b) Augmenting the Record

TURN and DRA next claim that the Commission improperly relied on parties' post-hearing briefs to augment the evidentiary record in this proceeding. In Ordering Paragraph 10, the Decision states:

We shall permit parties, in a separate briefing cycle, to address legal and implementation issues that the Commission should consider before ordering detariffing of telecommunications services. Opening briefs are due thirty days from the effective date of this decision, with reply briefs to follow in fourteen days.

According to TURN and DRA, briefs are post-evidentiary filings that cannot introduce new evidence in the record.²⁴ TURN and DRA suggest that the Commission revise the use of the term "briefing" in order to avoid legal error.

Although we find that TURN and DRA's argument does not demonstrate legal error in the Decision, we agree that the Decision appears to use the terms "briefs" and "comments" interchangeably. Although the discussion section of the Decision and Ordering Paragraph 10 use the term "briefs" (see D.06-08-030, pp. 186 and 281), Finding of Fact 85 states "It is reasonable to explore all legal issues associated with detariffing in an expedited comment cycle." Our use of the term "briefing" was not meant to restrict the parties' ability to address the legal and implementation issues on detariffing. In fact, we note that several parties that responded to Ordering Paragraph 10 labeled their filings as "comments" rather than "briefs." We further note that at the Phase II prehearing conference held on November 7, 2006, the ALJ clarified that the "briefs" or "comments" already filed by the parties on the detariffing issue would be treated as comments and are part of the evidentiary record. (Nov. 7, 2005, Prehearing Conference (PHC) Tr., p. 5.) We will accordingly modify the Decision to change the terms "briefs" to "comments."

²⁴ TURN/DRA Rhg. App., p. 19, citing to Rules of Practice and Procedure, Rules 13.11, 13.14, indicating that briefs are post-evidentiary filings.