilities, the state action immunity doctrine did not bar the cooperative from bringing an action under the federal antitrust statutes, because the act allows an electric supplier to define its service territory solely by consent and without any state supervision whatsoever. Snake River Valley Elec. Ass’n v. PacifiCorp, 238 F.3d 1189 (9th Cir. 2001).

Immunity From Federal Antitrust Scrutiny.

The contemporary two-step test for determining whether an alleged state-sponsored restraint of competition is immune from federal antitrust scrutiny is that the challenged restraint must be (1) clearly articulated, and (2) actively supervised by the state. Snake River Valley Elec. Ass’n v. PacifiCorp, 238 F.3d 1189 (9th Cir. 2001).

The district court correctly concluded that the electric supplier stabilization ct (ESSA) clearly expresses a policy to displace competition among electrical suppliers so that the first prong of the two-step test for determining whether an alleged state-sponsored restraint of competition is immune from federal antitrust scrutiny was satisfied, because this prong is satisfied when a state’s policy permits but does not compel anticompetitive conduct. Snake River Valley Elec. Ass’n v. PacifiCorp, 238 F.3d 1189 (9th Cir. 2001).

Because the electric supplier stabilization act does not provide for active supervision of private agreements to divide customers, the second prong of the two-step test for determining whether an alleged state-sponsored restraint of competition is immune from federal antitrust scrutiny was not satisfied, and defendant’s refusal to allow plaintiff to serve its customers was, therefore, not shielded by the state action immunity doctrine. Snake River Valley Elec. Ass’n v. PacifiCorp, 238 F.3d 1189 (9th Cir. 2001). State action immunity prevented electricity retailer from asserting a successful claim that the electric power company violated federal antitrust law, as the electricity retailer was prohibited under the law from “pirating” the electric power company’s customers unless the Idaho public utilities commission granted an exception permitting the transfer of present or past customers; since the power to control the division of consumers was controlled entirely by the Idaho public utilities commission, the alleged refusal of the electric power company to “wheel”, that is, allow the electricity retailer to serve customers using the electric power company’s transmission lines, could not be the basis for a federal antitrust action against the electric power company. Snake River Valley Elec. Ass’n v. Pacificorp, 357 F.3d 1042 (9th Cir.), cert. denied, 543 U.S. 956, 125 S. Ct. 416, 160 L. Ed. 2d 317 (2004).

Cited

Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 112 Idaho 10, 730 P.2d 930 (1986).

§ 61-332C. Provisions for selecting electric supplier for new electric service entrances.

In determining which electric supplier will provide electric service for a new service entrance, the following provisions will govern:
1. If no electric supplier has an existing service line within one thousand three hundred twenty (1,320) feet of a new service entrance the consumer shall have the right of choice of electric supplier.
2. If only one (1) electric supplier has an existing service line within one thousand three hundred twenty (1,320) feet of the new service entrance that electric supplier shall have the right to serve the consumer at the new service entrance.
3. If more than one (1) electric supplier has an existing service line within one thousand three hundred twenty (1,320) feet of the new service entrance the electric supplier whose existing service line is nearest the new service entrance shall have the right to serve the consumer at the new service entrance.
4. If more than one (1) electric supplier has an existing service line within one thousand three hundred twenty (1,320) feet of the new service entrance and it cannot be determined by proof which service line is nearest the new service entrance, then the consumer or an electric supplier shall petition the commission for an order determining which electric supplier is nearest the new service entrance.
5. For purposes of this act distances shall mean the exact distance measured using standard land surveying practices as established by the board of [licensure of] professional engineers and [professional] land surveyors of the state of Idaho.
No electric supplier shall construct or extend facilities, nor make any electric connections, nor permit any connection to be made from any of its facilities to any new service entrance nor shall it supply electric service to any new service entrance in violation of the provisions of this section, except as ordered by the commission pursuant to this act.

History.

I.C.,§ 61-332, as added by 1970, ch. 141, § 5, p. 417; am. 2000, 1st Ex. Sess., ch. 1, § 5, p. 3; am. 2001, ch. 29, § 6, p. 35.

STATUTORY NOTES

Prior Laws.

Former§ 61-332C, was repealed by section 13 of S.L. 2000, 1st Ex. Sess., ch. 1, effective March 1, 2001.

Legislative Intent.

Compiler’s Notes.

The bracketed insertions in paragraph (1)(e) were added by the compiler to correct the name of the referenced board. See§ 54-1203.

For meaning of the term “this act”, see§ 61-332.

Effective Dates.

Section 22 of S.L. 2000, 1st Ex. Sess. ch. 1 declared an emergency. Approved December 8, 2000.

Section 16 of S.L. 2001, ch. 29 declared an emergency. Approved February 28, 2001.

CASE NOTES

Decisions Under Prior Law

Conditions Affecting Injunctive Relief.

An injunction against a municipal corporation was properly denied where both plaintiff and defendant had lines within one thousand feet of one prospective customer and both had installations on the property of another. Rural Elec. Co. v. Burley, 89 Idaho 112, 403 P.2d 580 (1965).

Feeder Tie.

In an action between two electric suppliers regarding who has the right to supply electricity to new consumers, the supplier with the closest “existing service line” to the consumer’s new service entrance is usually entitled to serve the new consumer; however, where evidence shows that a supplier constructed a “feeder tie” in order to obtain an advantage under Idaho electric supplier stabilization act, the feeder tie does not fall within the definition of “existing service line” pursuant to§ 61-332A, regardless of proof that the feeder tie was installed for legitimate reasons. Kootenai Elec. Coop. v. Washington Water Power Co., 127 Idaho 432, 901 P.2d 1333 (1995). If an electric supplier had legitimate reasons for constructing its feeder tie, but one of its significant purposes was to obtain an advantage over another electric supplier, then the feeder tie does not meet the definition of “existing service line” under§ 61-332A and cannot be used as a measuring point for determining which supplier has the right to provide electric service to new consumers. Kootenai Elec. Coop. v. Washington Water Power Co., 127 Idaho 432, 901 P.2d 1333 (1995).

§ 61-332D. Wheeling services.

An electric supplier shall not be required to provide wheeling service over its system if such service results in retail wheeling and/or a sham wholesale transaction.
An electric supplier declining to furnish wheeling service pursuant to this section shall petition the commission for review of the electric supplier’s action in respect to a request for such service. The commission shall, upon notice and opportunity for hearing, review the electric supplier’s action for consistency with the purposes and provisions of this act, and issue an order in accordance with its finding, ordering either that the wheeling service shall, or shall not, be required.

History.

I.C.,§ 61-332D, as added by 2001, ch. 29, § 7, p. 35.

STATUTORY NOTES

Legislative Intent.

Compiler’s Notes.

For the meaning of the term “this act”, see§ 61-332.

Effective Dates.

Section 22 of S.L. 2000, 1st Ex. Sess., ch. 1 declared an emergency. Approved December 8, 2000.

Section 16 of S.L. 2001, ch. 29 declared an emergency. Approved February 28, 2001.

CASE NOTES

In General.

Electric power company was entitled to refuse to “wheel”, where it allowed the electricity retailer to deliver electricity to the electricity retailer’s customers through use of the electric power company’s transmission facilities under certain circumstances, and its refusal to do so did not violate federal antitrust law because it was the responsibility of the Idaho public utilities commission, not the electric power company, to determine whether the refusal to wheel violated the law; by the same token, the electricity retailer was prohibited from serving the electric power company’s customers or former customers unless it petitioned the Idaho public utilities commission and the Idaho public utilities commission issued an order allowing this service. Snake River Valley Elec. Ass’n v. Pacificorp, 357 F.3d 1042 (9th Cir.), cert. denied, 543 U.S. 956, 125 S. Ct. 416, 160 L. Ed. 2d 317 (2004).

§ 61-333. Authorizing contracts among electric suppliers to resolve territories, consumers and to transfer facilities.

Any electric supplier may contract in writing with any other electric supplier for the purpose of allocating territories, consumers, and future consumers between the electric suppliers and designating which territories and consumers are to be served by which contracting electric supplier. The territories and consumers so allocated and designated may include all or any portion of the territories and consumers which are being served by any or all of the contracting electric suppliers at the time the contract is entered into, or which could be economically served by the then existing facilities of any contracting electric supplier, or by reasonable and economic extensions thereto. All such contracts shall be filed with the commission. The commission shall, after notice and opportunity for hearing, review and approve or reject contracts between cooperatives, between cooperatives and public utilities and between public utilities. The commission shall, after notice and opportunity for hearing, review and approve or reject contracts between municipalities and cooperatives, as well as between municipalities and public utilities, provided however, the commission shall have jurisdiction only over cooperatives and public utilities in such approvals. The commission shall approve such contracts only upon finding that the allocation of territories or consumers is in conformance with the provisions and purposes of this act.
Any electric supplier may also contract in writing with any other electric supplier for the sale, exchange, transfer, or lease of equipment or facilities located within territory which is the subject of any allocation contracted for under subsection (1) of this section and any contract validly entered into and approved by the commission after notice and opportunity for hearing shall be binding and shall be legally enforceable pursuant to this act, or by any other remedy provided by law.

History.

I.C.,§ 61-332, as added by 1970, ch. 141, § 7, p. 417; am. 2000, 1st Ex. Sess., ch. 1, § 7, p. 3; am. 2001, ch. 29, § 8, p. 35.

STATUTORY NOTES

Prior Laws.

Former§ 61-333, comprising S.L. 1957, ch. 133, § 2, p. 226; am. 1963, ch. 269, § 1, p. 685, was repealed by S.L. 1970, ch. 141, § 6.

Legislative Intent.

Compiler’s Notes.

For meaning of the term “this act”, see§ 61-332.

Effective Dates.

Section 22 of S.L. 2000, 1st Ex. Sess., ch. 1 declared an emergency. Approved December 8, 2000.

Section 16 of S.L. 2001, ch. 29 declared an emergency. Approved February 28, 2001.

§ 61-333A. Increased area — Extension of service permitted.

In the event an area hereafter shall be included as a result of incorporation or annexation within the boundaries of a city, town or village, any public utility and any cooperative association organized for the purpose of furnishing electric service to its members or consumers only, furnishing electric service or operating electric facilities in such area prior to such inclusion, shall, unless the municipality acquire such facilities pursuant to section 61-333B, Idaho Code, and subject to the provisions of sections 61-332B and 61-332C, Idaho Code, have the right to continue and extend the furnishing of electric services in such area, and to utilize public streets, alleys and thoroughfares, or such portion of such annexed area as is designated on the recorded plat for the installation of utilities, for such purpose. Such public utility or cooperative association shall comply with all lawful and reasonable safety requirements and the laws of the state of Idaho and nondiscriminatory ordinances of the city, town or village, as to the manner of constructing and maintaining electrical facilities therein.

History.

I.C.,§ 61-333A, as added by 1963, ch. 269, § 2, p. 685; am. 1970, ch. 141, § 8, p. 417.

CASE NOTES

Eminent Domain.

This act was not applicable to an action by a city to condemn under right of eminent domain the property of an electric power cooperative within newly annexed territory commenced before the effective date of this act. Unity Light & Power Co. v. City of Burley, 92 Idaho 499, 445 P.2d 720 (1968).

§ 61-333B. Municipal corporation restricted in serving new area previously served by utility or cooperative association — Voluntary agreements — Election — Appeals.

In the event the annexing municipality has been furnishing electric service to its residents at the time of such annexation, or thereafter commences the furnishing of such service to its residents, nothing in this chapter shall prevent such municipality from extending its service to the annexed or incorporated area, upon the payment of just compensation, as defined in section 7-711, Idaho Code, to such public utility or cooperative serving such area prior to annexation, for any property, real or personal, including damages to the remainder of the system, if any, of such cooperative or public utility, used in distribution, transmission or supply of electrical energy to such area prior to annexation. As used herein, just compensation shall include consideration of new installations necessarily made between the time of annexation or incorporation and final settlement.

Provided, however, in case the annexed area was previously served by a cooperative association, no extension shall be made by the municipal corporation, except upon the following conditions:

Until the terms and conditions of such extension, including just compensation therefor, have been finally determined by voluntary agreement between the annexing municipality and the servicing cooperative association, or
In the event that such voluntary agreement cannot be made within ninety (90) days of the date of incorporation or annexation of such territory served by such cooperative association, then the municipal corporation may, if so determined by unanimous vote of its governing body, submit to the qualified electors of such municipality upon a special ballot to be voted upon at the next regular election of such municipality, the question “Shall portions of the .... of ...., Idaho which have heretofore been served electrical energy by .... become a part of the electrical system of the .... of ...., Idaho. Said areas are generally known and described as follows: (Insert description).”

A majority of the votes cast on said special ballot must be in favor of the proposition in order to approve the transaction on the part of the municipal corporation. Further, the cooperative association shall submit either by mail or at an annual or special meeting to its members, at the same time of the municipal election above mentioned, the question of whether or not the board of such cooperative association be authorized to sell to the municipality upon payment of just compensation, to be agreed upon, or if agreement be not reached, upon compensation determined as provided hereinafter. A majority of the votes cast must be in favor of the proposition in order to approve the transaction on the part of the cooperative association. At least 15 days before the vote by the members of the cooperative association, the association shall submit to the municipality a list of members eligible to vote and the municipality is hereby authorized to submit to said members a written statement of the reasons for the transfer to electric service by the municipality.

If agreement cannot be reached upon the amount of just compensation, the matter shall be submitted to the district court of the county wherein the municipality is located pursuant to procedures of title 10, chapter 12, Idaho Code, for this purpose of fixing and determining the amount of just compensation as hereinbefore defined. The court may appoint not more than two (2) experts to advise the court, and the costs of the action, including fees of such experts, shall be taxed equally to the parties.

Either party may appeal from the decision of the court in the same manner that other appeals are taken therefrom. No transfer of facilities shall be made until the amount of compensation has been finally determined and paid.

History.

I.C.,§ 61-333B, as added by 1963, ch. 269, § 3, p. 685.

STATUTORY NOTES

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

CASE NOTES

Eminent Domain.

§ 61-333C. Nonmunicipal service organizations prohibited from extending service.

Nothing contained herein shall authorize any cooperative association or public utility having transmission lines presently within corporate limits of any municipal corporation, presently engaged in the sale of electrical energy to its citizens, to make any service connections within corporate limits of such municipal corporation from such transmission lines.

History.

I.C.,§ 61-333C, as added by 1963, ch. 269, § 4, p. 685.

STATUTORY NOTES

Effective Dates.

Section 5 of S.L. 1963, ch. 269 provided that the act should take effect from and after June 1, 1963.

CASE NOTES

Eminent Domain.

§ 61-334. Special rules of interpretation.

Nothing contained in this act shall be construed to:

Grant the commission jurisdiction over cooperatives or municipalities except as authorized in this act.
Apply to controversies between two (2) or more public utilities.
Preclude any electric supplier from extending electric service to its own property or facilities or to another electric supplier for resale, provided any line extension made under this clause shall not be considered in determining the right of electric suppliers to serve new service entrances under section 61-332C, Idaho Code.
Abrogate or limit the authority of any municipality under any other statute or law with respect to the municipality providing electricity to the municipality or the consumers of the municipality within the boundaries of the municipality.

History.

I.C.,§ 61-332, as added by 1970, ch. 141, § 10, p. 417; am. 2000, 1st Ex. Sess., ch. 1, § 8, p. 3; am. 2001, ch. 29, § 9, p. 35.

STATUTORY NOTES

Prior Laws.

Former§ 61-334, comprising S.L. 1957, ch. 133, § 3, p. 226, was repealed by S.L. 1970, ch. 141, § 9.

Legislative Intent.

Compiler’s Notes.

Effective Dates.

Section 22 of S.L. 2000, 1st Ex. Sess., ch. 1 declared an emergency. Approved December 8, 2000.

Section 16 of S.L. 2001, ch. 29 declared an emergency. Approved February 28, 2001.

§ 61-334A. Remedies for violation of this act.

Any electric supplier or consumer whose rights under this act shall be violated or threatened with violation may file a complaint with the commission against an electric supplier and any other person responsible for the violation.
After notice and opportunity for hearing, the commission shall make findings of fact and conclusions of law determining whether this act or any orders issued under this act have been violated or threatened to be violated and shall determine whether there is actual or threatened irreparable injury as to the electric supplier or consumer whose rights are violated or threatened with violation as a basis for granting relief.
The relief to be granted under this section for violation of this act shall forbid further acts in violation of such orders, shall order the removal of any electric connections, facilities or equipment that constitute the violation, or a combination thereof necessary to enforce compliance with this act.

History.

I.C.,§ 61-334B, as added by 1970, ch. 141, § 12, p. 417; am. and redesig. 2000, 1st Ex. Sess., ch. 1, § 101, p. 3; am. and redesig. 2001, ch. 29, § 11, p. 35.

STATUTORY NOTES

Compiler’s Notes.

For meaning of the term “this act”, see§ 61-332.

Effective Dates.

Section 22 of S.L. 2000, 1st Ex. Sess., ch. 1 declared an emergency. Approved December 8, 2000.

Section 16 of S.L. 2001, ch. 29 declared an emergency. Approved February 28, 2001.

§ 61-334B. Commission supervision and authority.

Upon a petition by an electric supplier or consumer for an exception to the provisions of section 61-332B or 61-332C(1)(a), (b) or (c), Idaho Code, the commission shall issue an order granting such request only upon finding that granting the request is consistent with the purposes of this act as set forth in section 61-332, Idaho Code.
The commission shall have power to issue authorizations and orders requested under this act, or to refuse to issue the same, and may attach to any authorization and order as a condition of approval such terms and conditions as it determines are consistent with the purposes and provisions of this act.
In all matters arising under this act, which are submitted to the commission for decision, order or review, the procedure shall be governed by chapters 6 and 7, title 61, Idaho Code, and the commission’s rules of procedure. Reconsideration of, appeal from, enforcement of, and stay of orders issued pursuant to this act shall be governed by law as for other orders of the commission in other matters.

History.

I.C.,§ 61-334B, as added by 2001, ch. 29, § 12, p. 35.

STATUTORY NOTES

Legislative Intent.

Compiler’s Notes.

Effective Dates.

Section 22 of S.L. 2000, 1st Ex. Sess., ch. 1 declared an emergency. Approved December 8, 2000.

Section 16 of S.L. 2001, ch. 29 declared an emergency. Approved February 28, 2001.

CASE NOTES

Pirating.

State action immunity prevented electricity retailer from asserting a successful claim that the electric power company violated federal antitrust law, as the electricity retailer was prohibited under the law from “pirating” the electric power company’s customers unless the Idaho public utilities commission granted an exception permitting the transfer of present or past customers; since the power to control the division of consumers was controlled entirely by the Idaho public utilities commission, the alleged refusal of the electric power company to “wheel”, that is, allow the electricity retailer to serve customers using the electric power company’s transmission lines, could not be the basis for a federal antitrust action against the electric power company. Snake River Valley Elec. Ass’n v. Pacificorp, 357 F.3d 1042 (9th Cir.), cert. denied, 543 U.S. 956, 125 S. Ct. 416, 160 L. Ed. 2d 317 (2004).

§ 61-334C. Electric supplier immunity.

No action under the Idaho competition act, chapter 1, title 48, Idaho Code, or any other provision or doctrine of law of the state of Idaho shall lie against an electric supplier for action or inaction that is in compliance with the provisions of this act or any commission order issued pursuant to this act.

History.

I.C.,§ 61-334C, as added by 2001, ch. 29, § 13, p. 35.

STATUTORY NOTES

Legislative Intent.

Compiler’s Notes.

For meaning of the term “this act”, see§ 61-332.

Effective Dates.

Section 22 of S.L. 2000, 1st Ex. Sess., ch. 1 declared an emergency. Approved December 8, 2000.

Section 16 of S.L. 2001, ch. 29 declared an emergency. Approved February 28, 2001.

§ 61-335. Approval of carrier agreements. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised I.C.,§ 61-335, as added by 1978, ch. 124, § 1, p. 280, was repealed by S.L. 1999, ch. 383, § 12, p. 1051, effective July 1, 1999.

§ 61-336. Additional authorities of electrical or natural gas corporations.

The commission may authorize any public utility that is an electrical or natural gas corporation to file and place into effect schedules establishing rates or charges for energy conservation measures, services or payments provided to individual property owners or customers. Application of the schedule shall be subject to agreement between the public utility and the property owner or customer receiving service at the time the conservation measures, services or payments are initially provided. The schedule may include provisions for the payment of the rates or charges over a period of time and for the application of the payment obligation to successive property owners or customers at the premises where the conservation measures or services were installed or performed or with respect to which the conservation payments were made. The public utility shall record a notice of the payment obligation with the county recorder in the county where the property is located. The commission may prescribe by rule other methods by which the public utility shall notify property owners or customers of any such payment obligation.

History.

I.C.,§ 61-336, as added by 1993, ch. 218, § 1, p. 682.

§ 61-337. Fish and wildlife mitigation information.

On and after July 1, 2004, each electric utility with one thousand (1,000) customers or more may provide information in its bills to its customers regarding the percentage of the electric utility’s costs of supplying electric energy to its customers which is utilized for fish and wildlife mitigation purposes on the electric utility’s system.
On and after July 1, 2004, each cooperative and municipality furnishing electric service, as those terms are defined in section 61-332A, Idaho Code, (excepting a cooperative that serves less than one thousand (1,000) customers and also serves consumers in other states) may provide information on its bills to its customers of the percentage cost of fish and wildlife mitigation included in the cost of electric energy sold to the cooperative or municipality’s customers.
Annually, at a time at the discretion of the utility or entity, a statement shall be posted on the utility’s or entity’s website detailing to whom and the amount spent on fish and wildlife mitigation by the utility or entity for the most recent fiscal year.

History.

I.C.,§ 61-337, as added by 2004, ch. 161, § 1, p. 527.

STATUTORY NOTES

Prior Laws.

Former§ 61-337, which comprised I.C.,§ 61-337, as added by 1994, ch. 61, § 1, p. 120, was repealed by S.L. 1999, ch. 383, § 12, p. 1051, effective July 1, 1999.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

§ 61-338. Customer cost information. [Null and void.]

STATUTORY NOTES

Compiler’s Notes.

Section 4 of S.L. 1997, ch. 403 declared an emergency, and provided that the act should be null, void and of no force and effect on and after January 1, 1999. Became law without governor’s signature March 27, 1997.

§ 61-339. Cooperative and municipal corporations furnishing electrical service

Customer cost information. [Null and void.]

STATUTORY NOTES

Compiler’s Notes.

Section 4 of S.L. 1997, ch. 403 declared an emergency, and provided that the act should be null, void and of no force and effect on and after January 1, 1999. Became law without the governor’s signature March 27, 1997.

Chapter 4 REPORTS BY PUBLIC UTILITIES

Sec.

§ 61-401. Information to be furnished.

Every public utility shall furnish to the commission, in such form and such detail as the commission shall prescribe, all tabulations, computations and all other information required by it to carry into effect any of the provisions of this act and shall make answers to the best of their knowledge, to all questions submitted by the commission.

History.

1913, ch. 61, § 26a, p. 247; reen. C.L. 106:76; C.S., § 2443; I.C.A.,§ 59-401.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Power to Require Information.

The fact that subpoena power existed in the commission to order information from other sources as to the past activities of a prospective transferor of a motor carrier permit did not negate their authority to order the production of such evidence from the prospective transferees. Kent v. Idaho Pub. Utils. Comm’n, 93 Idaho 618, 469 P.2d 745 (1970).

Cited

In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 61-402. Inventory of physical properties.

Every public utility, except railroad corporations, shall file with the commission an inventory of all its physical properties within the state, designating the exact location of its property within the several counties of the state; such inventory shall show in detail the cost of construction together with the depreciation charges incident thereto since construction, or may show the cost of replacement of such properties, if in the opinion of the commission the original cost and depreciation charges cannot be obtained: provided, that in the event any public utility refuses or neglects to file such inventory, or the inventory so filed is inaccurate, the commission may send its agents upon the ground and make an inventory as desired by the commission. The entire cost of making such inventory by the agents of the commission shall be paid by the public utility from its profit and loss account and shall not be charged to operating expenses, and such payment shall be made to the treasurer of the state, who shall deposit the same to the credit of the fund provided for the engineering department of said commission.

Every public utility shall file the inventory herein required within six (6) months after the approval of this section by the governor unless for just cause shown the commission may extend such time and shall file new, amended or supplemental inventories at such times thereafter as the commission may require.

History.

C.L. 106:76a, as added by 1919, ch. 179, § 1, p. 556; C.S., § 2444; I.C.A.,§ 59-402.

CASE NOTES

Evidence of Actual Costs.

This section would seem to require that actual costs be produced where evidence thereof is available. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925) (valuation for rate-making purposes discussed).

§ 61-403. Blanks — Filling out by utility.

Every public utility receiving from the commission any blanks, with directions to fill the same, shall cause the same to be properly filled out so as to answer fully and correctly each question propounded therein; in case it is unable to answer any question, it shall give a good and sufficient reason for such failure.

History.

1913, ch. 61, § 26b, p. 247; reen. C.L. 106:77; C.S., § 2445; I.C.A.,§ 59-403.

§ 61-404. Copies of maps and records to be furnished.

Whenever required by the commission every public utility shall deliver to the commission copies of any and all maps, profiles, contracts, agreements, franchises, reports, books, accounts, papers and records in its possession or in any way relating to its property or affecting its business containing evidence relating to the merits of or pertinent to the hearing of any issue pending before the commission.

History.

1913, ch. 61, § 26c, p. 247; reen. C.L. 106:78; C.S., § 2446; I.C.A.,§ 59-404.

STATUTORY NOTES

Cross References.

Railroad corporation, filing map and profile,§ 62-201.

§ 61-405. Annual report.

Every public utility shall file an annual report with the commission, verified by the oath of an officer thereof. The verification shall be to the best of said official’s knowledge, information and belief. The commission shall prescribe the form of such report and the character of the information to be contained therein, and may from time to time make such changes and such additions in regard to the form and contents thereof as it may deem proper, and on or before January first in each year shall furnish a blank form for such annual reports to every public utility. The contents of such reports and the form thereof shall conform, as nearly as may be, in the case of public utility subject to an act of congress, entitled “An act to regulate commerce,” approved February 4, 1887, and the acts amendatory thereof and supplementary thereto, to that required by the interstate commerce commission; and the commission may also require the report to contain such additional information as is reasonably practicable for the public utility to furnish in relation to rates or regulations concerning fares, rates, agreements or contracts affecting the same, so far as such rates or regulations pertain to transportation within this state. In case it is unable to give such information, it shall give a good and sufficient reason for such failure. When the report of such corporation is defective, or believed to be erroneous, the commission shall notify the corporation or person to amend the same within the time prescribed by the commission. The originals of the reports subscribed to and sworn to as prescribed by law, shall be filed on or before the fifteenth day of April in each year and preserved in the office of the commission. The commission may extend the time for making and filing such report for a period not exceeding sixty (60) days.

Provided, that the commission may in its discretion, prescribe an abbreviated or modified form for such annual report, to be used by persons or corporations who operate or control any plant or system for distributing electric current but who do not generate such current, or by persons or corporations who operate on a small scale or serve a small community of persons.

History.

1913, ch. 61, § 27, p. 247; am. 1915, ch. 101, § 1, p. 239; compiled and reen. C.L. 106:80; C.S., § 2448; I.C.A.,§ 59-405; am. 1953, ch. 71, § 1, p. 92.

STATUTORY NOTES

Federal References.

Effective Dates.

Section 2 of S.L. 1953, ch. 71 declared an emergency. Approved February 25, 1953.

§ 61-406. Compliance with commission’s orders.

Every public utility shall obey and comply with each and every requirement of every order, decision, direction, rule or regulation made or prescribed by the commission in the matters herein specified, and shall do everything necessary or proper in order to secure compliance with and observance of every such order, decision, direction, rule or regulation by all of its officers, agents and employees.

History.

1913, ch. 61, § 28, p. 247; reen. C.L. 106:81; C.S., § 2449; I.C.A.,§ 59-406.

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

Chapter 5 POWERS AND DUTIES OF PUBLIC UTILITIES COMMISSION

Sec.

§ 61-501. Investment of authority.

The public utilities commission is hereby vested with power and jurisdiction to supervise and regulate every public utility in the state and to do all things necessary to carry out the spirit and intent of the provisions of this act.

History.

1913, ch. 61, § 29, p. 247; reen. C.L. 106:82; C.S., § 2450; I.C.A.,§ 59-501.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Authority to Compensate Consumer Intervenors.

In the absence of any statute specifically authorizing the public utilities commission to compensate consumer intervenors, the commission does not have the authority under either this section or§ 61-601 to adopt intervenor funding rules or to award attorney fees and costs in connection with proceedings under the Public Utility Regulatory Policies Act, 16 U.S.C.S. § 2601 et seq., since the commission only has that jurisdiction conferred upon it by the legislature and since attorney fees may only be awarded where specifically provided for by statute or contract. Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 744, 639 P.2d 442 (1981).

Companies Subject to Regulation.

Corporation becomes subject to regulation as public utility only when and to extent that business of such corporation becomes devoted to public use. Humbird Lumber Co. v. Public Utils. Comm’n, 39 Idaho 505, 228 P. 271 (1924). Water company to be public utility within jurisdiction of commission must be operating and delivering water to public or some portion thereof for compensation. Humbird Lumber Co. v. Public Utils. Comm’n, 39 Idaho 505, 228 P. 271 (1924).

Where railroad holds out to the public that it will operate as a common carrier, and exercises the right of eminent domain, it cannot contend that it is not a common carrier because it has never operated as such. Codd v. McGoldrick Lumber Co., 46 Idaho 256, 267 P. 439 (1928).

Mere exercise of right of eminent domain by logging railroad did not make it a common carrier. Codd v. McGoldrick Lumber Co., 48 Idaho 1, 279 P. 298 (1929).

Constitutionality.

Legislature has power to regulate and supervise public service companies. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

Power to supervise and regulate rates or charges for services rendered by public utilities is an inherent function of government, existence of which does not depend upon its exercise by the state at any particular time. Sandpoint Water & Light Co. v. City of Sandpoint, 31 Idaho 498, 173 P. 972 (1918).

Construction with Other Sections.

This section is implemented by additional statutory provisions which specifically detail the authority of the commission and the activities subject to its regulation; thus courts historically have looked to the more specific provisions contained in§§ 61-502 through 61-537 to find the legislative grant of authority to the commission. Washington Water Power Co. v. Kootenai Envtl. Alliance, 99 Idaho 875, 591 P.2d 122 (1979).

Declaratory Judgment.

In a declaratory judgment action brought by the department of energy (DOE), the commission correctly decided that, as between two utilities with valid certificates to deliver energy at transmission voltage to the national engineering laboratory, the utility that was currently and satisfactorily serving the disputed area could continue to do so. Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 112 Idaho 10, 730 P.2d 930 (1986), cert. denied, 484 U.S. 801, 108 S. Ct. 44, 98 L. Ed. 2d 9 (1987).

Effect on Contracts.

The public utilities commission has no jurisdiction to take away a utility’s freedom of contract (so long as the contract is not inimical to the public interest) and must consider private contracts when involved in the rate-making process; as such, interpretation of contracts, as a general rule, does not fall within the commission’s jurisdiction. Afton Energy, Inc. v. Idaho Power Co., 111 Idaho 925, 729 P.2d 400 (1986).

Extent of Control.

Hearing on Protest.

The Idaho public utilities commission (IPUC) has the authority and the jurisdiction to engage in a case-by-case analysis under applicable statutory law for the standards and requirements pursuant to implementation of the Public Utility Regulatory Policies Act: thus, all case decisions issued by the IPUC are potentially applicable to, and may have an impact on, a qualifying facility’s project. Rosebud Enters., Inc. v. Idaho Public Utils. Comm’n, 128 Idaho 609, 917 P.2d 766 (1996). Hearing on Protest.

Commission erred in granting application of company for a certificate of public convenience and necessity to transport and distribute natural gas imported from Canada without granting a hearing to protestants after stating that ruling on motion to dismiss by protestants would be deferred for time being. Application of Trans-Northwest Gas, Inc., 72 Idaho 215, 238 P.2d 1141 (1951).

Jurisdiction.

Public utilities commission, in the exercise of its authority to see that rates, both as a whole and for each particular service, are just to the utility and reasonable to the consumer, and nondiscriminatory as between consumers, also may not only fix rates for each class, but may classify. Idaho Power Co. v. Thompson, 19 F.2d 547 (D. Idaho 1927) (valuation for rate-making principles discussed and applied).

Reasonableness of published tariff of carrier is in the first instance a subject of action by the interstate commerce commission or the public utilities commission. Oregon Short Line R.R. v. Teton Coal Co., 35 F.2d 919 (9th Cir. 1929).

In a litigation of reasonable rates between a public utility and a patron, the commission may require the utility to produce records, contracts and papers bearing on the question and may determine the relevancy or competency of all evidence offered. Federal Mining & Smelting Co. v. Public Utils. Comm’n, 26 Idaho 391, 143 P. 1173 (1914).

In exercising the powers and discharging the duties conferred upon the commission by the legislature, it may frequently be necessary for it to reach conclusions upon and make decisions of questions which can only be finally and conclusively adjudicated by the courts, as under the constitution it cannot be deemed invested with judicial powers. Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

Although commission cannot exercise judicial powers, it must, in the performance of its duties, exercise judicial functions. Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

In every case, commission must in first instance decide from evidence before it whether utility with which it seeks to deal is public utility, for unless it is such, commission is without any jurisdiction over it, and this determination can be made only by exercise of judicial functions. Natatorium Co. v. Erb, 34 Idaho 209, 200 P. 348 (1921).

The commission is an arm of legislative authority and not a court of justice withinIdaho Const., Art. I, § 18. Natatorium Co. v. Erb, 34 Idaho 209, 200 P. 348 (1921).

An order in nature of restraining order or injunction issuing from such commission is void. Humbird Lumber Co. v. Public Utils. Comm’n, 39 Idaho 505, 228 P. 271 (1924).

Commission has primary jurisdiction in controversy where a plaintiff seeks to compel the furnishing of a service and, in instant case, plaintiff was required to exhaust his administrative remedies before seeking judicial relief. Grever v. Idaho Tel. Co., 94 Idaho 900, 499 P.2d 1256 (1972). Where the dispute between two telephone companies stemmed from a “Traffic Agreement” between them concerning long-distance toll division and there was no finding that such contract was adverse to the public interest, the matter involved construction and enforcement of contract rights and lay in the jurisdiction of the courts rather than that of the public utilities commission. Lemhi Tel. Co. v. Mountain States Tel. & Tel. Co., 98 Idaho 692, 571 P.2d 753 (1977).

While the commission is not without authority to effect contracts, it must specifically find that a contract is adverse to the public interest before involving itself with a contract between two utilities. Lemhi Tel. Co. v. Mountain States Tel. & Tel. Co., 98 Idaho 692, 571 P.2d 753 (1977).

Pursuant to this section and§ 67-5202 [now§ 67-5250], the public utilities commission may issue rules providing for procedures to be used in assuring compliance with the requirement for full and adequate prefiling of applications. Intermountain Gas Co. v. Idaho Pub. Utils. Comm’n, 98 Idaho 718, 571 P.2d 1119 (1977).

The public utilities commission had jurisdiction to decide the issues in a petition for a declaratory ruling brought by the department of energy (DOE), as signatory to a three-party agreement with the Idaho Power Company (IPC) and the Utah Power and Light Co. (U. P. & L.) for the furnishing of energy to the national engineering laboratory (INEL), whereby the DOE sought a ruling that upon the exercise of its right to terminate the agreement, IPC would have the right to be the sole supplier of electricity to INEL. Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 112 Idaho 10, 730 P.2d 930 (1986), cert. denied, 484 U.S. 801, 108 S. Ct. 44, 98 L. Ed. 2d 9 (1987).

UnderIdaho Const., Art. V, § 9, the Idaho supreme court has only limited jurisdiction to review decisions of the public utilities commission; on questions of law, the review on appeal shall not be extended further than to determine whether the commission has regularly pursued its authority. A.W. Brown Co. v. Idaho Power Co., 121 Idaho 812, 828 P.2d 841 (1992).

By attempting to exercise jurisdiction over third parties, and to allocate costs for relocation of electricity transmission facilities to those third parties that had not requested that service, the Idaho public utilities commission exceeded its authority. Ada County Highway Dist. v. Idaho Pub. Utils., 151 Idaho 1, 253 P.3d 675 (2011).

The Idaho public utilities commission has no authority other than that given to it by the legislature. It exercises a limited jurisdiction and nothing is presumed in favor of its jurisdiction Ada County Highway Dist. v. Idaho Pub. Utils., 151 Idaho 1, 253 P.3d 675 (2011).

Monopolies.

Constitutional prohibition of monopolies did not have in view a public utility corporation governed and controlled by law for the best interests of the people. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

Suspension of Jurisdiction.

In absence of constitutional limitations, right of state to regulate rates may be suspended for a limited time by valid contract authorized by legislature, but, when such contract is relied upon, it must appear that authority was clearly and unmistakably granted, and that its delegation is free from doubt. Sandpoint Water & Light Co. v. City of Sandpoint, 31 Idaho 498, 173 P. 972 (1918).

Cited In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933); Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 99 Idaho 374, 582 P.2d 720 (1978); Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 282, 629 P.2d 678 (1981); Afton Energy, Inc. v. Idaho Power Co., 107 Idaho 781, 693 P.2d 427 (1984); Idaho Fair Share v. Idaho Pub. Utils. Comm’n, 113 Idaho 959, 751 P.2d 107 (1988); Empire Lumber Co. v. Washington Water Power Co., 114 Idaho 191, 755 P.2d 1229 (1988); Industrial Customers of Idaho Power v. Idaho Pub. Utils. Comm’n, 134 Idaho 285, 1 P.3d 786 (2000); Idaho Power Co. v. New Energy Two, LLC, 156 Idaho 462, 328 P.3d 442 (2014).

Cited

Am. Jur. 2d.

C.J.S.

§ 61-502. Determination of rates.

Whenever the commission, after a hearing had upon its own motion or upon complaint, shall find that the rates, fares, tolls, rentals, charges or classifications, or any of them, demanded, observed, charged or collected by any public utility for any service or product or commodity, or in connection therewith, including the rates or fares for excursions or commutation tickets, or that the rules, regulations, practices, or contracts or any of them, affecting such rates, fares, tolls, rentals, charges or classifications, or any of them, are unjust, unreasonable, discriminatory or preferential, or in any wise in violation of any provision of law, or that such rates, fares, tolls, rentals, charges or classifications are insufficient, the commission shall determine the just, reasonable or sufficient rates, fares, tolls, rentals, charges, classifications, rules, regulations, practices or contracts to be thereafter observed and in force and shall fix the same by order as hereinafter provided, and shall, under such rules and regulations as the commission may prescribe, fix the reasonable maximum rates to be charged for water by any public utility coming within the provisions of this act relating to the sale of water.

History.

1913, ch. 61, § 30(a), p. 247; reen. C.L. 106:83; C.S., § 2451; I.C.A.,§ 59-502.

STATUTORY NOTES

Cross References.

Air carriers, power of commission to fix rates,§ 61-1116.

Valuation, determination of for purpose of rate making,§ 61-523.

Compiler’s Notes.

CASE NOTES

Appellate review. Classification.

Abbreviated Proceedings.

