IV. Comments on Draft Decision

The draft decision of ALJ Econome in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and in Rule 77.7(b).

Both Cox and Crow Development filed comments to the draft decision. We affirm the draft decision but make several changes. We delete section IV and expand Section V to address the parties' comments, changes to the draft decision, and Cox' motion discussed below. In addition, we make changes to improve the discussion and correct typographical errors.

Cox filed 54 pages of comments to the draft decision, which are 39 more pages than permitted by Rules 77.7(b) and 77.3. Cox accompanied its comments with a motion seeking permission to exceed Rule 77.3's page limitation, primarily because this is the first case before the Commission to interpret § 625, thus presenting many procedural and substantive issues of first impression for Commission resolution. Crow Development opposed this motion, primarily arguing that Cox's comments are outside of the scope permitted by Rule 77.3.

Rule 77.3 provides that comments shall focus on factual, legal or technical errors in the draft decision and in citing such errors shall make specific references to the record. Comments which merely reargue positions taken in briefs will be accorded no weight and are not to be filed.

Cox has not stated good cause to exceed Rule 77.3's page limit by such a substantial amount. However, given that this is the first case interpreting § 625, we grant Cox' motion to file its comments as qualified. To the extent the comments raise for the first time additional factual material not raised below, these facts should be disregarded and are not made part of the record. To the extent the comments reargue positions taken in briefs, or raise for the first time arguments which should have been raised in the briefs, they will be accorded no weight.

In the future, parties seeking to file comments exceeding the Commission's page limitation should make a motion to do so (together with a request for expeditious treatment) in sufficient time so that the principal hearing officer or presiding officer can act on the motion prior to the date when the comments are due. Failure to do so may result in comments in excess of the page limitation being stricken from the record.

Findings of Fact

1. The Commission has discretion over whether or not to permit a complainant to exercise the power of eminent domain to offer a competitive service, even if complainant makes the requisite showing under § 625.

2. A timely hearing in this matter was commenced pursuant to § 625 (a)(2)(A).

3. Because this decision finds that further hearings are not necessary, the hearing concluded on July 3.

4. Crow Development and Cox, as well as other parties, are involved in multiple cases in multiple fora which essentially seek to resolve the same underlying problem.

5. In the Jamboree Superior Court Action, Jamboree seeks a declaration that it be allowed full and complete access to its utility easements, which in turn would give CoxCom and Cox certain access to the easements.

6. In the Cox Superior Court Action, Cox and CoxCom seek a declaration that CoxCom has an easement across Crow Development's property to install and maintain its cable system, over which cable television, high-speed internet access, and telephone services are provided to Park Place customers on the facility parcel. Cox and CoxCom also allege that they are entitled to continued use of these easements without interference from Crow Development.

7. In C.00-05-023, Cox and CoxCom also claim that they are entitled to access the existing utility easements to provide service to the facility parcel under various legal theories.

8. Both Pub. Util. Code §§ 625 and 1701.2 have short deadlines for processing a proceeding. It is more consistent with these statutes to dismiss the proceeding without prejudice than to stay the proceeding, because it is unclear at this point how long the proceeding would have to be stayed, or whether the parties might resolve their differences while the other proceedings are being adjudicated.

9. Whether or not Cox has existing access rights to the easements in question is critical to determining necessity.

10. It would not promote judicial economy for the Commission to make complex title and access determinations as part of exercising its regulatory authority when the Superior Court is currently adjudicating these same underlying title and access issues. Moreover, if these proceedings are litigated concurrently, the potential exists for the two fora to reach inconsistent results.

11. When a party pleads inconsistent theories it typically does so in the same case before the same forum. In such circumstances, the trier of fact has the discretion to conduct the case as procedurally appropriate.

12. If the Superior Court finds that CoxCom has an easement on Crow Development's property, Cox in turn will obtain access to the easements by virtue of an agreement with CoxCom.

13. Cox's complaint describes the easements it seeks to condemn somewhat differently in different paragraphs. All of these descriptions, however, address the existing utility easements to serve the facility parcel, and not broad easement rights which may be necessary to provide service to future tenants in establishments being developed on Crow Development's property.

14. In this case, the Superior Court is currently addressing issues concerning CoxCom's and Cox's entitlement to access the easements in question. These are not issues involving the Commission's specialized agency expertise, such as ratemaking, or a legislative scheme, but rather contract and real property issues that courts routinely resolve.

Conclusions of Law

1. Before Cox can file a condemnation action in the Superior Court seeking to condemn property for a competitive purpose, it must obtain a finding from the Commission pursuant to § 625 that the condemnation is in the public interest. In order for the Commission to make such a finding, it must find, among other things, that the property to be condemned is necessary for the proposed project.

2. If the Superior Court determines that Cox owns or is otherwise entitled to access the easements in dispute, this finding may be determinative in this action on the issue of necessity.

3. This complaint is premature and should be dismissed without prejudice.

4. Cox's motion seeking permission for its comments to the draft decision to exceed Rule 77.3's page limitation is granted as qualified. To the extent the comments raise for the first time additional factual material not raised below, these facts are disregarded and are not made part of the record. To the extent the comments reargue positions taken in briefs, or raise for the first time arguments which should have been raised in the briefs, they will be accorded no weight.

5. To provide to timely guidance to the parties, and in light of the multiple cases now in progress, this order should be effective immediately.

ORDER

IT IS ORDERED that this complaint be dismissed without prejudice.

This order is effective today.

Dated November 21, 2000, at San Francisco, California.

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