X. Setting Aside Submission for Acceptance of New Information into Record of Proceeding

By e-mail message dated July 17, 2003, Commissioner Kennedy indicated that she was considering setting aside the submission to accept into the record four items of evidence and requested comments from the parties on this possibility. The four items are: (1) work-papers associated with the analysis contained herein; (2) charts and tables showing Verizon's GO 133-B results on a monthly basis (produced in response to a data request); (3) charts and tables showing Pacific's GO 133-B results on a monthly basis; (4) Dr. Hauser's workpapers supporting the ARMIS attachments to his opening and reply testimony (provided to ORA in response to Data Request Pacific 031-02). The e-mail message provided a cycle for comments and replies. In addition, the e-mail announced the Commission's openness to consider other items for inclusion into the record. Finally, the e-mail message stated that the purpose of including these items in the record was to make the calculations easier to follow.

Verizon, TURN, and ORA filed opening comments. Verizon, Pacific, TURN and ORA filed reply comments.

Verizon stated that it had no objection to the proposal. In particular, TURN noted that Dr. Hauser's workpapers were available for review and use by any party. Verizon also noted that on January 28, 2002, ALJ Kenney ruled that responses to data requests from the Commission's Telecommunications Division to Pacific and to Verizon were to be provided to any parties and further noted that "[p]arties may use the information contained in the responses, as appropriate, in their pleadings submitted in this proceeding." Verizon further notes that included in the referenced data requests was one requesting the actual monthly performance data for GO 133-B.

ORA argues that admitting the documents will not cure the defect in the alternate. In particular, ORA argues that the procedure described herein fails to comply with Rule 84. In addition, ORA argues that Rule 69(b) requires that the documents be certified as true and correct. ORA also argues that setting aside submission and accepting the materials into the record would jeopardize ORA's due process rights. Nevertheless, ORA requests the inclusion of a list of items that it believes should be entered into the record.

TURN states that it opposes setting aside of submission, but requests that if the Commission elects to do so, that the Commission accept its statistical analysis - similar to that contained herein but truncated at 1998 - into the record as well.

Pacific and Verizon filed reply comments. Pacific states that although it does not object to reopening the record, it sees no reason to do so - that the existing record fully supports the conclusions reached herein. Pacific opposes the introduction of TURN's statistical analysis, noting that it ignores performance during the most recent three years. Similarly, Pacific opposes the admission of the materials identified by ORA as including material not available to the parties before, new declarations from people who did not testify, material subject to prior motions, and material that should have been addressed in comments. Verizon objects to the inclusion of TURN's statistical analysis and the workpapers of Linette Young. Verizon does not object to items 1, 5 and 6 as proposed by ORA. Verizon notes that Item 1 consists of exactly the GO 133-B monthly data referenced above, that Item 5 consists of MCOT data already in the record, and that Item 6, to the extent that ORA is referring to Pacific's and Verizon's ARMIS results, is already in the record.

Upon consideration of the comments, we have decided to set aside submission and to receive into evidence the four items referenced above. We find ORA's objections to lack merit. First, the Commission has in past cases set aside submission in the absence of a petition from a party.³⁰⁷ Thus, Rule 84 does not preclude the assigned Commissioner from setting aside submission.³⁰⁸ Second, Rule 63 authorizes the presiding officer to "take such other action as may be necessary and appropriate to the discharge of his or her duties, consistent with the statutory or other authorities under which the Commission functions and with the rules and policies of the Commission."³⁰⁹ If the presiding office has this authority, so does the assigned Commissioner. Third, Rule 69 does not require certification of the items of evidence. In particular, these items are offered by the Commission to clarify this record, not by the parties to the proceeding, and are thus explicitly excluded from the provisions of Rule 69. Fourth, the Commission has previously discussed the reliability of ARMIS and GO 133-B data and stated its expectation that this data is accurate.³¹⁰ Moreover, the items of evidence proposed for admission here constitute exactly that GO 133-B and ARMIS data that the Commission has declared reliable and which the Commission has formerly taken official notice. Fifth, the proposed items of evidence will not deprive ORA of its due process or cross-examination rights. In particular, both the data, the methodology of Dr. Hauser which our analysis follows, and Dr. Hauser's workpapers were fully available to ORA for cross-examination in the proceeding. ORA's failure to explore these issues in the proceeding does not entitle it to redo its cross examination now. Sixth, in its comments on our analysis, ORA argued that we should base our analysis on monthly results, not yearly. We have granted ORA's request, and find it difficult to understand why it now objects.

Since there is no credible objection to our reopening the record and receiving these four items into the record, we plan to do so. Although the record in this proceeding is in no way deficient or dependent on this data, we believe that admitting this evidence will enable the parties to better understand both the statistical methodology and the analysis that was used throughout this decision.

Finally, we reject the additional material offered by TURN and by ORA. TURN's analysis has an arbitrary cut-off date for its analysis, and including this in the record makes little sense for we would give it no weight. ORA has provided no explanation as to why its proposed material should be added to the record. Moreover, we note that it had full opportunity to move this information into evidence throughout the proceeding and has made no case as to why we should do so now.

³⁰⁷ See, e.g., Application of San Diego Gas & Electric Company (U 902-E) for Approval of Utility Retained Generation Cost Recovery Mechanism, Opinion Granting Motion to Dismiss, D.03-03-023, A.02-02-015, 2003 Cal. PUC LEXIS 182 *1-2 (March 13, 2003) ("By ruling on January 15, 2003, the Administrative Law Judge noted the potential impact that recent decisions in the Commission's procurement rulemaking ... might have on SDG&E's proposals in this proceeding. The ruling set aside submission of Application (A.) 02-02-015 to take comments regarding any modifications to SDG&E's proposals that might be appropriate in view of the Commission's actions . . . ."); Carol Fisch v. Garrapata Water Co., Inc., D.01-04-013, 2001 Cal. PUC LEXIS 545 *3-4 (April 10, 2001) ("By ruling on December 4, the ALJ set aside submission and requested the Commission's Water Division to direct staff engineer to inspect the meter box on Fisch's property in the company of representative of both parties and to submit a report, with copies to the parties. Neither party objected to evidentiary use of the report or requested additional proceedings."). ³⁰⁸ ORA claims that Rules 45(f) and 46 require that it have an opportunity to respond to a motion or petition to reopen the proceeding. By inviting the parties to submit comments on whether the matter should be set aside and additional evidence received, Dr. Sullivan's email afforded ORA a sufficient opportunity to respond. And ORA in fact has filed comments. This eliminates any possibility that ORA's rights under those rules, assuming they are applicable, have been violated. ³⁰⁹ CPUC Rule 63. ³¹⁰ D.01-12-021.