An accelerated rate of recovery of company’s demand side management program expenditures, programs designed to help reduce energy consumption, would not increase the company’s authorized rate of return; therefore, the public utilities commission was pursuing its statutory authority when it adopted abbreviated proceedings to account for this single item expense of the company. Industrial Customers of Idaho Power v. Idaho Pub. Utils. Comm’n, 134 Idaho 285, 1 P.3d 786 (2000).

Amortization Period.

When faced with competent testimony on the reasonableness of five, seven, and twenty-four year amortization periods, the public utilities commission could, relying upon the testimony presented in addition to its own expertise, reasonably determine that a twelve-year amortization period was adequate and reasonable. Industrial Customers of Idaho Power v. Idaho Pub. Utils. Comm’n, 134 Idaho 285, 1 P.3d 786 (2000).

Appellate Review.

The supreme court’s review of whether the evidence presented to the public utilities commission is competent and substantial must be tempered by a consideration of whether a proposed new rate structure is also just and reasonable as required by§§ 61-301, 61-315 and this section. Grindstone Butte Mut. Canal Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 175, 627 P.2d 804 (1981).

Classification.

Public utility commission, in the exercise of its authority to see that rates, both as a whole and for each particular service, are just to the utility and reasonable to the consumer, and nondiscriminatory as between consumers, may not only fix rates for each class, but may also classify. Idaho Power Co. v. Thompson, 19 F.2d 547 (D. Idaho 1927).

Mere difference in rates charged various classes of users is not enough to establish unjustifiable discrimination. Kiefer v. City of Idaho Falls, 49 Idaho 458, 289 P. 81 (1930).

Conditions Affecting Rates.

Where a facility of an electric power company was being used to generate power primarily sold at wholesale to companies outside the state, but was installed primarily not to serve customers outside the state, but to serve the present and future demands of the Idaho customers, it was proper to include such facility in the rate base. Idaho Underground Water Users Ass’n. v. Idaho Power Co., 89 Idaho 147, 404 P.2d 859 (1965).

In order to prevent subsidizing interstate sales for resale by Idaho retail customers, the commission was correct in discounting this portion of the utility’s operations in determining intrastate rates assuming that these sales had not previously been discounted in the power company’s original rate increase application. Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 99 Idaho 374, 582 P.2d 720 (1978).

Criteria for Rate Differentiation.

Delegation of Power.

Authority to determine what is a reasonable rate is purely administrative and can be delegated and was delegated to the commission in the public utilities act. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

Failure to Post Stay Bond.

When any party, be it utility, ratepayer or the state of Idaho, appeals a rate setting order of the public utilities commission to the supreme court, but does not stay the effectiveness of the order by posting bond under the terms of the public utility law, then the rates and charges set forth by the order are final in all respects as service is provided and consumed so long as the order continues in effect. Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 107 Idaho 47, 685 P.2d 276 (1984).

Jurisdiction.

No provision in this act gives the commission authority to unilaterally abrogate existing contractual agreements without making the findings required by this section, but, to the contrary, the act recognizes the continued viability of contracts by requiring them to be filed with the commission. United States v. Utah Power & Light Co., 98 Idaho 665, 570 P.2d 1353 (1977).

Once the findings required by this section are made, the commission has authority to determine the rate at which a public utility provides services to a consumer, regardless of whether the utility is specifically designated as the seller in the relevant contractual agreement. United States v. Utah Power & Light Co., 98 Idaho 665, 570 P.2d 1353 (1977).

Political Statements.

Since the legislature intended to limit the commission’s authority to those practices which affect the rates, fares, tolls, rentals, charges or classifications of the public utility, the ratemaking authority of the commission does not extend to the area of regulating political statements in the absence of a finding that such action by the utilities increases expenses to be borne by the ratepayers. Washington Water Power Co. v. Kootenai Envtl. Alliance, 99 Idaho 875, 591 P.2d 122 (1979).

Practices.

“Practices” as the term is used here are those “practices” which do or may affect the rates charged or the services sought or rendered which are within the commission’s ratemaking functions. Washington Water Power Co. v. Kootenai Envtl. Alliance, 99 Idaho 875, 591 P.2d 122 (1979).

Prospective Relief.

This section provides only prospective relief. It does not give the public utilities commission authority to prescribe surcharges or reductions to otherwise reasonable rates in order to make up past revenue shortfalls due to confiscatory rates. Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 107 Idaho 47, 685 P.2d 276 (1984).

If a rate setting order of the public utilities commission is later set aside by the supreme court, no rates and charges previously collected may be adjusted as a result; similarly, no rates and charges later established by the commission may be adjusted from what they otherwise would have been to take into account what the appealed order would have been before it was set aside had it, during the time it was in effect, conformed to or been altered or amended to meet the objections of the opinion of the supreme court. Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 107 Idaho 47, 685 P.2d 276 (1984).

Railroad Rates.

State cannot require railroad to haul freight within state at a loss, even though railroad receives adequate revenues from interstate and intrastate hauls taken together. Chicago, M. & St. P. Ry. v. Public Utils. Comm’n, 274 U.S. 344, 47 S. Ct. 604, 71 L. Ed. 1085 (1927).

Rate Making in General.

Rate making principles applied to electric rates. Idaho Power Co. v. Thompson, 19 F.2d 547 (D. Idaho 1927).

State has the right to regulate rates charged by public service corporations. Hatch v. Consumers’ Co., 17 Idaho 204, 104 P. 670 (1909), aff’d, 224 U.S. 148, 32 S. Ct. 465, 56 L. Ed. 703 (1912).

Valuation for rate making purposes should be based on all evidence bearing on cost and value as of date of inquiry. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925).

Rate making for municipally-owned public utility. Kiefer v. City of Idaho Falls, 49 Idaho 458, 289 P. 81 (1930).

Order issued by commission granting increase in electric service rates based upon adjusted test year was not unjust or unreasonable, where it was shown by the applicant utility that use of historical data would have inadequately demonstrated real revenue needs and where the future-year projections were shown to be reasonably reliable and certain. Agricultural Prods. Corp. v. Utah Power & Light Co., 98 Idaho 23, 557 P.2d 617 (1976).

The commission had authority to fix utility rates which would supersede rates previously fixed by private contract, but before the commission could increase electric service rates charged to an industrial customer under a special service contract it was required to find specifically that the different rate was unreasonable and adverse to the public interest. Agricultural Prods. Corp. v. Utah Power & Light Co., 98 Idaho 23, 557 P.2d 617 (1976).

Although no statute gives explicit authority to the commission to enter interim orders, implied in the mandate that the commission continue to evaluate the rates charged and make changes as necessary is the power to make orders effecting rates that are temporary in nature. Grindstone Butte Mut. Canal Co. v. Idaho Power Co., 98 Idaho 860, 574 P.2d 902 (1978).

The commission could determine a fair rate of return from Idaho intrastate customers by first determining an Idaho intrastate rate base representing Idaho operations producing power to be sold in intrastate commerce and then determining a fair rate of return thereon, or it could determine a fair rate of return from all Idaho operations and then deduct the portion of deficiency reflecting Idaho operations producing power for interstate sales for resale, so long as the commission does not exceed its jurisdiction and provided that the end result of the methods used by the commission to compute a utility’s rate of return produce a “fair, reasonable or sufficient” result. Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 99 Idaho 374, 582 P.2d 720 (1978). The determination of what business expenses are to be incurred by a public utility in its operations is ordinarily a matter left within the discretion of the utility’s management, and an inquiry into such expenses by the commission will normally only be extended into whether such expenditures may be classified as “operating expenses” and thus passed on to the utility ratepayers. Washington Water Power Co. v. Kootenai Envtl. Alliance, 99 Idaho 875, 591 P.2d 122 (1979).

Where the public utilities commission revised rates without hearing evidence on the cost of service analysis, the rates were not unjust and unreasonable under§§ 61-301, 61-315 and this section, since although cost of service is an important criterion which in certain cases may be largely dispositive, it is not per se essential element without which rate making is invalid. Grindstone Butte Mut. Canal Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 175, 627 P.2d 804 (1981).

Recovery of Past Losses.

The Idaho public utilities commission (PUC) does not have the authority to grant a public utility a surcharge to recover past losses caused by an invalid PUC order set aside by the supreme court on appeal. Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 107 Idaho 47, 685 P.2d 276 (1984).

Rule of Reasonableness.

“Reasonable” or “just” return, in its judicial sense, is the equivalent of nonconfiscatory. Idaho Power Co. v. Thompson, 19 F.2d 547 (D. Idaho 1927).

Prima facie, a published tariff of a carrier is reasonable. Oregon S.L.R.R. v. Teton Coal Co., 35 F.2d 919 (9th Cir. 1929).

Delegation of power to commission to fix rates and determine service is limited by standard of reasonableness. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

Before lowering rate, the commission must find it unjust or unreasonable; before raising, insufficient. Murray v. Public Utils. Comm’n, 27 Idaho 603, 150 P. 47 (1915).

Where a rate increase granted to a power company affected an existing contract, the commission must make a specific finding that the contractual rate was “unjust, unreasonable, discriminatory, preferential or in anywise in violation of any provision of law” before such increase became effective, and, in the absence of such finding, the court would set aside the commission’s order as it applied to the contract. United States v. Utah Power & Light Co., 98 Idaho 665, 570 P.2d 1353 (1977).

Successive Modifications.

Where public utilities commission failed to make certain adjustments to 1976 test year data for “known and measurable changes” such as additions to a plant and acquisition of mining properties, and eliminated a one percent adjustment for regulatory lag in calculating return to common equity, without sufficient evidence, although it had allowed such a lag as being within the zone of “reasonableness” the prior year, the order of the commission was set aside. Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 112 Idaho 10, 730 P.2d 930 (1986), cert. denied, 484 U.S. 801, 108 S. Ct. 44, 98 L. Ed. 2d 9 (1987). Successive Modifications.

The requirements of this section apply to each successive modification of an existing contract. United States v. Utah Power & Light Co., 98 Idaho 665, 570 P.2d 1353 (1977).

Cited

State v. Kouni, 58 Idaho 493, 76 P.2d 917 (1938); Idaho Mut. Benefit Ass’n v. Robison, 65 Idaho 793, 154 P.2d 156 (1944); In re Pacific Tel. & Tel. Co., 71 Idaho 476, 233 P.2d 1024 (1951); Citizens Utils. Co. v. Idaho Pub. Utils. Comm’n, 99 Idaho 164, 579 P.2d 110 (1978); FMC Corp. v. Idaho Pub. Utils. Comm’n, 104 Idaho 265, 658 P.2d 936 (1983); Afton Energy, Inc. v. Idaho Power Co., 107 Idaho 781, 693 P.2d 427 (1984); General Tel. Co. v. Idaho Pub. Utils. Comm’n, 109 Idaho 942, 712 P.2d 643 (1986); Empire Lumber Co. v. Washington Water Power Co., 114 Idaho 191, 755 P.2d 1229 (1988); Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298 (1990); Idaho Power Co. v. New Energy Two, LLC, 156 Idaho 462, 328 P.3d 442 (2014).

§ 61-502A. Restriction on rates authorizing return on property not providing utility service.

Except upon its explicit finding that the public interest will be served thereby, the commission is hereby prohibited in any order issued after the effective date of this act, from setting rates for any utility that grants a return on construction work in progress or property held for future use and which is not currently used and useful in providing utility service. Except as authorized by this section, any rates granting a return on construction work in progress or property held for future use are hereby declared to be unjust, unreasonable, unfair, unlawful and illegal. When construction work in progress is excluded from the rate base, the commission must allow a just, fair and reasonable allowance for funds used during construction or similar account to be accumulated, computed in accordance with generally accepted accounting principles. If the commission sets rates for any utility including a return on property held for future use and subsequently determines that such property is not needed to provide utility service, then the commission shall determine whether any gain or loss occurring from the sale or other disposition of the property may be included in the utility’s rates.

History.

I.C.,§ 61-502A, as added by 1984, ch. 21, § 1, p. 24; am. 2006, ch. 107, § 1, p. 300.

STATUTORY NOTES

Amendments.

The 2006 amendment, by ch. 107, rewrote the text of the section, which formerly read: “Except upon its finding of an extreme emergency, the commission is hereby prohibited in any order issued after the effective date of this act from setting rates for any utility that grants a return on construction work in progress (except short-term construction work in progress) or property held for future use and which is not currently used and useful in providing utility service. As used in this section, short-term construction work in progress means construction work that has begun and will be completed in not more than twelve (12) months. Except as authorized by this section, any rates granting a return on construction work in progress (except short-term construction work in progress) or property held for future use are hereby declared to be unjust, unreasonable, unfair, unlawful and illegal. When construction work in progress is excluded from the rate base, the commission must allow a just, fair and reasonable allowance for funds used during construction or similar account to be accumulated, computed in accordance with generally accepted accounting principles.”

Legislative Intent.

Section 2 of S.L. 1984, ch. 21 read: “It is hereby declared to be legislative intent that this act should overrule that portion of the decision of the Supreme Court of Idaho entitled Utah Power & Light Company v. Idaho Public Utilities Commission [105 Idaho 822, 673 P.2d 422], issued December 14, 1983, which authorized or required construction work in progress or property held for future use to be included in a utility’s rate base or otherwise authorized or required the commission to grant a return on such property, and that the commission be prohibited from following the precedent of that case in any order issued after the effective date of this act to the extent that such precedent authorizes construction work in progress or property held for future use which is not currently used and useful in providing utility service to be included in rate base or authorize or require the commission to allow a return on such property.”

Compiler’s Notes.

The phrase “the effective date of this act” in the first sentence refers to the effective date of S.L. 1984, ch. 21, which was effective February 29, 1984.

Effective Dates.

Section 3 of S.L. 1984, ch. 21 declared an emergency. Approved February 29, 1984.

§ 61-502B. Allocation of gain upon sale of water right.

The gain upon sale of a public utility’s water right used for the generation of electricity shall accrue to the benefit of the ratepayers.

History.

I.C.,§ 61-502B, as added by 1985, ch. 16, § 1, p. 22.

§ 61-503. Power to investigate and fix rates and regulations.

The commission shall have power, upon a hearing, had upon its own motion or upon complaint, to investigate a single rate, fare, toll, rental, charge, classification, rule, regulation, contract or practice, or any number thereof, or the entire schedule or schedules of rates, fares, tolls, rentals, charges, classifications, rules, regulations, contracts or practices, or any thereof, of any public utility, and to establish new rates, fares, tolls, rentals, charges, classifications, rules, regulations, contracts or practices or schedule or schedules in lieu thereof.

History.

1913, ch. 61, § 30(b), p. 247; reen. C.L. 106:84; C.S., § 2452; I.C.A.,§ 59-503.

CASE NOTES

Constitutional Limitation.

The provisions ofIdaho Const., Art. I, § 16 protecting the obligations of private contracts limits the right of the state to interfere with utility contracts. Bunker Hill Co. v. Washington Water Power Co., 98 Idaho 249, 561 P.2d 391 (1977).

Criteria Considered.

Absent a legislative pronouncement to the contrary, it is within the public utilities commission’s jurisdictional province to consider in its rate making capacity all relevant criteria, including energy conservation and concomitant concepts of optimum use and resource allocation, since the commission operates in the public interest under§§ 61-301 and 61-302 to insure that every public utility operates to promote the safety, health and comfort of the public and to be in all respects adequate, efficient, just and reasonable and under§ 61-502 and this section to investigate and determine whether a rate is unjust, unreasonable, discriminatory or preferential. Grindstone Butte Mut. Canal Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 175, 627 P.2d 804 (1981).

A reasonable classification of utility customers may justify the setting of different rates and charges for the different classes of customers; any such difference in a utility’s rates and charges must be justified by a corresponding classification of customers that is based upon factors such as cost of service, quantity of electricity used, differences in conditions of service, or the time, nature and pattern of the use. Idaho State Homebuilders v. Washington Water Power, 107 Idaho 415, 690 P.2d 350 (1984). It was unjust and unreasonable for the public utilities commission to direct water company to employ an accountant and then to refuse to consider the expense of doing so in determining water company’s rates. Hayden Pines Water Co. v. Idaho Public Utils. Comm’n, 122 Idaho 356, 834 P.2d 873 (1992).

Extent of Inquiry.

The determination of what business expenses are to be incurred by a public utility in its operations is ordinarily a matter left within the discretion of the utility’s management, and an inquiry into such expenses by the commission will normally only be extended into whether such expenditures may be classified as “operating expenses” and, thus, passed on to the utility ratepayers. Washington Water Power Co. v. Kootenai Envtl. Alliance, 99 Idaho 875, 591 P.2d 122 (1979).

Investigative Authority.

The public utilities commission would have authority under this section to conduct an investigation and to make changes based on its investigation. Hayden Pines Water Co. v. Idaho Public Utils. Comm’n, 122 Idaho 356, 834 P.2d 873 (1992).

Jurisdiction.

By attempting to exercise jurisdiction over third parties and to allocate costs for relocation of electricity transmission facilities to those third parties that had not requested that service, the Idaho public utilities commission exceeded its authority. Ada County Highway Dist. v. Idaho Pub. Utils., 151 Idaho 1, 253 P.3d 675 (2011).

Jurisdiction of Commission.

Public utilities commission, in the exercise of its authority to see that rates, both as a whole and for each particular service are just to the utility and reasonable to the consumer, and nondiscriminatory as between consumers, may not only fix rates for each class, but may also classify. Idaho Power Co. v. Thompson, 19 F.2d 547 (D. Idaho 1927) (various rate-making principles discussed and applied).

Commission has power to fix rates absolutely and, where these exist, competing companies can charge neither more nor less than the rates fixed. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

It is contemplated that, on hearings concerning the rates of a public utility, findings will be made by the commission. Idaho Underground Water Users Ass’n. v. Idaho Power Co., 89 Idaho 147, 404 P.2d 859 (1965). Since the commission has power to regulate and fix charges and rates, but a utility is enjoined from establishing rates or charges which are preferential or discriminatory, it follows by implication that the commission’s authority may only be exercised in such a way as to fix nondiscriminatory, and nonpreferential rates and charges. Idaho State Homebuilders v. Washington Water Power, 107 Idaho 415, 690 P.2d 350 (1984).

Public utilities commission did not err in holding that it had subject matter jurisdiction to decide whether the force majeure clauses in appellants’ contracts with a power company excused appellants from their contractual obligations to have their power generation facilities constructed and in operation by specified dates in order to sell electricity to the power company. Idaho Power Co. v. New Energy Two, LLC, 156 Idaho 462, 328 P.3d 442 (2014).

Political Statements.

Practices.

Reasonable Classifications.

Where cost of servicing all water customers increased due to several factors including passage of a federal act, court held no particular group of customers should bear the burden of additional expense occasioned by changes in federal law that imposed new water quality standards, as such, it was unlawfully discriminatory to charge new customers hook-up fees based on an allocation of the incremental cost of new plant construction required by growth and passage of the federal act, while not assessing any charges to existing customers. Building Contractors Ass’n v. Idaho Public Utils. Comm’n, 128 Idaho 534, 916 P.2d 1259 (1996).

Special Service Contracts.

Cited

The commission had authority to fix utility rates which would supersede rates previously fixed by private contract, but, before the commission could increase electric service rates charged to an industrial customer under a special service contract, it was required to find specifically that the different rate was unreasonable and adverse to the public interest. Agricultural Prods. Corp. v. Utah Power & Light Co., 98 Idaho 23, 557 P.2d 617 (1976). Cited In re Pacific Tel. & Tel. Co., 71 Idaho 476, 233 P.2d 1024 (1951); United States v. Utah Power & Light Co., 98 Idaho 665, 570 P.2d 1353 (1977); FMC Corp. v. Idaho Pub. Utils. Comm’n, 104 Idaho 265, 658 P.2d 936 (1983); Afton Energy, Inc. v. Idaho Power Co., 107 Idaho 781, 693 P.2d 427 (1984); Empire Lumber Co. v. Washington Water Power Co., 114 Idaho 191, 755 P.2d 1229 (1988); Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298 (1990); Industrial Customers of Idaho Power v. Idaho Pub. Utils. Comm’n, 134 Idaho 285, 1 P.3d 786 (2000).

§ 61-504. Establishment of through route and joint rate.

Whenever the commission, after a hearing had upon its own motion or upon complaint, shall find that the rates, fares or charges in force over two (2) or more common carriers, between any two (2) points in this state, are unjust, unreasonable or excessive, or that no satisfactory through route or joint rate, fare or charge exists between such points, and that the public convenience and necessity demand the establishment of a through route and joint rate, fare or charge between such points, the commission may order such common carriers to establish such through route and may establish and fix a joint rate, fare or charge which will be fair, just and reasonable and sufficient to be followed, charged, enforced, demanded and collected in the future and the terms and conditions under which such through route shall be operated. In case the common carriers do not agree upon the division between them of the joint rates, fares or charges established by the commission over such through routes, the commission shall, after hearing, by supplemental order, establish such division. The commission shall have the power to establish and fix through routes and joint rates, fares or charges over stage or auto lines and to fix the division of such joint rates, fares or charges.

History.

1913, ch. 61, § 31, p. 247; reen. C.L. 106:85; C.S., § 2453; I.C.A.,§ 59-504.

§ 61-505. Joint hearings and investigations — Reciprocity — Contracts with regulatory agencies of neighboring states.

The commission shall have full power and authority to make joint investigations, hold joint hearings within or without the state of Idaho with any official, board, commission, or agency of any state or of the United States, whether in the holding of the investigations or hearings the commission shall function under agreements or compacts between states or under the concurrent power of states to regulate the interstate commerce, or as an agency of the federal government, or otherwise.
The commission shall have full power and authority to contract with the regulatory agencies of neighboring states to hold hearings and set rates and charges for customers in Idaho located in or nearby border communities served by utilities principally located in states other than Idaho. These contracts may have a term that extends beyond the terms of the current commissioners.
The commission shall have this authority under subsection (2) of this section only if it finds that:
1. The affected Idaho residents live in or nearby a border community that is or may be served by a utility principally located in a state other than Idaho;
2. The provision of utility service to such a community by a utility located principally in a state other than Idaho is in the public interest;
3. It is impractical or not in the public interest to conduct proceedings for these affected Idaho residents separate from proceedings conducted by the regulatory agency of the neighboring state for rate payers of that utility located in that state;
4. The affected Idaho residents have full rights of participation in the hearings conducted by the regulatory agency with which the commission has contracted, as well as the same rights that customers in the neighboring state have to pursue service-related issues; and
5. The rates, charges and service regulations for Idaho customers are not less favorable than those of similarly situated customers in the neighboring state.
When the commission has entered into a contract authorized in subsection (2) of this section, the findings, decisions and orders of the regulatory agency of the neighboring state are presumptively correct and will take effect according to the terms of the order of the regulatory agency of the neighboring state. Affected Idaho customers may petition the commission for a review of the contract or the rates set under the contract upon a showing that:
1. All remedies with the neighboring state’s utility have been exhausted;
2. All remedies with the neighboring state’s regulatory agency with which the commission has signed a contract have been exhausted; and
3. Idaho customers have been discriminatorily, preferentially or otherwise unlawfully treated by the regulatory agency of the neighboring state.

The commission, upon its preliminary finding that rates set by the regulatory agency of the neighboring state are prima facie discriminatory, preferential or otherwise unlawful, and that all remedies with the neighboring state’s utility and commission have been exhausted, may initiate proceedings to review the decision of the regulatory agency of the neighboring state. Any subsequent order of the commission altering the decision of the regulatory agency of the neighboring state will be of prospective effect only. (5) The contract authorized in subsection (2) of this section, may be revoked if the commission finds that the affected Idaho residents have been unreasonably, discriminatorily, preferentially or otherwise unlawfully treated by the neighboring state’s regulatory agency.

History.

C.S., § 2453-A, as added by 1929, ch. 29, § 1, p. 31; I.C.A.,§ 59-505; rep. and reen. 1969, ch. 229, § 1, p. 737; am. 1982, ch. 258, § 1, p. 669; am. 1990, ch. 79, § 1, p. 161.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 1929, ch. 29 declared an emergency. Approved February 18, 1929.

Section 2 of S.L. 1969, ch. 229 declared an emergency. Approved March 25, 1969.

§ 61-506. Interstate rates.

The commission shall have the power to investigate all existing or proposed interstate rates, fares, tolls, charges and classifications, and all rules and regulations and practices in relation thereto, for or in relation to the transportation of persons or property or the transmission of messages or conversations, where any act in relation thereto shall take place within this state; and when the same are, in the opinion of the commission, excessive or discriminatory or in violation of the act of congress entitled “An act to regulate commerce,” approved February 4, 1887, and the acts amendatory thereof and supplementary thereto, or of any other act of congress, or in conflict with the rulings, orders or regulations of the interstate commerce commission, the commission may apply by petition or otherwise to the interstate commerce commission or to any court of competent jurisdiction for relief.

History.

1913, ch. 61, § 32, p. 247; reen. C.L. 106:86; C.S., § 2454; I.C.A.,§ 59-506.

STATUTORY NOTES

Cross References.

Interstate commerce, exception concerning,§ 61-714.

Federal References.

Act of February 4, 1887, referred to in this section, was repealed by Act Oct. 17, 1978, P.L. 95-473.

CASE NOTES

Cited

Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298 (1990).

§ 61-507. Determination of rules and regulations.

The commission shall prescribe rules and regulations for the performance of any service or the furnishings of any commodity of the character furnished or supplied by any public utility, and, on proper demand and tender of rates, such public utility shall furnish such commodity or render such service within the time and upon the conditions provided in such rules.

History.

1913, ch. 61, § 33, p. 247; reen. C.L. 106:87; C.S., § 2455; I.C.A.,§ 59-507.

CASE NOTES

Authority to Prescribe Rules.

Commission has full authority to prescribe rules and regulations for the performance of any service or the furnishing any commodity by a public utility. Coeur d’Alene v. Public Utils. Comm’n, 29 Idaho 508, 160 P. 751 (1916).

The phrase “performance of any service” indicates action by the public utility, which reasonably includes removing and reinstalling electricity distribution facilities. Ada County Highway Dist. v. Idaho Pub. Utils., 151 Idaho 1, 253 P.3d 675 (2011).

Right to Water Service.

Where lot owner constructs building and places water pipes and fixtures therein and extends same to street adjoining, and thereupon tenders to water company the monthly rent charged by it, it becomes the duty of company to make necessary tap and connections and furnish property owner with water as demanded. Bothwell v. Consumers’ Co., 13 Idaho 568, 92 P. 533 (1907).

Cited

Grever v. Idaho Tel. Co., 94 Idaho 900, 499 P.2d 1256 (1972); Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298 (1990).

§ 61-508. Improvements may be ordered — Cost.

Whenever the commission, after a hearing had upon its own motion or upon complaint, shall find that additions, extensions, repairs or improvements to or changes in the existing plant, scales, equipment, apparatus, facilities or other physical property of any public utility or of any two (2) or more public utilities ought reasonably to be made, or that a new structure or structures should be erected, to promote the security or convenience of its employees or the public, or in any other way to secure adequate service or facilities, the commission shall make and serve an order directing such additions, extensions, repairs, improvements, or changes be made or such structure or structures be erected in the manner and within the time specified in said order. If any additions, extensions, repairs, improvements or changes, or any new structure or structures which the commission has ordered to be erected, requires joint action by two (2) or more public utilities the commission shall notify the said public utilities that such additions, extensions, repairs, improvements or changes or new structure or structures have been ordered and that the same shall be made at the joint cost, whereupon the said public utilities shall have such reasonable time as the commission may grant within which to agree upon the portion or division of cost of such additions, extensions, repairs, improvements or changes or new structure or structures, which each shall bear. If at the expiration of such time, such public utilities shall fail to file with the commission a statement that an agreement has been made for a division or apportionment of the cost or expense of such additions, extensions, repairs, improvements or changes, or new structures or structure, the commission shall have authority, after further hearing, to make an order fixing the proportion of such cost or expense to be borne by each public utility and the manner in which the same shall be paid or secured.

History.

1913, ch. 61, § 34, p. 247; reen. C.L. 106:88; C.S., § 2456; I.C.A.,§ 59-508.

CASE NOTES

Rules and Regulations.

Rule of Reasonableness.

The public utilities commission has the authority to prescribe rules and regulations for the performance of any service or furnishing any commodity by a public utility. Coeur d’Alene v. Public Utils. Comm’n, 29 Idaho 508, 160 P. 751 (1916). Rule of Reasonableness.

The word “reasonable” is to be noted. In determining what is reasonable, the rights of both consumer and proprietor must be considered. Murray v. Public Utils. Comm’n, 27 Idaho 603, 150 P. 47 (1915).

Order directing extension of water plant is unreasonable where it does not appear that company has valid existing franchise. Murray v. Public Utils. Comm’n, 27 Idaho 603, 150 P. 47 (1915).

Cited

Afton Energy, Inc. v. Idaho Power Co., 107 Idaho 781, 693 P.2d 427 (1984); Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298 (1990).

§ 61-509. Regulation of train and street car service.

Whenever the commission, after a hearing had upon its own motion or upon complaint, shall find that any railroad corporation or street railroad corporation does not run a sufficient number of trains or cars, or possess or operate sufficient motive power, reasonably to accommodate the traffic, passenger or freight, transported by or offered for transportation to it, or does not run its trains or cars with sufficient frequency or at a reasonable or proper time having regard to safety, or does not stop the same at proper places, or does not run any train or trains, car or cars upon a reasonable time schedule for the run, the commission shall have the power to make an order directing any such railroad corporation or street railroad corporation to increase the number of its trains or of its cars or its motive power or to change the time for starting its trains or cars, to change the time schedule for the run of any train or car, or to change the stopping place or places thereof or to make any other order that the commission may determine to be reasonably necessary to accommodate and transport the traffic, passenger or freight, transported or offered for transportation.

History.

1913, ch. 61, § 35, p. 247; reen. C.L. 106:89; C.S., § 2457; I.C.A.,§ 59-509.

STATUTORY NOTES

Cross References.

Railroad corporation, definition,§ 61-111.

Regulation and control of railroads, Idaho Const., Art. XI, § 5.

Street railroad corporation, definition,§ 61-109.

§ 61-510. Railroad service — Physical connections.

Whenever the commission, after a hearing had upon its own motion or upon complaint, shall find that the public convenience and necessity would be subserved by having connections made between the tracks of any two (2) or more railroad or street railroad corporations, so that the cars may readily be transferred from one to the other, at any of the points hereinafter in this section specified, the commission may order any two (2) or more such corporations owning, controlling, operating, or managing tracks of the same gauge to make physical connections at any and all crossings, and at all points where a railroad or street railroad shall begin or terminate or run near to any other railroad or street railroad. After the necessary franchise or permit has been secured from the city and county, or city or town, the commission may likewise order such physical connection, within such city and county, or city or town, between two (2) or more railroads which enter the limits of the same. The commission shall by order direct whether the expense of the connections referred to in this section shall be borne jointly or otherwise.

History.

1913, ch. 61, § 36, p. 247; reen. C.L. 106:90; C.S., § 2458; I.C.A.,§ 59-510.

STATUTORY NOTES

Cross References.

Extensions and branches, construction,§ 62-107.

Railroad corporation, definition,§ 61-111.

Recording of orders,§ 61-608.

Street railroad corporation, definition,§ 61-109.

CASE NOTES

Limited to Intrastate Traffic.

This section, when construed in connection with U.S. Const., Art. 1, § 8, empowers public utilities commission to require physical connections between lines for purpose of intrastate shipments only, and in no way enlarges jurisdiction of commission so as to include interstate shipments. Cole v. Northern Pac. Ry., 43 Idaho 482, 252 P. 406 (1927).

§ 61-511. Railroad service — Spurs and switch connections.

Whenever the commission, after a hearing had upon its own motion or upon complaint, shall find that application has been made by any corporation or person to a railroad corporation for a connection or spur as provided in sections 61-324 and 61-325[, Idaho Code], and that the railroad corporation has refused to provide such connection or spur and that the applicant is entitled to have the same provided for him under said sections, the commission shall make an order requiring the providing of such connection or spur and the maintenance and use of the same upon reasonable terms which the commission shall have the power to prescribe. Whenever any such connection or spur has been so provided any corporation or persons shall be entitled to connect with the private track, tracks or railroad thereby connected with the railroad of the railroad corporation and to use the same or to use the spur so provided upon payment to the person or persons incurring the primary expense of such private track, tracks or railroad, or the connection therewith or of such spur, of a reasonable proportion of the cost thereof to be determined by the commission, after notice to the interested parties and a hearing thereon: provided, that such connection and use can be made without unreasonable interference with the rights of the party or parties incurring such primary expense.

History.

1913, ch. 61, § 37a, p. 247; compiled and reen. C.L. 106:91; C.S., § 2459; I.C.A.,§ 59-511.

STATUTORY NOTES

Cross References.

Railroad corporation, definition,§ 61-111.

Recording of orders,§ 61-608.

Spurs,§ 61-325.

Switch connections,§ 61-324.

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style.

§ 61-512. Railroad service — Cars of connecting railroad.

The commission shall likewise have the power to require any railroad corporation to switch to private spurs and industrial tracks upon its own railroad the cars of a connecting railroad corporation and to prescribe reasonable terms and compensation for such service.

History.

1913, ch. 61, § 37b, p. 247; reen. C.L. 106:92; C.S., § 2460; I.C.A.,§ 59-512.

STATUTORY NOTES

Cross References.

Railroad corporation, definition,§ 61-111.

Recording of orders,§ 61-608.

§ 61-513. Telephone companies — Physical connections.

Whenever the commission, after a hearing had upon its own motion or upon complaint, shall find that a physical connection can reasonably be made between the lines of two (2) or more telephone corporations whose lines can be made to form a continuous line of communication, by the construction and maintenance of suitable connections for the transfer of messages or conversations, and that public convenience or necessity will be subserved thereby, or shall find that two (2) or more telephone corporations have failed to establish joint rates, tolls or charges for service by or over their said lines and that joint rates, tolls or charges ought to be established, the commission may, by its order, require that such connections be made, and that conversations be transmitted and messages transferred over such connection under such rules and regulations as the commission may establish, and prescribe through lines and joint rates, tolls and charges to be made, and to be used, observed and in force in the future. If such telephone corporations do not agree upon the division between them of the cost of said physical connections or connections of the division of the joint rates, tolls or charges established by the commission over such through lines, the commission shall have authority after further hearing, to establish such division by supplemental order.

History.

1913, ch. 61, § 38, p. 247; compiled and reen. C.L. 106:93; C.S., § 2461; I.C.A.,§ 59-513; am. 1984, ch. 106, § 6, p. 246.

STATUTORY NOTES

Cross References.

Recording of orders,§ 61-608.

Telephone corporation, definition,§ 61-121.

Telephone line, definition,§ 61-120.

CASE NOTES

Jurisdiction of Commission.

If, after the rates are set under a connection agreement, the utilities cannot agree on the division, the commission may make such division by supplemental order, but the division must be prospective in effect, with failure of agreement between the companies a condition precedent to the commission’s authority. Lemhi Tel. Co. v. Mountain States Tel. & Tel. Co., 98 Idaho 692, 571 P.2d 753 (1977). Where two companies entered a connection agreement, the terms of which subsequently gave rise to a dispute, the commission had no jurisdiction under this section since the commission is only given authority where utilities fail to agree on connections and joint rates or where such agreement is contrary to the public interest. Lemhi Tel. Co. v. Mountain States Tel. & Tel. Co., 98 Idaho 692, 571 P.2d 753 (1977).

§ 61-514. Joint use of plant and equipment.

Whenever the commission, after a hearing had upon its own motion or upon complaint of a public utility affected, shall find that public convenience and necessity require the use by one (1) public utility of the conduits, subways, tracks, wires, poles, pipes or other equipment, or any part thereof, on, over or under any street or highway, and belonging to another public utility, and that such use will not result in irreparable injury to the owner or other users of such conduits, subways, tracks, wires, poles, pipes or other equipment or in any substantial detriment to the service, and that such public utilities have failed to agree upon such use or the terms and conditions or compensation for the same, the commission may by order direct that such use be permitted, and prescribe a reasonable compensation and reasonable terms and conditions for the joint use. If such use be directed, the public utility to whom the use is permitted shall be liable to the owner, or other users of such conduits, subways, tracks, wires, poles, pipes or other equipment for such damage as may result therefrom to the property of such owner or other users thereof.

History.

1913, ch. 61, § 39, p. 247; compiled and reen. C.L. 106:94; C.S., § 2462; I.C.A.,§ 59-514.

STATUTORY NOTES

Cross References.

Recording of orders,§ 61-608.

§ 61-515. Safety regulations.

The commission shall have the power, after a hearing had upon its own motion or upon complaint, by general or special orders, or regulations, or otherwise, to require every public utility to maintain and operate its line, plant, system, equipment, apparatus and premises in such manner as to promote and safeguard the health and safety of its employees, customers and the public, and to this end to prescribe the installation, use, maintenance and operation of appropriate safety or other devices or appliances, to establish uniform or other standards of equipment, and to require the performance of any other act which the health or safety of its employees, customers or the public may demand.

History.

1913, ch. 61, § 40, p. 247; reen. C.L. 106:95; C.S., § 2463; I.C.A.,§ 59-515; am. 1979, ch. 218, § 1, p. 603.

CASE NOTES

Burden of Proof.

Where electric power company complied with national safety code and orders of public utility commission for installation of overhead wires a prima facie case of absence of negligence on its part was established in suit to recover damages for death of construction worker when boom of a crane operated in street of city contacted the wire while decedent was engaged in steadying one end of the beam, and burden of proof was upon plaintiff to show some actionable negligence on the part of the company. Probart v. Idaho Power Co., 74 Idaho 119, 258 P.2d 361 (1953).

Hearings.

Where the record disclosed that zoning requirements, and pollution and health regulations, would be met by proposed railroad classification yard and where a plan had been agreed upon for road rearrangement, safer highway-railway crossings and grade separations, the utilities commission did not abuse its discretionary power in finding that a full scale hearing and investigation into the proposed construction of the classification yard was not justified. Burlington Out Now v. Burlington N., Inc., 96 Idaho 594, 532 P.2d 936 (1975).

Judicial Notice of Orders.

Railroad Marshaling Yard.

Supreme court will take judicial notice of orders of public utilities commission adopted pursuant to statutory authority. Probart v. Idaho Power Co., 74 Idaho 119, 258 P.2d 361 (1953). Railroad Marshaling Yard.

This section gives the public utilities commission authority to assume jurisdiction over a proposed classification and marshaling yard of a railroad corporation if it has reason to believe there is a real or genuine threat specifically to the health or safety of the public. Burlington Out Now v. Burlington N., Inc., 96 Idaho 594, 532 P.2d 936 (1975).

§ 61-515A. Safety and sanitary equipment and conditions.

Every person operating a common carrier railroad in this state shall equip each locomotive and caboose used in train or a yard switching service and every car used in passenger service with a first aid kit of a type approved by the commission, which kit shall be plainly marked and be readily visible and accessible and be maintained in a fully equipped condition.

Each locomotive, caboose and change room shall be furnished with sanitary cups and sanitary ice-cooled or refrigerated drinking water.

Each locomotive, caboose and change room shall be maintained in a safe and sanitary condition at all times.

For the purpose of this section a “locomotive” shall include all railroad engines propelled by any form of energy and used in rail line haul or yard switching service.

History.

I.C.,§ 61-515A, as added by 1971, ch. 72, § 1, p. 167.

