6. Discussion of Procedural Issues
6.1. Alleged Violation of Ex Parte Contact Prohibition
As specified in Rule 8.2(b) of the Commission's Rule of Practice and Procedure, ex parte contacts are prohibited in this proceeding. The parties were informed of this prohibition in the scoping memo. (See Attachment A, p. 3, to today's decision.)
In response to allegations by the Opposing Defendants of impermissible ex parte contacts, the Presiding Officer ordered Verizon to present testimony at the hearing addressing the alleged contact.
Verizon's witness testified that a meeting occurred on November 27, 2007, between two Verizon representatives and an advisor to Commission President Peevey. The purpose of the meeting was to inform the advisor and the Commission staff that Verizon was preparing to file this complaint pursuant to § 625, with its expedited procedural schedule. The witness was present at the meeting and testified that no commitments to a particular outcome were sought or obtained by Verizon. The complaint was filed the next day, November 28, 2007.
Verizon argued that the Commission's ex parte rules apply only to formal proceedings, and that this complaint did not become "formal" within the meaning of the rules until filing on the day after the meeting.
The Opposing Defendants objected to the meeting and Verizon's analysis of Rule 8.2(b). The Opposing Defendants contended that a formal proceeding was in place - the Superior Court proceeding. The Opposing Defendants offered no authority for the proposition that a Superior Court proceeding met the Commission's definition of proceeding for purposes of the ex parte rule.
As provided in Rule 8.1(c), Rule 8.2 of the Commission's Rules of Practice and Procedure applies to communications that concern a substantive issue in a formal proceeding with a decision maker. A review of the Rules of Practice and Procedure, e.g., Rules 1.3, 1.4, 7.1 (especially Rule 7.1(e)(3)), and 8.1(c)(1), shows that the proceedings referred to in these Rules are Commission proceedings, not Superior Court proceedings.
We, therefore, conclude that the evidence does not support a finding that this meeting violated Rule 8. It is undisputed that the meeting occurred before the filing and was not intended to influence the post-filing outcome. Rule 8.2(b) prohibits ex parte communications in any adjudicatory "proceeding." On November 27, 2007, this proceeding had not started and Rule 8.2(b) was not applicable.
We caution Verizon, however, any future such prefiling informative meetings would be better directed to the organizational staff of the Commission, e.g., the Director of the Communications Division, rather then a Commissioner's advisor.
6.2. Other Procedural Objections
The Opposing Defendants raised several procedural objections which, they contend, frustrate legislative intent in adopting § 625. They contend that these procedural flaws prevent the Commission from rendering a legal and binding decision. We address each contention below specifically.
As a general matter, § 625 requires a very expedited schedule. The complaint must be brought to hearing within 45 days of filing, and a decision rendered 45 days after the end of the hearing and briefing. In contrast, the Commission's typical schedule for resolving complaints is within one year. (See § 1701.2(d).) Accordingly, the hearing schedule must be set quickly and strictly adhered to, other than the single 30-day continuance authorized in § 625(a)(2)(A). This schedule necessarily imposes significant burdens on the parties, the Presiding Officer, and the Commission.
The Opposing Defendants stated that the "most significant flaw" was the complainant's and the Commission's failure to serve a copy of the complaint upon all of Verizon's competitors. The Opposing Defendants contend that Verizon was required to give notice of this proceeding to all its competitors for local telephone and advanced telecommunications services that could be provided by the IOF project. The Opposing Defendants point to the Commission's manual15 for property owners, utilities, and the public regarding these eminent domain proceedings as the source of this requirement. The manual, however, mandates service only on property owners; it only recommends service on a number of other potentially interested parties, including competitors.16 Under the statute, service on the property owner is mandatory (§ 625(a)(1)(A)); no other entity is required to be served with the complaint.
Verizon contends that there is no requirement for service on competitors and, even if one existed, no other entities offer landline telephone service and DSL along Summit Road.
We find and conclude that Verizon properly served its complaint. The Commission staff prepared the manual to assist parties in complying with § 625, which also contains obligations for the Commission to notify local jurisdictions. The plain words of the manual require service on the defendant, but only recommend service on competitors. Thus, Verizon was under no obligation to serve any competitors with the eminent domain complaint and, consequently, the failure to do so was not a procedural error.
The Commission publishes notice of all its hearings in its daily calendar, available on the Commission's web site, www.cpuc.ca.gov. Consistent with § 625(a)(2)(A), the Commission gave notice to both local jurisdictions, Santa Clara and Santa Cruz Counties, who in turn gave required notice. Consequently, any competitor concerned about Verizon's expansion into the private section of Summit Road could have readily obtained information from multiple sources about the hearings.
