b. The State and Impact on the Market as a Whole

TURN and ORA contend the Decision's analysis under this prong errs because it improperly declined to review competitive issues on the grounds that the Opinion of the Attorney General on Competitive Effects of the Proposed Merger of Verizon, Inc. and MCI Inc. ("AG Opinion") resolved those questions. TURN and ORA argue the Decision dismissed the record in the proceeding, particularly with respect to issues of market concentration and intermodal alternatives. (TURN/ORA Rhg. App., pp. 17-18.) This argument is flawed for several reasons.

The statutory requirement to assess the competitive effects of a merger exists only when the Commission conducts a full review under Section 854. Specifically, Section 854(b)(3) requires that the Commission find that the merger proposal:

Not adversely affect competition. In making this finding, the commission shall request an advisory opinion from the Attorney General regarding whether competition will be adversely affected and what mitigation measures could be adopted to avoid this result. (Pub.Util. Code, § 854, subd. (b)(3).)

Because the Decision lawfully granted a Section 853(b) exemption, the statutory requirement to review the potential competitive effects of the transaction was not triggered in this case.

Nevertheless, in this case we did determine that despite granting the exemption, it was relevant to conduct a broad review of competitive issues. This approach is consistent with past Commission merger cases also granting an exemption. In conducting this broad review, it is reasonable to rely in great part on the AG Opinion because the Legislature specifically charged the Attorney General with responsibility for evaluating the issue for use by the Commission. Moreover, the law establishes that the Attorney General's opinion and advice is entitled to great weight.¹³

TURN and ORA are wrong that we ignored evidence in the record. Our Decision discusses the competitive issues for each relevant market, and identifies the conclusion of the Attorney General, the position of the applicants, and the positions of the other parties. The Decision then states the basis upon which we determined to accept or reject particular conclusions. (D.05-11-029, pp. 45-79.) It was not legal error, or without consideration of the record, to look to the AG Opinion. The AG Opinion was based on testimony and evidence in the record of this proceeding, relevant FCC precedent, and the Department of Justice and Federal Trade Commission 1992 Horizontal Merger Guidelines and the April 8, 1997 revisions ("Merger Guidelines"). (AG Opinion, pp. 3, 7-9.)¹⁴ There is no basis to conclude the Decision failed to review the competitive issues or consider the evidence in the record.

Finally, TURN and ORA reassert that their conclusions are correct with respect to mass market customers and intermodal competition, and argue we should have come to the same conclusion. (TURN/ORA Rhg. App., p. 18.) As discussed in Section III a) of this Order, our findings regarding these issues were well founded in record evidence, FCC precedent and the Merger Guidelines. TURN and ORA merely ask that we reweigh evidence in the record. We considered these issues and TURN and ORA's positions, and stated the reasons for rejecting those arguments. (D.05-11-029, pp. 48-60.) TURN and ORA offer no legal basis to require such a reweighing of evidence. Accordingly, for the reasons stated above, there is no legal error.

¹³ See Moore v . Panish (1982) 32 Cal. 3d 535; Farron v. City and County of San Francisco (1989) 216 Cal.App. 3d 1071; Unger v. Superior Court (1980) 102 Cal.App. 3d 681.

¹⁴ In this Order all citations to the AG Opinion, briefs, and exhibits refer to the public rather than redacted versions.