§ 61-516. Priority designation for electric transmission projects.

The legislature finds that the timely review and permitting of electric transmission facilities is critical to the well-being of the citizens and the economy of this state and the region. The legislature further finds that enactment of this section is necessary to promote the public interest. The purpose of this section is for the public utilities commission to determine whether the construction of electric transmission facilities should be designated to receive priority processing by state agencies. This section is not intended to affect a state agency’s decision-making authority to approve, deny or condition an application to construct electric transmission facilities.
For purposes of this section the following definitions shall apply:
1. “Electric transmission facilities” means the construction of high voltage transmission lines with an operating level capacity of two hundred thirty thousand (230,000) volts or more and associated substations and switchyards.
2. “State agency” means every state department, division, commission or board.
Any person intending to construct eligible electric transmission facilities in Idaho may file an application with the public utilities commission seeking priority designation. An order granting priority designation shall not constitute regulatory approval or bind any state agency. If the commission issues an order granting priority designation, state agencies subsequently involved in the permitting or siting processes for such electric transmission facilities shall be required to give the application priority or immediate attention as it relates to reviews, permits, reports, studies or comments.
In reviewing an application for priority designation, the public utilities commission shall base its findings on whether the proposed construction of electric transmission facilities will:
1. Benefit Idaho customers and the Idaho economy;
2. Improve electric transmission capacity and reliability in Idaho and the region; and
3. Promote the public interest.
Applications for priority designation filed with the public utilities commission shall be governed by the commission’s rules of administrative procedure. The commission may promulgate administrative rules in compliance with chapter 52, title 67, Idaho Code, or may issue procedural orders necessary to implement this section.

History.

I.C.,§ 61-516, as added by 2009, ch. 9, § 1, p. 11.

STATUTORY NOTES

Prior Laws.

Former§ 61-516, which comprised S.L. 1913, ch. 61, § 41, p. 247; am. 1917, ch. 133, § 1, p. 442; compiled and reen. C.L. 106:96; C.S. § 2464; I.C.A.,§ 59-516, governing safety procedures at unsafe railroad crossings, was repealed by S.L. 1979, ch. 218, § 2.

§ 61-517. Accidents — Investigation — Order or recommendation of commission — Report by utility.

The commission shall investigate the cause of all accidents occurring within this state upon the property of any public utility or directly or indirectly arising from or connected with its maintenance or operation, resulting in loss of life or injury to person or property and requiring, in the judgment of the commission, investigation by it, and shall have the power to make such order or recommendation with respect thereto as in its judgment may seem just and reasonable: provided, that neither the order or recommendation of the commission, nor any accident report filed with the commission, shall be admitted as evidence in any action for damages based on or arising out of the loss of life, or injury to person or property in this section referred to. Every public utility is hereby required to file with the commission, under such rules and regulations as the commission may prescribe, a report of each accident so occurring of such kinds or classes as the commission may from time to time designate.

History.

1913, ch. 61, § 42, p. 247; compiled and reen. C.L. 106:97; C.S., § 2465; I.C.A.,§ 59-517.

CASE NOTES

Cited

Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298 (1990).

RESEARCH REFERENCES

ALR.

§ 61-518. Railroad service — Furnishing cars.

§ 61-521. Authority to enter premises.

The commissioners and their officers and employees shall have power to enter upon any premises occupied by any public utility, for the purpose of making the examinations and tests and exercising any of the other powers provided for in this act, and to set up and use on such premises any apparatus and appliances necessary therefor. The agents and employees of such public utility shall have the right to be present at the making of such examination and tests.

History.

1913, ch. 61, § 44b, p. 247; reen. C.L. 106:101; C.S., § 2469; I.C.A.,§ 59-521.

STATUTORY NOTES

Compiler’s Notes.

§ 61-522. Consumer may have commodity or appliance tested.

Any consumer or user of any product, commodity or service of a public utility may have any appliance used in the measurement thereof tested upon paying the fees fixed by the commission. The commission shall establish and fix reasonable fees to be paid for testing such appliances on the request of the consumer or user, the fee to be paid by the consumer or user at the time of his request, but to be paid by the public utility and repaid to the consumer or user if the appliance is found defective or incorrect to the disadvantage of the consumer or user under such rules and regulations as may be prescribed by the commission.

History.

1913, ch. 61, § 44c, p. 247; reen. C.L. 106:102; C.S., § 2470; I.C.A.,§ 59-522.

§ 61-523. Valuation.

The commission shall have power to ascertain the value of the property of every public utility in this state and every fact which, in its judgment, may or does have any bearing on such value. The commission shall have power to make revaluations from time to time and to ascertain all new construction, extensions and additions to the property of every public utility.

History.

1913, ch. 61, § 45, p. 247; reen. C.L. 106:103; C.S., § 2471; I.C.A.,§ 59-523.

STATUTORY NOTES

Cross References.

Hearings to determine valuations,§ 61-640.

CASE NOTES

Accrued Depreciation.

While deduction should be made for actual depreciation in valuing plant for rate making, no deduction should be made for depreciation where plant is giving as good service as new plant. Murray v. Public Utils. Comm’n, 27 Idaho 603, 150 P. 47 (1915).

Acquisition Adjustment.

No deduction should be made in rate valuation for accrued depreciation of telephone plant capable of giving 100 per cent service. Coeur d’Alene v. Public Utils. Comm’n, 29 Idaho 508, 160 P. 751 (1916). Acquisition Adjustment.

There was substantial evidence in the record to support the commission’s determination that the acquisition adjustment, paid by a public utility in purchasing a former resale customer, was paid merely to recapture accelerated depreciation and investment tax credit, the benefit of which accrued solely to former resale customer’s former ratepayers, and that the limited benefit of the acquisition of the former resale customer’s plant to the Idaho ratepayers did not justify adding the acquisition adjustment to the Idaho rate base. Utah Power & Light Co. v. Idaho Public Util. Comm’n, 107 Idaho 446, 690 P.2d 901 (1984).

Adoption of Complainant’s Appraisal.

Complainant’s appraisal of telephone plant lower than one by utility’s engineer may be adopted for purpose of showing that rates are not excessive. Coeur d’Alene v. Public Utils. Comm’n, 29 Idaho 508, 160 P. 751 (1916).

Appeal.

If value as found by public utility commission is not in fact its cash value either for rate making or for taxation, an appeal is provided by statute. Northwest Light & Water Co. v. Alexander, 29 Idaho 557, 160 P. 1106 (1916).

Appeal taken from interlocutory orders before final order in valuation case was entered is premature and will be dismissed. Capital Water Co. v. Public Utils. Comm’n, 41 Idaho 19, 237 P. 423 (1925) (certain orders held interlocutory).

Construction Overhead.

When the evidence shows that there is in a utility property a value in excess of the cost of labor and material, a reasonable amount should be allowed therefor, and where it is not possible to produce better evidence, such an allowance may be made on the estimate of engineers. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925).

Interest during construction is a proper element of valuation. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925).

Definitions.

Value for the purpose of this section does not necessarily mean market or sale value, but is the value of that which the utility employs for the public convenience. Utah Power & Light Co. v. Idaho Public Util. Comm’n, 107 Idaho 446, 690 P.2d 901 (1984).

Effect Upon Rate Structure.

This section has never been interpreted to hold that it gives a ratepayer an entitlement to utility service at the lowest possible rates; this section simply gives the Idaho public utilities commission the power to determine the value of the utility’s property. Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989).

Evidence in Valuation.

In valuing property of utility, commission should require evidence relating to cost of reproduction or replacement, actual cost, depreciation, earning capacity, present service condition, investment, service furnished, and any and all relevant evidence. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925). The commission, as finder of fact on the question of value, need not weigh and balance the evidence presented to it but is free to accept certain evidence and disregard other evidence. Utah Power & Light Co. v. Idaho Public Util. Comm’n, 107 Idaho 446, 690 P.2d 901 (1984).

Franchise.

Cost of litigation over franchise is not conclusive in estimating its value for rate making purposes. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925).

Allowance by commission of approximately one half the amount spent for attorneys’ fees in litigation was held sufficient. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925).

Going Concern Value.

In absence of evidence showing expense incurred in building up business, no separate allowance should be made on account of plant being going concern in value for rate making, but that fact should be considered in estimating value. Murray v. Public Utils. Comm’n, 27 Idaho 603, 150 P. 47 (1915); Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925); Consumers’ Co. v. Public Utils. Comm’n, 41 Idaho 498, 239 P. 730 (1925); Capital Water Co. v. Public Utils. Comm’n, 44 Idaho 1, 262 P. 863 (1926).

In General.

Ascertainment of just rate involves reasonable cost of plant, production, transportation to point of use and so forth. Federal Mining & Smelting Co. v. Public Utils. Comm’n, 26 Idaho 391, 143 P. 1173 (1914).

Rule of cost of reproduction less depreciation adopted by commission is correct general rule; thus, in ascertaining value of water plant for rate making the worth of new plant with proper discount for age and accrued depreciation should be measure of value rather than cost of exact duplication. Murray v. Public Utils. Comm’n, 27 Idaho 603, 150 P. 47 (1915).

Value in this connection does not strictly mean market value or sale value; for value of property of utility for rate making purposes must be measured somewhat by use to which it is devoted. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925).

Value of property of utility is to be determined as of date that inquiry is made. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925).

Commission must so value property of a utility as to cause it to receive fair return for use of its property. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925).

Utility cannot require that scale of high prices shall be the sole basis for determining value, and the public cannot expect that existing high prices should be wholly ignored in the process of valuation. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925).

Physical Equipment.

Property Not in Use.

An allowance should be made for office furniture, horses, tools, materials on hand and cost of improving ground around reservoir, in value of water plant for rate making. Murray v. Public Utils. Comm’n, 27 Idaho 603, 150 P. 47 (1915). Property Not in Use.

No allowance should be made for paving over mains in value of a water plant for rate making, where it is not necessary to place or replace mains and hydrant connections. Murray v. Public Utils. Comm’n, 27 Idaho 603, 150 P. 47 (1915).

Adequacy of service and necessity for stand-by service are questions peculiarly within the province of the commission. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925).

Finding of commission that steam pumping plant which had been replaced by electric plant was not reasonably necessary was upheld. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925).

Rate Making and Condemnation.

The public can no more take private property without just compensation, by fixing too low a value for rate making, than by fixing too low a value for condemnation. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925).

Rate Making and Taxation.

Valuation by commission under this section may be adopted by state equalization board as full cash value for taxation purposes. Washington Water Power Co. v. Kootenai County, 270 F. 369, modified on other grounds, 273 F. 524 (9th Cir. 1921).

Statutes confer limited jurisdiction upon public utilities commission to place a valuation upon property used by public utilities; but findings of value made by commission are not binding upon the state board of equalization. They are admissible in evidence before such board and may be regarded as prima facie just, reasonable and correct. Northwest Light & Water Co. v. Alexander, 29 Idaho 557, 160 P. 1106 (1916).

Basis of valuation for taxation and rate making are not necessarily identical and record in this case shows that commission in valuing property for rate making did not take into consideration certain property which was assessed by board of equalization for purposes of taxation. Northwest Light & Water Co. v. Alexander, 29 Idaho 557, 160 P. 1106 (1916).

Revaluation.

Commission has power from time to time to cause further hearings and investigations to be had for purpose of revaluation. Consumers’ Co. v. Public Utils. Comm’n, 40 Idaho 772, 236 P. 732 (1925).

Water Rights.

Present market value of the water right is a proper element to be taken into consideration in ascertaining value of water plant for rate-making purposes. Murray v. Public Utils. Comm’n, 27 Idaho 603, 150 P. 47 (1915).

Working Capital.

Cited

Sum necessary for working capital of utility is within sound discretion of commission and in absence of abuse of discretion, such allowance will not be set aside. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925); Capital Water Co. v. Public Utils. Comm’n, 44 Idaho 1, 262 P. 863 (1926). Cited Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298 (1990).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 61-524. System of accounts.

The commission shall have power to establish a system of accounts to be kept by the public utilities subject to its jurisdiction, or to classify said public utilities and to establish a system of accounts for each class and to prescribe the manner in which such accounts shall be kept: provided, that the system of accounts to be kept by railroad corporations and common carriers shall conform to the rules and requirements of the interstate commerce commission in all respects. It may also in its discretion prescribe the forms of accounts, records and memoranda to be kept by such public utilities, including the accounts, records and memoranda of the movement of traffic as well as the receipts and expenditures of moneys, and any other forms, records and memoranda which in the judgment of the commission may be necessary to carry out any of the provisions of this act.

The systems of accounts established by the commission and the forms of accounts, records and memoranda prescribed by it shall not be inconsistent, in the case of corporations subject to the provisions of the act of congress entitled “An act to regulate commerce,” approved February 4, 1887, and the acts amendatory thereto, with the systems and forms from time to time established for such corporations by the interstate commerce commission.

Where the commission has prescribed the forms of accounts, records or memoranda to be kept by any public utility not subject to the provisions of the act of congress entitled “An act to regulate commerce,” approved February 4, 1887, and the acts amendatory thereto, for any of its business, it shall thereafter be unlawful for such public utility to keep any accounts, records or memoranda for such business other than those so prescribed, or those prescribed by or under the authority of any other state or of the United States, excepting such accounts, records or memoranda as shall be explanatory of and supplemental to the accounts, records or memoranda prescribed by the commission.

History.

1913, ch. 61, § 46, p. 247; reen. C.L. 106:104; C.S., § 2472; I.C.A.,§ 59-524.

STATUTORY NOTES

Cross References.

Annual reports to state tax commission,§ 63-706.

Annual reports to utility commission,§ 61-405.

Railroads, accounts system,§ 61-524.

Federal References.

Compiler’s Notes.

CASE NOTES

Final Order.

Where 18 warehouse companies filed a petition with the public utilities commission to amend existing schedules of rates by increasing charges for handling grains, peas, and seeds, and commission only increased charge on peas, and withheld further action until a uniform system of accounting was established, which would be ordered forthwith, such order was final and is appealable. Lewiston Grain Growers, Inc. v. Rooke, 69 Idaho 374, 207 P.2d 1028 (1949).

Purpose of Accounts.

Accounts of corporations are required to be kept so that in case of controversy over rates or service they may be evidence to which the consumer may appeal. Federal Mining & Smelting Co. v. Public Utils. Comm’n, 26 Idaho 391, 143 P. 1173 (1914).

Rate Basis.

Warehouse companies are entitled to a reasonable return upon their investment from warehouse operations, regardless of fact that part of their income may come from private business instead of public, and commission cannot wait until they establish a uniform system of accounting, but must make a decision upon most accurate information available from existing facts and records. Lewiston Grain Growers, Inc. v. Rooke, 69 Idaho 374, 207 P.2d 1028 (1949).

Reconciliation of Accounts.

Commission has the power to require warehouse companies to reconcile differences in accounts presented by them in hearing on petition for increased rates, and it can require them to justify expenses charged against income from the warehouse, but it cannot deny their right to a decision on their petition on the sole ground of want or absence of a uniform system of accounts, which the commission is charged to establish. Lewiston Grain Growers, Inc. v. Rooke, 69 Idaho 374, 207 P.2d 1028 (1949).

§ 61-525. Depreciation account.

The commission shall have power, after hearing, to require any or all public utilities, except such as are subject to the act of congress entitled “An act to regulate commerce,” approved February 4, 1887, and the acts amendatory thereof and supplementary thereto, to carry a proper and adequate depreciation account in accordance with such rules, regulations and forms of accounts as the commission may prescribe. The commission may from time to time ascertain and determine and by order fix the proper and adequate rate of depreciation of the several classes of property of each public utility. Each public utility shall conform its depreciation accounts to the rates so ascertained, determined and fixed, and shall set aside the moneys so provided for out of the earnings and carry the same in a depreciation fund and expend such fund only for such purposes and under such rules and regulations, both as to original expenditure and subsequent replacement as the commission may prescribe. The income from investments of moneys in such public fund shall likewise be carried in such fund.

History.

1913, ch. 61, § 47, p. 247; reen. C.L. 106:105; C.S., § 2473; I.C.A.,§ 59-525.

STATUTORY NOTES

Federal References.

Act of February 4, 1887, referred to in this section, was repealed by Act Oct. 17, 1978, P.L. 95-473.

CASE NOTES

Depreciation Reserve.

In fixing rate for electric service, deduction for accrued depreciation is not necessarily in conflict with sinking fund theory. Idaho Power Co. v. Thompson, 19 F.2d 547 (D. Idaho 1927).

§ 61-526. Certificate of convenience and necessity.

No street railroad corporation, gas corporation, electrical corporation, telephone corporation or water corporation, shall henceforth begin the construction of a street railroad, or of a line, plant, or system or of any extension of such street railroad, or line, plant, or system, without having first obtained from the commission a certificate that the present or future public convenience and necessity require or will require such construction: provided, that this section shall not be construed to require such corporation to secure such certificate for an extension within any city or county, within which it shall have theretofore lawfully commenced operation, or for an extension into territory whether within or without a city or county, contiguous to its street railroad, or line, plant or system, and not theretofore served by a public utility of like character, or for an extension within or to territory already served by it necessary in the ordinary course of its business: and provided further, that if any public utility in constructing or extending its lines, plant or system, shall interfere or be about to interfere with the operation of the line, plant or system of any other public utility already constructed, or if public convenience and necessity does not require or will require such construction or extension, the commission on complaint of the public utility claiming to be injuriously affected, or on the commission’s own motion, may, after hearing, make such order and prescribe such terms and conditions for the locating or type of the line, plant or system affected as to it may seem just and reasonable: provided, that power companies may, without such certificate, increase the capacity of their existing generating plants.

History.

1913, ch. 61, § 48a, p. 247; substantially reen. 1915, ch. 62, § 2, subd. 48a, p. 155; reen. C.L. 106:106; C.S., § 2474; I.C.A.,§ 59-526; am. 1970, ch. 134, § 1, p. 327.

STATUTORY NOTES

Cross References.

Air carriers, certificate of convenience and necessity required,§ 61-1104.

Recording of orders,§ 61-608.

CASE NOTES

Auto transit company. Certificate.

Auto Transit Company.

On an application by auto transportation company for permit to extend operations, public utility commission did not err in not considering evidence relative to granting or refusal of certificate of convenience and necessity. In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933).

Certificate.

If there are other methods or machinery that might be used in plant that would reduce cost of production, commission may direct utility to install such, and in case it refuses, upon proper application may issue certificate of convenience to utility that will do so. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

Certificate required and company ordered to desist from further construction in case of company securing franchise few days before act became effective but not accepting same until later. No construction was begun prior to such time, nor contract let for building of engine, although approximately an expenditure of $25,000 had been made before filing of complaint. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

The Idaho public utilities commission had the authority to require plaintiff to obtain approval prior to extending facilities into uncertified buffer areas. Eagle Water Co. v. Idaho Pub. Utils. Comm’n, 130 Idaho 314, 940 P.2d 1133 (1997).

Competition.

Intent of legislature is to replace competition by regulation since unregulated competition is not needed to protect the public against unreasonable rates or unsatisfactory service, and there can be no justification for a duplication of public utility plants in order to prevent monopoly. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

Service of manufactured gas is not entitled to protection to the extent of denial of natural gas service. McFayden v. Public Utils. Consol. Corp., 50 Idaho 651, 299 P. 671 (1931).

Protecting existing investments from even wasteful competition is secondary to securing adequate service for public. McFayden v. Public Utils. Consol. Corp., 50 Idaho 651, 299 P. 671 (1931).

Under the provision of the auto transportation act, it was not the duty of the utilities commission to protect either common or private carriers competing in the open market; however, it must consider all circumstances and public interest. Malone v. Van Etten, 67 Idaho 294, 178 P.2d 382 (1947).

Constitutionality.

Legislative prohibition of competition is not unconstitutional. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

Granting or withholding of certificate is an exercise of state’s power to determine whether the rights and interests of the general public will be advanced by the prosecution of the enterprise which it is proposed to carry on for the service of the public. McFayden v. Public Utils. Consol. Corp., 50 Idaho 651, 299 P. 671 (1931).

The legislature has authority to designate carriers or utilities which must secure from the public utilities commission certificate of convenience and necessity before beginning operations. In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933).

When an intangible property right such as a certificate, franchise, permit or contract is modified or revoked according to its terms, no taking of the property has occurred. Thus, the property right within the telephone provider’s certificate of convenience and necessity was accepted subject to statutory conditions, which included the public utilities commission’s authority to modify the certificate by revoking the right to a portion of unserved area when the showing was made that the public convenience and necessity did not require the telephone provider’s extension of service to the area. Cambridge Tel. Co. v. Pine Tel. Sys., 109 Idaho 875, 712 P.2d 576 (1985).

The telephone provider was not unconstitutionally deprived of its certificate where the certificate was modifiable by a nonarbitrary application of a public convenience and necessity standard, a condition of the certificate, based upon substantial competent evidence that the telephone provider would have to spend an additional $47,000 to serve an unserved area within a certified area that could be served with only minimal expenditures by another utility and the residents of the disputed area would be better served by the other utility’s toll-free service to neighboring communities as opposed to the telephone provider’s service, which included the possibility of long distance toll charges to those communities. Cambridge Tel. Co. v. Pine Tel. Sys., 109 Idaho 875, 712 P.2d 576 (1985).

Hearing on Protest.

Jurisdiction.

The commission does not have jurisdiction to entertain a complaint by electrical nonprofit cooperatives protesting against extension of lines of a public utility into their territories. Clearwater Power Co. v. Washington Water Power Co., 78 Idaho 150, 299 P.2d 484 (1956).

Complaint by electrical nonprofit cooperatives for alleged encroachment of their territory by defendant public utility could not be entertained on the ground that public utility had violated the law or some order of the commission and that the public utility had not secured a certificate of public convenience in extending their lines, since such cooperatives were not public utilities and the public utilities commission was only authorized to hear matters where public utilities were injuriously affected. Clearwater Power Co. v. Washington Water Power Co., 78 Idaho 150, 299 P.2d 484 (1956). The public utilities commission had jurisdiction to decide the issues in petition for declaratory ruling brought by the department of energy (DOE), as signatory to a three-party agreement with the Idaho Power Company (IPC) and the Utah Power and Light Co. (U. P. & L.) for the furnishing of energy to the National Engineering Laboratory (INEL), whereby the DOE sought a ruling that upon the exercise of its right to terminate the agreement, IPC would have the right to be the sole supplier of electricity to INEL. Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 112 Idaho 10, 730 P.2d 930 (1986), cert. denied, 484 U.S. 801, 108 S. Ct. 44, 98 L. Ed. 2d 9 (1987).

Preference Between Applicants.

In a declaratory judgment action brought by the department of energy (DOE), the commission correctly decided that, as between two utilities with valid certificates to deliver energy at transmission voltage to the National Engineering Laboratory, the utility that was currently and satisfactorily serving the disputed area could continue to do so. Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 112 Idaho 10, 730 P.2d 930 (1986), cert. denied, 484 U.S. 801, 108 S. Ct. 44, 98 L. Ed. 2d 9 (1987).

Proviso Concerning Power Companies.

Under the last proviso, no certificate is required to increase the capacity of an existing plant (or even perhaps to build a new plant) and market the product over lines already constructed or to supply an increasing demand in a place already occupied by the utility. The proviso does not grant power to establish new plants and enter new fields, without the certificate. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

Railroads.

Since a railroad corporation is not included among those utilities which must obtain a certificate of public convenience and necessity from the utilities commission before commencing construction of a new plant, the commission is not required to conduct a full scale hearing and investigation to determine whether railroad corporation’s proposed construction of a classification yard is in the public interest. Burlington Out Now v. Burlington N., Inc., 96 Idaho 594, 532 P.2d 936 (1975).

Unserved Area within Certified Area.

Cited

An unserved area previously certified to a utility may not be revoked when the certified utility is ready, willing and able to extend adequate service at reasonable rates, except where the record clearly shows that “public convenience and necessity” do not require the extension of service into a certified but unserved area. Cambridge Tel. Co. v. Pine Tel. Sys., 109 Idaho 875, 712 P.2d 576 (1985). Cited Afton Energy, Inc. v. Idaho Power Co., 107 Idaho 781, 693 P.2d 427 (1984); Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 108 Idaho 943, 703 P.2d 707 (1985); Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298 (1990).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 61-527. Certificate of convenience and necessity — Exercise of right or franchise.

No public utility of a class specified in the foregoing section shall henceforth exercise any right or privilege, or obtain a franchise, or permit, to exercise such right or privilege, from a municipality or county, without having first obtained from the commission a certificate that the public convenience and necessity require the exercise of such right and privilege: provided, that when the commission shall find, after hearing, that the public utility has heretofore begun actual construction work, and is prosecuting such work in good faith, uninterruptedly, and with reasonable diligence in proportion to the magnitude of the undertaking, under any franchise or permit heretofore granted, but not heretofore actually exercised, such public utility may proceed to the completion of such work and may after such completion exercise such right and privilege: provided further, that this section shall not be construed to validate any right or privilege now invalid or hereafter becoming invalid under any law of this state, nor impair any vested right in any franchise or permit heretofore granted.

History.

1913, ch. 61, § 48b, p. 247; substantially reen. 1915, ch. 62, § 2, subd. 48b, p. 156; reen. C.L. 106:107; C.S., § 2475; I.C.A.,§ 59-527.

STATUTORY NOTES

Cross References.

Powers of cities to regulate rates of franchise holders except those subject to regulation by public utilities commission,§ 50-330.

Recording of orders,§ 61-608.

CASE NOTES

Constitutionality.

By granting franchise to a public utility corporation, state does not abrogate its right to exercise police power over it. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

Franchise Contract.

A franchise is not a contract until written acceptance is made. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

Filing of acceptance of franchise prior to time utilities act took effect is unnecessary. Doing work under a franchise is an acceptance of its terms. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

City may waive a specified manner of acceptance of a franchise and recognize another. Coeur d’Alene v. Spokane & I.E.R. Co., 31 Idaho 160, 169 P. 930 (1917).

Franchise Rights Not Accepted.

Where written acceptance of franchise was not filed until after this act became effective and no work was done under the franchise, utility does not have a contract or vested right in said franchise authorizing it to proceed with construction in said territory without securing certificate of convenience. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

Jurisdiction.

§ 61-528. Certificate of convenience and necessity — Conditions.

Before any certificate of convenience and necessity may issue[,] a certified copy of its articles of incorporation, or charter, if the applicant be a corporation, shall be filed in the office of the commission. The commission shall have power, after hearing involving the financial ability and good faith of the applicant and necessity of additional service in the community to issue said certificate as prayed for, or to refuse to issue the same, or to issue it for the construction of any portion only of the contemplated street railroad, line, plant or system or extension thereof, or for the partial exercise only of said right or privilege, and may attach to the exercise of the rights granted by said certificate, such terms and conditions as in its judgment the public convenience and necessity may require.

History.

1913, ch. 61, § 48c, p. 247, am. 1915, ch. 62, § 2, subd. 48c, p. 156; compiled and reen. C.L. 106:108; C.S., § 2476; I.C.A.,§ 59-528.

STATUTORY NOTES

Cross References.

Power of cities to regulate rates of franchise holders not regulated by public utilities commission,§ 50-330.

Recording of orders,§ 61-608.

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to make the sentence more readable.

CASE NOTES

Application.

Authority of Legislature.

Application for certificate of convenience and necessity, disclosing that proposed service would be provided by corporation to be organized by applicants, is not contrary to statutory requirements. McFayden v. Public Utils. Consol. Corp., 50 Idaho 651, 299 P. 671 (1931). Authority of Legislature.

Denial of Application.

It was error for commission to deny certification to either of two applicants to furnish service on ground that no showing was made that pipeline corporation would extend its line or that either applicant planned to construct line since such extension was a matter within the jurisdiction of the federal power commission and federal power commission would not consider an application if applicant does not have state certificate of authorization. In re Citizens Utils. Co., 82 Idaho 208, 351 P.2d 487 (1960).

Hearing on Protest.

Commission erred in granting application of company for a certificate of public convenience and necessity to transport and distribute in state natural gas imported from Canada without granting a hearing to protestants after stating that ruling on motion to dismiss by protestants would be deferred for time being. Application of Trans-Northwest Gas, Inc., 72 Idaho 215, 238 P.2d 1141 (1951).

Jurisdiction.

The public utilities commission had jurisdiction to decide the issues in petition for declaratory ruling brought by the Department of Energy (DOE), as signatory to a three-party agreement with the Idaho Power Company (IPC) and the Utah Power and Light Co. for the furnishing of energy to the National Engineering Laboratory (INEL), whereby the DOE sought a ruling that upon the exercise of its right to determine the agreement, IPC would have the right to be the sole supplier of electricity to INEL. Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 112 Idaho 10, 730 P.2d 930 (1986); 484 U.S. 801, 108 S. Ct. 44, 98 L. Ed. 2d 9 (1987).

Preference to Utility Serving Area.

In a declaratory judgment action brought by the Department of Energy (DOE), the commission correctly decided that, as between two utilities with valid certificates to deliver energy at transmission voltage to the National Engineering Laboratory, the utility that was currently and satisfactorily serving the disputed area could continue to do so. Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 112 Idaho 10, 730 P.2d 930 (1986), cert. denied, 484 U.S. 801, 108 S. Ct. 44, 98 L. Ed. 2d 9 (1987).

§ 61-529. Certificate of convenience and necessity — Electricity exclusively for mines excepted.

No certificate of convenience and necessity shall be required under any provision of this act where the electricity is to be used exclusively in operations incident to the working of metalliferous mines and mining claims, mills, or reduction and smelting plants, and the transmission lines and distribution systems are owned by the consumer or where several consumers severally own their individual distribution systems and jointly own, in their own names or through a trustee, the transmission lines used in connection therewith and transmit such electricity, whether generated by themselves or procured from some other source, over such transmission lines and distribution systems without profit, and to be used for their private uses for the purposes aforesaid in places outside the limits of incorporated cities, towns and villages, and not for resale or public use, sale or distribution.

History.

1913, ch. 61, § 48d, p. 247; as added by 1915, ch. 62, § 2, subd. 48d, p. 157; reen. C.L. 106:109; C.S., § 2477; I.C.A.,§ 59-529.

STATUTORY NOTES

Cross References.

Corporations using electricity exclusively in mining operations excepted from law,§ 61-119.

Power of cities to regulate rates of franchise holders except those subject to regulation by public utilities commission,§ 50-330.

Recording of orders,§ 61-608.

Compiler’s Notes.

§ 61-530. Certificate of convenience and necessity — Port districts and industrial development districts.

No port district or industrial development district within a port district shall acquire by eminent domain any existing and operating railroad facilities, without first having secured from the commission, after hearing, a certificate that such acquisition is necessary for the public convenience and necessity.

History.

I.C.,§ 61-530, as added by 1970, ch. 3, § 2, p. 4.

STATUTORY NOTES

Cross References.

Port districts, acquisition of property and facilities,§ 70-1501.

§ 61-531. Plan for curtailment of electric or gas consumption.

The Idaho public utilities commission shall forthwith direct and require all suppliers of electric power and energy, or natural or manufactured gas, including those otherwise excepted under section 61-104, Idaho Code, except agencies of the federal government, to file with the commission, within a designated time period, a plan for the curtailment of electric or gas consumption during an emergency.

History.

1975, ch. 238, § 2, p. 646.

STATUTORY NOTES

Compiler’s Notes.

Section 1 of S.L. 1975, ch. 238 read, “It is recognized by the legislature of the state of Idaho that electric power and energy, or natural or manufactured gas, within the Pacific Northwest, including the state of Idaho may become inadequate and insufficient to meet the requirements of consumers in Idaho and by reason thereof an emergency may arise.”

§ 61-532. Adoption or rejection of plans — Procedure.

The commission, after notice and hearing pursuant to its rules of practice and procedure, shall consider and act upon the plan or plans submitted and may adopt or reject such plan or plans, or adopt other plan or plans, for such curtailment. In acting upon such plan or plans the commission shall consider the following factors:

The consistency of the plan with the public health, safety and welfare;
The technical feasibility of implementation of the plan; and
The effectiveness with which the plan minimizes the impact of any curtailment.

Section 2 of S.L. 1976, ch. 219 provided that the act should take effect on and after July 1, 1976.

§ 61-537. Contracts of suppliers subject to provisions of law.

All contracts of suppliers shall be subject to actions taken and the immunities provided hereunder.

History.

1975, ch. 238, § 8, p. 646.

STATUTORY NOTES

Compiler’s Notes.

Section 9 of S.L. 1975, ch. 238, read: “The provisions of this act are hereby declared to be severable and if any portion of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 10 of S.L. 1975, ch. 238 declared an emergency. Approved March 31, 1975.

§ 61-538. Pole attachments — Regulation.

As used in this section, the term “public utility” includes any person, firm or corporation except a publicly owned utility which owns or controls poles, ducts, conduits or rights-of-way used or useful, in whole or in part, for wire communication, and which are not subject to the jurisdiction of the commission under section 61-129, Idaho Code.

The term “cable television company” means any individual, firm, partnership, corporation, company, association, or joint-stock association, and includes any trustee, receiver, assignee, or personal representative thereof, which transmits television signals for distribution to subscribers of its services for a fee by means of wires or cables connecting its distribution facilities with the customer’s television receiver or the customer’s equipment connecting to the customer’s receiver rather than by transmission of the television signal through the air.

The term “pole attachment” when used in this section means any wire or cable for the transmission of cable television, and any related device, apparatus, or auxiliary equipment, installed upon any pole or in any telegraph corporation, telephone corporation, electrical corporation or communications right-of-way, duct, conduit or other similar facilities owned or controlled, in whole or in part, by one or more public utilities.

The legislature hereby finds that many public utilities have, through a course of conduct covering many years, made available space on and in their poles, ducts, conduits, and other support structures for use by the cable television industry for pole attachment service, and that the provision of such pole attachment service by such public utilities is and has been a public utility service.

Whenever a public utility and a cable television company are unable to agree upon the rates, terms or conditions for pole attachments or the terms, conditions or cost of production of space needed for pole attachments, then the commission shall establish and regulate the rates, terms and conditions, and cost of providing space needed for pole attachments so as to assure a public utility the recovery of not less than all the additional costs of providing and maintaining pole attachments nor more than the associated capital cost and operating expenses of the public utility attributable to that portion of the pole, duct, or conduit used for the pole attachment including a share of the required support and clearance space. In determining and fixing the rates, terms and conditions, the commission shall consider the interest of the customers of the attaching cable television company, the public utility upon which the attachment is made as well as the customers of the public utility. To the extent applicable, the procedures set forth in title 61, Idaho Code, shall apply under the provisions of this section.

History.

I.C.,§ 61-538, as added by 1982, ch. 193, § 1, p. 520.

§ 61-539. Water rights of an electrical corporation — No commission jurisdiction.

The commission shall have no power or jurisdiction to make any determination, decision, rule, demand, requirement, or issue any order or decree involving or related to the failure or refusal of an electrical corporation to protect its hydropower water rights from depletion or loss to (1) junior priority consumptive water uses for any consumptive purpose prior to November 19, 1982, (2) junior priority consumptive water uses for irrigation where substantial investments in irrigation wells and irrigation equipment were made prior to November 19, 1982, but were not operating in 1982, and (3) junior priority consumptive water uses for domestic, nonconsumptive commercial, nonconsumptive industrial or nonconsumptive municipal uses occurring from and after November 19, 1982.

This section shall apply not only to future proceedings concerning claims the cause for which arose prior to November 19, 1982, but also to proceedings pending before the commission at the time this act becomes effective, and any claims which might be asserted against the electrical corporation for depletions from uses within (1), (2) or (3) above.

History.

I.C.,§ 61-539, as added by 1983, ch. 259, § 1, p. 689.

STATUTORY NOTES

Compiler’s Notes.

The phrase “at the time this act becomes effective” in the second paragraph refers to the effective date of S.L. 1983, ch. 259, which was effective pursuant to S.L. 1983, ch. 259, § 3, “only after the signing of the contract provided for in Section 61-540, Idaho Code, by the Governor of the State of Idaho and an appropriate electrical corporation.”

Effective Dates.

Section 3 of S.L. 1983, ch. 259 read: “An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval, provided, however, that the provisions of Section 1 of this act shall be in full force and effect only after the signing of the contract provided for in Section 61-540, Idaho Code, by the Governor of the State of Idaho and an appropriate electrical corporation.” The contract provided for in S.L. 1983, ch. 259, § 3 was signed on October 25, 1984. See http://www.idwr.idaho.gov/News/Issues/SwanFalls/07 08documents/Agreement.pdf .

§ 61-540. Authorizing negotiation and execution of contracts by the state of Idaho with electrical corporations regarding certain water rights identified in section 61-539, Idaho Code.

The governor of the state of Idaho or his designee is hereby empowered to negotiate and the governor to execute a contract on behalf of the state of Idaho with any electrical corporation which has filed or may file suit against water users or possible water users, said electrical corporation seeking to stop junior prior consumptive water uses as a result of Idaho Supreme Court Opinion No. 13794 in “Idaho Power Company vs. State of Idaho, et al,” filed November 19, 1982. Each contract shall provide, among other things, that (1) all consumptive water users who have beneficially used water for any consumptive purpose prior to November 19, 1982, or any person or persons who have previously made substantial investments in irrigation wells and irrigation equipment and have pending a water permit or application, even though such irrigation wells and irrigation equipment were not in operation prior to November 19, 1982, may continue the water licensing process, (2) persons included within the provisions of (1) above are third party beneficiaries of said contract, (3) the electrical corporation shall, where any suit is pending in which a person is within the class of consumptive users identified in (1) above, move the court for the dismissal from the suit of such person or persons, (4) said contract shall be conditional upon the passage and approval of this act but shall terminate if section 61-539 or 61-540 [this section], Idaho Code, be subsequently amended or repealed, and (5) in the event this act be amended or repealed, the defenses of statute of limitations, abandonment, adverse possession, statutory forfeiture, latches [laches], waiver, estoppel and other applicable common law defenses shall not be available against said electrical corporation following said contract termination for a period of two (2) years, unless the parties mutually consent to keep said contract in effect by addendum.

History.

I.C.,§ 61-540, as added by 1983, ch. 259, § 2, p. 689.

STATUTORY NOTES

Compiler’s Notes.

Idaho Power Company v. State, referred to in this section, is reported at 104 Idaho 575, 661 P.2d 741.

The terms “this act” refers to S.L. 1983, ch. 259, which is compiled as§§ 61-539, 61-540. The bracketed insertions near the end of this section were added by the compiler to clarify a reference and to supply the probable intended term.

Effective Dates.

§ 61-541. Binding ratemaking treatments applicable when costs of a new electric generation facility are included in rates.

