DOT/avs 3/7/2005

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Rulemaking on the Commission's Own Motion to Govern Open Access to Bottleneck Services and Establish A Framework for Network Architecture Development of Dominant Carrier Networks.	Rulemaking 93-04-003 (Filed April 7, 1993)
Investigation on the Commission's Own Motion into Open Access and Network Architecture Development of Dominant Carrier Networks.	Investigation 93-04-002 (Filed April 7, 1993) (Verizon UNE Phase)

ADMINISTRATIVE LAW JUDGE'S RULING
ALLOWING LIMITED SURREBUTTAL AND REVISING SCHEDULE

This ruling formalizes a ruling distributed via electronic mail to the parties on January 6, 2005. (See Attachment A.)

Motion for Surrebuttal

On December 3, 2004, Verizon California, Inc. (Verizon) filed a motion requesting leave to file limited surrebuttal testimony in this case to address revisions to the HM 5.3 cost model and alleged new factual matters raised in rebuttal testimony by AT&T Communications of California, Inc. (AT&T) and MCI, Inc. (collectively, Joint Commentors). Verizon contends the scope and magnitude of the HM 5.3 model changes are sweeping and that three new factual issues were raised improperly. The three issues involve the qualifications of Verizon's witness, Richter, the use of Integrated Digital Loop Carrier (IDLC), and engineering guidelines in a 1995 NYNEX study. Therefore, Verizon maintains due process requires it be allowed to comment on the new version of HM 5.3 and the new factual issues submitted by Joint Commentors in their November 9, 2004 rebuttal filing. In the alternative, Verizon requests the Commission to strike these portions of Joint Commentors' rebuttal filings from the record. In addition, Verizon requests permission to submit a revised version of its own cost model to provide changes it described but did not submit in its rebuttal testimony.

In response to Verizon's motion, Joint Commentors oppose all of Verizon's requests. First, Joint Commentors maintain that the changes presented in rebuttal were not sweeping and were made in response to criticisms by Verizon. Therefore, these model changes are not inappropriate and there has been no due process violation requiring the Commission to give Verizon one more opportunity to comment. Second, Joint Commentors contend that the three new factual issues are not unusual or improper and do not merit additional surrebuttal. Finally, Joint Commentors oppose Verizon's request to further modify its cost studies because there is no change in circumstances supporting this late filing.

The Utility Reform Network /Office of Ratepayer Advocates (TURN/ORA) urge a postponement of price floor filings if Verizon is allowed to modify its cost studies with a further filing. They also suggest that Joint Commentors and Verizon each file a summary table explaining their most recent cost modeling changes.

Verizon's motion is granted in part and denied in part, as explained more fully below. Verizon's motion essentially contains three requests - to file surrebuttal on the HM 5.3 model, to file surrebuttal on three factual issues, and to file revisions to the Verizon cost models.

First, Verizon's request to file surrebuttal testimony on HM 5.3 modeling changes is denied. It appears that the HM 5.3 model changes submitted by Joint Commentors in their rebuttal directly respond to Verizon's criticisms in the reply round of comments. To ensure this is the case, I have directed Joint Commentors to file a summary table, as suggested by TURN/ORA, which provides a description of the modeling changes in the November 9, 2004 version of HM 5.3, a citation to the criticism by Verizon the change responds to, and a citation to the location in the November 9, 2004 rebuttal testimony where the modeling change is described. This summary table was filed by Joint Commentors on January 21, 2005. I will allow Verizon an opportunity to respond to this summary table. Verizon's response should be limited to 25 pages and provided no later than March 15, 2005. Verizon's response should focus on errors or omissions in the Joint Commentor's summary table. If I conclude that Joint Commentors' HM 5.3 modeling changes were not responsive to criticism or were not explained in the rebuttal round of comments, I may strike those modeling changes from the record in a subsequent ruling. Therefore, I will not rule at this time on Verizon's alternative request to strike the rebuttal version of HM 5.3.

Second, regarding Verizon's request to file limited surrebuttal on three new factual issues, I will grant Verizon's request. Although it is highly unusual to allow surrebuttal, I find that an extremely limited surrebuttal is justified in this case. Joint Commentors should have challenged Richter's qualifications in reply rather than rebuttal, so Verizon should be given the opportunity to defend its witness. I will limit Verizon to 2 pages of surrebuttal on this topic. In addition, Joint Commentors' witness provided new information on IDLC in another state that has only recently become available. I will allow Verizon to respond to this new information and again, I will limit Verizon to 2 pages of surrebuttal on this topic. Finally, Joint Commentors reference a NYNEX study in rebuttal comments which Verizon itself used for a different subject in an earlier comment round. I will allow Verizon a maximum of 3 pages of surrebuttal to respond to the Joint Commentors' testimony regarding the NYNEX study because I find the record will benefit from understanding Verizon's position on this study.

Third, I will deny Verizon's request to submit further revisions to its cost studies. Verizon had an opportunity in the rebuttal phase to amend its cost filings and it chose to describe potential changes rather than actually provide them. This is sufficient and it would unnecessarily delay this proceeding to allow Verizon to further modify its cost filings at this late date.