II. DISCUSSION

A. Is D.08-06-021 supported by sufficient evidence?

SRA contends the finding that Verizon's design plans and its expert witnesses' testimony in support constitute an adequate basis for Commission approval of the project are unsupported because it alleges there are no design plans in the record. According to SRA, Verizon's expert witnesses' testimony was refuted by the fact that some of them never actually personally saw the road in question. In some instances Verizon's witnesses based their opinion on visual estimates and/or the testimony of other witnesses who had not seen the plans.

The basis of SRA's contention is its allegation that Verizon did not submit a plan containing drawings of the proposed construction. SRA argues that Verizon's witnesses essentially provided estimates rather than verifiable information. The defendants contend that as of the day the hearing began, they had not been provided with a copy of Verizon's proposal nor of any of the documents upon which the expert witnesses relied. SRA has previously raised this issue and we address it at page 29 of D.08-06-021:

The ... [d]efendants next argue that the absence of final construction plans undermines the evidentiary record. Verizon presented design plans showing the route the installation would take, explained the facilities to be installed and the method of installation, and provided a full team of experts to defend the plans....

California courts have, for some time, reviewed the question of what constitutes substantial evidence for purposes of determining whether a Commission decision is adequately supported by the evidentiary record. (See e.g., Kern County Land Co. v. Railroad Com. (1934) 2 Cal.2d 29, 35; Western Canal Co. Railroad Com. (1932) 216 Cal. 639, 646; S. Edwards Associates v. Railroad Com. (1925) 196 Cal. 62, 70; Butte County W.U. Assn. v. Railroad Com. (1921) 185 Cal. 218, 231; Van Hoosear v. Railroad Com. (1920) 184 Cal. 553, 555.) "If there was any evidence before the [C]ommission that could support its finding ..., such finding will not be disturbed." (California Water & Tel. Co. v. Public Utilities Com. (1959) 51 Cal.2d 478, 493; see also, Pub. Util. Code, §1757(a)(4).) The underlying record is replete with evidence that supports D.08-06-021. SRA has not established that D.08-06-021 erred in finding that "Verizon presented the Commission with sufficient factual information to make the evaluations necessary pursuant to [section] 625." (D.08-06-021 at p. 29.) Nor has SRA shown that the findings in D.08-06-021 that section 625 is applicable, that Verizon must comply with it and that the sought after easement is in the public interest, are not supported by substantial evidence.

B. Was the process accorded to this proceeding constitutional?

In addition to the allegation that the evidence was insufficient, SRA also argues that it had insufficient time. Verizon filed its complaint in late November and the December 3, 2007 scoping memorandum advised all parties of the filing deadlines and also notified the parties that an evidentiary hearing was scheduled to commence on January 10, 2008. In addition, the parties were notified of their opportunity to submit evidence and cross-examine witnesses. (See e.g., December 3, 2007 AC's and Chief ALJ's ruling and scoping memo at p. 4.) Further we publish notice of hearings in our daily calendar.

We state again that notice was provided in accord with established Commission procedure for this category of proceeding, and that the scoping memorandum adhered to the Commission's Rules of Practice and Procedure regarding setting issues and notifying the parties of the process for written direct testimony and cross-examination limited to the issues raised on direct testimony. (See also,

D.08-06-021 at pp. 25-27.) Further, the scoping memorandum also set a deadline for the defendants to request a 30-day hearing extension. Although the defendants did not request a delay until well after the deadline and thus the hearing schedule was not delayed, the presiding ALJ permitted the defendants additional time to prepare rebuttal testimony. (D.08-06-021 at p. 27.) In addition, defendants appealed the presiding officer's decision (POD) and we address that appeal in D.08-06-021 at pages 28-29. The record establishes that SRA was accorded the requisite process due. While it may be that SRA is unfamiliar with our process, albeit represented by counsel, such does not establish procedural irregularities in this proceeding. We note that persons appearing before the Commission are governed by our Rules of Practice and Procedure. The due process allegations are without merit.