As used in this section, “certificate” means a certificate of convenience and necessity issued under section 61-526, Idaho Code.
A public utility that proposes to construct, lease or purchase an electric generation facility or transmission facility, or make major additions to an electric generation or transmission facility, may file an application with the commission for an order specifying in advance the ratemaking treatments that shall apply when the costs of the proposed facility are included in the public utility’s revenue requirements for ratemaking purposes. For purposes of this section, the requested ratemaking treatments may include nontraditional ratemaking treatments or nontraditional cost recovery mechanisms.
1. In its application for an order under this section, a public utility shall describe the need for the proposed facility, how the public utility addresses the risks associated with the proposed facility, the proposed date of the lease or purchase or commencement of construction, the public utility’s proposal for cost recovery, and any proposed ratemaking treatments to be applied to the proposed facility.
2. For purposes of this section, ratemaking treatments for a proposed facility include but are not limited to:
  1. The return on common equity investment or method of determining the return on common equity investment;
  2. The depreciation life or schedule;
  3. The maximum amount of costs that the commission will include in rates at the time determined by the commission without the public utility having the burden of moving forward with additional evidence of the prudence and reasonableness of such costs;
  4. The method of handling any variances between cost estimates and actual costs; and
  5. The treatment of revenues received from wholesale purchasers of service from the proposed facility.
The commission shall hold a public hearing on the application submitted by the public utility under this section. The commission may hold its hearing in conjunction with an application for a certificate.
Based upon the hearing record, the commission shall issue an order that addresses the proposed ratemaking treatments. The commission may accept, deny or modify a proposed ratemaking treatment requested by the utility. In determining the proposed ratemaking treatments, the commission shall maintain a fair, just and reasonable balance of interests between the requesting utility and the utility’s ratepayers.
1. In reviewing the application, the commission shall also determine whether:
  1. The public utility has in effect a commission-accepted integrated resource plan;
  2. The services and operations resulting from the facility are in the public interest and will not be detrimental to the provision of adequate and reliable electric service;
  3. The public utility has demonstrated that it has considered other sources for long-term electric supply or transmission;
  4. The addition of the facility is reasonable when compared to energy efficiency, demand-side management and other feasible alternative sources of supply or transmission; and (v) The public utility participates in a regional transmission planning process.
2. The commission shall use its best efforts to issue the order setting forth the applicable ratemaking treatments prior to the date of the proposed lease, acquisition or commencement of construction of the facility.
3. The ratemaking treatments specified in the order issued under this section shall be binding in any subsequent commission proceedings regarding the proposed facility that is the subject of the order, except as may otherwise be established by law.
The commission may not require a public utility to apply for an order under this section.
The commission may promulgate rules or issue procedural orders for the purpose of administering this section.

History.

I.C.,§ 61-541, as added by 2009, ch. 145, § 1, p. 436.

Chapter 6 PROCEDURE BEFORE COMMISSION AND IN COURTS

Sec.

§ 61-601. Practice — Evidence.

All hearings and investigations before the commission or any commissioner shall be governed by this act and by rules of practice and procedure to be adopted by the commission, and in the conduct thereof neither the commission nor any commissioner shall be bound by the technical rules of evidence.

History.

1913, ch. 61, § 49, p. 247; reen. C.L. 106:110; C.S., § 2478; I.C.A.,§ 59-601.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Abuse of Discretion.

Commission did not abuse its discretion by receiving testimony offered by applicants not verifying application for certificate of convenience and necessity nor filing map required by rules. McFayden v. Public Utils. Consol. Corp., 50 Idaho 651, 299 P. 671 (1931).

Authority of Commission.

Commission’s authority to determine relevancy and competency of all evidence should be liberally construed. Federal Mining & Smelting Co. v. Public Utils. Comm’n, 26 Idaho 391, 143 P. 1173 (1914).

In the absence of any statute specifically authorizing the public utilities commission to compensate consumer intervenors, the commission does not have the authority under either§ 61-501 or this section to adopt intervenor funding rules or to award attorney fees and costs in connection with proceedings under the public utility regulatory policies act, 16 U.S.C.S. § 2601. Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 744, 639 P.2d 442 (1981). The Idaho rules of civil procedure do not apply to hearings before the public utilities commission. McNeal v. Idaho PUC, 142 Idaho 685, 132 P.3d 442 (2006), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Certificate of Convenience.

Due Process.

The commission cannot by rule transcend the constitutional requirement of due process. In re Citizens Utils. Co., 82 Idaho 208, 351 P.2d 487 (1960).

Evidence.

Where a commissioner has personal knowledge of facts pertinent to the decision to be reached, or which he intends to consider in reaching a decision, it becomes his duty to place such facts in the record at a hearing where the parties affected thereby are afforded full opportunity to test the accuracy or applicability thereof and to counter or refute such evidence. In re Citizens Utils. Co., 82 Idaho 208, 351 P.2d 487 (1960).

The public utility commission is a fact-finding administrative agency and, as such, is not bound by the strict rules of evidence governing courts of law; however, its findings must be supported by substantial and competent evidence, and it cannot make a finding based upon hearsay. In re Citizens Utils. Co., 82 Idaho 208, 351 P.2d 487 (1960).

It is generally held that where the commission intends to consider and rely on facts coming to its knowledge in other cases, such facts must be brought on the record in pending proceedings in such manner that the parties affected thereby will be afforded an opportunity to test the accuracy, applicability, or relevancy of such facts and to refute same, and that findings based on evidence not in the record cannot be sustained. In re Citizens Utils. Co., 82 Idaho 208, 351 P.2d 487 (1960).

Liberal Rules.

Law governing evidence before the commission is based on liberality. Lewiston Grain Growers, Inc. v. Rooke, 69 Idaho 374, 207 P.2d 1028 (1949).

Rate Hearings.

Commission erred in hearing on application for raise in warehouse rates on storage of wheat, when it refused to receive evidence of value of wheat, since value of the commodity stored is one of the elements to be considered in fixing value of the storage service to the owner. Lewiston Grain Growers, Inc. v. Rooke, 69 Idaho 374, 207 P.2d 1028 (1949).

Commission erred in hearing on increase of warehouse rates, when they refused to receive in evidence rates existing for similar service in that part of state of Washington, adjacent to area in Idaho served by petitioners. Lewiston Grain Growers, Inc. v. Rooke, 69 Idaho 374, 207 P.2d 1028 (1949).

Cited In re Arrow Transportation Co., 77 Idaho 523, 296 P.2d 459 (1956); Boise Water Corp. v. Idaho Pub. Utils. Comm’n, 97 Idaho 832, 555 P.2d 163 (1976); Idaho Fair Share v. Idaho Pub. Utils. Comm’n, 113 Idaho 959, 751 P.2d 107 (1988).

Cited

Am. Jur. 2d.

§ 61-602. Process.

The commission and each commissioner shall have power to issue writs of summons and subpoenas, warrants of attachment in the like manner and to the same extent as courts of record. The process issued by the commission or any commissioner shall extend to all parts of the state and may be served by any person authorized to serve process of courts of record or by any person designated for that purpose by the commission or commissioner. The person executing any such process shall receive such compensation as may be allowed by the commission not to exceed the fees prescribed by law for similar services, and such fees shall be paid in the same manner as provided herein for payment of the fees of witnesses.

History.

1913, ch. 61, § 50, p. 247; reen. C.L. 106:111; C.S., § 2479; I.C.A.,§ 59-602.

STATUTORY NOTES

Cross References.

Attachment of witnesses,§ 9-709.

Sheriff’s fees,§ 31-3203.

Subpoena,§§ 9-706, 9-708 to 9-713.

CASE NOTES

Cited

Lewiston Grain Growers, Inc. v. Rooke, 69 Idaho 374, 207 P.2d 1028 (1949); Kent v. Idaho Pub. Utils. Comm’n, 93 Idaho 618, 469 P.2d 745 (1970).

RESEARCH REFERENCES

C.J.S.

§ 61-603. Witnesses — Attendance — Fees — Mileage.

The commission and each commissioner shall have power to administer oaths, certify to all official acts, and to issue subpoenas for the attendance of witnesses and the production of papers, waybills, books, accounts, documents and testimony in any inquiry, investigation, hearing or proceeding in any part of the state.

Each witness who shall appear, by order of the commission or a commissioner, shall receive for his attendance the same fees allowed by law to a witness in civil cases, in the district court, and mileage at ten cents (10¢) for every mile of travel one (1) way by the nearest generally traveled route in going to the place where the attendance of a witness is required, which amount shall be paid by the party at whose request such witness was subpoenaed.

When any witness who has not been required to attend at the request of any party shall be subpoenaed by the commission, his fees and mileage shall be paid from the funds appropriated for the use of the commission in the same manner as other expenses of the commission are paid: provided, that the commission may at its discretion refuse to allow the mileage and attendance of any witness subpoenaed before it that is in the employ of any public utility defined in this act.

Any witness subpoenaed except one whose fees and mileage may be paid from the funds of the commission, may at the time of service, demand the fee to which he is entitled for travel to and from the place at which he is required to appear and one (1) day’s attendance. If such witness demands such fees at the time of service, and they are not at that time paid or tendered, he shall not be required to attend before the commission or commissioner, as directed in the subpoena, unless the commission shall by order indorsed on the subpoena require any such witness to attend, irrespective of the fact that such mileage and attendance are not paid on demand. All fees or mileage to which any witness is entitled under the provisions of this section may be collected by action therefor instituted by the person to whom such fees are payable. No witness furnished with free transportation shall receive mileage for the distance he may travel on such free transportation.

History.

1913, ch. 61, § 51a, p. 247; reen. C.L. 106:112; C.S., § 2480; I.C.A.,§ 59-603.

STATUTORY NOTES

Cross References.

Witness fees in district court,§ 9-1601.

Compiler’s Notes.

CASE NOTES

Production of Documents.

Commission has authority to require production of documents necessary as evidence in cases before commission and to grant litigants time and place sufficient for their examination. Federal Mining & Smelting Co. v. Public Utils. Comm’n, 26 Idaho 391, 143 P. 1173 (1914).

Cited

Lewiston Grain Growers, Inc. v. Rooke, 69 Idaho 374, 207 P.2d 1028 (1949); Kent v. Idaho Pub. Utils. Comm’n, 93 Idaho 618, 469 P.2d 745 (1970).

§ 61-604. Witnesses — District court may compel attendance — Procedure.

The district court in and for the county, or city and county in which any inquiry, investigation, hearing or proceeding may be held by commission or any commissioner shall have the power to compel the attendance of witnesses, the giving of testimony and the production of papers, including waybills, books, accounts and documents as required by any subpoena issued by the commission or any commissioner.

The commission or the commissioner before whom the testimony is to be given or produced, in case of the refusal of any witness to attend or testify or produce any papers required by such subpoena, may report to the district court in and for the county, or city and county, in which the proceeding is pending, by petition, setting forth that due notice has been given of the time and place of attendance of said witness, or the production of said papers, and that the witness has been summoned in the manner prescribed in this act, and that the witness has failed and refused to attend or produce the papers required by the subpoena, before the commission or commissioner, in the cause or proceeding named in the notice and subpoena, or has refused to answer questions propounded to him in the course of such proceeding, and ask an order of said court compelling the witness to attend and testify or produce said papers before the commission.

The court, upon the petition of the commission or such commissioner, shall enter an order directing the witnesses to appear before the court at a time and place to be fixed by the court in such order, the time to be not more than ten (10) days from the date of the order, and then and there show cause why he has not attended and testified or produced said papers before the commission. A copy of said order shall be served upon said witness. If it shall appear to the court that said subpoena was regularly issued by the commission or a commissioner and regularly served, the court shall thereupon enter an order that said witness appear before the commission or said commissioner at the time and place fixed in said order, and testify or produce the required papers, and upon failure to obey said order, said witness shall be dealt with as for contempt of court.

The remedy provided in this section is cumulative and shall not be construed to impair or interfere with the power of the commission or a commissioner to enforce the attendance of witnesses and the production of papers, and to punish for contempt in the same manner and to the same extent as [a] court of record.

History.

1913, ch. 61, § 51b, p. 247; compiled and reen. C.L. 106:113; C.S., § 2481; I.C.A.,§ 59-604.

STATUTORY NOTES

Cross References.

Contempts,§ 7-601 et seq.

Compiler’s Notes.

The bracketed word “a” in the last paragraph was inserted by the compiler.

§ 61-605. Depositions.

The commission or any commissioner or any party may in any investigation or hearing before the commission, cause the deposition of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil actions in the district courts of this state and to that end may compel the attendance of witnesses and the production of books, waybills, documents, papers and accounts.

History.

1913, ch. 61, § 51c, p. 247; reen. C.L. 106:114; C.S., § 2482; I.C.A.,§ 59-605.

CASE NOTES

Cited

Kent v. Idaho Pub. Utils. Comm’n, 93 Idaho 618, 469 P.2d 745 (1970).

§ 61-606. No privilege to witnesses — Immunity from self-incriminating testimony.

No person shall be excused from testifying or from producing any book, waybill, document, paper or account in any investigation or inquiry by or hearing before the commission or any commissioner, when ordered to do so, upon the ground that the testimony or evidence, book, waybill, document, paper or account, required of him may tend to incriminate him or subject him to penalty or forfeiture, but no person shall be prosecuted, punished or subjected to any forfeiture or penalty for or on account of any act, transaction, matter or thing concerning which he shall, under oath have testified or produced documentary evidence: provided, that no person so testifying shall be exempt from prosecution or punishment for any perjury committed by him in his testimony. Nothing herein contained shall be construed as in any manner giving to any public utility immunity of any kind.

History.

1913, ch. 61, § 51d, p. 247; reen. C.L. 106:115; C.S., § 2483; I.C.A.,§ 59-606.

§ 61-607. Certified copies of documents as evidence.

Copies of official documents and orders filed or deposited according to law in the office of the commission, certified by a commissioner or by the secretary under the official seal of the commission to be true copies of the original shall be evidence in like manner as the originals.

History.

1913, ch. 61, § 52a, p. 247; reen. C.L. 106:116; C.S., § 2484; I.C.A.,§ 59-607.

STATUTORY NOTES

Cross References.

Seal of commission,§ 61-209.

§ 61-608. Recording of orders, authorizations and certificates.

Every order, authorization or certificate issued or approved by the commission under any provision of sections 61-510 to 61-514, and 61-526 to 61-529, Idaho Code, shall be in writing and entered on the records of the commission.

Any such order, authorization or certificate, or a copy thereof, or a copy of the record of any such order, authorization or certificate, certified by a commissioner or by the secretary or assistant secretary under the official seal of the commission to be a true copy of the original order, authorization, certificate or entry, may be recorded in the office of the recorder of any county or city and county, in which is located the principal place of business of any public utility affected thereby, or in which is situated any property of any such public utility, and such record shall impart notice of its provisions to all persons. A certificate under the seal of the commission that any such order, authorization or certificate has not been modified, stayed, suspended or revoked may also be recorded in the same offices in the same manner and with like effect.

History.

1913, ch. 61, § 52b, p. 247; reen. C.L. 106:117; C.S., § 2485; I.C.A.,§ 59-608; am. 1979, ch. 218, § 3, p. 603.

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 61-609. Fees.

The commission shall charge and collect reasonable fees for copies of papers and records as established by rule or general order of the commission.

No fees shall be charged or collected for copies of papers, records or official documents, furnished to the public officers for use in their official capacity, or for the annual reports of the commission in the ordinary course of distribution, but the commission may fix reasonable charges for publications issued under its authority.

All fees charged or collected under this section shall be paid at least once each week, accompanied by a detailed statement thereof, into the treasury of the state of Idaho to the public utilities commission account [fund].

History.

1913, ch. 61, § 53, p. 247; reen. C.L. 106:118; C.S., § 2486; I.C.A.,§ 59-609; am. 1967, ch. 3, § 1, p. 6; am. 1984, ch. 109, § 1, p. 252.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion at the end of this section was added by the compiler to correct the name of the referenced fund. See§ 61-1008.

Effective Dates.

Section 2 of S.L. 1967, ch. 3 declared an emergency. Approved January 31, 1967.

§ 61-610. Right to inspect books and examine employees.

The commission, each commissioner and each person employed by the commission shall have the right at any and all reasonable times to inspect the accounts, books, papers and documents of any public utility. The commission shall also have the right to inspect the records of a public utility’s holding company, parent, affiliate, or subsidiary that engages directly in any transaction with the regulated utility which results in expenses being incurred, allocated or otherwise attributed to regulated services of a public utility; provided however, the commission may inspect only those records which are necessary to determine whether such expense was properly incurred and should be included, in whole or in part, in the public utility’s rates.
The commission, each commissioner and any employee authorized to administer oaths shall have power to examine under oath any officer, agent or employee of such public utility in relation to the business and affairs of said public utility: provided, that any person other than a commissioner demanding such inspection shall produce under the seal of the commission his authority to make such inspection. A written record of the testimony or statement so given under oath shall be made and filed with the commission.

History.

1913, ch. 61, § 54, p. 247; reen. C.L. 106:119; C.S., § 2487; I.C.A.,§ 59-610; am. 2001, ch. 385, § 1, p. 1347.

CASE NOTES

Application.

This section applies equally to utilities whose records are kept within and without state. Federal Mining & Smelting Co. v. Public Utils. Comm’n, 26 Idaho 391, 143 P. 1173 (1914).

Construction.

This section refers to persons authorized to inspect records of a utility and does not refer to production of books or records required to be produced as evidence on the trial. Federal Mining & Smelting Co. v. Public Utils. Comm’n, 26 Idaho 391, 143 P. 1173 (1914).

Right of Inspection.

Showing Required.

Corporation’s accounts should be subject to reasonable inspection of consumer in matter affecting his relation to utility. Federal Mining & Smelting Co. v. Public Utils. Comm’n, 26 Idaho 391, 143 P. 1173 (1914). Showing Required.

Parties litigant who desire to inspect records of opposing parties must make showing as to necessity and must specify the particular books and papers which they desire to examine. Federal Mining & Smelting Co. v. Public Utils. Comm’n, 26 Idaho 391, 143 P. 1173 (1914).

Cited

Lewiston Grain Growers, Inc. v. Rooke, 69 Idaho 374, 207 P.2d 1028 (1949).

RESEARCH REFERENCES

C.J.S.

§ 61-611. Production of books without state.

The commission may require, by order served on any public utility in the manner provided herein for the service of orders, the production within this state at such time and place as it may designate, of any books, accounts, papers or records kept by said public utility in any office or place without this state, or, at its option, verified copies in lieu thereof so that an examination thereof may be made by the commission or under its direction.

History.

1913, ch. 61, § 55, p. 247; compiled and reen. C.L. 106:120; C.S., § 2488; I.C.A.,§ 59-611.

CASE NOTES

Limitations as to Inspection.

Records of corporations kept without the state are subject to same limitations as inspection within the state. Federal Mining & Smelting Co. v. Public Utils. Comm’n, 26 Idaho 391, 143 P. 1173 (1914).

§ 61-612. Complaint against utility.

Complaint may be made by the commission of its own motion or by any corporation or person, chamber of commerce, board of trade, or any civic, commercial, mercantile, traffic, agricultural or manufacturing association or organization or any body politic or municipal corporation, by petition or complaint in writing, setting forth any act or thing done or omitted to be done by any public utility including any rule, regulation or charge heretofore established or fixed by or for any public utility, in violation, or claimed to be in violation of any provision of law or of any order or rule of the commission: provided, that no complaint shall be entertained by the commission, except upon its own motion, as to the reasonableness of any rate or charges of any gas, electrical, water or telephone corporation, unless the same be signed by the mayor or the president or chairman of the board of trustees or a majority of the council, commission or other legislative body of the city or county or city or town, if any, within which the alleged violation occurred, or not less than 25 consumers or purchasers or prospective consumers or purchasers of such gas, electricity, water or telephone service.

History.

1913, ch. 61, first part of § 56, p. 247; reen. C.L. 106:121; C.S., § 2489; I.C.A.,§ 59-612.

CASE NOTES

Jurisdiction of Commission.

Production of Books and Papers.

The Idaho public utilities commission (IPUC) has the authority and the jurisdiction to engage in a case-by-case analysis under applicable statutory law for the standards and requirements pursuant to implementation of the public utility regulatory policies act (16 U.S.C.S. § 2601 et seq.): thus, all case decisions issued by the IPUC are potentially applicable to, and may have an impact on, a qualifying facility’s project. Rosebud Enters., Inc. v. Idaho Public Utils. Comm’n, 128 Idaho 609, 917 P.2d 766 (1996). Production of Books and Papers.

Compiler’s Notes.

The code of civil procedure, referred to in this section, is a division of the Idaho Code, consisting of Titles 1 through 13.

§ 61-616. Complaint against utility — Time and place of hearing.

The commission shall fix the time when and place where a hearing will be had upon the complaint and shall serve notice thereof, not less than twenty (20) days before the time set for such hearing, unless the commission shall find that public necessity requires that such hearing be held at an earlier date.

History.

1913, ch. 61, last part of § 56, p. 247; reen. C.L. 106:125; C.S., § 2493; I.C.A.,§ 59-616.

§ 61-617. Hearing — Process for attendance of witnesses.

At the time fixed for any hearing before the commission or a commissioner, or the time to which the same may have been continued, the complainant and the corporation or person complained of, and such corporations or persons as the commission may allow to intervene, shall be entitled to be heard and to introduce evidence. The commission shall issue process to enforce the attendance of all necessary witnesses.

History.

1913, ch. 61, first part of § 57a, p. 247; reen. C.L. 106:126; C.S., § 2494; I.C.A.,§ 59-617.

CASE NOTES

Cited

Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

§ 61-617A. Award of costs of intervention.

It is hereby declared the policy of this state to encourage participation at all stages of all proceedings before the commission so that all affected customers receive full and fair representation in those proceedings.
The commission may order any regulated electric, gas, water or telephone utility with gross Idaho intrastate annual revenues exceeding three million five hundred thousand dollars ($3,500,000) to pay all or a portion of the costs of one (1) or more parties for legal fees, witness fees, and reproduction costs, not to exceed a total for all intervening parties combined of forty thousand dollars ($40,000) in any proceeding before the commission. The determination of the commission with regard to the payment of these expenses shall be based on the following considerations:
1. A finding that the participation of the intervenor has materially contributed to the decision rendered by the commission; and
2. A finding that the costs of intervention are reasonable in amount and would be a significant financial hardship for the intervenor; and
3. The recommendation made by the intervenor differed materially from the testimony and exhibits of the commission staff; and
4. The testimony and participation of the intervenor addressed issues of concern to the general body of users or consumers.
Expenses awarded to qualifying intervenors shall be an allowable business expense in the pending rate case or, if the proceeding is not a rate case, in the utility’s next rate case. Expenses awarded shall be chargeable to the class of customers represented by the qualifying intervenors.
The commission may adopt rules for the implementation of this statute.
The payment of expenses of intervenors who are in direct competition with a public utility involved in proceedings before the commission is prohibited.

History.

I.C.,§ 61-617A, as added by 1985, ch. 126, § 1, p. 309; am. 1993, ch. 234, § 1, p. 816; am. 2003, ch. 41, § 1, p. 162.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 1993, ch. 234 declared an emergency. Approved March 26, 1993.

CASE NOTES

Abuse of Discretion.

The public utility commission abused its discretion in refusing to compensate the intervenor for the hours of the expert witness and attorney for producing evidence that was stricken from the record and a settlement agreement that was not relevant to the resolution of the case. Idaho Fair Share v. Idaho Pub. Utils. Comm’n, 113 Idaho 959, 751 P.2d 107 (1988).

Because the factors in paragraphs (a) through (d) in subsection (2) are connected by the word “and,” the commission must find that all four listed factors exist in order to award expenses under this section. Thus, where the commission finds that an intervenor’s participation did not materially contribute to the commission’s decision, there is no showing that the commission abused its discretion in denying the requested intervenor’s expenses. Bldg. Contrs. Ass’n v. Idaho PUC, 151 Idaho 10, 253 P.3d 684 (2011).

Retroactive Effect.

The public utility commission erred by failing to consider any of the intervenor’s legal fees and costs incurred prior to the effective date of this section, where the proceeding was pending before the commission when the intervenor compensation statute took effect. Idaho Fair Share v. Idaho Pub. Utils. Comm’n, 113 Idaho 959, 751 P.2d 107 (1988).

Scope of Review.

The supreme court applied the standard of free review to the public utility commission’s interpretation of this section. Idaho Fair Share v. Idaho Pub. Utils. Comm’n, 113 Idaho 959, 751 P.2d 107 (1988).

Timeliness.

Denial of landowner’s request for intervenor funding was appropriate, because the landowner’s request was untimely, as the Idaho public utility commission explicitly announced when intervenor funding requests were due, and, although the landowner and the landowner’s attorney were present at the announcement, the landowner did not timely file a request for intervenor funding with the commission. Idaho Power Co. v. Tidwell, 164 Idaho 571, 434 P.3d 175 (2018).

Neither this section nor the regulations adiopted to give effect to this section require the Idaho public utility commission to notify intervenors of their right to seek funding or the deadlines governing such requests. Idaho Power Co. v. Tidwell, 164 Idaho 571, 434 P.3d 175 (2018).

§ 61-618. Decision — Service of order — Time effective — Extension of time.

After the conclusion of the hearing, the commission shall make and file its order, containing its decision. A copy of such order, certified under the seal of the commission, shall be served upon the corporation or person complained of, or its or his attorney. Said order shall, of its own force, take effect and become operative twenty (20) days after the service thereof, except as otherwise provided, and shall continue in force, either for a period which may be designated therein or until changed or abrogated by the commission. If an order cannot, in the judgment of the commission, be complied with within twenty (20) days, the commission may grant and prescribe such additional time as in its judgment is reasonably necessary to comply with the order, and may, on application and for good cause shown, extend the time for compliance fixed in its order.

History.

1913, ch. 61, part of § 57a, p. 247; reen. C.L. 106:127; C.S., § 2495; I.C.A.,§ 59-618.

CASE NOTES

Cited

Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919); Capital Water Co. v. Public Utils. Comm’n, 41 Idaho 19, 237 P. 423 (1925).

§ 61-619. Record.

A full and complete record of all proceedings had before the commission or any commissioner on any formal hearing had, and all testimony shall be taken down by a reporter appointed by the commission, and the parties shall be entitled to be heard in person or by attorney.

History.

1913, ch. 61, part of § 57a, p. 247; reen. C.L. 106:128; C.S., § 2496; I.C.A.,§ 59-619.

§ 61-620. Record on appeal. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised 1913, ch. 61, last part of § 57a, p. 247; reen. C.L. 106:129; C.S., § 2497; am. 1921, ch. 72, § 6, p. 141; am. 1925, ch. 88, § 1, p. 123; I.C.A.,§ 59-620, was repealed by S.L. 1977, ch. 299, § 1.

§ 61-621. Complaint by utility.

Any public utility shall have a right to complain on any of the grounds upon which complaints are allowed to be filed by other parties, and the same procedure shall be adopted and followed as in other cases, except that the complaint may be heard ex parte by the commission or may be served upon any parties designated by the commission.

History.

1913, ch. 61, § 58, p. 247; reen. C.L. 106:130; C.S., § 2498; I.C.A.,§ 59-621.

CASE NOTES

Cited

Joy v. Winstead, 70 Idaho 232, 215 P.2d 291 (1950).

§ 61-622. Finding of commission necessary for increase in rate and approval of a new tariff or schedule — Suspension.

No public utility shall raise any existing rate, fare, toll, rental or charge or so alter any existing classification, contract, practice, rule, service or regulation as to result in an increase in any rate, fare, toll, rental or charge, under any circumstances whatsoever, except upon a showing before the commission and a finding by the commission that such increase is justified.
Whenever there shall be filed with the commission any tariff or schedule stating a new individual or joint rate, fare, toll, rental, charge, classification, contract, practice, rule, service or regulation that does not increase or result in the increase of any existing rate, fare, toll, rental or charge, such tariff or schedule shall not become effective except upon a showing to and a finding by the commission that such tariff or schedule is justified.
The commission shall have power and is hereby given authority to suspend the proposed effective date of any new tariff, schedule, rate, fare, toll, rental, charge, classification, contract, practice, rule, service or regulation, either upon complaint or upon its own initiative without complaint, at once, and if it so orders, without answer or other formal pleadings by the interested public utility or utilities. The commission shall provide reasonable notice that it intends to conduct a hearing or other proceeding concerning the propriety of such new tariff, schedule, rate, fare, toll, rental, charge, classification, contract, practice, rule, service or regulation. Pending the subsequent hearing or proceeding and decision thereon, such new tariff, schedule, rate, fare, toll, rental, charge, classification, contract, practice, rule, service or regulation shall not go into effect.
The period of suspension of such new tariff, schedule, rate, fare, toll, rental, charge, classification, contract, practice, rule, service or regulation shall not extend beyond thirty (30) days when such new tariff, schedule, rate, fare, toll, rental, charge, classification, contract, practice, rule, service or regulation would otherwise go into effect, pursuant to section 61-307, Idaho Code, unless the commission in its discretion extends the period of suspension for an initial period not exceeding five (5) months, nor unless the commission after a showing of good cause on the record grants an additional sixty (60) days. Prior to the expiration of said periods of suspension the commission may, with the consent in writing signed by the party filing such new tariff or schedule, permanently or further suspend the same.
After such hearing or other proceeding during the suspension period, the commission shall issue its order approving, denying or amending the proposed tariffs, schedules, rates, fares, tolls, rentals, charges, classifications, contracts, practices, rules, services or regulations in whole or in part, or others in lieu thereof, which it shall find to be just and reasonable.

History.

1913, ch. 61, § 59a, p. 247; reen. C.L. § 106:131; C.S., § 2499; I.C.A.,§ 59-622; am. 1975, ch. 81, § 1, p. 166; am. 1976, ch. 263, § 1, p. 887; am. 2013, ch. 193, § 1, p. 476.

STATUTORY NOTES

Cross References.

Common carriers, establishment of joint rate,§ 61-504.

Common carriers, schedule of rates and charges,§§ 61-304, 61-306, 61-308 to 61-310.

Power to raise, lower, change and fix rates,§ 61-502.

Amendments.

The 2013 amendment, by ch. 193, rewrote the section to the extent that a detailed comparison is impracticable.

Effective Dates.

Section 2 of S.L. 1975, ch. 81 declared an emergency. Approved March 21, 1975.

Section 2 of S. L. 1976, ch. 263, declared an emergency. Approved March 31, 1976.

CASE NOTES

Abbreviated Proceedings.

Additional Period of Suspension.

The words “a showing of good cause on the record” can be read to mean only that the record in the case must disclose that the additional days are necessary, as opposed to allowing the commission to act with absolute discretion. Washington Water Power Co. v. Idaho Pub. Utils. Comm’n, 101 Idaho 567, 617 P.2d 1242 (1980). Where the commission determined from the record that good cause existed to suspend the rates for the additional 60 days because of the size of the increase requested, the complexity of the cases presented by the electric utility and the workload of the commission at that time, and where no challenge had been made to these findings, the commission acted properly. Washington Water Power Co. v. Idaho Pub. Utils. Comm’n, 101 Idaho 567, 617 P.2d 1242 (1980).

Amortization Period.

Burden of Proof.

Burden was on telephone company in proceeding before public utilities commission by other such companies to reduce former company’s rate for exchange service on ground that increased rate was never legally inaugurated to establish increase over previous contract rate. Mountain View Rural Tel. Co. v. Interstate Tel. Co., 55 Idaho 514, 46 P.2d 723 (1935).

Discretion of Commission.

Questions of cost of equity and rate of return are matters which raise extremely complicated issues, and deciding these questions is a function of the Idaho public utilities commission and these questions are within the commission’s area of expertise. Similarly, the adoption of a standard for determining the reasonableness of payments to an affiliate raises many complex issues which are best left for the commission to deal with initially. Washington Water Power Co. v. Idaho Pub. Utils. Comm’n, 101 Idaho 567, 617 P.2d 1242 (1980).

Effective Date of Increase.

Increased rate, promulgated by telephone company for exchange service rendered to other telephone companies without showing before, or finding by public utilities commission that increase was justified, was held not legally in effect. Mountain View Rural Tel. Co. v. Interstate Tel. Co., 55 Idaho 514, 46 P.2d 723 (1935).

If the commission fails to reach a decision concerning the propriety of a requested increase at the expiration of the seven-month suspension period, the requested increase must go into effect. Citizens Utils. Co. v. Idaho Pub. Utils. Comm’n, 99 Idaho 164, 579 P.2d 110 (1978).

Hearings and Findings.

This section contemplates a hearing before the commission and findings by the commission. Idaho Underground Water Users Ass’n. v. Idaho Power Co., 89 Idaho 147, 404 P.2d 859 (1965).

Increase in Rates.

The fact that a requested rate increase must go into effect at the expiration of the seven-month period does not in any way conclude the commission’s inquiry into the propriety of the rate increase or in any way limit the commission’s authority and duties. Citizens Utils. Co. v. Idaho Pub. Utils. Comm’n, 99 Idaho 164, 579 P.2d 110 (1978).

Interpretation.

The authority to indiscriminately set aside contracts cannot be implied from the provisions delegating rate-making authority to the public utilities commission. United States v. Utah Power & Light Co., 98 Idaho 665, 570 P.2d 1353 (1977).

Invalid Revenue Model.

The adoption of a model which overestimates thermal resources by ten percent, resulting in reduced revenue requirements for the utility, is confiscatory and, hence, must be set aside. Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 108 Idaho 943, 703 P.2d 707 (1985).

Jurisdiction.

Implicit in§ 61-129 and the rate-making sections is the idea that the operative factor for jurisdictional purposes is the receipt of services, and any party who receives services from a public utility is subject to public utility regulations and control. United States v. Utah Power & Light Co., 98 Idaho 665, 570 P.2d 1353 (1977).

Inasmuch as this section contained no time limit until amended in 1975, the jurisdiction of the commission was not limited to any specified time period where a power company’s application seeking an increase in electrical rates was originally filed with the commission on December 17, 1973. Grindstone Butte Mut. Canal Co. v. Idaho Power Co., 98 Idaho 860, 574 P.2d 902 (1978).

Municipal Utilities.

Recovery of Past Losses.

Rejections without a Hearing.

The commission has authority to reject a rate increase application without a hearing only where the application is patently deficient in form or invalid as a matter of law, and where the authority is invoked pursuant to explicit authorization by statute or administrative rule. Intermountain Gas Co. v. Idaho Pub. Utils. Comm’n, 98 Idaho 718, 571 P.2d 1119 (1977).

Where a general rate increase application incorporated revenue figures resulting from a proposed rate increase due to a specific project with revenue figures used for the general rate increase and where no administrative rule provided that a defective application might be dismissed rather than merely returned, the application was not patently deficient and the commission was not expressly authorized by statute or administrative rule to reject such application. Intermountain Gas Co. v. Idaho Pub. Utils. Comm’n, 98 Idaho 718, 571 P.2d 1119 (1977).

Returns and Dismissals.

While an application may be either “dismissed” or “returned” by the commission prior to issuance of a suspension order, it may only be “returned” after the issuance of such an order, since a “return” merely tolls the statutory time limits under this section while a “dismissal” starts the whole application process anew and could, therefore, be used to avoid the statutory requirement entirely. Intermountain Gas Co. v. Idaho Pub. Utils. Comm’n, 98 Idaho 718, 571 P.2d 1119 (1977).

Special Service Contracts.

CASE NOTES

Appeals.

It is not reasonable to assume, nor does reasonable practice contemplate, an appeal from each separate ruling of the commission on the introduction or exclusion of evidence, when, at the end of all such evidence and the hearing completed, it must make its findings of facts and render a decision. Such final decision is appealable. Capital Water Co. v. Public Utils. Comm’n, 41 Idaho 19, 237 P. 423 (1925).

Constitutionality.

Further Proceedings.

Where a commission order reduced the working capital allowance of a gas utility by an amount equal to one half of the franchise taxes annually collected by the utility, the gas utility had a right to request further proceedings to introduce evidence that such an adjustment to working capital may have caused the utility’s test year data to be inaccurate. Intermountain Gas Co. v. Idaho Pub. Utils. Comm’n, 97 Idaho 113, 540 P.2d 775 (1975). Where the exclusion of purchased gas costs from working capital did not result in an unjust and unreasonable return to a gas utility, the commission was not required to allow the gas utility to include purchased gas costs in its working capital allowance, though the utility could initiate new proceedings to introduce the results of a lead-lag study which the commission would take into consideration in determining the working capital allowance. Intermountain Gas Co. v. Idaho Pub. Utils. Comm’n, 97 Idaho 113, 540 P.2d 775 (1975).

Where the public utility commission order, which required the water utility to begin booking its connection fees as contributions rather than as revenue, failed to specify whether or not those fees collected that year prior to the date of the order should be so booked, the supreme court set aside the decision of the commission without holding that it was either valid or invalid and remanded the decision to the agency for further determinations pursuant to this section on the question of the effective date of the pertinent part of the order. Hayden Pines Water Co. v. Idaho Pub. Utils. Comm’n, 111 Idaho 331, 723 P.2d 875 (1986).

Hearing on Second Application.

Housemover’s second application for a motor contract carrier permit and the hearing thereon did not constitute a collateral attack on the commission’s previous order denying him a permit, where testimony of some witnesses was not available to housemover at the time of the initial proceeding. Associated Pac. Movers v. Rowley, 97 Idaho 663, 551 P.2d 618 (1976).

The authorization for subsequent rescission or modification of an order or decision, provided for in this section, implies the authority of the commission to grant a hearing on a new application for a permit denied in a previous order. Associated Pac. Movers v. Rowley, 97 Idaho 663, 551 P.2d 618 (1976).

Presumption of Correctness.

The findings of facts made by the public utilities commission are presumptively correct. Such presumption is only prima facie and may be rebutted, and the burden is upon the one attacking the commission’s action to show its incorrectness. Nez Perce Roller Mills v. Public Utils. Comm’n, 54 Idaho 696, 34 P.2d 972 (1934).

Public Use.

The use to which the appellant and his predecessors have applied that portion of the hot water over and above what is required for the natatorium is a public use. The sale and distribution of such hot water is, therefore, subject to regulation by the public utilities commission. Public Utils. Comm’n v. Natatorium Co., 36 Idaho 287, 211 P. 533 (1922).

Rescission.

An order based upon a finding made without evidence, or upon a finding made upon evidence which clearly does not support it, is an arbitrary act against which courts afford relief. Oregon Short Line R.R. v. Public Utils. Comm’n, 47 Idaho 482, 276 P. 970 (1929).

Unserved Area within Certified Area.

It is within the public utilities commission’s jurisdiction, as a condition of the certificate of convenience and necessity, to review the extension of service into an unserved area within an already certified area, provided the utility has not substantially completed the extension; the commission may rescind, alter or amend the certificate of convenience and necessity previously issued for an unserved area upon a showing that the “public convenience and necessity” does not require the extension. Cambridge Tel. Co. v. Pine Tel. Sys., 109 Idaho 875, 712 P.2d 576 (1985). An unserved area previously certified to a utility may not be revoked when the certified utility is ready, willing and able to extend adequate service at reasonable rates, except where the record clearly shows that “public convenience and necessity” do not require the extension of service into a certified but unserved area. Cambridge Tel. Co. v. Pine Tel. Sys., 109 Idaho 875, 712 P.2d 576 (1985).

Cited

Joy v. Winstead, 70 Idaho 232, 215 P.2d 291 (1950); Mountain States Tel. & Tel. Co. v. Jones, 75 Idaho 78, 267 P.2d 634 (1954); Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 107 Idaho 47, 685 P.2d 276 (1984).

§ 61-625. Orders not subject to collateral attack.

All orders and decisions of the commission which have become final and conclusive shall not be attacked collaterally.

History.

1913, ch. 61, § 61, p. 247; reen. C.L. 106:134; C.S., § 2502; I.C.A.,§ 59-625.

CASE NOTES

Challenging Final Orders.

Final orders of the public utilities commission should ordinarily be challenged either by petition to the commission for rehearing or by appeal to the supreme court as provided by§§ 61-626 and 61-627 andIdaho Const., Art. V, § 9, since a different rule would lead to endless consideration of matters previously presented to the commission and confusion about the effectiveness of commission orders. Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979).

