b) Opportunity to Comment

TURN and DRA suggest that they had no opportunity to comment on the issue of defining the relevant markets because the April 2005 OIR did not mention the market concept. (TURN/DRA Rhg. App., pp. 28-29.)

As discussed above, the Merger Decisions could not and did not adopt a general rule defining the relevant markets. Thus, it was not incumbent upon the Commission to discuss the Merger Decisions in this proceeding. That TURN and DRA mistakenly assumed an identical definition would apply, does not constitute legal error by the Commission. Further, the record demonstrates that parties had ample notice and opportunity to comment on the issue of relevant markets.

It is true that the April 2005 OIR was broadly stated, however it did indicate that any new regulatory framework to be adopted as a result of the proceeding must be "competitively neutral."²⁶ Defining the relevant markets is an integral aspect of any competitive/market analysis, therefore, the parties had reasonable notice that defining the relevant markets would be considered in this proceeding. As for the opportunity to comment, the OIR sought input on relevant issues, asking parties to comment on, among other things: "What criteria and procedures should be used to: (A) determine which services should remain subject to price regulation; (B) set and revise prices for services that remain subject to price regulation; and (C) remove a particular service from price regulation in the future?"²⁷ In response, virtually every party, including TURN and DRA, submitted comments and proposals identifying market power and the relevant markets as issues which must be addressed.²⁸ Thus, the parties took advantage of the opportunity to be heard on the issue of relevant market definitions, with parties taking differing positions regarding the proper definition of the relevant markets.²⁹ Throughout the proceeding, parties had ongoing opportunity to comment at the workshops (June 3, and September 20 - 22, 2005), during the evidentiary hearings (January 30 - February 2, 2006), and finally by submitting their positions in briefs and reply briefs submitted March 6, and March 24, 2006, respectively.

²⁶ See OIR, R.05-04-005, dated April 7, 2005, p. 3, Appendix A, p. A-1, Issue 7(B).

²⁷ See OIR, dated April 7, 2005, Appendix A - Scope of Proceeding, Phase I Issue Number 8, p. 1.

²⁸ See Comments of The Office of Ratepayer Advocates (dated March 31, 2005, pp. 22-32.); Comments of The Utility Reform Network (dated March 31, 2005, pp. 21-23.); Declaration of Trevor R. Roycroft/TURN (dated March 31, 2005, pp. 13-37.).

²⁹ See, ante, fn. 28, also Reply Comments of Verizon California Inc. (dated September 2, 2005, pp. 12-15.); Reply Comments of Pacific Bell Telephone Company (dated September 2, 2005, pp. 30-31.).