C. Allegations concerning liability for and possible mediation of future construction-related issues.

SRA contends D.08-06-021 places a limitation on any potential liability for damages and that said limitation is not based on record evidence. In response to defendants' comments, D.08-06-021 "modified the Implementation Requirements to clarify that Verizon is under a Commission order to ensure that [it] repairs any damage to the roadway caused by its facilities or construction." (D.08-06-021 at p. 29.)³ Pursuant to Ordering Paragraph No. 3:

The Director of the Communications Division shall provide guidance to the parties as necessary and, with such additional advice as may be necessary, has the authority to oversee and resolve the parties' disagreements regarding the Implementation Requirements.

(D.08-06-021 at p. 36.)

The Implementation Requirements are attached as Appendix E to D.08-06-021. Pursuant to those requirements, "Verizon and the [d]efendants are required to meet, confer and cooperate as necessary to efficiently and effectively ensure the design and construction of a project fully consistent with sound engineering standards and compliant with all applicable roadway standards." (Appendix E to D.08-06-021 at p. E1.) Among other things, the requirements order Verizon to document the pre-construction condition of the roadway as well as each bore pit after construction is completed and a year later. (Id.) In addition, Verizon is ordered to pay for extra grading by a contractor to be selected by SRA but at a cost no greater than $5000. To the extent this may be considered to constitute a limitation, it has to do with costs and has nothing to do with any real or potential damages.

Contrary to SRA's allegation that there is a monetary cap on damages and that the Communications Director is charged with resolving damages, there is no language limiting damages in the challenged decision, nor placing damages within the ambit of the Communications Division. Further nothing in D.08-06-021 prohibits SRA from bringing a civil suit for damages against Verizon arising from the construction. (People ex rel Orloff v. Pacific Bell (2003) 31 Cal.4^th 1132, 1145.) Under such circumstances, should SRA pursue a civil action against Verizon for damages arising from the construction, nothing in the record before us leads us to conclude that doing so would hinder or frustrate the Commission's regulatory authority over Verizon. (Compare e.g., Hartwell Corp. v. Superior Court (2002) 27 Cal.4^th 256, 266.) While SRA takes issue with this aspect of the challenged decision it fails to establish error.

D. Request for oral argument

Apparently relying on D.06-08-030, SRA requests an oral argument on the applicability of section 625, arguing that the Commission's approval of Verizon's use of the condemnation process to seize property for competitive purposes is one of first impression.⁴ Commission Rules of Practice and Procedure rule 16.3 requires an applicant for rehearing seeking oral argument to "explain how oral argument will materially assist the Commission in resolving the application, and demonstrate that the application raises issues of major significance for the Commission." Rule 16.3 is discretionary and highlights four possible areas of interest: (a) adopts without adequate explanation a new precedent or departs from an existing one; (b) changes or refines existing precedent; (c) presents legal issues of exceptional controversy, complexity or public importance; or (d) raises questions of first impression that are likely to have significant precedential impact.

In requesting an oral argument, SRA states: "The Commission and the ALJ's decision on the applicability of ... [section] 625 and their approval of Verizon's use of the condemnation process to seize property for competitive purposes is one of first impression...." (SRA application for rehearing at p. 20.) We disagree that our review of section 625 is one of first impression. Even if it had been, SRA does not provide how or why this proceeding is likely to have a significant precedential impact, nor does it explain how oral argument at this phase will assist us in resolving this proceeding. Cox California Telecom v. Crow Winthrop (2000) ___ Cal.P.U.C.3d ___, D.00-11-038, is the first case we entertained regarding section 625. In Cox we discuss our authority to determine a proposed condemnation is in the public interest under section 625 upon finding that the four requirements of section 625(b)(2) are met. (D.00-11-038 at pp. 3 and 13.) D.08-06-021 does not depart from that determination. Further, we have also reviewed the applicability of section 625 regarding easement issues affecting other non-telecommunications utilities. The underlying proceeding does not present a case of first impression regarding section 625, nor is there any inconsistency regarding the Commission's determination of factors for ascertaining whether a proposed condemnation is in the public interest. SRA has not established good cause for granting oral argument and its request is denied.

³ Certainly, Verizon is required by section 702 to obey this order and any directives issued by the Director of the Communications Division.

⁴ Although not mentioned by SRA, D.06-08-030, in R.05-04-005, was modified and a limited rehearing was granted by D.06-12-044 concerning Paragraph 21. D.06-08-030 examines the use of "competitive forces" for purposes of determining "just and reasonable" rates for California's telephone consumers; neither D.06-08-030 nor D.06-12-044 concern section 625.