The Opposing Defendants next object to the use of a scoping memo to set issues and require written direct testimony with cross-examination limited to the issues raised on the direct testimony. The Opposing Defendants contend that these procedural devices effectively eliminated cross-examination as a tool of exposing the truth.
Verizon attributes the Opposing Defendants' procedural objections to their lack of familiarity with the Commission's processes.
A scoping memo is required by § 1701.2: "The assigned Commissioner or the assigned Administrative Law Judge shall hear the case in the manner described in the scoping memo." Rule 7.3 of the Commission's Rules of Practice and Procedure provide that the assigned Commissioner shall issue a scoping memo for each proceeding setting forth the schedule and the issues to be addressed. The scoping memo for this proceeding is reproduced in Attachment A, and includes the following notification of hearing procedures:
All direct and reply testimony shall be in writing and shall be distributed prior to hearing on the schedule set out below. No additional direct or reply testimony shall be accepted at the hearing absent compelling circumstances. The hearing will be transcribed by a court reporter and limited to cross examination, under oath, of witnesses presenting evidence on disputed issues of material fact. The testimony shall be limited to factual assertions relevant to an issue of material fact in this proceeding.
These are standard Commission procedures designed to require parties to reveal their testimony ahead of the hearing and to allow opposing parties opportunities for discovery and preparation of cross-examination questions.
The Opposing Defendants next object because the Presiding Officer denied their untimely request for continuance. The scoping memo also set the deadline for defendants to request a 30-day hearing extension pursuant to § 625(a)(2)(A). The Commission requires sufficient notice of the extension request to enable the Commission to perform its noticing duties to the local jurisdictions. The Commission must "provide the local jurisdiction with copies of the notice of hearing in time for the local jurisdiction to mail that notice at least seven days in advance of the hearing to all persons who have requested copies of the local jurisdiction's agenda or agenda packet." § 625(a)(2)(A). In addition, that statute requires that the hearing be held in the local jurisdiction, which requires scheduling an appropriate hearing venue and making travel arrangements for court reporters and Commission staff. Accordingly, the scoping memo set December 28, 2007, as the last date to request a hearing extension. On January 7, the Opposing Defendants requested a delay in the hearing scheduled for January 10 to allow additional time to prepare their rebuttal testimony, which was due on January 9. Although the hearing was not delayed, the Opposing Defendants desire for additional time to prepare rebuttal testimony was accommodated by accepting revised rebuttal testimony for the record on January 10, allowing the Opposing Defendants' witnesses to present extemporaneous surrebuttal testimony, and, over Verizon's hearsay objection, accepting testimony as to the content of a telephone message left by a person not a party or a witness.
The Opposing Defendants request judicial notice of 11 items listed in their brief. Several of the items are currently included in the record of this proceeding. Thus, the request for judicial notice of this proceeding's hearing exhibits, transcripts, and pleadings is denied as unnecessary.
Three of the items relate to the Opposing Defendants' opposition to Verizon's motion to dismiss. These items are the Superior Court trial transcripts and depositions offered in support of the opposition.
Verizon objects to receiving these voluminous documents into the evidentiary record because the Opposing Defendants have not specifically delineated what portions of these documents are relevant to an issue in the proceeding. Verizon states that the California Court of Appeal has found that seemingly superfluous or unaddressed matters in the record may have significant consequences, making it unfair to allow such items to be admitted, citing Demps v. San Francisco Housing Authority (2007) 149 Cal. App. 4th 564.
The Opposing Defendants offered these documents for their opposition to the motion to dismiss. We have addressed the motion to dismiss above. The Opposing Defendants also cited to these documents in their closing brief for the proposition that Verizon would not have made local improvements to the Summit Road facilities absent the larger IOF project, which was stipulated between the parties, and that the Superior Court used legislative history in its interpretation of § 625. Neither of these propositions is reasonably subject to dispute.
We will allow the portions of the Superior Court transcripts identified in the Opposing Defendants' reply brief to be used for these purposes only.
15 Information for Property Owners, Utilities, and the Public Regarding Senate Bill 177.
16 The page of the manual addressing filing and service of the complaint is reproduced in Attachment D, with the worldwide web address for the entire document. The page states that "utilities must serve the complaint on: the property owner ... ." The next section states that the utility "should also serve the complaint on" six other listed types of entities, including "utilities or entities" that offer in the same geographic area the "type of service for which the public utility is seeking to condemn the property."