Collateral Attack.

Where plaintiff, a large “firm service” consumer of gas sought to attack interpretation of defendant public utility’s rate tariff that such large “firm service” consumers must pay both a demand charge for the amount of gas it would have a right to demand each month and a commodity charge for the amount actually used, with no credit of the one against the other, this was not an impermissible collateral attack on the commission order granting the tariff, but a request that the commission enforce the terms of the rate tariffs adopted. Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979).

A complaint, which challenges the procedures by which a rate increase application subsequently considered and in part approved by the commission was submitted, is an impermissible collateral attack on the commission’s order which concluded that case. Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979).

Contention by large “firm service” gas customer that defendant-supplier had erred in pro-rating its bill for month that new tariff went into effect on assumption gas consumption had been uniform when, in fact, the bulk of the gas had been used prior to the time the new schedule became effective, resulting in an error of almost $45,000.00, was not an impermissible collateral attack on the commission order granting the new tariff, but a permissible challenge to implementation of that order. Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979). A challenge by a power company to the public utility commission’s authority to promulgate intervenor funding rules pursuant to the public utilities regulatory policies act, 16 U.S.C.S. § 2601, could be made even though there was no direct appeal from the order adopting those rules, since this section does not prohibit collateral attack when the issuing agency lacks jurisdiction over the matter considered. Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 744, 639 P.2d 442 (1981).

Construction.

Orders and decisions referred to are only those the commission is authorized to make; the section does not seek to confer upon the commission judicial powers in contravention of the constitution. Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

Hearing on Second Application.

Procedural Errors.

Mere procedural errors do not render an order of the commission vulnerable to collateral attack unless those errors result in a denial of due process to a party. Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979).

Purpose.

The legislature has afforded the orders of the commission a degree of finality similar to that possessed by judgments made by a court of law. Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979).

Cited

Mountain States Tel. & Tel. Co. v. Jones, 75 Idaho 78, 267 P.2d 634 (1954).

§ 61-626. Reconsideration — Procedure — Order not stayed — Change of original order.

After an order has been made by the commission, any corporation, public utility or person interested therein shall have the right, within twenty-one (21) days after the date of said order, to petition for reconsideration in respect to any matter determined therein. Within seven (7) days after any corporation, public utility or person has petitioned for reconsideration, any other corporation, public utility, or person may cross-petition for reconsideration in response to any issues raised in any petition for reconsideration. Cross-petitions for reconsideration may be granted if any petition for reconsideration to which they respond is granted on the issues to which the cross-petition is directed, but cross-petitions for reconsideration will be denied when the petitions for reconsideration to which they are directed are denied.
Within twenty-eight (28) days after the filing of a petition for reconsideration the commission shall determine whether or not it will grant such reconsideration, and make and enter its order accordingly. If reconsideration be granted, said order shall specify how the matter will be reconsidered and whether any cross-petitions for reconsideration will be granted. The matter must be reheard, or written briefs, comments or interrogatories must be filed, within thirteen (13) weeks after the date for filing petitions for reconsideration. If reconsideration is ordered, the commission must issue its order upon reconsideration within twenty-eight (28) days after the matter is finally submitted for reconsideration.
A petition for such reconsideration shall not excuse any corporation, public utility or person from complying with or obeying any order or any requirement of any order of the commission or operate in any manner, to stay or postpone the enforcement thereof, except as the commission may by order direct. If after reconsideration, including consideration of matters arising since the making of the order, the commission shall be of the opinion that the original order or any part thereof is in any respect unjust or unwarranted or should be changed, the commission may abrogate or change the same. An order made after any such reconsideration, abrogating or changing the original order, shall have the same force and effect as an original order, and shall not affect any right or the enforcement of any right arising from or by virtue of the original order.

History.

1913, ch. 61, § 62, p. 247; reen. C.L. 106:135; C.S., § 2503; I.C.A.,§ 59-626; am. 1957, ch. 126, § 1, p. 214; am. 1984, ch. 110, § 1, p. 253.

CASE NOTES

Editor’s note: Most of the cases in the following annotations were decided before the complete rewrite of this section by S.L. 1984, ch. 110, which replaced the petition for rehearing with a petition for reconsideration and changed the various time requirements. Analysis

Application for Rehearing.

Application for rehearing must be made and determined before appeal can be prosecuted from order of commission. Consumers’ Co. v. Public Utils. Comm’n, 40 Idaho 772, 236 P. 732 (1925).

This section makes provision for application for rehearing after order in respect to any matter determined therein and, together with§ 61-627, provides for appeal within thirty days after denial of application. Capital Water Co. v. Public Utils. Comm’n, 41 Idaho 19, 237 P. 423 (1925).

Where commission denied application for higher rate by utility and a rehearing was pending, the utility was entitled to file a petition in district court for injunction without first asking commission to suspend rates approved by it. Mountain States Tel. & Tel. Co. v. Jones, 75 Idaho 78, 267 P.2d 634 (1954).

Contention that lapse of time was sufficient to bar motor carriers’ right to rehearing before the commission is without merit, as there was no statutory limitation for application for rehearings and no proof of prejudice or injury occasioned by the delay. Grover v. Idaho Pub. Utils. Comm’n, 83 Idaho 351, 364 P.2d 167 (1961).

An issue not presented to the commission for rehearing will not be considered on appeal. Key Transp., Inc. v. Trans Magic Airlines Corp., 96 Idaho 110, 524 P.2d 1338 (1974).

Application of Section.

The amendment of this section by S.L. 1957, ch. 126, § 1 limiting the time for filing applications to 20 days is inapplicable to applications previously filed. Grover v. Idaho Pub. Utils. Comm’n, 83 Idaho 351, 364 P.2d 167 (1961).

Developer of small power production “qualifying facility’s” (QF) argument that public utilities’ unrelenting opposition to QF’s facility meant that QF should be allowed to adjust its fuel project location and size to reflect delays caused by public utilities’ refusal to comply with federal regulations under the public utility regulatory policies act of 1978, 16 U.S.C.S. § 2601, was not a proper subject for appeal as such relief was not originally requested of the Idaho public utilities commission. Rosebud Enters., Inc. v. Idaho Pub. Utils. Comm’n, 128 Idaho 624, 917 P.2d 781 (1996).

Challenging Final Orders.

Construction.

Final orders of the public utilities commission should ordinarily be challenged either by petition to the commission for rehearing or by appeal to the supreme court as provided by this section and§ 61-627 andIdaho Const., Art. V, § 9, since a different rule would lead to endless consideration of matters previously presented to the commission and confusion about the effectiveness of commission orders. Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979). Construction.

Commission is not limited to one rehearing when circumstances indicate that more than one hearing is necessary. Consumers’ Co. v. Public Utils. Comm’n, 40 Idaho 772, 236 P. 732 (1925).

The commission erred in interpreting this statute to mean that only a party, stockholder, bondholder or party pecuniarily interested in the utility can apply for a rehearing. Malone v. Van Etten, 67 Idaho 294, 178 P.2d 382 (1947).

Inefficient Service.

Where it was shown that contract carrier had given inefficient service and had abandoned service as common carrier, sufficient cause was shown to justify issuance of permit to another which was mandatory. Malone v. Van Etten, 67 Idaho 294, 178 P.2d 382 (1947).

Procedural Errors.

Review of alleged procedural errors occurring in commission proceedings which are not so substantial as to deny an interested party due process must be sought either in the commission’s proceedings, by petition for a rehearing made to the commission after a decision has been rendered, or by appeal to the supreme court from a commission order. Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979).

Purpose of Application.

The purpose of an application for rehearing is to afford an opportunity to the parties to bring to the attention of the commission in an orderly manner any question theretofore determined in the matter and, thereby, afford the commission an opportunity to rectify any mistake made by it. Washington Water Power Co. v. Kootenai Envtl. Alliance, 99 Idaho 875, 591 P.2d 122 (1979).

Recovery of Past Losses.

Scope of Appeal.

Where the Idaho public utilities commission specifically stated that it would not consider issues concerning the areas awarded to plaintiff’s competitor in plaintiff’s cross-petition for reconsideration because these issues were beyond that scope and because plaintiff did not file a timely petition for reconsideration, the supreme court would not address them. Eagle Water Co. v. Idaho Pub. Utils. Comm’n, 130 Idaho 314, 940 P.2d 1133 (1997).

Cited Joy v. Winstead, 70 Idaho 232, 215 P.2d 291 (1950); Mountain States Tel. & Tel. Co. v. Jones, 76 Idaho 241, 280 P.2d 1067 (1955); Idaho Underground Water Users Ass’n. v. Idaho Power Co., 89 Idaho 147, 404 P.2d 859 (1965); Washington Water Power Co. v. Idaho Pub. Utils. Comm’n, 101 Idaho 567, 617 P.2d 1242 (1980); Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 108 Idaho 943, 703 P.2d 707 (1985).

Cited

C.J.S.

§ 61-627. Appeal to supreme court — Notice of appeal — Matters reviewable on appeal — Extent of review — Record on appeal.

After a petition for reconsideration is denied, or, if the petition is granted, then after the rendition of the decision on reconsideration, the state of Idaho or any party aggrieved may appeal to the supreme court from any order of the public utilities commission by filing a notice of appeal and serving the same in the manner provided by the rules of the supreme court. Upon the payment of the fee therefor, the secretary of the public utilities commission shall prepare, certify, and deliver to the clerk of the supreme court copies of the transcript of the testimony and the relevant documents from the commission files as required under rules adopted by the supreme court for its appeals and shall also certify and deposit with the clerk of the supreme court the original exhibits from that proceeding.

History.

I.C.,§ 61-627, as added by 1977, ch. 299, § 2, p. 837; am. 1984, ch. 110, § 2, p. 253.

STATUTORY NOTES

Prior Laws.

Former§ 61-627, which comprised 1921, ch. 72, § 1, p. 141; I.C.A.,§ 59-627, was repealed by S.L. 1977, ch. 299, § 1.

CASE NOTES

Application of Section.

Challenging Final Orders.

Final orders of the public utilities commission should ordinarily be challenged either by petition to the commission for rehearing or by appeal to the supreme court as provided by§ 61-626 and this section andIdaho Const., Art. V, § 9, since a different rule would lead to endless consideration of matters previously presented to the commission and confusion about the effectiveness of commission orders. Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979).

Procedural Errors.

Scope of Appeal.

In an appeal from Idaho public utilities commission, matters may not be raised for the first time on appeal, and where objections were not raised in a petition for rehearing, they will not be considered by the supreme court. The rationale behind the statute is to afford the commission the opportunity to rectify any mistake before presenting the issue to the supreme court. Eagle Water Co. v. Idaho Pub. Utils. Comm’n, 130 Idaho 314, 940 P.2d 1133 (1997).

Cited

United States v. Utah Power & Light Co., 98 Idaho 665, 570 P.2d 1353 (1977); Idaho Power Co. v. Idaho Pub. Utils. Comm’n, 99 Idaho 374, 582 P.2d 720 (1978); Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 107 Idaho 47, 685 P.2d 276 (1984); Hayden Pines Water Co. v. Idaho Pub. Utils. Comm’n, 111 Idaho 331, 723 P.2d 875 (1986); Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989).

Decisions Under Prior Law

Adequacy of Remedy.

Former similar section provided adequate remedy by appeal without resorting to remedy by writ of prohibition. Natatorium Co. v. Erb, 34 Idaho 209, 200 P. 348 (1921).

Appealable Orders.

Adequacy of plaintiff’s remedy by appeal is not impaired by reason of the fact that in taking an appeal plaintiff incurs the risk of having supreme court affirm action of commission, or by reason of the fact that it also has an alternative remedy by ignoring any order which commission may make against it and forcing the commission to try out the issue again before the district court. Natatorium Co. v. Erb, 34 Idaho 209, 200 P. 348 (1921). Appealable Orders.

In exercising its powers and discharging its duties the public utilities commission reaches conclusions and makes decisions which can be finally adjudicated only by the courts. Since the constitution limits the jurisdiction of the supreme court to the review of decisions of district courts or the judges thereof, it cannot entertain an appeal directly from the public utilities commission. Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

In pursuance of formal similar statute, water company has right to appeal from decision of commission fixing value of its property for rate making. Boise Artesian Water Co. v. Public Utils. Comm’n, 40 Idaho 690, 236 P. 525 (1925).

Prior to appeal and pending a rehearing before the public utilities commission, the supreme court has no jurisdiction to issue a stay order fixing rates, and where such rates are confiscatory the district court with its general and unlimited jurisdiction as ordained by the constitution has jurisdiction to stay the order. Joy v. Winstead, 70 Idaho 232, 215 P.2d 291 (1950).

Fact that order denying applications was made without prejudice does not affect its finality; it concludes the rights of the parties in the application proceeding and is final and appealable. In re Citizens Utils. Co., 82 Idaho 208, 351 P.2d 487 (1960).

Interlocutory Orders.

Former similar statute contemplates appeal from final decision fixing valuation, and appeals taken from interlocutory orders in course of proceedings are premature and will be dismissed. Capital Water Co. v. Public Utils. Comm’n, 41 Idaho 19, 237 P. 423 (1925).

Such interlocutory orders as order overruling demurrer to complaint in intervention; order granting prayer of complaint in intervention that certain property be excluded in arriving at valuation; and order denying application for rehearing thereon, all made prior to order fixing valuation, are not final orders that are appealable. Capital Water Co. v. Public Utils. Comm’n, 41 Idaho 19, 237 P. 423 (1925).

Where 18 warehouse companies filed a petition with the public utilities commission to amend existing schedules of rates by increasing charges for handling grains, peas, and seeds, and commission only increased charges on peas, and withheld further action until a uniform system of accounting was established, which would be ordered forthwith, such order was final, and same is appealable. Lewiston Grain Growers, Inc. v. Rooke, 69 Idaho 374, 207 P.2d 1028 (1949).

Petition for Rehearing.

An assignment of error that the commission failed to make specific findings as to certain matters material to the establishment of a rate was procedural rather than substantive in character and, if not included in the petition for rehearing filed with the commission, will not be considered by the supreme court on appeal. Idaho Underground Water Users Ass’n. v. Idaho Power Co., 89 Idaho 147, 404 P.2d 859 (1965).

An issue not presented to the commission for rehearing will not be considered on appeal. Key Transp., Inc. v. Trans Magic Airlines Corp., 96 Idaho 110, 524 P.2d 1338 (1974).

Rehearing.

Party is required to ask for rehearing before taking appeal, and may ask for rehearing of cause in its entirety or of only one or more of matters determined in original order. Consumers’ Co. v. Public Utils. Comm’n, 40 Idaho 772, 236 P. 732 (1925).

Purpose of application for rehearing is to afford opportunity to parties to bring to attention of commission, in orderly manner, any question theretofore determined and afford commission opportunity to rectify any mistake before presenting same to supreme court. Consumers’ Co. v. Public Utils. Comm’n, 40 Idaho 772, 236 P. 732 (1925).

A rehearing would not be granted relative to application for certificate of convenience to rival natural gas companies, even though the question was important, where it was necessary for the supreme court to send the proceeding back for further proceedings before the commission. In re Intermountain Gas Co., 77 Idaho 188, 289 P.2d 933 (1955).

Review of Commission’s Orders.

The court on review has the same record before it that the commission had and may determine that the evidence is sufficient to sustain the findings and conclusions of the commission. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

On appeal from the public utilities commission’s orders, the court will review the motions and the rulings made by the commission and will decide whether an error was made. Federal Mining & Smelting Co. v. Public Utils. Comm’n, 26 Idaho 391, 143 P. 1173 (1914).

In fixing a reasonable and just rate for a public utility, the commission and the court on review must bear in mind the provisions of the state constitution that no person shall be deprived of his property without due process of law, and that private property may not be taken for public use until a just compensation shall be paid therefor. Murray v. Public Utils. Comm’n, 27 Idaho 603, 150 P. 47 (1915).

Stay of Order.

No right of appeal to district court exists. However, due process requires that courts stay an order of a commission which may result in confiscation and irreparable loss. Such action by the court must not be a judicial review of the merits of the controversy, i.e., the correctness of the rates, but merely is to stay the order until final adjudication. Joy v. Winstead, 70 Idaho 232, 215 P.2d 291 (1950).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 61-628. Notice of appeal

Filing and service. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised 1921, ch. 72, § 2, p. 141; I.C.A.,§ 59-628, was repealed by S.L. 1977, ch. 299, § 1.

§ 61-629. Matters reviewable on appeal — Extent of review — Judgment.

No new or additional evidence may be introduced in the Supreme Court, but the appeal shall be heard on the record of the commission as certified by it. The review on appeal shall not be extended further than to determine whether the commission has regularly pursued its authority, including a determination of whether the order appealed from violates any right of the appellant under the constitution of the United States or of the state of Idaho. Upon the hearing the Supreme Court shall enter judgment, either affirming or setting aside or setting aside in part the order of the commission. In case the order of the commission is set aside or set aside in part, the commission, upon its own motion or upon motion of any of the parties, may alter or amend the order appealed from to meet the objections of the court in the manner prescribed in section 61-624, Idaho Code.

History.

1921, ch. 72, § 3, p. 141; I.C.A.,§ 59-629; am. 1981, ch. 129, § 1, p. 217.

CASE NOTES

Ability to Furnish Service.

Public utilities commission, in passing upon applications of rival gas companies for certificates of convenience for distribution of natural gas within the state, should have considered the fact that one of the companies was equipped to furnish the gas to a large section of the state whereas the other companies were not able to do so. In re Intermountain Gas Co., 77 Idaho 188, 289 P.2d 933 (1955).

The public utilities commission could not base its order granting a certificate of convenience to a natural gas company on the possible available supply of natural gas to the state in the future, since this constituted speculation. In re Intermountain Gas Co., 77 Idaho 188, 289 P.2d 933 (1955).

In a proceeding before the public utilities commission relative to the granting of a certificate of convenience for distribution of natural gas in the state, where it appeared that the applicant, whose plan was sound, was backed by ample financial and technical support, and it could distribute to a wide area of the state, but the commission granted the application of a rival company whose plan was not sound and who could not distribute over a wide area, the order of the commission was set aside and the proceeding remanded to the commission for further action. In re Intermountain Gas Co., 77 Idaho 188, 289 P.2d 933 (1955).

Appeals.

With regard to questions of law, the review on appeal to the supreme court is limited to whether Idaho public utilities commission regularly pursued its authority. Rosebud Enters., Inc. v. Idaho Pub. Utils. Comm’n, 128 Idaho 624, 917 P.2d 781 (1996).

Certificate of Public Convenience.

Cause was remanded to the commission for further proceedings where it was shown that appellant proposed to serve residents on both sides of the river and presented its plan for crossing the river, but the company awarded the certificate of public convenience and necessity for the distribution of natural gas did not propose to serve the area north of the river, it not considering it feasible to serve such area at the present time, since the commission either should have preferred the company serving both sides of the river or investigated the feasibility of such service. Washington Water Power Co. v. Idaho Pub. Utils. Comm’n, 84 Idaho 341, 372 P.2d 409 (1962).

Certificate of Public Necessity.

Local authorities may not decide or control issues such as the granting of a certificate of public necessity and convenience for the distribution of natural gas to one of two rival companies, the determination of which the law enjoins upon the commission, but the opinions and wishes of the people to be served by a public utility will, in choosing between rival applicants, receive consideration by the commission. Washington Water Power Co. v. Idaho Pub. Utils. Comm’n, 84 Idaho 341, 372 P.2d 409 (1962).

Constitutional Rights.

Grant of certificate of convenience and necessity for natural gas service was within commission’s authority and not violation of constitutional rights of company already supplying manufactured gas. McFayden v. Public Utils. Consol. Corp., 50 Idaho 651, 299 P. 671 (1931).

Construction of Rate Schedules.

On appeal from public utilities commission, jurisdiction of supreme court is limited to determining whether commission pursued statutory authority and whether order complained of infringes constitutional rights. Coeur d’Alene Auto Freight v. Public Utils. Comm’n, 51 Idaho 56, 1 P.2d 627 (1931). Construction of Rate Schedules.

Although the construction of a contract is generally regarded as a question of law, the construction of technical terms and provisions in public utility rate schedules is an endeavor peculiarly within the realm of the commission’s expertise and will be sustained where the decision is based upon a reasonable interpretation of the instrument. Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979).

Discretion of Commission.

Questions of cost of equity and rate of return are matters which raise extremely complicated issues, and deciding these questions is a function of the Idaho public utilities commission, as these questions are within the commission’s area of expertise. The adoption of a standard for determining the reasonableness of payments to an affiliate raises many complex issues which are best left for the commission to deal with initially. Washington Water Power Co. v. Idaho Pub. Utils. Comm’n, 101 Idaho 567, 617 P.2d 1242 (1980).

So long as regulatory bodies adequately explain their departure from prior rulings so that a reviewing court can determine that their decisions are not arbitrary or capricious, orders based upon positions substantially different than those taken in previous proceedings can be upheld. Bldg. Contrs. Ass’n v. Idaho PUC, 151 Idaho 10, 253 P.3d 684 (2011).

Evidence.

Where evidence presented to the public utilities commission is competent and substantial in support of the findings made and there has been no clear abuse of discretion, the supreme court of Idaho is constrained to affirm those findings. Grindstone Butte Mut. Canal Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 175, 627 P.2d 804 (1981); Hayden Pines Water Co. v. Idaho Pub. Utils. Comm’n, 111 Idaho 331, 723 P.2d 875 (1986).

Substantial evidence for the purpose of judicial review of an administrative agency’s action requires more than a mere scintilla of evidence in support of the agency’s determination, though something less than the weight of the evidence; in other words, the substantial competent evidence rule requires a court to determine whether the agency’s findings of fact are reasonable. Hayden Pines Water Co. v. Idaho Pub. Utils. Comm’n, 111 Idaho 331, 723 P.2d 875 (1986).

The public utilities commission’s finding that meter installation fees may never be booked as income (and reduction of revenue requirement) was not supported by substantial competent evidence, where the water utility would not be able to recoup the accompanying loss in future rates, and the IRS, the Uniform System of Accounts for Small Water Utilities, and the commission itself in the past had all permitted utilities to treat those fees as income. Hayden Pines Water Co. v. Idaho Pub. Utils. Comm’n, 111 Idaho 331, 723 P.2d 875 (1986).

Evidence on Appeal.

The evidence to be considered by the court on an appeal is the transcript of the proceedings had before the commission, and not affidavits or showings made, which are not part of the record. Mountain View Rural Tel. Co. v. Interstate Utils. Co., 55 Idaho 86, 38 P.2d 40 (1934).

Where the evidence showed that the service afforded by other common carriers in the area after the discontinuance of the train was adequate to meet the public needs, also that high quality highways provided direct routes in various directions for private automobiles, the court would take into consideration the limited public use of the passenger service, the expense and net loss to the railroad in finding that the commission had not abused its discretionary power in entering the order authorizing the discontinuance of operation of certain trains. In re Union Pac. R.R., 81 Idaho 300, 340 P.2d 1103 (1959). Review of the evidence on appeal is limited to whether it is competent and substantial. Key Transp., Inc. v. Trans Magic Airlines Corp., 96 Idaho 110, 524 P.2d 1338 (1974).

Findings of Fact.

Statute does not contemplate that commission shall divide hearing on valuation and make findings of fact and decision and order upon its rejection or inclusion of certain property useful for purposes of valuation as every time commission rules upon some contested point it is not called upon to immediately make findings of fact and an order that is appealable in and of itself. Capital Water Co. v. Public Utils. Comm’n, 41 Idaho 19, 237 P. 423 (1925).

Order of commission based on findings made without evidence or upon evidence which does not support it is an arbitrary act against which courts afford relief. Oregon Short Line R.R. v. Public Utils. Comm’n, 47 Idaho 482, 276 P. 970 (1929).

Statute limiting court to determination of a question whether public utilities commission regularly pursued its authority on appeal therefrom pre-supposes and necessitates findings by commission on ultimate facts necessary to support its conclusions. Mountain View Rural Tel. Co. v. Interstate Tel. Co., 55 Idaho 514, 46 P.2d 723 (1935).

Although findings of fact of public utilities commission are binding on the supreme court, the findings and conclusions of the commission must be sustained by competent evidence in order to have this effect. State ex rel. Taylor v. Union Pac. R.R., 60 Idaho 185, 89 P.2d 1005 (1939).

Where the commission did not present in its rate increase order the basic facts necessary to support reasonably its conclusion with respect to reasonableness of water utility’s operating expenses, the rate increase order was set aside in all respects. Boise Water Corp. v. Idaho Pub. Utils. Comm’n, 97 Idaho 832, 555 P.2d 163 (1976).

Fixing Rates.

Where increased rates were established by the federal government under its wartime power, and when the government restored the roads to their respective owners, and the public utilities commission reduced the rates to the original rate, it will be presumed such rate was reasonable because the rate originally established had been long acquiesced in without complaint on the part of either the shipper or carrier. Chicago M. & St. P. Ry. Co. v. Public Utils. Comm’n, 41 Idaho 181, 238 P. 970 (1925).

Public utilities commission order fixing rates for warehousing and storing cereal grains was approved where there was substantial evidence to support rates as fixed, and warehousemen had failed to show that there was such an attack upon rights of property under guise of regulations as to deny just compensation for private property taken for public use. Nez Perce Roller Mills v. Public Utils. Comm’n, 54 Idaho 696, 34 P.2d 972 (1934).

Order of commission which allowed a return under existing rates based on capital structure at 5.71% upon company’s intrastate investment was not confiscatory. In re Mountain States Tel. & Tel. Co., 76 Idaho 474, 284 P.2d 681 (1955). The supreme court will not interfere with the making of public utility rates by the commission as long as the latter regularly pursues its authority within constitutional limitations. In re Mountain States Tel. & Tel. Co., 76 Idaho 474, 284 P.2d 681 (1955).

Commission was entitled to reject so-called Charleston Plan for allocation of company’s property between intrastate and interstate services and adopt a plan of its own as long as the plan adopted was within its authority and not confiscatory. In re Mountain States Tel. & Tel. Co., 76 Idaho 474, 284 P.2d 681 (1955).

Use of peak period of August 1952 by the commission in allocating property of company in intrastate use was within the authority of the commission. In re Mountain States Tel. & Tel. Co., 76 Idaho 474, 284 P.2d 681 (1955).

Hypothetical Capital Structure.

The only question presented when the public utilities commission adopts a hypothetical capital structure is whether, under the circumstances of the case, the commission has abused its discretion. General Tel. Co. v. Idaho Pub. Utils. Comm’n, 109 Idaho 942, 712 P.2d 643 (1986).

Inadequate Record.

Where the record is inadequate to permit the reviewing court to determine whether or not an agency’s action is supported by substantial competent evidence, a remand to the agency for further development of the record may be required; the inadequacy of the record must be such that, depending on its resolution, the agency might have reached a different result. Hayden Pines Water Co. v. Idaho Pub. Utils. Comm’n, 111 Idaho 331, 723 P.2d 875 (1986).

Issues Not Determined by Commission.

Where commission in its order did not determine the issues as between two competing applicants, nor the relative merits of the showings made by them, the issues could not be reviewed by the supreme court, since such determination is a function of the commission. In re Citizens Utils. Co., 82 Idaho 208, 351 P.2d 487 (1960).

Jurisdiction.

Idaho Const., Art. V, § 9 authorizes the supreme court only limited jurisdiction to review orders of the public utilities commission, and this section further defines that limited jurisdiction. Empire Lumber Co. v. Washington Water Power Co., 114 Idaho 191, 755 P.2d 1229 (1987), cert. denied, 488 U.S. 892, 109 S. Ct. 228, 102 L. Ed. 2d 218 (1988). UnderIdaho Const., Art. V, § 9, the Idaho supreme court has only limited jurisdiction to review decisions of the public utilities commission; on questions of law, the review on appeal shall not be extended further than to determine whether the commission has regularly pursued its authority. A.W. Brown Co. v. Idaho Power Co., 121 Idaho 812, 828 P.2d 841 (1992).

Idaho supreme court had the authority to review an order entered by the Idaho public utilities commission after a power company requested that it be allowed to recover lost revenue from the implementation of an irrigation buy-back program; the supreme court concluded that the commission made a policy decision to include lost revenue in the power cost adjustment mechanism. Idaho Power Co. v. Idaho PUC, 140 Idaho 139, 90 P.3d 889 (2004).

Notice.

Where a gas utility was without notice that the continuation of its retail gas appliance sales business was at issue in a rate hearing the utility was denied the opportunity to meet the issue of whether continuation of its retail business was in the public interest, and thus the orders of the commission would be set aside and could not be upheld in part even though the rate-setting order was properly made. Intermountain Gas Co. v. Idaho Pub. Util. Comm’n, 97 Idaho 113, 540 P.2d 775 (1975).

Order Set Aside.

Where the public utilities commission order, which required the water utility to begin booking its connection fees as contributions rather than as revenue, failed to specify whether or not those fees collected that year prior to the date of the order should be so booked, the supreme court set aside the decision of the commission without holding that it was either valid or invalid and remanded the decision to the agency for further determinations pursuant to§ 61-624 on the question of the effective date of the pertinent part of the order. Hayden Pines Water Co. v. Idaho Pub. Utils. Comm’n, 111 Idaho 331, 723 P.2d 875 (1986).

Presumption of Correctness.

Upon appeal to supreme court from order of public utilities commission, findings of commission are presumptively correct, and function of court is only to determine whether order is valid and reasonable, and whether it invades any constitutional right. Nez Perce Roller Mills v. Public Utils. Comm’n, 54 Idaho 696, 34 P.2d 972 (1934).

Prorating Bills.

Restoration of Service.

Where a natural gas utility changed its rates affecting only 76 large volume “firm service” customers in the middle of its billing period in such a manner that their rates would be substantially increased, it was error to prorate such customers’ bills on the assumption gas use would be constant, since it was reasonable to have read all of the small number of meters on the day the new rate went into effect, and such a customer would be entitled to a refund for the overcharge. Utah-Idaho Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 597 P.2d 1058 (1979). Restoration of Service.

A railroad agency service which has been discontinued with the permission of the public utilities commission may be restored whenever changed conditions justify such requirement. In re Union Pac. R.R., 64 Idaho 529, 134 P.2d 599 (1943).

Unreasonable Expenditures.

Record required reversal of order of public utilities commission ordering railroad to construct new depot at Soda Springs, which contemplated expenditure of approximately $25,000 to $30,000 and remanding of cause for further evidence relating to repairing of the existing depot, in view of the fact that if depot could be repaired for approximately $3,000 and if, as repaired, depot would be reasonably as adequate as a new structure, the difference between cost of repair and cost of new depot would be so disproportionate as to render unreasonable the requirement that a new depot be constructed. State ex rel. Taylor v. Union Pac. R.R., 60 Idaho 185, 89 P.2d 1005 (1939).

Cited

Idaho Mut. Benefit Ass’n v. Robison, 65 Idaho 793, 154 P.2d 156 (1944); Lewiston Grain Growers, Inc. v. Rooke, 69 Idaho 374, 207 P.2d 1028 (1949); Joy v. Winstead, 70 Idaho 232, 215 P.2d 291 (1950); In re Pacific Tel. & Tel. Co., 71 Idaho 476, 233 P.2d 1024 (1951); Allied Van Lines, Inc. v. Idaho Pub. Utils. Comm’n, 79 Idaho 220, 312 P.2d 1050 (1957); Idaho Underground Water Users Ass’n. v. Idaho Power Co., 89 Idaho 147, 404 P.2d 859 (1965); Bunker Hill Co. v. Washington Water Power Co., 98 Idaho 249, 561 P.2d 391 (1977); Citizens Utils. Co. v. Idaho Pub. Utils. Comm’n, 99 Idaho 164, 579 P.2d 110 (1978); Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 102 Idaho 282, 629 P.2d 678 (1981); J.R. Simplot Co. v. Intermountain Gas Co., 102 Idaho 339, 630 P.2d 131 (1981); Idaho State Bar Ass’n v. Idaho Pub. Utils. Comm’n, 102 Idaho 672, 637 P.2d 1168 (1981); Sun Valley Ctr. for Arts & Humanities, Inc. v. Sun Valley Co., 107 Idaho 411, 690 P.2d 346 (1984); Idaho State Homebuilders v. Washington Water Power, 107 Idaho 415, 690 P.2d 350 (1984); Cambridge Tel. Co. v. Pine Tel. Sys., 109 Idaho 875, 712 P.2d 576 (1985); Idaho Fair Share v. Idaho Pub. Utils. Comm’n, 113 Idaho 959, 751 P.2d 107 (1988); Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989); Building Contractors Ass’n v. Idaho Public Utils. Comm’n, 128 Idaho 534, 916 P.2d 1259 (1996); Rosebud Enters., Inc. v. Idaho Public Utils. Comm’n, 128 Idaho 609, 917 P.2d 766 (1996); Eagle Water Co. v. Idaho Pub. Utils. Comm’n, 130 Idaho 314, 940 P.2d 1133 (1997); Industrial Customers of Idaho Power v. Idaho Pub. Utils. Comm’n, 134 Idaho 285, 1 P.3d 786 (2000); Hulet v. Idaho PUC, 138 Idaho 476, 65 P.3d 498 (2003); Ryder v. Idaho PUC (In re Ryder), 141 Idaho 918, 120 P.3d 736 (2005); McNeal v. Idaho PUC, 142 Idaho 685, 132 P.3d 442 (2006).

§ 61-630. Right to be heard on appeal.

The commission and any party to the proceeding whether served with notice of appeal or not shall have the right to appear and be heard on any appeal taken hereunder.

History.

1921, ch. 72, § 4, p. 141; I.C.A.,§ 59-630.

§ 61-631. Costs on appeal — Enforcement.

Whenever costs are awarded to a party by the supreme court, the party claiming such costs shall file a memorandum of costs in such manner as the supreme court shall direct by its rules. Costs taxed in the supreme court shall be added to any order required by the remittitur. The payment of costs on appeal shall be enforced by the public utilities commission.

History.

1921, ch. 72, § 5, p. 141; I.C.A.,§ 59-631; am. 1989, ch. 37, § 1, p. 48.

STATUTORY NOTES

Compiler’s Notes.

Sections 6 through 8 of S.L. 1921, ch. 72 were repealed, § 9 was a repealing clause, and § 10 was an emergency clause.

§ 61-632. Procedure on appeals from district court applicable. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised 1921, ch. 72, § 8, p. 141; I.C.A.,§ 59-632, was repealed by S.L. 1977, ch. 299, § 1.

§ 61-633. Stay of order — Notice.

No court of this state shall enjoin or restrain the enforcement of any order of the commission or stay the operation thereof, unless the applicant for such writ shall give three (3) days’ notice of said application to all adverse parties and to the commission. On the hearing of such application, the applicant shall present to the court a transcript of the proceedings had before the commission, including the evidence, and such transcript shall be considered by the court in determining the applicant’s right to an injunction, restraining order or other order suspending or staying the operation of the order or decision of the commission, and if an injunction, restraining order or other order suspends or stays the order of the commission as issued, such order shall contain a specific finding based upon the evidence submitted to the court and identified by reference thereto that great and irreparable damage would result to the petitioner and specifying the nature of the damage.

History.

1913, ch. 61, § 63d, p. 247; reen. C.L. 106:139; C.S., § 2507; I.C.A.,§ 59-633.

CASE NOTES

Failure to Post Bond.

When any party, be it utility, ratepayer or the state, appeals a rate setting order of the public utilities commission to the supreme court, but does not stay the effectiveness of the order by posting bond under the terms of the public utility law, then the rates and charges set forth by the order are final in all respects as service is provided and consumed so long as the order continues in effect. Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 107 Idaho 47, 685 P.2d 276 (1984).

Grounds to Stay Order.

Where developer of qualifying facility did not petition for a stay of the Idaho public utilities commission (IPUC) order granting Idaho Power rate making assurance regarding its investment in the upgrade of its hydroelectric project, developer’s failure to petition for stay and to post a bond precluded it from challenging the assurances offered by the IPUC to Idaho Power. Rosebud Enters., Inc. v. Idaho Public Utils. Comm’n, 128 Idaho 633, 917 P.2d 790 (1996). Grounds to Stay Order.

That telephone utility, in event appeal from order of public utilities commission lowering phone rentals should result in higher rates than those established by commission, might not be able to collect some increased rentals does not show irreparable damage so as to stay order pending determination of appeal. Mountain View Rural Tel. Co. v. Interstate Utils. Co., 55 Idaho 86, 38 P.2d 40 (1934).

That strained relations between telephone utility and users would result, in event of an appeal from order of public utilities commission lowering phone rentals, in higher rates than those established by commission, did not show irreparable damage so as to stay order of commission pending determination of appeal where relations were already strained. Mountain View Rural Tel. Co. v. Interstate Utils. Co., 55 Idaho 86, 38 P.2d 40 (1934).

Where commission does not stay enforcement of a confiscatory rate, and before rehearing is completed, the district court may, if loss cannot be recouped by an increased rate, stay the order until final adjudication. Joy v. Winstead, 70 Idaho 232, 215 P.2d 291 (1950).

Irreparable Damage.

That an order of public utilities commissioner lowering phone rentals required telephone utility to change its system of accounts and billing to users did not show irreparable damage so as to stay order of commission pending determination of appeal, where statute provided that separate accounts must be kept in event order lowering rentals was stayed. Mountain View Rural Tel. Co. v. Interstate Utils. Co., 55 Idaho 86, 38 P.2d 40 (1934).

If a utility were to be held entitled to a surcharge or other monetary relief whenever a public utilities commission (PUC) order is set aside upon appeal, the failure to stay or enjoin enforcement of a PUC order could never subject the utility to the “great and irreparable damage” envisioned by the legislature in enacting§ 61-636 and this section. Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 107 Idaho 47, 685 P.2d 276 (1984).

Merits of Application Not Considered.

On application to stay order of public utilities commission, supreme court cannot pass on merits of appeal to determine if order should be stayed, but must assume that applicant may be successful on its appeal. Mountain View Rural Tel. Co. v. Interstate Utils. Co., 55 Idaho 86, 38 P.2d 40 (1934).

Notice.

Utility complied with section where it gave a three days’ notice to commission and other parties in proceeding before commission that it would apply to district court for a temporary injunction. Mountain States Tel. & Tel. Co. v. Jones, 75 Idaho 78, 267 P.2d 634 (1954).

Power to Stay Order.

Proof.

In hearing on petition by utility for a temporary injunction against order of commission on the ground that rates ordered were confiscatory, proof should include not only the record before the commission but any additional evidence on issue of confiscation. Mountain States Tel. & Tel. Co. v. Jones, 75 Idaho 78, 267 P.2d 634 (1954).

Rate Setting Order Set Aside.

Service of Papers.

On application for stay of order of public utilities commission, pending determination of appeal therefrom, the fact that utility failed to serve moving papers on which it relied, at time it served notice of application, did not preclude the supreme court from considering application, where failure of service did not prejudice commission. Mountain View Rural Tel. Co. v. Interstate Utils. Co., 55 Idaho 86, 38 P.2d 40 (1934).

Transcript.

Hearing before the supreme court of an application to stay order of public utilities commission must be had upon transcript of proceedings had before commission including evidence, and not upon affidavits or showing made which are not part of such record and decision of court must be based on evidence and record before commission. Mountain View Rural Tel. Co. v. Interstate Utils. Co., 55 Idaho 86, 38 P.2d 40 (1934).

District court at a hearing to determine whether the court should keep in effect a temporary injunction was not required to consider transcript of evidence at rehearing before the commission where the commission had not completed the rehearing proceeding before it though evidence had been completed. Mountain States Tel. & Tel. Co. v. Jones, 76 Idaho 241, 280 P.2d 1067 (1955).

§ 61-634. Stay of order — Bond.

In case the order or decision of the commission is stayed or suspended, the order shall not become effective until a suspending bond has been executed and filed with and approved by the commission, or by the court of review, conditioned in manner and form as the suspending bond specified in section 61-637[, Idaho Code], and the court shall direct that all moneys involved in said proceeding shall be paid into court under the terms and conditions and subject to the disposition thereof, provided in sections 61-637 and 61-638[, Idaho Code].

History.

1913, ch. 61, § 63e, p. 247; compiled and reen. C.L. 106:140; C.S., § 2508; I.C.A.,§ 59-634.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertions were added by the compiler to conform to the statutory citation style.

Cross References.

Suspending bond,§ 61-634.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the act.

CASE NOTES

Failure to Post Bond.

Cited

§ 61-638. Stay of order on appeal — Accounts pending final decision.

In case the court stays or suspends any order or decision lowering any rate, fare, toll, rental, charge or classification, the commission, upon the execution and approval of said suspending bond, shall forthwith require the public utility affected under the penalty of the immediate enforcement of the order or decision of the commission (pending the review and notwithstanding the suspending order) to keep such accounts verified by oath, as may in the judgment of the commission suffice to show the amounts being charged or received by such public utility, pending the review, in excess of the charges allowed by the order or decision of the commission, together with the names and addresses of the corporations or persons to whom overcharges will be refundable in case the charges made by the public utility, pending the review, be not sustained by the court. The court may, from time to time, require said party petitioning for a review to give additional security on or to increase the said suspending bond whenever in the opinion of the court the same may be necessary to insure the prompt payment of said damages and said overcharges. Upon the final decision by the court, all moneys which the public utility may have collected, pending the appeal in excess of those authorized by such final decision, together with interest in case the court ordered the deposit of such moneys in a bank or trust company, shall be promptly paid to the corporations or persons entitled thereto, in such manner and through such methods of distribution as may be prescribed by the commission. If any such moneys shall not have been claimed by the corporations or persons entitled thereto within one (1) year from the final decision of the court, the commission shall cause notice to such corporation or person to be given by publication, once a week for two (2) successive weeks, in a newspaper of general circulation, printed and published in the city of Boise, and such other newspaper or newspapers as may be designated by the commission, said notice to state the names of the corporations or persons entitled to such moneys and the amount due each corporation or person. All moneys not claimed within three (3) months after the publication of said notice shall be paid by the public utility under the direction of the commission, into the state treasury for the benefit of the general fund.

History.

1913, ch. 61, § 64d, p. 247; compiled and reen. C.L. 106:144; C.S., § 2512; I.C.A.,§ 59-638.

STATUTORY NOTES

Cross References.

General fund,§ 67-1205.

Publication of notices,§ 60-109.

Suspending bond,§ 61-634.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the act.

CASE NOTES

Apportionment of Interest.

This section was held not applicable in case where state takes possession of sums collected by railroad companies in excess of freight rates authorized by commission, pending hearing in state and federal supreme courts, and deposited by clerk with state treasurer under§ 67-1209. Chicago, M. & St. P. Ry. v. Public Utils. Comm’n, 47 Idaho 346, 275 P. 780 (1929).

Cited

Mountain View Rural Tel. Co. v. Interstate Utils. Co., 55 Idaho 86, 38 P.2d 40 (1934); Joy v. Winstead, 70 Idaho 232, 215 P.2d 291 (1950); Utah Power & Light Co. v. Idaho Pub. Utils. Comm’n, 107 Idaho 47, 685 P.2d 276 (1984).

§ 61-639. Preference on calendar. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised 1913, ch. 61, § 65, p. 247; reen. C.L. 106:145; C.S., § 2513; I.C.A.,§ 59-639, was repealed by S.L. 1977, ch. 299, § 1.

§ 61-640. Hearings to determine valuations.

For the purpose of ascertaining the matters and things specified in section 61-523[, Idaho Code], concerning the value of the property of public utilities, the commission may cause a hearing or hearings to be held at such time or times and place or places as the commission may designate. Before any hearing is had the commission shall give the public utility affected thereby at least thirty (30) days’ written notice, specifying the time and place of such hearing and such notice shall be sufficient to authorize the commission to inquire into the matters designated in this section and in said section 61-523[, Idaho Code], but this provision shall not prevent the commission from making any preliminary examination or investigation into the matters herein referred to, or from inquiring into such matters in any other investigation or hearing.

All public utilities affected shall be entitled to be heard and to introduce evidence at such hearing or hearings. The evidence introduced at such hearing shall be reduced to writing and certified under the seal of the commission.

The commission shall make and file its findings of fact in writing upon all matters concerning which evidence shall have been introduced before it which in its judgment have bearing on the value of the property of the public utility affected. Such findings shall be subject to review by the court of this state in the same manner and within the same time as other orders and decisions of the commission. The findings of the commission so made and filed, when properly certified under the seal of the commission, shall be admissible in evidence in any action, proceeding or hearing before the commission or any court, in which the commission, the state or any officer, department or institution thereof or any county, city and county, municipality or other body politic and the public utility affected may be interested whether arising under the provisions of this act or otherwise, and such findings, when so introduced, shall be prima facie evidence of the facts therein stated as to the date therein stated under conditions then existing, and such facts can only be controverted by showing a subsequent change in conditions bearing upon the facts therein determined.

The commission may from time to time cause further hearings and investigations to be had for the purpose of making revaluations or ascertaining the value of any betterments, improvements, additions or extensions made by any public utility subsequent to any prior hearing or investigation, and may examine into all matters which may change, modify or affect any finding of fact previously made, and may at such time make findings of fact supplementary to those theretofore made. Such hearings shall be had upon the same notice and shall be conducted in the same manner, and the findings so made shall have the same force and effect as is provided herein for such original notice, hearing and findings: provided, that such findings made at such supplemental hearings or investigations shall be considered in connection with and as a part of the original findings, except in so far as such supplemental findings shall change or modify the findings made at the original hearing or investigation.

History.

1913, ch. 61, § 66, p. 247; reen. C.L. 106:146; C.S., § 2514; I.C.A.,§ 59-640.

STATUTORY NOTES

Cross References.

Valuation,§ 61-523.

Compiler’s Notes.

The bracketed insertions in the first paragraph were added by the compiler to conform to the statutory citation style.

The term “this act” in the third paragraph refers to S.L. 1913, ch. 61, which is compiled as§§ 61-101 to 61-121, 61-124 to 61-129, 61-201 to 61-214, 61-301 to 61-315, 61-316 to 61-326, 61-401, 61-403 to 61-406, 61-501, 61-502, 61-503, 61-504, 61-506 to 61-515, 61-517 to 61-529, 61-601 to 61-617, 61-618, 61-619, 61-621, 61-622, 61-624 to 61-626, 61-633 to 61-638, 61-640 to 61-642, 61-701 to 61-712, 61-713, and 61-714.

CASE NOTES

Appeal.

Appeals taken from interlocutory orders before final order are premature and will be dismissed. Capital Water Co. v. Public Utils. Comm’n, 41 Idaho 19, 237 P. 423 (1925).

Hearings for Revaluation.

Further hearings for revaluation are conducted in same manner and upon same notice, and findings have same force and effect as original hearings and findings. Consumers’ Co. v. Public Utils. Comm’n, 40 Idaho 772, 236 P. 732 (1925).

On revaluation, only those things are to be considered which are properly presented in application for revaluation, and order made on such application is appealable same as any other order, after application is made for hearing thereon. Consumers’ Co. v. Public Utils. Comm’n, 40 Idaho 772, 236 P. 732 (1925).

Sufficiency of Findings.

Commission need not make specific or minutely detailed findings with regard to every possible question as to value, on which evidence shall have been offered, but it is enough to make specific findings as to the material issues and to show that consideration was given to all relevant and pertinent evidence as to value that was offered. Capital Water Co. v. Public Utils. Comm’n, 44 Idaho 1, 262 P. 863 (1926).

Valuation for Taxation.

Valuation by commission for rate making purposes may be adopted by state equalization board as full cash value for taxation purposes. Washington Water Power Co. v. Kootenai County, 270 F. 369, modified on other grounds, 273 F. 524 (9th Cir. 1921). Findings of commission as to value are not binding on state board of equalization, which is not a court, but are admissible in evidence upon hearing before board and may be regarded as prima facie just and reasonable. Northwest Light & Water Co. v. Alexander, 29 Idaho 557, 160 P. 1106 (1916).

Cited

In re Pacific Tel. & Tel. Co., 71 Idaho 476, 233 P.2d 1024 (1951).

§ 61-641. Overcharge — Reparation.

When complaint has been made to the commission concerning any rate, fare, toll, rental or charge for any product, or commodity, furnished or service performed by any public utility, and the commission has found, after investigation, that the public utility has charged an excessive or discriminatory amount for such product, commodity or service, the commission may order that the public utility make due reparation to the complainant therefor, with interest from the date of collection: provided, no discrimination will result from such reparation.

History.

1913, ch. 61, § 67a, p. 247; reen. C.L. 106:147; C.S., § 2515; I.C.A.,§ 59-641.

CASE NOTES

Jurisdiction of Commission.

Where a division of revenues between two telephone companies was not discriminatory, although it may have been excessive, the commission had no jurisdiction under this section since, before the commission could order reparations, it must have found that the rates were excessive in light of the public’s best interests and no such finding had been made. Lemhi Tel. Co. v. Mountain States Tel. & Tel. Co., 98 Idaho 692, 571 P.2d 753 (1977).

§ 61-642. Overcharge — Recovery of payment.

If the public utility does not comply with the order for the payment or reparation within the time specified in such order, suit may be instituted in any court of competent jurisdiction to recover the same. All complaints concerning excessive or discriminatory charges shall be filed with the commission within three (3) years from the time the cause of action accrues, and the petition for the enforcement of the order shall be filed in the court within one (1) year from the date of the order of the commission. The remedy in this section provided shall be cumulative and in addition to any other remedy or remedies in this act provided in case of failure of a public utility to obey an order or decision of the commission.

History.

1913, ch. 61, § 67b, p. 247; reen. C.L. 106:148; C.S., § 2516; I.C.A.,§ 59-642; am. 1965, ch. 215, § 1, p. 498.

STATUTORY NOTES

Compiler’s Notes.

Chapter 7 PUBLIC UTILITIES LAW — ENFORCEMENT, PENALTIES, AND INTERPRETATION

Sec.

§ 61-701. Enforcement of law.

It is hereby made the duty of the commission to see that the provisions of the constitution and statutes of this state affecting public utilities, the enforcement of which is not specifically vested in some other officer or tribunal, are enforced and obeyed, and that violations thereof are promptly prosecuted and penalties due the state therefor recovered and collected and to this end it may sue in the name of the people of the state of Idaho. Upon the request of the commission, it shall be the duty of the attorney general or the prosecuting attorney of the proper county, to aid in any investigation, hearing or trial had under the provisions of this act and to institute and prosecute actions or proceedings for the enforcement of the provisions of the constitution and statutes of this state affecting the public utilities and for the punishment of all violations thereof.

History.

1913, ch. 61, § 68, p. 247; reen. C.L. 106:149; C.S., § 2517; I.C.A.,§ 59-701.

STATUTORY NOTES

Cross References.

Attorney general, attorney for commission,§ 61-204.

Compiler’s Notes.

CASE NOTES

Cited

Public Utils. Comm’n v. Natatorium Co., 36 Idaho 287, 211 P. 533 (1922); In re Garrett Transf. & Storage Co., 53 Idaho 200, 23 P.2d 739 (1933); State v. Kouni, 58 Idaho 493, 76 P.2d 917 (1938).

RESEARCH REFERENCES

Am. Jur. 2d.

§ 61-702. Noncompliance with law — Liability for damage.

In case any public utility shall do, cause to be done or permit to be done, any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done, either by the constitution, any law of this state, or any order or decision of the commission, according to the terms of this act, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom. An action to recover such loss, damage or injury may be brought in any court of competent jurisdiction by any corporation or person.

History.

1913, ch. 61, § 69, p. 247; reen. C.L. 106:150; C.S., § 2518; I.C.A.,§ 59-702.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Res Ipsa Loquitur.

The conclusion to be drawn from defendant water company’s evidence was that the cause of rupture in its water main could have been a defect in manufacture of the main, damage to the main in installation which reasonable inspection at that time would have revealed and such condition permitted corrosion to weaken the main, permitting the rupture, giving rise to an inference of negligence, which the doctrine of res ipsa loquitur permits to be drawn from the circumstances, the conclusion reached in this case being in harmony with the duty imposed by statute upon a public utility. C.C. Anderson Stores Co. v. Boise Water Corp., 84 Idaho 355, 372 P.2d 752 (1962).

RESEARCH REFERENCES

ALR.

Validity, construction and effect of agreement, in connection with real estate lease or license by railroad, for exemption from liability or for indemnification by lessee or licensee, for consequences of railroad’s own negligence. 14 A.L.R.3d 446. Liability of water distributor for damage caused by water escaping from main. 20 A.L.R.3d 1294.

Water distributor’s liability for injury due to condition of service lines, meters, and the like, which serve individual consumer. 20 A.L.R.3d 1363.

Liability of one maintaining pipeline for transportation of gas or other dangerous substances for injury or property damage sustained by one using surface. 30 A.L.R.3d 685.

Status of injured adult as trespasser on land not owned by electricity supplier, as affecting its liability for injuries inflicted upon him by electric wires it maintains thereon. 30 A.L.R.3d 777.

Liability in connection with fire or explosion incident to bulk storage, transportation, delivery, loading or unloading of petroleum products. 32 A.L.R.3d 1169.

§ 61-703. Remedies hereunder not exclusive.

This act shall not have the effect to release or waive any right of action by the state, the commission or any corporation or any person for any right, penalty or forfeiture which may have arisen or accrued or may hereafter arise or accrue under any law of this state.

History.

1913, ch. 61, § 70a, p. 247; reen. C.L. 106:151; C.S., § 2519; I.C.A.,§ 59-703.

STATUTORY NOTES

Compiler’s Notes.

§ 61-704. Penalties cumulative.

All penalties accruing under this act shall be cumulative of each other, and a suit for the recovery of one (1) penalty shall not be a bar to or affect the recovery of any other penalty or forfeiture or be a bar to any criminal prosecution against any public utility, or any officer, director, agent or employee thereof, or any other corporation or person.

History.

1913, ch. 61, § 70b, p. 247; reen. C.L. 106:152; C.S., § 2520; I.C.A.,§ 59-704.

STATUTORY NOTES

Compiler’s Notes.

§ 61-705. Summary proceedings by commission.

Whenever the commission shall be of the opinion that any public utility is failing or omitting or about to fail or omit, to do anything required of it by law, or by any order, decision, rule, direction or requirement of the commission under the provisions of this act, or is doing anything or about to do anything, or permitting anything or about to permit anything to be done, contrary to or in violation of law or of any order, decision, rule, direction or requirement of the commission, under the provisions of this act, it shall direct the attorney of the commission to commence an action or proceeding in the district court in and for the county, or city and county, in which the cause or some part thereof arose, or in which the corporation complained of, if any, has its principal place of business, or in which the person, if any, complained of, resides, in the name of the people of the state of Idaho, for the purpose of having such violations or threatened violations stopped and prevented, either by mandamus or injunction.

The attorney of the commission shall thereupon begin such action or proceeding by petition to such district court, alleging the violation or threatened violation complained of and praying for appropriate relief by way of mandamus or injunction.

It shall thereupon be the duty of the court to specify a time not exceeding twenty (20) days, after the service of the copy of the petition, within which the public utility complained of must answer the petition, and in the meantime said public utility may be restrained. In case of default in answer, or after answer, the court shall immediately inquire into the facts and circumstances of the case. Such corporations or persons as the court may deem necessary or proper to be joined as parties in order to make its judgment, order or writ effective, may be joined as parties. The final judgment in such action or proceedings shall either dismiss the action or proceeding or direct that the writ of mandamus or injunction issue or be made permanent as prayed for in the petition, or in such modified or other form as will afford appropriate relief.

An appeal may be taken to the Supreme Court from such final judgment in the same manner and with the same effect, subject to the provisions of this act, as appeals are taken from judgments of the district court in other actions for mandamus or injunction.

History.

1913, ch. 61, § 71, p. 247; reen. C.L. 106:153; C.S., § 2521; I.C.A.,§ 59-705.

STATUTORY NOTES

Cross References.

Attorney general as attorney for commission,§ 61-204.

Compiler’s Notes.

RESEARCH REFERENCES

C.J.S.

§ 61-706. Penalty for violation.

Any public utility which violates or fails to comply with any provisions of the constitution of this state or of this act, or which fails, omits or neglects to obey, observe or comply with any order, decision, decree, rule, direction, demand or requirement or any part or provision thereof, of the commission, under the provisions of this act, in a case in which a penalty has not hereinbefore been provided for, such public utility is subject to a penalty of not more than $2000 for each and every offense.

History.

1913, ch. 61, § 72a, p. 247; compiled and reen. C.L. 106:154; C.S., § 2522; I.C.A.,§ 59-706.

STATUTORY NOTES

Cross References.

Distribution of fines,§ 19-4705.

Compiler’s Notes.

CASE NOTES

Cited

Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

§ 61-707. Continuing violation.

Every violation of the provisions of this act or of any other order, decision, decree, rule, direction, demand or requirement of the commission, under the provisions of this act, or any part or portion thereof, by any public utility, corporation or person is a separate and distinct offense, and in case of a continuing violation each day’s continuance thereof shall be and be deemed to be a separate and distinct offense.

History.

1913, ch. 61, § 72b, p. 247; reen. C.L. 106:155; C.S., § 2523; I.C.A.,§ 59-707.

STATUTORY NOTES

Compiler’s Notes.

CASE NOTES

Cited

Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

§ 61-708. Responsibility for violation by employees.

In construing and enforcing the provisions of this act relating to penalties, the act, omission or failure of any officer, agent or employee of any public utility, acting within the scope of his official duties or employment, shall in every case be and be deemed to be the act, omission or failure of such public utility.

History.

1913, ch. 61, § 72c, p. 247; reen. C.L. 106:156; C.S., § 2524; I.C.A.,§ 59-708.

STATUTORY NOTES

Compiler’s Notes.

§ 61-709. Penalty for violations by officers and employees.

Every officer, agent or employee of any public utility, who violates or fails to comply with, or who procures, aids or abets any violation by any public utility of any provision of the constitution of this state or of this act, or who fails to obey, observe or comply with any order, decision, rule, direction, demand or requirement or any part or provision thereof, of the commission under the provisions of this act, or who procures, aids or abets any public utility in its failure to obey, observe and comply with any such order, decision, rule, direction, demand or requirement, or any part or provision thereof, in a case in which a penalty has not hereinbefore been provided for, such officer, agent or employee, is guilty of a misdemeanor and is punishable by a fine not exceeding $1000, or by imprisonment in a county jail not exceeding one (1) year, or by both such fine and imprisonment.

History.

1913, ch. 61, § 73, p. 247; reen. C.L. 106:157; C.S., 2525; I.C.A.,§ 59-709.

STATUTORY NOTES

Cross References.

Distribution of fines,§ 19-4705.

Compiler’s Notes.

CASE NOTES

Cited

Neil v. Public Utils. Comm’n, 32 Idaho 44, 178 P. 271 (1919).

§ 61-710. Penalty for violations by corporation other than a public utility.

Every corporation, other than a public utility, which violates any of the provisions of this act, or which fails to obey, observe or comply with any order, decision, rule, direction, demand or requirement or any part or provision thereof, of the commission under the provisions of this chapter, in a case in which a penalty has not hereinbefore been provided for, such corporation is subject to a penalty of not more than $2000 for each and every offense.

History.

1913, ch. 61, § 74, p. 247; reen. C.L. 106:158; C.S., § 2526; I.C.A.,§ 59-710.

STATUTORY NOTES

Cross References.

Distribution of fines,§ 19-4705.

Compiler’s Notes.

§ 61-711. Penalty for violation by employee of corporation other than a public utility.

Every person who, either individually, or acting as an officer, agent or employee of a corporation other than a public utility, violates any provision of this act, or fails to observe, obey or comply with any order, decision, rule, direction, demand or requirement, or any part or portion thereof, of the commission under the provisions of this act, or who procures, aids or abets any such public utility in its violation of this act, or in its failure to obey, observe or comply with any such order, decision, rule, direction, demand or requirement, or any part or portion thereof, in a case in which a penalty has not hereinbefore been provided for is guilty of a misdemeanor, and is punishable by a fine not exceeding $1,000, or by imprisonment in a county jail not exceeding one (1) year, or by both such fine and imprisonment.

History.

1913, ch. 61, § 75, p. 247; reen. C.L. 106:159; C.S., § 2527; I.C.A.,§ 59-711.

STATUTORY NOTES

Cross References.

Distribution of fines,§ 19-4705.

Compiler’s Notes.

CASE NOTES

Constitutionality of Act.

The Public Utilities Act, S.L. 1913, chapter 61, is constitutional. Idaho Power & Light Co. v. Blomquist, 26 Idaho 222, 141 P. 1083 (1914).

§ 61-714. Foreign and interstate commerce.

Neither this act, nor any provision thereof, except when specifically so stated, shall apply or be construed to apply to commerce with foreign nations or commerce among the several states of the union, except in so far as the same may be permitted under the provisions of the Constitution of the United States and the acts of congress.

History.

1913, ch. 61, § 79, p. 247; reen. C.L. 106:162; C.S., § 2530; I.C.A.,§ 59-714.

STATUTORY NOTES

Compiler’s Notes.

Chapter 8 STRAY CURRENT AND VOLTAGE REMEDIATION ACT

Sec.

§ 61-801. Legislative findings and purposes.

The legislature of the state of Idaho finds that the efficient and safe distribution of electricity is critical to the well-being of the citizens and the economy of the state, including the business of agriculture, and that this enactment is necessary for the protection of the public welfare and benefit. The legislature also finds that the potential impact of stray current or voltage on dairy cows is a matter of interest and concern to dairy producers with dairies situated near and served by a multi-grounded wye electrical distribution system, which is the type of distribution system used by utilities in this state. Scientific research has established a level of stray current or voltage, at or below which no effect on a dairy cow’s behavior, health or milk production has been shown. To provide for the continued, safe and efficient availability of electricity while addressing complaints regarding stray current or voltage, it is necessary and appropriate to: establish a uniform preventive action level; establish uniform procedures and protocols for measurements of stray current or voltage; require, when necessary, that the sources of stray current or voltage be identified; require, when necessary, adequate remediation; and establish procedures for handling complaints.

History.

I.C.,§ 61-801, as added by 2005, ch. 189, § 1, p. 578.

STATUTORY NOTES

Prior Laws.

The following former sections were repealed by S.L. 1999, ch. 383, § 13, p. 1051, effective July 1, 1999:

§ 61-801, which comprised I.C.,§ 61-801, as added by 1929, ch. 267, § 1, p. 614; I.C.A.,§ 59-801; am. 1939, ch. 245, § 1, p. 591; am. 1951, ch. 291, § 1, p. 640; am. 1955, ch. 160, § 1, p. 319; am. 1961, ch. 88, § 1, p. 119; am. 1963, ch. 160, § 1, p. 463; am. 1975, ch. 253, § 1, p. 684; am. 1976, ch. 308, § 1, p. 1059; am. 1977, ch. 147, § 1, p. 323; am. 1980, ch. 348, § 1, p. 882; am. 1981, ch. 230, § 2, p. 466; am. 1982, ch. 95, § 135, p. 185; am. 1982, ch. 327, § 1, p. 831; am. 1984, ch. 255, § 1, p. 610; am. 1994, ch. 238, § 1, p. 748; am. 1995, ch. 102, § 1, p. 329, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-802, which comprised I.C.,§ 61-802, as added by 1929, ch. 267, § 2, subd. a, p. 614; I.C.A.,§ 59-802; am. 1951, ch. 291, § 2, p. 640; am. 1959, ch. 79, § 1, p. 177; am. 1961, ch. 128, § 1, p. 188; am. 1963, ch. 160, § 3, p. 463, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-803, which comprised I.C.,§ 61-803, as added by 1929, ch. 267, § 2, subd. b, p. 614; I.C.A.,§ 59-803; am. 1951, ch. 291, § 3, p. 640, was repealed by S.L. 1999, ch. 383, § 13. § 61-804, which comprised I.C.,§ 61-804, as added by 1951, ch. 291, § 5, p. 640; am. 1953, ch. 82, § 1, p. 106; am. 1969, ch. 302, § 1, p. 904, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-805, which comprised I.C.,§ 61-805, as added by 1929, ch. 267, § 2, subd. d, p. 614; I.C.A.,§ 59-805; am. 1951, ch. 291, § 6, p. 640; am. 1967, ch. 49, § 1, p. 94, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-806, which comprised I.C.,§ 61-806, as added by 1951, ch. 291, § 8, p. 640, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-807, which comprised I.C.,§ 61-807, as added by 1929, ch. 267, § 4, p. 614; I.C.A.,§ 59-807; am. 1951, ch. 291, § 9, p. 640, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-808, which comprised I.C.,§ 61-808, as added by 1929, ch. 267, § 5, p. 614; I.C.A.,§ 59-808; am. 1951, ch. 291, § 10, p. 640; am. 1959, ch. 79, § 2, p. 177; am. 1963, ch. 160, § 6, p. 463; am. 1973, ch. 96, § 1, p. 165, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-809, which comprised I.C.,§ 61-809, as added by 1929, ch. 267, § 6, p. 614; I.C.A.,§ 59-809; am. 1963, ch. 160, § 7, p. 463, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-810, which comprised I.C.,§ 61-810, as added by 1929, ch. 267, § 7, p. 614; I.C.A.,§ 59-810; am. 1951, ch. 291, § 11, p. 640; am. 1963, ch. 160, § 8, p. 463; am. 1982, ch. 95, § 136, p. 185, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-811, which comprised I.C.,§ 61-811, as added by 1951, ch. 291, § 13, p. 640; am. 1959, ch. 80, § 10, p. 179; am. 1963, ch. 160, § 9, p. 463; am. 1972, ch. 148, § 1, p. 319; am. 1988, ch. 265, § 575, p. 549, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-812, which comprised I.C.,§ 61-812, as added by 1929, ch. 267, § 9, p. 614; I.C.A.,§ 59-812; am. 1951, ch. 291, § 14, p. 640; am. 1959, ch. 79, § 3, p. 177; am. 1963, ch. 160, § 11, p. 463; am. 1972, ch. 148, § 3, p. 319; am. 1975, ch. 262, § 1, p. 709; am. 1984, ch. 109, § 2, p. 252; am. 1991, ch. 3, § 1, p. 15; am. 1993, ch. 182, § 1, p. 463; am. 1995, ch. 131, § 2, p. 564, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-813, which comprised I.C.,§ 61-813, as added by 1929, ch. 267, § 10, p. 614; I.C.A.,§ 59-813; am. 1937, ch. 208, § 1, p. 353; am. 1951, ch. 291, § 15, p. 640; am. 1959, ch. 79, § 4, p. 177; am. 1959, ch. 80, § 11, p. 179, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-814, which comprised I.C.,§ 61-814, as added by 1929, ch. 267, § 11, p. 614; I.C.A.,§ 59-814, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-815, which comprised I.C.,§ 61-815, as added by 1929, ch. 267, § 14, p. 614; I.C.A.,§ 59-815, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-816, which comprised I.C.,§ 61-816, as added by 1929, ch. 267, § 15, p. 614; I.C.A.,§ 59-816, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-817, which comprised I.C.,§ 61-817, as added by 1929, ch. 267, § 16, p. 614; I.C.A.,§ 59-817; am. 1951, ch. 291, § 16, p. 640, was repealed by S.L. 1999, ch. 383, § 13.

§ 61-818, which comprised I.C.,§ 61-818, as added by 1951, ch. 291, § 17, p. 640, was repealed by S.L. 1999, ch. 383, § 13.

Effective Dates.

Section 2 of S.L. 2005, ch. 189 declared an emergency. Approved March 28, 2005.

§ 61-802. Definitions.

As used in this chapter, unless the context otherwise requires:

“Adequate remediation” means corrective action by a utility which results in, and is reasonably likely to sustain, a reduction of stray current or voltage attributable to the utility’s distribution system of fifty percent (50%) or less of the preventive action level.
“Commission” means the Idaho public utilities commission as established pursuant to section 61-201, Idaho Code.
“Cow contact points” means any two (2) electrically conductive points which a dairy cow may, in its normal environment, unavoidably and simultaneously contact.
“Preventive action level” is stray current or voltage that is either:
1. A steady-state, root mean square (rms), alternating current (AC) of 2.0 milliamp (mA) or more through a 500 ohm resistor connected between cow contact points, as measured by a true rms meter; or
2. A steady-state, rms, AC voltage of 1.0 volts or more, across (in parallel with) a 500 ohm resistor connected between cow contact points, as measured by a true rms meter.
“Steady-state” is the value of a current or voltage after an amount of time where all transients have decayed to a negligible value.
“Stray current or voltage” is:
1. Any steady-state, 60 hertz (Hz) (including harmonics thereof), root mean square (rms), alternating current (AC) of less than 20 milliamp (mA) through a 500 ohm resistor connected between cow contact points, as measured by a true rms meter; or
2. Any steady-state, 60 Hz (including harmonics thereof), rms, AC voltage of less than 10 volts, across (in parallel with) a 500 ohm resistor connected between cow contact points, as measured by a true rms meter. Stray current or voltage is a normal, inherent and unavoidable result of electricity traveling through grounded electrical systems, including a dairy producer’s on-farm system and a utility’s distribution system, which systems are required by the national electrical code and the national electrical safety code to be grounded to the earth to ensure continuous safety and reliability.
“Utility” means a public utility as defined in section 61-332A, Idaho Code.

History.

I.C.,§ 61-802, as added by 2005, ch. 189, § 1, p. 578.

STATUTORY NOTES

§ 61-805. Commission — Jurisdiction — Orders.

The commission shall have exclusive, initial jurisdiction to determine whether a utility has complied with the commission rules regarding measurement of stray current or voltage; whether the utility’s measurements demonstrated stray current or voltage at or above the preventive action level; whether the utility has properly identified that portion of the stray current or voltage at cow contact points attributable to the utility’s distribution system; and whether the utility has complied with its remediation obligation under this chapter.

If, after hearing, the commission determines that (a) the utility complied with the commission rules regarding measurement of stray current or voltage, and (b) the utility properly identified no stray current or voltage in excess of the preventive action level, then the commission shall issue an order that the utility has provided adequate service pursuant to section 61-302, Idaho Code. The commission’s order thereon shall be binding on the parties, subject only to the provisions of section 61-807, Idaho Code.
If, after hearing, the commission determines that (a) the utility complied with the commission rules regarding measurement of stray current or voltage, (b) the utility properly identified stray current or voltage in excess of the preventive action level, and (c) the utility properly identified that the portion of stray current or voltage attributable to the utility’s distribution system was fifty percent (50%) or less of the preventive action level, then the commission shall issue an order that the utility provided adequate service pursuant to section 61-302, Idaho Code. The commission’s order thereon shall be binding on the parties, subject only to the provisions of section 61-807, Idaho Code.
If, after hearing, the commission determines that (a) the utility complied with the commission rules regarding measurement of stray current or voltage, (b) the utility properly identified stray current or voltage in excess of the preventive action level, and (c) the utility properly identified that the portion of stray current or voltage attributable to the utility’s distribution system exceeded fifty percent (50%) of the preventive action level, then the commission shall thereafter determine the adequacy of the utility’s remediation efforts. The commission’s order thereon shall be binding on the parties, subject only to the provisions of section 61-807, Idaho Code. If the dairy producer has complied with the notice provisions set forth in section 61-804, Idaho Code, and the commission has made a determination that the conditions set forth in this subsection are met, then the dairy producer may, not later than one (1) year following completion of adequate remediation, or one (1) year following the issuance of the commission’s final order thereon, whichever occurs later, commence a civil action seeking monetary damages against the utility. In any such civil action, damages shall be limited as set forth in section 61-808, Idaho Code.
If, after hearing, the commission determines that (a) the utility failed to comply with the commission rules regarding measurement of stray current or voltage, (b) the utility failed to properly identify, when required pursuant to section 61-804, Idaho Code, to do so, that portion of stray current or voltage attributable to the utility’s distribution system, or (c) the utility failed to provide adequate remediation, then the commission shall order the utility to take measurements of stray current or voltage in conformance with commission rules, or identify that portion of the stray current or voltage attributable to the utility’s distribution system and, if necessary, to provide adequate remediation. The commission’s order thereon shall be binding on the parties, subject only to the provisions of section 61-807, Idaho Code. If the dairy producer complied with the notice provisions set forth in section 61-804, Idaho Code, and the commission made a determination that the portion of stray current or voltage attributable to the utility’s distribution system exceeded fifty percent (50%) of the preventive action level, then the dairy producer may, not later than one (1) year following completion of adequate remediation, or one (1) year following the issuance of the commission’s final order thereon, whichever occurs later, commence a civil action seeking monetary damages against the utility. In any such civil action, damages shall be limited as set forth in section 61-808, Idaho Code. (5) If after hearing, the commission determines that a dairy producer made or pursued a claim in bad faith or for purposes of harassment of the utility, the commission shall require the dairy producer to pay the utility’s actual costs of investigation and defense. If, after hearing, the commission determines that a utility acted in bad faith, or for purposes of harassment or delay, the commission shall require the utility to pay the dairy producer’s actual costs of investigation, if any, and preparation and presentation of the claim before the commission. The commission’s order thereon shall be binding on the parties, subject only to the provisions of section 61-807, Idaho Code.

§ 61-901. Electric, telephone, water and gas utilities — Issuance of securities authorized — Liens — Pledges — Purposes — Terms — Supervision and control of public utilities commission.

The right of every public utility, as defined in section 61-129, Idaho Code, furnishing electric, telephone, water or gas service in the state of Idaho, to issue, assume or guarantee securities and to issue mortgages, deeds of trust or other instruments of security with respect to its property situated within the state of Idaho, is hereby subjected to the regulation and supervision of the public utilities commission of the state of Idaho, as hereinafter set forth in this act. Such public utility when authorized by order of the commission and not otherwise, may issue stocks and stock certificates and may issue, assume or guarantee bonds or other securities payable at periods of more than twelve (12) months after the date thereof, for the following purposes; for the acquisition of property; for the construction, completion, extension or improvement of its facilities; for the improvement or maintenance of its service; for the discharge or lawful refunding of its obligations; for the reimbursement of moneys actually expended for said purposes from income or from other moneys in the treasury not secured by or obtained from the issue, assumption or guarantee of securities; or for any other purpose approved by the commission, provided, however, this section shall not apply to any telephone corporation when three-fourths (3/4) or more of the total gross revenue of such corporation is derived from sources outside the state of Idaho.

History.

I.C.,§ 61-901, as added by 1951, ch. 143, § 1, p. 333; am. 1961, ch. 130, § 1, p. 190.

STATUTORY NOTES

Cross References.

Application of chapter to air carriers,§ 61-1119.

Perfection of security interests,§ 28-9-301.

Compiler’s Notes.

The term “this act” refers to S.L. 1951, ch. 143, which is compiled as§§ 61-901 to 61-908.

§ 61-908. Saving clause.

If any part or parts of this act shall be adjudged by the courts to be unconstitutional or invalid, the same shall not affect the validity of any part or parts thereof which can be given effect without the part or parts adjudged to be unconstitutional or invalid.

History.

I.C.,§ 61-908, as added by 1951, ch. 143, § 1, p. 333.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” refers to S.L. 1951, ch. 143, which is compiled as§§ 61-901 to 61-908.

§ 61-909. Exemptions.

The commission may from time to time by order or rule, and subject to such terms and conditions as may be prescribed therein, exempt any security or any class of securities for which an application is required under this chapter or any public utility or class of public utility from the provisions of this chapter if it finds that the application thereof to such security, class of securities, public utility or class of public utility is not required by the public interest.

History.

I.C.,§ 61-909, as added by 1997, ch. 239, § 1, p. 700.

STATUTORY NOTES

Compiler’s Notes.

The public utilities commission has issued exemption procedures in PUC Procedural Order No. 26959.

Chapter 10 SPECIAL REGULATORY FEE

Sec.

§ 61-1001. Annual fees payable to commission by public utilities — Purpose.

Each public utility and each railroad corporation, subject to the jurisdiction of the commission, and subject to the provisions of this act, shall pay to the commission in each year, a special regulatory fee in such amount as the commission shall find and determine to be necessary, together with the amount of all other fees paid or payable to the commission by each such public utility and railroad corporation in the current calendar year, to defray the amount to be expended by the commission for expenses in supervising and regulating the public utilities and railroad corporations subject to its jurisdiction.

History.

I.C.,§ 61-1001, as added by 1955, ch. 177, § 1, p. 362; am. 1959, ch. 80, § 1, p. 179; am. 1975, ch. 135, § 1, p. 297; am. 1981, ch. 74, § 1, p. 106; am. 1999, ch. 289, § 2, p. 716; am. 1999, ch. 383, § 14, p. 1047.

STATUTORY NOTES

Amendments.

This section was amended by two 1999 acts which appear to be compatible and have been compiled together.

The 1999 amendment, by ch. 289, § 2, at the end of the section, deleted the phrase “except for salaries and related payroll expenses for the commissioners” following “and motor carriers subject to its jurisdiction.”

The 1999 amendment, by ch. 383, § 14, in the first sentence, deleted “together with the fees collected by the commission from motor carriers under chapter 8, title 61, Idaho Code,” following “in the current calendar year,”; and near the end of the first sentence, substituted “and railroad corporations” for “and motor carriers.”

Compiler’s Notes.

The term “this act” refers to S.L. 1955, ch. 177, which is compiled as§§ 61-1001, 61-1003 to 61-1005, 61-1007, and 61-1008.

RESEARCH REFERENCES

Am. Jur. 2d.

§ 61-1002. Expenditure — Determination — Apportionment

Appropriation. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised I.C.,§ 61-1002, as added by 1955, ch. 177, § 1, p. 362; am. 1959, ch. 80, § 2, p. 179; am. 1972, ch. 148, § 4, p. 319; am. 1975, ch. 135, § 2, p. 297, was amended by S.L. 1999, ch. 383, § 15, effective July 1, 1999 and was repealed by S.L. 1999, ch. 289, § 1, effective July 1, 1999.

This section as amended by S.L. 1999, ch. 383, § 15, read: “At each regular session, the legislature shall determine the amount of money to be expended by the commission during the next ensuing fiscal year and shall appropriate a sufficient amount from the general fund for the payment of administrative personnel costs. The remaining amount to be appropriated shall be defrayed out of fees to be paid by such public utilities and railroad corporations out of the ‘Public Utilities Commission Fund,’ as hereinafter provided.”

§ 61-1003. Returns — Forms and preparation — Time of filing and first fee payment.

On or before April 1st of each year, each public utility and railroad corporation subject to the jurisdiction of the commission, shall file with the commission a return verified by an officer or agent of the public utility or railroad corporation involved, showing its gross operating revenues from its intrastate utility or railroad business in Idaho for the preceding calendar year during which it carried on such intrastate utility or railroad business. Such return shall be in such form and detail as the commission may prescribe and shall be subject to audit by the commission.

The first return hereunder shall set forth the gross operating revenues derived from intrastate utility or railroad business during the calendar year 1954. The first quarter biennium installment of fees due on the 1955-1956 fiscal appropriation shall be made on or before May 15, 1955, and semiannually thereafter as provided in section 61-1005[, Idaho Code,] of this act.

History.

I.C.,§ 61-1003, as added by 1955, ch. 177, § 1, p. 362; am. 1959, ch. 80, § 3, p. 179.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion at the end of the section was added by the compiler to conform to the statutory citation style.

The term “this act” refers to S.L. 1955, ch. 177, which is compiled as§§ 61-1001, 61-1003 to 61-1005, 61-1007, and 61-1008.

§ 61-1004. Duties of commission — Fees — Determination — Maximum and minimum fees.

On or before April 15th of each year the commission shall determine the proportionate assessment that all railroad corporations, and all other public utilities subject to the jurisdiction of the commission, shall bear to the amount which will be required to defray the expense of the commission for supervision and regulation of such railroad corporations and other public utilities during the ensuing fiscal year; such determination shall be based upon a consideration of the time and expense devoted to the supervision and regulation of each such class of railroad corporations and other public utilities during the preceding calendar year, including salaries and wages of the commissioners and employees and all other necessary and lawful expenditures of the commission. Thereupon the commission shall apportion the assessment thus determined to be required of all railroad corporations and all other public utilities, to each such class thereof, respectively, in proportion to their respective gross operating revenues derived from intrastate utility business in Idaho for the preceding calendar year, except that the maximum fee payable shall not exceed:

In the case of railroad corporations, one percent (1%) of the gross operating revenues derived from the intrastate utility business of each railroad corporation; and
In the case of all other public utilities except pipeline corporations, three-tenths (3/10) of one percent (1%) of the gross operating revenues derived from the intrastate utility business of each such public utility.
In the case of pipeline corporations, the fee payable shall be calculated to recover the commission’s time and expense devoted to the safety supervision and regulation of each pipeline corporation.
In no case shall the fee be less than fifty dollars ($50.00).
The commission shall make such assessment of the fees so determined by orders duly made and entered on its minutes.

History.

I.C.,§ 61-1004, as added by 1955, ch. 177, § 1, p. 362; am. 1959, ch. 80, § 4, p. 179; am. 1972, ch. 148, § 5, p. 319; am. 1975, ch. 135, § 3, p. 297; am. 1989, ch. 87, § 1, p. 150; am. 1999, ch. 289, § 3, p. 716; am. 2012, ch. 72, § 3, p. 207.

STATUTORY NOTES

Amendments.

Effective Dates.

The 2012 amendment, by ch. 72, inserted “except pipeline corporations” in subsection (2), added subsection (3), and renumbered the subsequent subsections accordingly. Effective Dates.

Cross References.

Public utilities commission fund,§ 61-1008.

State board of examiners,§ 67-2001 et seq.

State controller,§ 67-1001 et seq.

Compiler’s Notes.

The term “this act” refers to S.L. 1955, ch. 177, which is compiled as§§ 61-1001, 61-1003 to 61-1005, 61-1007, and 61-1008.

Effective Dates.

Section 241 of S.L. 1994, ch. 180 provided that such act should become effective on and after the first Monday in January, 1995 [January 2, 1995] if the amendment to the Constitution of Idaho changing the name of the state auditor to state controller [1994 S.J.R. No. 109, p. 1493] was adopted at the general election held on November 8, 1994. Since such amendment was adopted, the amendment to this section by § 148 of S.L. 1994, ch 180 became effective January 2, 1995.

§ 61-1008. Expenditure — Public utilities commission fund — Creation — Appropriation — Disposition of surplus.

At each regular session, the legislature shall determine the amount of money that may be expended by the public utilities commission during the next ensuing fiscal year.
The state treasurer shall be custodian of the “public utilities commission fund,” into which shall be paid and deposited all funds accruing or received under any and all provisions of this chapter, and all fees, licenses, charges, assessments, fines and penalties, now or hereafter payable to, collected or recovered by the commission under any other law of this state, and all funds otherwise appropriated or made available to said fund. All moneys from whatever source accruing to and received into said fund are hereby appropriated, within the limits of funds determined therefor by the legislature, for the payment of the administrative and maintenance expenses of the commission, including salaries and wages of the commissioners and employees, travel, supplies, equipment, fixed charges, refunds of fees and all other necessary expenses of the commission, not otherwise provided for. Moneys shall be paid out of the public utilities commission fund by the state treasurer only upon claim vouchers prepared and approved by the commission, certified by the president of the commission to the state controller who, after review as provided by law, shall draw his warrant against the public utilities commission fund for all such claims.
Any moneys remaining in the public utilities commission fund at the end of any fiscal year, shall be retained in said fund for the use of the commission for the purposes specified in this chapter. Remaining funds shall be credited ratably by the commission to the respective railroad corporations and other public utilities according to the respective portions of such fees determined hereunder to be assessable against each such railroad corporation and other public utility, respectively, for the ensuing fiscal year. The respective fee assessed against each railroad corporation and public utility for such ensuing fiscal year shall be correspondingly reduced; provided that, only moneys paid under the provisions of this chapter by railroad corporations and other public utilities shall be considered in determining the surplus to be so credited by the commission.

History.

I.C.,§ 61-1008, as added by 1955, ch. 177, § 1, p. 362; am. 1959, ch. 80, § 8, p. 179; am. 1994, ch. 180, § 149, p. 420; am. 1999, ch. 289, § 4, p. 716; am. 1999, ch. 383, § 16, p. 1051; am. 2003, ch. 32, § 32, p. 115.

STATUTORY NOTES

Cross References.

State controller,§ 67-1001 et seq.

State treasurer,§ 67-1201 et seq.

Amendments.

This section was amended by two 1999 acts which appear to be compatible and have been compiled together. The 1999 amendment, by ch. 289, § 4, added subsection (1), added the subsection designators (2) and (3), substituted “the public utilities commission fund” for “said Public Utilities Commission Fund” throughout the section, and made minor punctuation changes throughout the section; in subsection (2), deleted “a fund, which is hereby created, to be known as” following “custodian of”, substituted “this chapter” for “this act”, and substituted “. Moneys” for “; moneys”; in subsection (3) deleted “collected under this act” following “Any moneys”, divided the former first sentence of subsection (3) into the current first and second sentences by substituting “in this chapter. Remaining funds shall” for “in this act and shall”, deleted “subject to the provisions of this act” following “other public utilities”, and substituted “against each railroad corporation and public utility”; for “against each of them, respectively,” in the last sentence.

The 1999 amendment, by ch. 383, § 16, in the first sentence, deleted “including fees collected from motor carriers under the provisions of title 61, chapter 8, Idaho Code,” and substituted “this chapter” for “this act” throughout.

Effective Dates.

Section 241 of S.L. 1994, ch. 180 provided that such act should become effective on and after the first Monday in January, 1995 [January 2, 1995], if the amendment to the Constitution of Idaho changing the name of the state auditor to state controller [1994 S.J.R. No. 109, p. 1493] was adopted at the general election held on November 8, 1994. Since such amendment was adopted, the amendment to this section by § 149 of S.L. 1994, ch. 180 became effective January 2, 1995.

§ 61-1009. Legislative intent. [Repealed.]

STATUTORY NOTES

Compiler’s Notes.

This section, which comprised I.C.,§ 61-1009, as added by 1955, ch. 177, § 1, p. 362; am. 1959, ch. 80, § 9, p. 179; am. 1975, ch. 135, § 4, p. 297, was amended by S.L. 1999, ch. 383, § 17, effective July 1, 1999, and was repealed by S.L. 1999, ch. 289, § 1, effective July 1, 1999.

This section as amended by S.L. 1999, ch. 383, § 17, read:“The legislature hereby declares that the purpose and intent of this chapter is to provide that expenses for personnel costs for administration of the commission shall be appropriated from the general fund and that the remaining expenses for the supervision and regulation of railroad corporations and other public utilities shall be appropriated from fees imposed upon public utilities and railroad corporations so supervised and regulated.”

Chapter 11 AIR CARRIER ACT

Sec.

§ 61-1101. Air carrier act.

This act shall be known as the Idaho Air Carrier Act.

History.

1969, ch. 197, § 1, p. 574.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” refers to S.L. 1969, ch. 197, which is compiled as§§ 61-1101 to 61-1119.

RESEARCH REFERENCES

Am. Jur. 2d.

§ 61-1102. Definitions — Exclusions.

a. The term “person” when used in this act means any individual, firm, copartnership, corporation, company, association, or joint-stock association, and includes any trustee, receiver, assignee, or personal representative thereof.
b. The term “certificate” means a certificate of public convenience and necessity issued under this act to any air carrier.
c. The term “air carrier” means any person owning, controlling or operating aircraft as a common carrier of passengers for compensation on a scheduled basis between any two (2) intermediate or terminal points within the state of Idaho; provided, however, that this definition shall not be construed to prevent the carriage of passengers or property for hire by an air carrier operating in interstate commerce under certification by the civil aeronautics board.
d. The term “common air carrier” means any person which holds itself out to the general public to engage in the transportation by aircraft in commerce of passengers or property for compensation.
e. The term “aircraft” shall mean any machine heavier than air supported for flight by dynamic action of air upon its surfaces, and which is used for the transportation of persons or property in the air.
f. The term “commission” means the Idaho Public Utilities Commission.
g. The term “transportation” to which this act applies includes all aircraft operated by, for, or in the interest of any air carrier irrespective of ownership or contract, express or implied, together with all services, facilities and property furnished, operated or controlled by any such air carrier or carriers and used in the transportation of passengers and/or property in commerce in the state of Idaho.
h. Nothing in this act shall be construed to cover or include aircraft or transportation used solely in connection with:
1. The transportation or handling of United States mail;
2. Interstate or foreign commerce;
3. Instruction;
4. Charter service on a nonscheduled basis;
5. Aerial application of agricultural chemicals;
6. Air passenger carrier certificated by the civil aeronautics board in interstate commerce; or,
7. The transportation of persons or property on a contractual basis for federal, state, or local governments.
i. The term “director” means the director of the Idaho transportation department.

History.

1969, ch. 197, § 2, p. 574; am. 1974, ch. 12, § 115, p. 61.

STATUTORY NOTES

Cross References.

Director of department of transportation,§ 40-503.

Compiler’s Notes.

The term “this act” refers to S.L. 1969, ch. 197, which is compiled as§§ 61-1101 to 61-1119.

§ 61-1103. Operational rights.

No air carrier shall operate aircraft except in accordance with the provisions of this act.

History.

1969, ch. 197, § 3, p. 574.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” refers to S.L. 1969, ch. 197, which is compiled as§§ 61-1101 to 61-1119.

§ 61-1104. Certificate of public convenience and necessity required — Public utility commission.

It shall be unlawful for any air carrier, as the term is defined in this act, to operate any aircraft in transportation without having first obtained from the commission a certificate of public convenience and necessity covering such operation.

A certificate may be issued to a qualified applicant authorizing the whole or any part of his operations covered by the application made to the commission in accordance with the provisions of this act, if it is found that the applicant is fit, willing and able properly to perform the service proposed and to conform to the provisions of this act and the requirements, rules and regulations of the commission thereunder, and that the proposed service, to the extent authorized by the certificate is, or will be, required by the present or future public convenience and necessity.

In considering the public convenience and necessity, the commission shall in consultation with the director of the Idaho transportation department, prior to the issuance of a certificate, consider the effect of such proposed air carrier operation upon the operations of any authorized air carrier then operating over the routes or in the territory sought. The mere existence of an air carrier in the territory sought who possesses authority similar to that sought by the applicant shall not be sufficient cause to deny the issuance of the certificate.

In awarding certificates of public convenience and necessity, the commission shall take into consideration the business experience of the particular air carrier in the field of air operations, the financial stability of the carrier, the insurance coverage of the carrier, type of aircraft which the carrier would employ, proposed routes and minimum schedules to be established, whether the carrier could economically give adequate service to the communities involved, the necessity for the service, and any other factors which may affect the public interest.

History.

1969, ch. 197, § 4, p. 574; am. 1974, ch. 12, § 116, p. 61; am. 1974, ch. 236, § 1, p. 1599.

STATUTORY NOTES

Cross References.

Director of department of transportation,§ 40-503.

Compiler’s Notes.

The term “this act” refers to S.L. 1969, ch. 197, which is compiled as§§ 61-1101 to 61-1119.

CASE NOTES

Determination of Public Convenience and Necessity.

In granting an application for certificate of public convenience and necessity to an airline, consideration was given to the impact this would have on another airline servicing the same route, and such consideration fulfilled the commission’s statutory obligation. Key Transp., Inc. v. Trans Magic Airlines Corp., 96 Idaho 110, 524 P.2d 1338 (1974).

The commission’s consideration of the need for a sound intrastate air network was a correct statewide view of “public convenience and necessity.” Key Transp., Inc. v. Trans Magic Airlines Corp., 96 Idaho 110, 524 P.2d 1338 (1974).

RESEARCH REFERENCES

ALR.

§ 61-1105. Application — Form and proof.

An applicant shall submit his written verified application to the commission, and a duplicate application to the director. The application shall be in such form and contain such information and be accompanied by proof of service upon all air carriers with which the proposed service is likely to compete and such other interested parties as the commission requires.

History.

1969, ch. 197, § 5, p. 574; am. 1974, ch. 12, § 117, p. 61.

§ 61-1106. Fee.

Each application for a certificate of public convenience and necessity made under the provisions of this act shall be accompanied by a fee of one hundred fifty dollars ($150).

History.

1969, ch. 197, § 6, p. 574.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” refers to S.L. 1969, ch. 197, which is compiled as§§ 61-1101 to 61-1119.

§ 61-1107. Granting and denying certificates — Hearing.

The commission may, after consultation with the director, and with or without hearing, issue a temporary or permanent certificate, except that a certificate may not be issued without a hearing over the formal objection of a person or party in possession with standing to object. The commission, after consultation with the director, may deny the application for a temporary or permanent certificate in whole or part, with or without hearing, except that such denial may not be ordered without a hearing over the formal objection of the applicant. The commission, after consultation with the director, may attach to the exercise of the rights granted by the certificate such terms and conditions as, in its judgment, the public convenience and necessity requires.

History.

1969, ch. 197, § 7, p. 574; am. 1974, ch. 12, § 118, p. 61.

§ 61-1108. Revocation and suspension — Notice and hearing.

The rights conferred by a certificate issued pursuant to this act may not be revoked or suspended without a finding by the commission after consultation with the director, and through notice and hearing, that the holder has abandoned such rights, or is no longer fit, willing or able to perform all or part of the certificated services, or to conform to the law and to the rules and regulations of the commission.

History.

1969, ch. 197, § 8, p. 574; am. 1974, ch. 12, § 119, p. 61.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” refers to S.L. 1969, ch. 197, which is compiled as§§ 61-1101 to 61-1119.

§ 61-1109. Unlawful practice — Consolidation and merger.

It shall be unlawful, unless authorized by order of the commission as provided in this act:

a. For two (2) or more air carriers, or for any air carrier and any other common carrier, to consolidate or merge their properties, or any part thereof, into one (1) person for the ownership, management or operation of the properties theretofore in separate ownerships.
b. For any air carrier, or any person controlling an air carrier or any other common carrier, to purchase, lease or contract to operate the properties, or any substantial part thereof, of any air carrier.
c. For any air carrier, or any person controlling an air carrier or any other common carrier, to acquire control of any air carrier in any manner whatsoever.

History.

1969, ch. 197, § 9, p. 574.

STATUTORY NOTES

Compiler’s Notes.

§ 61-1114. Cease and desist — Enforcement.

When the commission, upon complaint or its own motion, has reason to believe that any aircraft is being operated without a certificate of public convenience and necessity as required by this act, or that this act is being violated, or that an air carrier is engaged in any other illegal activity, the commission shall investigate such activity and may, after consultation with the director, and after a hearing, make its order requiring the owner or operator of the aircraft to cease and desist from any such unlawful activity. The commission shall enforce compliance with such order under the powers vested in the commission by law, including, but not limited to, the provisions of chapter 7, title 61, Idaho Code.

History.

1969, ch. 197, § 14, p. 574; am. 1970, ch. 6, § 1, p. 10; am. 1974, ch. 12, § 122, p. 61.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” refers to S.L. 1969, ch. 197, which is compiled as§§ 61-1101 to 61-1119.

§ 61-1115. Insurance requirement.

The commission shall require all air carriers to procure and maintain a minimum amount of insurance in such amounts as the commission may determine. The commission may, upon its own motion or upon application of any interested party, and after a hearing, require any air carrier to procure and maintain additional insurance in such amounts and upon such terms as the commission may determine; provided, however, that such additional insurance required by the commission is available.

History.

1969, ch. 197, § 15, p. 574.

RESEARCH REFERENCES

ALR.

Property insurance on aircraft; risks and losses covered. 48 A.L.R.3d 1120.

Construction of provision of aviation liability policy which requires pilot of insured aircraft to have appropriate license or certification. 72 A.L.R.3d 525.

Risk and causes of loss covered or excluded by aviation liability policy. 86 A.L.R.3d 118.

§ 61-1116. Commission’s power to fix rates and prescribe rules.

The commission is hereby vested with the power and authority, and it is hereby made its duty, after consultation with the director, to fix just, fair, reasonable and sufficient rates, fares and charges and classifications, and to alter and amend the same, and to prescribe such rules and regulations for air carriers as may be necessary to provide for adequate service and safety of operations, and to require the filing of such reports and other data with the commission as may be necessary, and to adopt such other rules and regulations as may be necessary to govern the relationship between such air carriers and the traveling and shipping public. Such rules and regulations shall be adopted and promulgated by general order of the commission.

History.

1969, ch. 197, § 16, p. 574; am. 1974, ch. 12, § 123, p. 61.

STATUTORY NOTES

Effective Dates.

Section 124 of S.L. 1974, ch. 12 provided that the act should take effect on and after July 1, 1974.

§ 61-1117. Federal regulation and control.

This act recognizes the authority of the federal government to regulate and control safety factors in the operation of aircraft and the use of air space.

History.

1969, ch. 197, § 17, p. 574.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” refers to S.L. 1969, ch. 197, which is compiled as§§ 61-1101 to 61-1119.

RESEARCH REFERENCES

ALR.

Construction and application of § 90a(i-l) of Federal Aviation Act of 1958, as amended (49 U.S.C. § 1472(i-l)), punishing aircraft piracy, interference with flight crew members and certain other crimes aboard aircraft in flight. 10 A.L.R. Fed. 844.

Validity under U.S. Constitution of preflight procedures used at airports to prevent hijacking of aircraft. 14 A.L.R. Fed. 286.

What constitutes “order” of Civil Aeronautics Board or of administrator of Federal Aviation Agency subject to judicial review, or what orders are subject to such review under § 1006(a) of Federal Aviation Act (U.S.C., tit. 49, § 1486(a)). 14 A.L.R. Fed. 725.

Construction and application of Federal Aviation Act provision (49 U.S.C. § 1487(a)) for judicial enforcement by “any party in interest” of provision (49 U.S.C. § 1371(2)) prohibiting noncertificated carriers from engaging in air transportation. 19 A.L.R. Fed. 951.

§ 61-1118. Administrative fees.

The commission shall charge and collect the following fees and none other, in the administration of this act:

Applications for a certificate shall be accompanied by an application fee of............................... $150.00

Application for transfer of a certificate............................... 150.00

Application for the assignment of a certificate............................... 150.00

Application for the issuance of a duplicate certificate............................... 25.00

Application for certificate reinstatement............................... 150.00

Application for certificate suspension............................... 50.00

Annual registration of certificate authority............................... 100.00

Application for a temporary certificate............................... 150.00

The fees as provided above shall be paid to the state treasurer and shall be credited to the public utilities commission fund.

History.

1969, ch. 197, § 18, p. 574; am. 1999, ch. 383, § 18, p. 1051.

STATUTORY NOTES

Cross References.

Public utilities commission fund,§ 61-1008.

State treasurer,§ 67-1201 et seq.

Compiler’s Notes.

The term “this act” refers to S.L. 1969, ch. 197, which is compiled as§§ 61-1101 to 61-1119.

§ 61-1119. Issuance of securities.

The provisions of chapter 9, title 61, Idaho Code, shall be applicable to regulation under this act.

History.

1969, ch. 197, § 19, p. 574.

STATUTORY NOTES

Compiler’s Notes.

The term “this act” refers to S.L. 1969, ch. 197, which is compiled as§§ 61-1101 to 61-1119.

Section 20 of S.L. 1969, ch. 197 read: “Each air carrier, as defined in this act, which shall have been in bona fide operation on or prior to January 1, 1969, over the route or routes or within the territory for which application has been made and has so operated since that time, shall file with the commission its verified statement showing in detail its air carrier operations on or prior to January 1, 1969. Such statement of prior operations as an air carrier shall contain such information as the commission may require, and shall be filed with the commission by March 15, 1969. The commission shall thereupon issue a temporary or permanent certificate of public convenience and necessity to each of such air carriers in operation on January 1, 1969. Such temporary or permanent certificate shall be limited to the scope of such prior air carrier’s operation, and the commission shall have the power to hold such hearings as may be necessary to determine such scope of authority.”

Effective Dates.

Section 21 of S.L. 1969, ch. 197 declared an emergency. Approved March 21, 1969.

Chapter 12 PACIFIC NORTHWEST ELECTRIC POWER AND CONSERVATION PLANNING COUNCIL

Sec.

§ 61-1201. Agreement for state participation in the Pacific Northwest Electric Power and Conservation Planning Council.

The state of Idaho agrees to participate in the formation of the “Pacific Northwest Electric Power and Conservation Planning Council,” created pursuant to the pacific northwest electric power planning and conservation act. Nothing in this agreement shall be construed to alter, diminish or abridge the rights of the state of Idaho and its citizens with respect to any water or water related right and those relating to the regulation of the energy industry.

History.

I.C.,§ 61-1201, as added by 1981, ch. 351, § 1, p. 724.

STATUTORY NOTES

Federal References.

The pacific northwest electric power planning and conservation act, referred to in this section, is compiled as 16 U.S.C.S. §§ 839 to 839h.

The legislature may, by concurrent resolution, direct to the Idaho council members a statement reflecting legislative intent and concern relative to any actions or activities undertaken or sought to be undertaken by the council.

History.

I.C.,§ 61-1207, as added by 1981, ch. 351, § 1, p. 724.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 1981, ch. 351 declared an emergency. Approved April 7, 1981.

Chapter 13 TELECOMMUNICATIONS RELAY SERVICES

Sec.

§ 61-1301. Legislative findings and intent.

Title IV of the Americans with disabilities act, public law 101-336, requires that on or before July 26, 1993, telephone corporations providing interstate or intrastate telephone services provide telecommunications relay services (TRS) for individuals who are deaf, hard of hearing, or speech-impaired that will allow them to engage in telephone communication in a manner functionally equivalent to that of individuals without hearing loss or speech impairments. The legislature finds that it is in the public interest to provide for the appointment of a TRS administrator who can coordinate TRS services and assist the state in applying for certification of the state TRS program by the federal deadline of October 1, 1992. This certification, if approved by the federal communications commission, will allow every telephone corporation providing intrastate service in Idaho to meet its obligations under federal law by participating in the state telecommunications relay services program.

History.

I.C.,§ 61-1301, as added by 1992, ch. 148, § 1, p. 443; am. 2020, ch. 12, § 5, p. 19.

STATUTORY NOTES

Amendments.

The 2020 amendment, by ch. 12, in the first sentence, substituted “deaf, hard of hearing” for “hearing-impaired” near the middle and inserted “loss” near the end.

Federal References.

Title IV of the Americans with disabilities act, referred to in this section, is codified as 47 U.S.C.S. §§ 152(b), 221(b), 225 and 611.

Compiler’s Notes.

The abbreviation enclosed in parentheses so appeared in the law as enacted.

RESEARCH REFERENCES

ALR.

§ 61-1302. Definitions.

In this chapter:

“Administrator” means the person with whom the Idaho public utilities commission contracts to administer the program for delivery of telecommunications relay services.
“Commission” means the Idaho public utilities commission.
“Communications-impaired” means individuals who are deaf, hard of hearing, or speech-impaired as defined in title IV, section 401, Americans with disabilities act of 1990, public law 101-336, 104 stat. 327, 336-69 (47 U.S.C. section 225) or regulations promulgated pursuant thereto.
“Local exchange company” means a telephone corporation that provides access lines to residential and business customers with the associated transmission of two (2) way interactive switched voice communication within a geographic area where basic local exchange rates rather than message telecommunications service rates apply.
“Message telecommunications service” shall have the meaning prescribed in section 62-603(8), Idaho Code.
“Program” means the effort directed by the administrator pursuant to this chapter to establish and operate an Idaho system to provide telecommunications relay services.
“Telephone corporation” shall have the meaning prescribed in section 62-603(14), Idaho Code.
“Telecommunications relay services” (TRS) means services through which a communications-impaired person, using specialized telecommunications equipment, may send and receive messages to and from a noncommunications-impaired person whose telephone is not equipped with specialized telecommunications equipment and through which a noncommunications-impaired person may, by using voice communication, send and receive messages to and from a communications-impaired person.

History.

I.C.,§ 61-1302, as added by 1992, ch. 148, § 1, p. 443; am. 2020, ch. 12, § 6, p. 19.

STATUTORY NOTES

Amendments.

The 2020 amendment, by ch. 12, substituted “deaf, hard of hearing” for “hearing-impaired” near the beginning of subsection (3); substituted “section62-603(8), Idaho Code” for “section62-603(6), Idaho Code” at the end of subsection (5); and substituted “62-603(14), Idaho Code” for “62-603(10), Idaho Code.”

Compiler’s Notes.

The reference and abbreviation enclosed in parentheses so appeared in the law as enacted.

§ 61-1303. Administrator’s contract — TRS provider’s contract — Requirements.

1. The commission shall contract with a qualified person to administer the program in accordance with the purposes of this chapter and to secure certification of the program by the federal communications commission. The program administrator shall not be an employee or officer of the state of Idaho, but shall have the capacity to sue and be sued with reference to administration of the program, except as hereinafter provided. (1)(a) The commission shall contract with a qualified person to administer the program in accordance with the purposes of this chapter and to secure certification of the program by the federal communications commission. The program administrator shall not be an employee or officer of the state of Idaho, but shall have the capacity to sue and be sued with reference to administration of the program, except as hereinafter provided.
2. The administrator’s contract shall require, but shall not be limited to, the following:
  1. that the administrator consult with, and receive recommendations from, the advisory committee, or a representative thereof, appointed by the commission pursuant to section 61-1306, Idaho Code;
  2. that the administrator post a fidelity bond in such amount as may be required by the commission;
  3. that the administrator meet timetables necessary to secure certification of the program by the federal communications commission;
  4. that the administrator, upon such terms as to the commission may seem reasonable, issue a request for proposals to providers of message relay services requesting responsive proposals to provide such services as may be necessary for the program;
  5. that the administrator evaluate the responsive proposals and recommend one (1) or more proposals to the commission for its review and approval;
  6. that the administrator enter into a contract with the provider of TRS, which contract and provider have been approved by the commission;
  7. that the administrator consult with the Idaho state council for the deaf and hard of hearing concerning program design and delivery of message relay services to communications impaired persons within the state of Idaho; and
  8. that the administrator perform such other services concerning the program as may be deemed reasonable and necessary by the commission.
In addition to such other contractual terms as may be necessary or desirable, the administrator shall require, under the terms of the contract with the provider of TRS, that:
1. The system be available statewide for operation seven (7) days a week, twenty-four (24) hours per day, three hundred sixty-five (365) days per year, for intrastate calls;
2. The system relay all messages promptly and accurately;
3. The provider preserve the confidentiality of all TRS communications, including the fact and contents of the communications; and
4. The system make available to communications impaired individuals intrastate telecommunications relay services in the state of Idaho that meet or exceed the requirements of applicable regulations of the federal communications commission and which otherwise comply with all applicable state and federal laws.
Except in cases of criminal or willful misconduct, gross negligence or willful violation of the provisions of this chapter, neither the commission, the administrator, the provider of TRS, nor the providers of underlying communications services shall be liable for any claims, actions, damages, or causes of action arising out of or resulting from the establishment, participation in, or operation of TRS. (4) The administrator may receive contributions, gifts and grants on behalf of and in aid of the program. Such contributions, gifts and grants shall be deposited in the Idaho telecommunications relay services fund established pursuant to section 61-1304, Idaho Code.

History.

I.C.,§ 61-1303, as added by 1992, ch. 148, § 1, p. 443.

STATUTORY NOTES

Cross References.

Idaho state council for the deaf and hard of hearing,§ 67-7301 et seq.

§ 61-1304. Telecommunications relay services fund.

The administrator shall establish a fund for the provision of relay services under this chapter, not including customer premises equipment, to be known and designated as the Idaho telecommunications relay services fund, in such depository and under such regulations as shall be established by the commission, to which shall be credited:
1. All monetary contributions, gifts and grants received by the administrator;
2. All charges billed and collected pursuant to section 61-1305, Idaho Code.
No funds derived from charges billed and collected pursuant to section 61-1305, Idaho Code, shall be used for the acquisition of end user text telephones.
All moneys deposited in the telecommunications relay [services] fund shall be expended for the purpose of defraying the expenses, debts and costs incurred in carrying out the provisions of this chapter, and for defraying administrative expenses of the administrator, including necessary expenses for consultants to the administrator, expenses for travel, supplies and equipment and other expenses of the administrator necessary for the implementation of the provisions of this chapter. All moneys credited to the telecommunications relay services fund may be expended by the administrator at such times and in such manner as may be authorized by the commission.

History.

I.C.,§ 61-1304, as added by 1992, ch. 148, § 1, p. 443.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion in subsection (3) was added by the compiler to supply the correct name of the referenced fund.

§ 61-1305. Participation in program.

All telephone corporations providing basic local exchange service within the state of Idaho and all telephone corporations providing intrastate message telecommunications service within the state of Idaho, including those otherwise exempt from the jurisdiction of the commission pursuant to section 61-104, Idaho Code, and those providing local exchange services or message telecommunications services pursuant to the telecommunications act of 1988, chapter 6, title 62, Idaho Code, shall except as provided in subsection (2) of this section, provide TRS in accordance with the program established by the commission, and shall pay into the telecommunications relay services fund such sums as may represent the telephone corporation’s share of the cost of the program, based upon an allocation methodology duly adopted by the commission in accordance with its rulemaking procedures.
The commission shall permit a telephone corporation to provide telecommunications relay services to its customers by a TRS provider other than the provider approved by the commission and shall waive the telephone corporation’s obligation to participate in the program if the commission finds, upon application by a telephone corporation, that the following facts exist:
1. The telephone corporation will continue to meet its obligation to its Idaho customers in accordance with the standards set forth in the Americans with disabilities act; and
2. The nonparticipation of such telephone corporation will not substantially impair the operation or provision of TRS pursuant to the program adopted by the commission.
Each telephone corporation subject in whole or in part to the commission’s ratemaking authority may apply to the commission for authority to increase its rates and charges in an amount not to exceed its payments to the telecommunications relay services fund pursuant to this chapter or the costs it incurs in providing TRS through an alternative TRS provider as authorized by the commission pursuant to subsection (2) of this section. Such applications shall plainly state the amount of the proposed increase, its manner of calculation, and the proposed recovery method, but shall not require a full cost-of-service filing or general ratemaking presentation. The commission shall promptly consider and act upon such applications.

History.

I.C.,§ 61-1305, as added by 1992, ch. 148, § 1, p. 443.

STATUTORY NOTES

Federal References.

The Americans with disabilities act, referred to in paragraph (2)(a), is generally codified as 42 U.S.C.S. § 12101 et seq. See specifically 47 U.S.C.S. § 225.

§ 61-1306. Powers and duties of the commission.

The commission shall promulgate such rules, policies and procedures as may be necessary to govern administration of the program and ensure that the program is in compliance with any applicable federal laws or regulations including, but not limited to, regulations providing for:

An advisory committee of the telephone industry to assist the administrator;
Consultation by the administrator with the Idaho state council for the deaf and hard of hearing;
Periodic recontracting with and auditing of the administrator and TRS provider;
Timetables for the administrator’s duties that will require the administrator to meet the deadline of October 1, 1992, for applying for certification of the state TRS program;
Formulas apportioning the costs of the administrator and TRS provider among the telephone corporations that will share those costs pursuant to section 61-1305, Idaho Code;
Consideration by the commission of customer complaints from TRS users; and
Any other matters deemed necessary for the implementation of TRS in Idaho.

History.

I.C.,§ 61-1306, as added by 1992, ch. 148, § 1, p. 443.

STATUTORY NOTES

Cross References.

Idaho state council for the deaf and hard of hearing,§ 67-7301 et seq.

Effective Dates.

Section 2 of S.L. 1992, ch. 148 declared an emergency. Approved April 2, 1992.

Chapter 14 [RESERVED]

Chapter 15 ENERGY COST RECOVERY BONDS

Sec.

§ 61-1501. Legislative intent.

It is the intent of the legislature in enacting this chapter to provide a process by which the recovery of large energy rate increases caused by fuel or power cost adjustments, purchased gas adjustment tracker rates, commodity tracker rate adjustments or purchased power tracker rates will be facilitated by the issuance of bonds. This legislation will provide electric and gas utilities with a mechanism for recovery of their increased costs while leveling the rate impact of such increase on the utilities’ customers. The legislature believes that this type of securities legislation is in the public interest but should not be considered as an endorsement of, or intended to provide, a mechanism for restructuring of the utility industry in the state of Idaho.

History.

I.C.,§ 61-1501, as added by 2001, ch. 380, § 1, p. 1326.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 2001, ch. 380 declared an emergency. Approved April 10, 2001.

§ 61-1502. Definitions.

For purposes of this chapter, the following terms shall have the following meanings:

“Assignee” means any corporation, limited liability company, trust, partnership or other entity to which a public utility assigns, sells or transfers, other than as security, all or a portion of the public utility’s interest in or right to energy cost property. The term also includes any such entity to which an assignee assigns, sells or transfers, other than as security, the assignee’s interest in or right to energy cost property.
“Chapter 9” means chapter 9, title 28, Idaho Code, as from time to time amended, including any successor provisions.
“Commission” means the Idaho public utilities commission, as it may be constituted from time to time, and any successor agency exercising functions similar in purpose thereto.
“ECA” means any of the following, as authorized by the commission and reflected in a usage-based charge of a public utility: a fuel or power cost adjustment; a purchased gas adjustment tracker rate; a commodity electric or gas tracker rate adjustment; or a purchased power tracker rate.
“Energy cost amounts” means the amounts that a public utility, assignee or other issuer has been authorized to recover by the commission pursuant to an energy cost financing order, including without limitation:
1. Amounts recoverable by a public utility pursuant to an ECA;
2. Expenditures incurred to refinance or retire existing debt or existing equity capital of the public utility through the issuance of energy cost recovery bonds and any costs related thereto;
3. Amounts necessary to recover federal or state taxes actually paid by a public utility, which tax liability is modified by the transactions approved in an energy cost financing order issued by the commission pursuant to this chapter; and
4. Reasonable costs, as approved by the commission, relating to the issuance, servicing or refinancing of energy cost recovery bonds under the provisions of this chapter including, without limitation, principal and interest payments and accruals, sinking fund payments, debt service and other reserves, costs of credit enhancement, indemnities, if any, owed to an assignee or other issuer or the trustee for the energy cost recovery bonds, issuance costs and redemption premiums, if any, and all other reasonable fees, costs and charges with respect to the energy cost recovery bonds.
“Energy cost bond charge” means a nonbypassable usage-based charge that the commission authorizes in an energy cost financing order as a separate line item for recovery on a public utility’s bill to all of its customers, whether such amounts are billed and/or collected by the public utility, any subsidiary or affiliate thereof, or any third party that may assume the responsibility for billing or collecting such charges.
“Energy cost financing order” means an order of the commission issued in accordance with this chapter that authorizes the imposition and collection of energy cost amounts and the issuance of energy cost recovery bonds. If requested by an electric or gas public utility in its application for an energy cost financing order, energy cost bond charges shall be in an amount sufficient to recover federal and state taxes associated with the recovery of energy cost amounts described therein. (8) “Energy cost property” means the irrevocable, vested property right created pursuant to this chapter and one (1) or more energy cost financing orders including, without limitation, the right, title and interest of a public utility, assignee or other issuer of energy cost recovery bonds to all revenues, collections, claims, payments, money or proceeds of or arising from an energy cost recovery charge or constituting the costs of recovering, reimbursing, financing or refinancing energy cost amounts and acquiring energy cost property (including the costs of issuing, servicing and retiring energy cost recovery bonds) and all rights to obtain adjustments to such energy cost recovery charge pursuant to the terms of this chapter and any energy cost financing order; provided that any right that a public utility has in the energy cost property before the sale or other transfer of such property or any other rights created under this chapter or created in any energy cost financing order and assignable under section 61-1504, Idaho Code, or assignable pursuant to an energy cost financing order shall be only a contract right. Energy cost property shall, upon its sale or other transfer, constitute a current and irrevocably vested property right notwithstanding the fact that the value of such property right will depend upon consumers using electricity and/or the public utility performing certain services.

(9) “Energy cost recovery bond” means any instrument, pass-through certificate, note, bond, debenture, certificate of participation, collateral trust certificate, beneficial interest or other evidence of indebtedness or ownership issued by a public utility, assignee or other issuer pursuant to an energy cost financing order and an executed indenture, security agreement or other similar agreement of a public utility, assignee or other issuer that is secured by or payable from energy cost bond charges or energy cost property.

(10) “Energy cost recovery bondholder” means any holder of an energy cost recovery bond or any trustee, collateral agent or other entity acting for the benefit of or on behalf of any such holder.

History.

I.C.,§ 61-1502, as added by 2001, ch. 380, § 1, p. 1326.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 2001, ch. 380 declared an emergency. Approved April 10, 2001.

§ 61-1503. Energy cost recovery bonds.

An electric or gas public utility may apply to the commission for an energy cost financing order requesting that certain energy cost amounts be recovered through the sale of energy cost recovery bonds.

A public utility may apply to the commission at any time and from time to time for an authorization that it may recover ECA amounts and other energy cost amounts through the issuance of energy cost recovery bonds. The public utility may apply to the commission for such an authorization either in a separate proceeding or in a proceeding considering the authorization of an ECA. Upon such an application, if the commission finds that the public interest would be better served if the energy cost amounts were recovered through the issuance of energy cost recovery bonds over the term of such bonds than if the ECA amounts were recovered over a period of one (1) year, assuming a conventional financing of such amounts, the commission shall issue an energy cost financing order to allow the public utility to recover energy cost amounts.
The energy cost financing order shall detail the energy cost amount to be recovered and the period of time in which the energy cost recovery is to occur. The commission shall not issue an energy cost financing order unless the total of the then (a) existing ECAs, (b) existing energy cost bond charges, and (c) the amount identified by the electric or gas public utility in its application for such financing order as the additional ECA that would be required absent an issuance of energy cost recovery bonds pursuant to such financing order, exceeds a minimum amount (expressed in cents per kilowatt-hour or cents per therm) approved by the commission and in effect at the time of the issuance of such energy cost financing order. Each public utility shall, at least thirty (30) days prior to its first application for an energy cost financing order and at five (5) year intervals thereafter, file with the commission a proposal as to what such minimum amount should be and the commission shall, within twenty-eight (28) days of such filing, issue an order regarding its determination of such proposed minimum amount. Energy cost recovery bonds shall have an expected maturity date no later than five (5) years after the date of issuance, and scheduled principal payments on such bonds shall, to the extent practicable, be scheduled to be made in approximately equal amounts during each year of the term of such bonds. Energy cost recovery bonds shall have a legal maturity date no later than seven (7) years after the date of issuance. Energy cost bond charges shall remain in effect until all energy cost recovery bonds and all energy cost amounts have been paid in full. The commission may issue successive energy cost financing orders permitting subsequent issuances of energy cost recovery bonds.
An energy cost financing order may be issued only upon the application of a public utility and shall become effective only in accordance with its terms and conditions. The public utility may withdraw its application if it disagrees with any of the terms and conditions of the energy cost financing order or any modification thereof within fourteen (14) days of issuance of the energy cost financing order or of such modification. The energy cost financing order shall specify the estimated amount of the energy cost bond charge and the formula for determining the amount of the charge that from time to time will be sufficient to recover all energy cost amounts.
After issuance of an energy cost financing order, the public utility may sell, assign or otherwise transfer or pledge energy cost property or cause the energy cost recovery bonds to be issued, provided it may defer, postpone or refrain from effecting the sale, assignment, transfer, pledge or issuance, in which case no energy cost bond charge shall be imposed unless and until such energy cost recovery bonds are issued. If energy cost recovery bonds are not issued within one (1) year after the energy cost financing order becomes final and nonappealable, the authorization contained in the energy cost financing order shall expire, provided that a public utility may apply for an extension or renewal of an energy cost financing order.
The energy cost financing orders, the energy cost amounts and the energy cost bond charges that have been determined by the commission shall be irrevocable and binding upon the commission. The commission shall not have authority either by rescinding, altering or amending the energy cost financing order or otherwise to, either directly or indirectly, revalue or revise for ratemaking purposes the energy cost amounts. Once the commission determines the energy cost bond charge, it cannot determine in a later proceeding that the energy cost bond charge is unjust or unreasonable or in any way reduce or impair the value of energy cost property either directly or indirectly by taking the energy cost bond charge into account when setting other rates for the public utility; nor shall the amount of revenues arising with respect thereto be subject to reduction, impairment, postponement or termination. The state of Idaho does hereby pledge to and agree with the owners of energy cost property and with any energy cost recovery bondholders that neither the state nor any of its agencies, including the commission, shall (by legislative action, ballot initiative or other similar process) limit, alter, restrict or impair the energy cost amounts, the energy cost bond charge, the energy cost property, the energy cost financing orders or any rights thereunder or ownership thereof or security interest therein or in any way impair the rights or remedies of any energy cost recovery bondholders until the energy cost recovery bonds, including all principal, interest, premium, costs, expenses and arrearages thereon, are fully met and discharged, provided nothing contained in this chapter shall preclude such a limitation, alteration, restriction or impairment if and when adequate provision (including without limitation provision for the payment of principal and interest when due) shall be made by law for the protection of the energy cost recovery bondholders. The state of Idaho does hereby acknowledge that any energy cost recovery bondholders may and will rely on this pledge and agreement and that they would be irreparably harmed by any such limitation, alteration, restriction or impairment without such adequate provision. The public utility and any assignee or other issuer are authorized to include this pledge and agreement in the energy cost recovery bonds and the documents relating thereto. Notwithstanding any other provision of this subsection, the commission shall approve such adjustments to the energy cost bond charges as may be necessary to ensure timely recovery of all energy cost amounts that are the subject of the pertinent energy cost financing order.
Energy cost recovery bonds issued under this chapter and any energy cost financing orders do not constitute a debt or liability of the state or of any political subdivision thereof and do not constitute a pledge of the full faith and credit of the state or any of its political subdivisions, but are payable solely from the funds provided therefor. All the bonds shall contain on the face thereof a statement to the following effect: “Neither the full faith and credit nor the taxing power of the state of Idaho is pledged to the payment of the principal of, or interest on, this bond.” This paragraph shall in no way preclude bond guarantees or enhancements pursuant to this chapter, nor shall it preclude the payment of compensation for any breach of the state’s pledge contained in subsection (5) of this section or for any action or failure to act by the commission in contravention of this chapter.
The commission shall establish procedures for the expeditious processing of any application for energy cost financing orders, including the approval or disapproval of any such orders within forty-five (45) days of the application. In addition, each energy cost financing order shall specify a procedure for making adjustments to the energy cost bond charge that is the subject of the order, such adjustments to be expeditiously approved by the commission, so as to ensure the timely payment of principal and interest on the related energy cost recovery bonds and the recovery of all other energy cost amounts. Such procedure shall provide for adjustments to be made, upon application by the affected public utility, assignee or other issuer, at least annually and at such additional intervals, if any, as are specified in the order. The public utility, assignee or other issuer shall file its application for any such adjustment with the commission at least thirty (30) days before the date on which the adjustment is requested to become effective, and the commission shall approve or disapprove such application no later than thirty (30) days after the date of such filing. In addition, upon application by a public utility, assignee or other issuer after an energy cost financing order has been issued and has become effective, the commission may: (a) Authorize the making of adjustments to the energy cost bond charge at more frequent intervals than those specified in such order; and/or
The energy cost bond charge shall be treated as a charge for utility services for purposes of determining both the credit and collection standards to which customers (including, for purposes of this subsection, any parties that provide billing or collection services for energy supplied to another customer) may be held subject under applicable state law and the remedies for nonpayment that are available to a public utility under applicable state law, and such treatment shall not alter the tax, accounting or other intended characteristics of any energy cost bond financing.
An energy cost bond charge shall constitute energy cost property when, and to the extent that, an energy cost financing order authorizing such energy cost bond charge has become effective in accordance with this chapter, and the energy cost property shall thereafter continuously exist as property for all purposes with all of the rights and privileges of this chapter for the period and to the extent provided in the energy cost financing order, but in any event until the energy cost recovery bonds are paid in full, including all principal, interest, premium, costs and arrearages thereon.
Any surplus energy cost bond charge collections in excess of the amounts necessary to pay principal, premium, if any, interest, credit enhancement and all other fees, costs and charges with respect to energy cost recovery bonds shall be used to benefit customers in such manner as the commission may reasonably determine except to the extent that such use would result in a recharacterization of the tax, accounting or other intended characteristics of the financing.

(b) Authorize a change in the method for calculating the energy cost bond charge from that specified in such order so as to better ensure the timely recovery of all energy cost amounts.

History.

I.C.,§ 61-1503, as added by 2001, ch. 380, § 1, p. 1326.

STATUTORY NOTES

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 2 of S.L. 2001, ch. 380 declared an emergency. Approved April 10, 2001.

§ 61-1504. Procedure for issuance of bonds.

Public utilities, assignees or other issuers may issue energy cost recovery bonds upon approval by the commission in an energy cost financing order.
Public utilities and assignees may sell and assign all or portions of their interest in energy cost property. Public utilities and assignees may sell or assign their interests to one (1) or more assignees or other issuers that make that property the basis for issuance of energy cost recovery bonds to the extent approved in the pertinent energy cost financing order. To the extent approved in the pertinent energy cost financing orders, public utilities and assignees may also pledge energy cost property as collateral, directly or indirectly, for energy cost recovery bonds providing for a security interest in the energy cost property, in the manner as set forth in section 61-1505, Idaho Code. Energy cost property may be sold or assigned by:
1. The public utility, assignee or other issuer or a trustee for the holders of energy cost recovery bonds in connection with the exercise of remedies upon a default; or
2. Any person acquiring the energy cost property after a sale or assignment pursuant to this subsection.
To the extent that any interest in energy cost property is so sold or assigned, or is so pledged as collateral, the commission shall authorize the public utility to contract with an assignee or other issuer that it will continue to operate its system to provide service to its customers, will collect amounts with respect to the energy cost bond charges for the benefit and account of the assignee or other issuer, and will account for and remit these amounts to or for the account of the assignee or other issuer. Contracting with the assignee or other issuer in accordance with that authorization shall not impair or negate the characterization of the sale, assignment or pledge as an absolute transfer, a true sale or security interest, as applicable.
Notwithstanding any other provision of law to the contrary, any requirement under this chapter or an energy cost financing order that the commission take action with respect to the subject matter of an energy cost financing order shall be binding upon the commission, as it may be constituted from time to time, and any successor agency exercising functions similar to the commission. The commission shall have no authority to rescind, alter or amend any such requirement under this chapter or an energy cost financing order; provided however, that nothing in this subsection shall preclude adjustments of the energy cost bond charges in accordance with the provisions of section 61-1503, Idaho Code. The issuance of energy cost recovery bonds, any related transfer or pledge of energy cost recovery property and any other transactions incidental to such issuance shall be exempt from the provisions of sections 61-901 through 61-908, Idaho Code, upon approval by the commission in an energy cost financing order. The commission shall include in any energy cost financing order any additional approvals that may be required in connection with such issuance under applicable law.
An assignee or other issuer shall not be considered to be a public utility solely by virtue of the transactions described in this chapter.

History.

I.C.,§ 61-1504, as added by 2001, ch. 380, § 1, p. 1326.

STATUTORY NOTES

Effective Dates.

Section 2 of S.L. 2001, ch. 380 declared an emergency. Approved April 10, 2001.

§ 61-1505. Security interest.

To the extent the provisions of this section conflict with chapter 9 as from time to time in effect, including any successor provisions, this section shall apply.
A security interest in energy cost property is valid, is enforceable against the pledgor and third parties, subject to the rights of any third parties holding security interests in the energy cost property perfected in the manner described in this section, and attaches when all of the following have occurred:
1. The commission has issued an energy cost financing order authorizing the energy cost bond charges, the right to the imposition and collection of which is included in the energy cost property;
2. Value has been given by the pledgees of the energy cost property; and
3. The pledgor has signed a security agreement covering the energy cost property.
A valid and enforceable security interest in energy cost property is perfected when it has attached and when a financing statement has been filed in accordance with chapter 9, naming the pledgor of the energy cost property as “debtor” and identifying the energy cost property. Any description of the energy cost property shall be sufficient if it refers to the energy cost financing order creating the energy cost property. A copy of the financing statement shall be filed with the commission by the pledgor or transferor of the energy cost property, and the commission may require the pledgor or transferor to make other filings with respect to the security interest in accordance with procedures it may establish, provided that the filings shall not affect the perfection of the security interest. A financing statement filed pursuant to this section shall remain effective until a termination statement is filed.
A perfected security interest in energy cost property is a continuously perfected security interest in all revenues and proceeds arising with respect thereto, whether or not the revenues or proceeds have accrued. Conflicting security interests shall rank according to priority in time of perfection. Energy cost property shall constitute property for all purposes, including for contracts securing energy cost recovery bonds, whether or not the revenues and proceeds arising with respect thereto have accrued.
Subject to the terms of the security agreement covering the energy cost property and the rights of any third parties holding security interests in the energy cost property perfected in the manner described in this section, the validity and relative priority of a security interest created under this section is not defeated or adversely affected by the commingling of revenues arising with respect to the energy cost property with other funds of the public utility that is the pledgor or transferor of the energy cost property, or by any security interest in a deposit account of that public utility perfected under chapter 9, into which the revenues are deposited. Subject to the terms of the security agreement, the pledgees of the energy cost property shall have a perfected security interest in all cash and deposit accounts of the public utility in which revenues arising with respect to the energy cost property have been commingled with other funds, but the perfected security interest shall be limited to an amount not greater than the amount of the revenues with respect to the energy cost property received by the public utility within twelve (12) months before: (a) any default under the security agreement, or (b) the institution of insolvency proceedings by or against the public utility, less payments from the revenues to the pledgees during that twelve (12) month period.
If an event of default occurs under the security agreement covering the energy cost property, the pledgees of the energy cost property, subject to the terms of the security agreement, shall have all rights and remedies of a secured party upon default under chapter 9, and shall be entitled to foreclose or otherwise enforce their security interest in the energy cost property, subject to the rights of any third parties holding prior security interests in the energy cost property perfected in the manner provided in this section. In addition, the commission may require, in the energy cost financing order creating the energy cost property, that, in the event of default by the public utility in payment of revenues arising with respect to the energy cost property, the commission and any successor thereto, upon the application by the pledgees or transferees, including transferees under section 61-1506, Idaho Code, of the energy cost property, and without limiting any other remedies available to the pledgees or transferees by reason of the default, shall order the sequestration and payment to the pledgees or transferees of revenues arising with respect to the energy cost property. Any order shall remain in full force and effect notwithstanding any bankruptcy, reorganization, or other insolvency proceedings with respect to the debtor, pledgor or transferor of the energy cost property.
Energy cost recovery property shall constitute an account as that term is defined under chapter 9.
Sections 28-9-204 and 28-9-205, Idaho Code, as from time to time amended, including any successor provisions, shall apply to a pledge of energy cost property by a public utility, assignee or other issuer.

History.

(9) This subsection sets forth the terms by which a consensual security interest can be created and perfected in the energy cost property. Unless otherwise ordered by the commission with respect to any series of energy cost recovery bonds on or prior to the issuance of the series, there shall exist a statutory lien as provided in this subsection. Upon the effective date of the energy cost financing order, there shall exist a first priority lien on all energy cost property then existing or thereafter arising pursuant to the terms of the energy cost financing order. This lien shall arise by operation of this subsection automatically without any action on the part of the public utility, any assignee or other issuer, or any other person. This lien shall secure all obligations, then existing or subsequently arising, to the holders of the energy cost recovery bonds issued pursuant to the energy cost financing order, the trustee or representative for the holders, and any other entity specified in the energy cost financing order. The persons for whose benefit this lien is established shall, upon the occurrence of any defaults specified in the pertinent energy cost financing order, have all rights and remedies of a secured party upon default under chapter 9, and shall be entitled to foreclose or otherwise enforce this statutory lien in the energy cost property. This lien shall attach to the energy cost property regardless of who shall own, or shall subsequently be determined to own, the energy cost property including any public utility, any assignee or other issuer, or any other person. This lien shall be valid, perfected, and enforceable against the owner of the energy cost property and all third parties upon the effectiveness of the energy cost financing order without any further public notice; provided however, that any person may, but shall not be required to, file a financing statement in accordance with subsection (3) of this section. Financing statements so filed may be “protective filings” and shall not be evidence of the ownership of the energy cost property. A perfected statutory lien in energy cost property is a continuously perfected lien in all revenues and proceeds arising with respect thereto, whether or not the revenues or proceeds have accrued. Conflicting liens shall rank according to priority in time of perfection. In addition, the commission may require, in the energy cost financing order creating the energy cost property, that, in the event of default by the public utility in payment of revenues arising with respect to energy cost property, the commission and any successor thereto, upon the application by the beneficiaries of the statutory lien, and without limiting any other remedies available to the beneficiaries by reason of the default, shall order the sequestration and payment to the beneficiaries of revenues arising with respect to the energy cost property. History.

I.C.,§ 61-1505, as added by 2001, ch. 380, § 1, p. 1326.

STATUTORY NOTES

Cross References.

Meaning of “chapter 9,”§ 61-1502.

Effective Dates.

Section 2 of S.L. 2001, ch. 380 declared an emergency. Approved April 10, 2001.

§ 61-1506. Transfers in interest.

A transfer of energy cost property by a public utility to an assignee, or by an assignee to another assignee, that the parties have in the governing documentation expressly stated to be a sale or other absolute transfer, in a transaction approved in an energy cost financing order, shall be treated as an absolute transfer of all of the transferor’s right, title and interest, as in a true sale, and not as a pledge or other financing, of the energy cost property in each case notwithstanding any contrary treatment for federal and state income and franchise taxes, accounting or other purposes.
A transfer of energy cost property shall be deemed perfected as against third persons and shall vest title in the transferee when both of the following have taken place:
1. The commission has issued the energy cost financing order authorizing the energy cost bond charges included in the energy cost property.
2. An assignment of the energy cost property in writing has been executed and delivered to the transferee.
As between bona fide assignees of the same right for value without notice, the assignee first filing a financing statement in accordance with chapter 9, naming the assignor of the energy cost property as debtor and identifying the energy cost property has priority. Any description of the energy cost property shall be sufficient if it refers to the energy cost financing order creating the energy cost property. A copy of the financing statement shall be filed by the assignee with the commission, and the commission may require the assignor or the assignee to make other filings with respect to the transfer in accordance with procedures it may establish, but these filings shall not affect the perfection of the transfer.
The interest of an assignee or pledgee in energy cost property and in the revenues and collections arising from such property are not subject to set-off, counterclaim, surcharge or defense by the public utility or any other person or in connection with the bankruptcy of the public utility or any other person.

History.

I.C.,§ 61-1506, as added by 2001, ch. 380, § 1, p. 1326.

STATUTORY NOTES

Cross References.

History.

I.C.,§ 61-1601, as added by 2005, ch. 372, § 1, p. 1186.

§ 61-1602. Definitions.

For purposes of this chapter, the following terms shall have the following meanings, unless the context clearly requires otherwise:

“Approved costs” means the amounts that a public utility or assignee has been authorized to recover by the commission pursuant to a cost reduction order including, without limitation:
1. Amounts incurred or to be incurred for purposes for which a public utility may issue stock and stock certificates or other evidences of interest or ownership, or bonds, notes or other evidences of indebtedness under chapter 9, title 61, Idaho Code;
2. Amounts necessary to recover federal or state taxes actually paid by a public utility, which tax liability is modified by the transactions approved in a cost reduction order issued by the commission pursuant to this chapter; and
3. Reasonable costs, as approved by the commission, relating to the issuance, servicing or refinancing of cost reduction instruments under the provisions of this chapter including, without limitation, principal, interest or other payments and accruals, sinking fund payments, debt service and other reserves, costs of credit enhancement, indemnities, if any, owed to an assignee or the trustee for the cost reduction instrument, issuance costs and redemption premiums, if any, and all other reasonable fees, costs and charges with respect to the cost reduction instrument.
“Assignee” means any corporation, limited liability company, trust, partnership or other entity to which a public utility assigns, sells or transfers, other than as security, all or a portion of the public utility’s interest in or right to cost reduction property. The term also includes any such entity to which an assignee assigns, sells or transfers, other than as security, the assignee’s interest in or right to cost reduction property.
“Chapter 9” means chapter 9, title 28, Idaho Code, as from time to time amended, including any successor provisions.
“Cost reduction instrument” means any instrument, pass-through certificate, note, bond, debenture, certificate of participation, collateral trust certificate, beneficial interest or other evidence of indebtedness or ownership issued by a public utility or an assignee pursuant to a cost reduction order and an executed indenture, security agreement or other similar instrument that is secured by or payable from cost reduction rates or cost reduction property.
“Cost reduction instrument holder” means any holder of a cost reduction instrument or any trustee, collateral agent or other entity acting for the benefit of or on behalf of any such holder.
“Cost reduction order” means an order of the commission issued in accordance with this chapter that authorizes the imposition and collection of approved costs.
“Cost reduction property” means the irrevocable, vested property right created pursuant to this chapter and one (1) or more cost reduction orders including, without limitation, the right, title and interest of a public service company or assignee to all revenues, collections, claims, payments, money or proceeds of or arising from a cost reduction rate, and all rights to obtain adjustments to such cost reduction rate pursuant to the terms of this chapter and any cost reduction order.
“Cost reduction rate” means a charge or rate that the commission authorizes in a cost reduction order, whether such amounts are billed and/or collected by the public utility, an assignee, any subsidiary or affiliate thereof, or any third party that may assume the responsibility for billing or collecting such cost reduction charges. (9) “Public utility” means any electric or gas corporation subject to the jurisdiction, regulation and control of the public utilities commission as contained in chapter 1, title 61, Idaho Code.

History.

I.C.,§ 61-1602, as added by 2005, ch. 372, § 1, p. 1186.

§ 61-1603. Cost reduction order.

A public utility may apply to the commission for a cost reduction order authorizing the recovery of approved costs through the imposition and collection of a cost reduction rate.
A public utility may apply to the commission from time to time for a cost reduction order in a manner prescribed by the commission, in separate proceedings for this purpose or in connection with a general rate case. Such application may also include a request for authority to issue and sell cost reduction instruments to be secured by or payable from the cost reduction rate that results from such cost reduction order or the cost reduction property created by this chapter and the cost reduction order related to such cost reduction rate. Upon such an application, if the commission finds that the public interest would be served if the approved costs were recovered through a cost reduction rate, the commission shall issue a cost reduction order to allow the public utility to recover the approved costs through a cost reduction rate and may also provide authority to issue and sell cost reduction instruments.
A cost reduction order shall detail the approved costs to be recovered and the period of time in which recovery of the approved costs is to occur. A cost reduction order shall specify the amount of the cost reduction rate and the method for determining the amount of the cost reduction rate that from time to time will be sufficient to recover all approved costs. Cost reduction rates shall remain in effect until all approved costs have been paid in full.
A cost reduction order may be issued only upon the application of a public utility and shall become effective only in accordance with its terms and conditions. A public utility may withdraw its application for a cost reduction order if it disagrees with any of the terms and conditions of the order within fourteen (14) days of service of a final order on the public utility. A public utility shall effect the withdrawal of its application by filing a written notice of withdrawal with the commission within such time period. Nothing in this section shall be construed to limit or preclude other remedies that may be available to the public utility under applicable law.
No public utility shall be treated as having acted unreasonably or imprudently by reason of its failure to apply for a cost reduction order, by reason of its withdrawal of an application for a cost reduction order, or by reason of its failure to arrange for the issuance of cost reduction instruments pursuant to a cost reduction order.
Upon issuance of a cost reduction order, a public utility may sell, assign or otherwise transfer or pledge cost reduction property created by this chapter and the applicable cost reduction order, and if authorized by the particular cost reduction order, a public utility or an assignee may issue or cause to be issued cost reduction instruments.
Any cost reduction order, and the approved costs and the cost reduction rates that have been authorized by the commission in such cost reduction order, shall be irrevocable and binding upon the commission. The commission shall not have authority either by rescinding, altering or amending a cost reduction order or otherwise to, either directly or indirectly, revalue or revise for ratemaking purposes the approved costs or the cost reduction rates. Once the commission authorizes a cost reduction rate, it cannot determine in a later proceeding that the cost reduction rate is unjust or unreasonable, or in any way reduce or impair the value of related cost reduction property, either directly or indirectly, by taking the cost reduction rate into account when setting other rates for the public utility; nor shall the amount of revenues arising with respect thereto be subject to reduction, impairment, postponement or termination. The state of Idaho does hereby pledge to and agree with the owners of cost reduction property and with any cost reduction instrument holders that neither the state nor any of its agencies, including the commission, shall (by administrative or legislative action, ballot initiative or other similar process) limit, alter, restrict or impair the approved costs, the cost reduction rate, the cost reduction property, the cost reduction orders or any rights thereunder or ownership thereof or security interest therein or in any way impair the rights or remedies of any cost reduction instrument holders. The state does hereby acknowledge that any cost reduction instrument holders may and will rely on this pledge and agreement and that they would be irreparably harmed by any such limitation, alteration, restriction or impairment without such adequate provision.
Notwithstanding any other provision of this chapter, the commission will from time to time, and no less frequently than annually, approve adjustments to the cost reduction rates as may be necessary to ensure timely and complete recovery of all approved costs that are the subject of the pertinent cost reduction order.
Subject to the foregoing limitations, the commission has the same authority with respect to a proposed cost reduction rate as it has with regard to any other tariff, schedule or classification the effect of which is to change any rate or charge, including, without limitation, the power granted by chapter 6, title 61, Idaho Code, to conduct a hearing concerning a proposed cost reduction rate and the reasonableness and justness thereof.
The commission shall establish procedures for the expeditious processing of any application for cost reduction orders and adjustments thereto, including the approval or disapproval of any such orders within forty-five (45) days of the application therefor.

History.

I.C.,§ 61-1603, as added by 2005, ch. 372, § 1, p. 1186.

STATUTORY NOTES

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

§ 61-1604. Limitation on aggregate amount of cost reduction financing.

The amount of approved costs in a cost reduction order, either individually or in the aggregate with previously approved costs included in cost reduction orders that remain outstanding, may not exceed an amount equal to forty percent (40%) of the public utility’s total capitalization, including both debt and equity, as of the end of the fiscal year of such public utility preceding the application for such cost reduction order.

History.

I.C.,§ 61-1604, as added by 2005, ch. 372, § 1, p. 1186.

§ 61-1605. Cost reduction rate.

Each cost reduction order shall specify a procedure for making adjustments to the cost reduction rate that is the subject of the order.
Upon application by a public utility the commission may:
1. Authorize the making of adjustments to the cost reduction rate at more frequent intervals than those specified in such order; and/or
2. Authorize a change in the method for calculating the cost reduction rate from that specified in such order so as to better ensure the timely and complete recovery of all approved costs.
The cost reduction rate shall be treated as a charge for utility services for purposes of determining both the credit and collection standards and the remedies for nonpayment that are available to a public utility.
A cost reduction rate shall constitute cost reduction property when, and to the extent that, a cost reduction order authorizing such cost reduction rate has become effective in accordance with this chapter, and the cost reduction property shall thereafter continuously exist as property for all purposes with all of the rights and privileges of this chapter for the period and to the extent provided in the cost reduction order, but in any event until the approved costs are paid in full.
Any surplus cost reduction rate collections in excess of the amounts necessary to pay approved costs shall be used in such manner as the commission may reasonably determine.
The obligation to pay amounts in respect of a cost reduction rate cannot be avoided by the formation of a local publicly owned utility or other entity, or by annexation of any portion of the service territory of the public utility by a local publicly owned electric utility or other entity.

History.

I.C.,§ 61-1605, as added by 2005, ch. 372, § 1, p. 1186.

§ 61-1606. Cost reduction instruments.

Public utilities and assignees may issue and sell cost reduction instruments upon approval by the commission of such action in a cost reduction order.
Public utilities and assignees may sell and assign all or portions of their interest in cost reduction property that is the basis for the issuance of cost reduction instruments to the extent approved in the pertinent cost reduction order. To the extent approved in the pertinent cost reduction orders, public utilities and assignees may also pledge cost reduction property as collateral, directly or indirectly, for cost reduction instruments providing for a security interest in the cost reduction property, in the manner as set forth in this chapter. Cost reduction property may also be sold or assigned by:
1. A public utility, an assignee or a trustee for the holders of cost reduction instruments in connection with the exercise of remedies upon a default; or
2. Any person acquiring the cost reduction property after a sale or assignment pursuant to this subsection.
To the extent that any interest in cost reduction property is so sold or assigned, or is so pledged as collateral, the commission may authorize the public utility to contract with an assignee that it will continue to operate its system to provide service to its customers, will collect amounts with respect to the cost reduction rates for the benefit and account of the assignee, and will account for and remit these amounts to or for the account of the assignee. Contracting with the assignee in accordance with that authorization shall not impair or negate the characterization of the sale, assignment or pledge as an absolute transfer, a true sale or security interest, as applicable.
Upon approval by the commission of a cost reduction order, any issuance of cost reduction instruments approved therein, any related transfer or pledge of cost reduction property and any other transactions incidental to such issuance shall be exempt from the requirements of [sections] 61-901 through 61-908, Idaho Code. The commission may include in any cost reduction order any additional approvals that may be required in connection with such issuance under applicable law.
An assignee shall not be considered to be an electric or gas corporation solely by virtue of the transactions described in this chapter.

History.

I.C.,§ 61-1606, as added by 2005, ch. 372, § 1, p. 1186.

STATUTORY NOTES

Compiler’s Notes.

The bracketed insertion in subsection (4) was added by the compiler to conform to the statutory citation style.

§ 61-1607. Security interest.

To the extent the provisions of this section conflict with chapter 9 as from time to time in effect, including any successor provisions, this section shall apply.
A security interest in cost reduction property is valid, is enforceable against the pledgor and third parties, subject to the rights of any third parties holding security interests in the cost reduction property perfected in the manner described in this section, and attaches when all of the following have occurred:
1. The commission has issued a cost reduction order authorizing a cost reduction rate, the right to the imposition and collection of which is included in the cost reduction;
2. Value has been given by the pledgees of the cost reduction property; and
3. The pledgor has signed a security agreement covering the cost reduction property.
A valid and enforceable security interest in cost reduction property is perfected when it has attached and when a financing statement has been filed in accordance with chapter 9, naming the pledgor of the cost reduction property as “debtor” and identifying the cost reduction property. Any description of the cost reduction property shall be sufficient if it refers to the cost reduction order creating the cost reduction property. A copy of the financing statement shall be filed with the commission by the pledgor or transferor of the cost reduction property, and the commission may require the pledgor or transferor to make other filings with respect to the security interest in accordance with procedures it may establish, provided that the filings shall not affect the perfection of the security interest. A financing statement filed pursuant to this section shall remain effective until a termination statement is filed.
A perfected security interest in cost reduction property is a continuously perfected security interest in all revenues and proceeds arising with respect thereto, whether or not the revenues or proceeds have accrued. Conflicting security interests shall rank according to priority in time of perfection. Cost reduction property shall constitute property for all purposes, including for contracts securing cost reduction instruments, whether or not the revenues and proceeds arising with respect thereto have accrued.
Subject to the terms of the security agreement covering the cost reduction property and the rights of any third parties holding security interests in the cost reduction property perfected in the manner described in this section, the validity and relative priority of a security interest created under this section is not defeated or adversely affected by the commingling of revenues arising with respect to the cost reduction property with other funds of the public utility that is the pledgor or transferor of the cost reduction property, or by any security interest in a deposit account of that public utility perfected under chapter 9, into which the revenues are deposited. Subject to the terms of the security agreement, the pledgees of the cost reduction property shall have a perfected security interest in all cash and deposit accounts of the public utility in which revenues arising with respect to the cost reduction property have been commingled with other funds, but the perfected security interest shall be limited to an amount not greater than the amount of the revenues with respect to the cost reduction property received by the public utility within twelve (12) months before: (a) any default under the security agreement, or (b) the institution of insolvency proceedings by or against the public utility, less payments from the revenues to the pledgees during that twelve (12) month period.
If an event of default occurs under the security agreement covering the cost reduction property, the pledgees of the cost reduction property, subject to the terms of the security agreement, shall have all rights and remedies of a secured party upon default under chapter 9, and shall be entitled to foreclose or otherwise enforce their security interest in the cost reduction property, subject to the rights of any third parties holding prior security interests in the cost reduction property perfected in the manner provided in this section. In addition, the commission may require, in the cost reduction order creating the cost reduction property, that, in the event of default by the public utility in payment of revenues arising with respect to the cost reduction property, the commission and any successor thereto, upon the application by the pledgees or transferees, including transferees under section 61-1608, Idaho Code, of the cost reduction property, and without limiting any other remedies available to the pledgees or transferees by reason of the default, shall order the sequestration and payment to the pledgees or transferees of revenues arising with respect to the cost reduction property. Any order shall remain in full force and effect notwithstanding any bankruptcy, reorganization, or other insolvency proceedings with respect to the debtor, pledgor or transferor of the cost reduction property.
Cost reduction property shall constitute a payment intangible as that term is defined under chapter 9.
Sections 28-9-204 and 28-9-205, Idaho Code, as from time to time amended, including any successor provisions, shall apply to a pledge of cost reduction property by a public utility, assignee or other issuer.

History.

(9) This section sets forth the terms by which a consensual security interest can be created and perfected in cost reduction property. Unless otherwise ordered by the commission with respect to any series of cost reduction instruments on or prior to the issuance of the series, there shall exist a statutory lien as provided in this section. Upon the effective date of the cost reduction order, there shall exist a first priority lien on all cost reduction property then existing or thereafter arising pursuant to the terms of the cost reduction order. This lien shall arise by operation of this section automatically without any action on the part of the public utility, any assignee or other issuer, or any other person. This lien shall secure all obligations, then existing or subsequently arising, to the holders of the cost reduction instruments issued pursuant to the cost reduction order, the trustee or representative for the holders, and any other entity specified in the cost reduction order. The persons for whose benefit this lien is established shall, upon the occurrence of any defaults specified in the pertinent cost reduction order, have all rights and remedies of a secured party upon default under chapter 9, and shall be entitled to foreclose or otherwise enforce this statutory lien in the cost reduction property. This lien shall attach to the cost reduction property regardless of who shall own, or shall subsequently be determined to own, the cost reduction property including any public utility, any assignee or other issuer, or any other person. This lien shall be valid, perfected, and enforceable against the owner of the cost reduction property and all third parties upon the effectiveness of the cost reduction order without any further public notice; provided however, that any person may, but shall not be required to, file a financing statement in accordance with subsection (3) of this section. Financing statements so filed may be “protective filings” and shall not be evidence of the ownership of the cost reduction property. A perfected statutory lien in cost reduction property is a continuously perfected lien in all revenues and proceeds arising with respect thereto, whether or not the revenues or proceeds have accrued. Conflicting liens shall rank according to priority in time of perfection. In addition, the commission may require, in the cost reduction order creating the cost reduction property, that, in the event of default by the public utility in payment of revenues arising with respect to cost reduction property, the commission and any successor thereto, upon the application by the beneficiaries of the statutory lien, and without limiting any other remedies available to the beneficiaries by reason of the default, shall order the sequestration and payment to the beneficiaries of revenues arising with respect to the cost reduction property. History.

I.C.,§ 61-1607, as added by 2005, ch. 372, § 1, p. 1186.

STATUTORY NOTES

Cross References.

Meaning of “chapter 9,”§ 61-1502.

§ 61-1608. Transfers in interest.

A transfer of cost reduction property by a public utility to an assignee, or by an assignee to another assignee, that the parties have in the governing documentation expressly stated to be a sale or other absolute transfer, in a transaction approved in a cost reduction order, shall be treated as an absolute transfer of all of the transferor’s right, title and interest, as in a true sale, and not as a pledge or other financing, of the cost reduction property, in each case notwithstanding any contrary treatment for federal or state income and franchise taxes, accounting or other purposes.
A transfer of cost reduction property shall be deemed perfected as against third persons and shall vest title in the transferee when both of the following have taken place:
1. The commission has issued the cost reduction order authorizing the cost reduction rate included in the cost reduction property; and
2. A written assignment of the cost reduction property has been executed and delivered to the transferee.
As between bona fide assignees of the same right for value without notice, the assignee first filing a financing statement in accordance with chapter 9, naming the assignor of the cost reduction property as debtor and identifying the cost reduction property has priority. Any description of cost reduction property shall be sufficient if it refers to the cost reduction order creating the cost reduction property. A copy of the financing statement shall be filed by the assignee with the commission, and the commission may require the assignor or the assignee to make other filings with respect to the transfer in accordance with procedures it may establish, but these filings shall not affect the perfection of the transfer.
The interest of an assignee or pledgee in cost reduction property and in the revenues and collections arising from such property are not subject to set-off, counterclaim, surcharge or defense by the public utility or any other person or in connection with the bankruptcy of the public utility or any other person.

History.

I.C.,§ 61-1608, as added by 2005, ch. 372, § 1, p. 1186.

STATUTORY NOTES

Cross References.

Meaning of “chapter 9,”§ 61-1502.

§ 61-1609. Successors.

Any successor to the public utility, whether pursuant to any bankruptcy, reorganization or other insolvency proceeding, or pursuant to any merger, sale or transfer, by operation of law or otherwise, shall perform and satisfy all obligations of the public utility pursuant to this chapter in the same manner and to the same extent as was required of the public utility before such proceeding or merger, sale or transfer including, but not limited to, billing, collecting and paying to the cost reduction instrument holders, or their representatives or the applicable financing entity, cost reduction rates and any other revenues arising with respect to the cost reduction property sold to the applicable financing entity or pledged to secure cost reduction instruments and seeking cost reduction rate adjustments, as necessary and permitted by the pertinent cost reduction order, to recover all approved costs designated in such cost reduction order.

History.

I.C.,§ 61-1609, as added by 2005, ch. 372, § 1, p. 1186.

Amendments.

The 2016 amendment, by ch. 47, corrected the subsection (8) designation, incorrectly denoted as (7) in the enacting legislation.

Federal References.

Section 1221 of the energy policy act of 2005, referred to in subsection (5), is codified as 16 U.S.C.S. § 824p.

Effective Dates.

Section 4 of S.L. 2007, ch. 186 declared an emergency. Approved March 26, 2007.

§ 61-1703. Commission authority — Preemption — Rules.

In the event that the secretary designates a national interest electric transmission corridor within Idaho, the public utilities commission is authorized to review the siting of all electric transmission facilities within such federally designated corridor. After notice and an opportunity for hearing, the commission shall review and deny, approve, or approve with conditions an application seeking a route certificate to construct transmission facilities within a designated national interest electric transmission corridor.
In reviewing an application for a route certificate, the commission shall base its findings on the following standards:
1. The regional or national benefits expected to be achieved by the proposed construction or modification of transmission facilities;
2. The proposed construction or modification will significantly reduce transmission congestion in interstate commerce and benefit electric consumers;
3. The proposed construction or modification is consistent with sound national energy policy and will enhance energy independence;
4. The proposed construction or modification is consistent with the public interest;
5. The proposed route minimizes adverse impacts on the important environmental features of the state and localities to the extent reasonable and economical;
6. The transmission utility has the financial ability and experience to undertake the construction of transmission facilities; and
7. The proposed modification will maximize, to the extent reasonable and economical, and consistent with reliability planning, the transmission capabilities of existing towers or structures.
The commission is vested with the authority to preempt local government land use decisions pertaining to the construction of transmission facilities in national interest electric transmission corridors in the following instances:
1. If a local government has denied or not authorized a transmitting utility to construct transmission facilities in a designated national interest electric transmission corridor by sixty (60) days after an application for a route certificate has been filed with the commission; or
2. If the transmitting utility claims that a local land use condition imposed by a local government is unreasonable or not economical, then the commission may preempt the local government’s denial, lack of decision or conditioned decision after giving the affected local government an opportunity to appear before the commission.
The commission may promulgate temporary and proposed rules as may be necessary to implement the timely review of applications for transmission routing certificates in a national interest electric transmission corridor.

All matters arising under this chapter shall be governed by the commission’s rules of procedure.
The commission’s proceeding to review an application for a route certificate for the construction of transmission facilities in a designated national interest electric transmission corridor shall constitute a necessary administrative remedy for a person aggrieved by a local government’s final land use action on a transmitting utility’s application to construct transmission facilities in a designated national interest electric transmission corridor. Judicial review shall not be available from a local government’s final land use decision concerning a transmitting utility’s application to construct transmission facilities in a national interest electric transmission corridor. A person aggrieved by a local government’s final land use action involving the construction of a proposed transmission facility route in a national interest electric transmission corridor must participate in the commission’s proceeding and seek judicial review of the commission’s final order.
Reconsideration of, appeal from, and stay of orders issued pursuant to this chapter shall be governed by law as for orders of the commission in other matters.

History.

I.C.,§ 61-1709, as added by 2007, ch. 186, § 1, p. 535.

STATUTORY NOTES

Compiler’s Notes.

Section 3 of S.L. 2007, ch. 186 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 4 of S.L. 2007, ch. 186 declared an emergency. Approved March 26, 2007.