Testimony of Joint Applicant Witnesses not Being Offered for Cross-examination Testimony Under Oath in Person
ORA and TURN also move to strike the following : (1) Declaration from Messrs. Carlton and Sider, submitted with the Joint Application; (2) Declaration of Hossein Eslambolchi, filed as Exhibit 3 to the Original Application; and (3) Declaration of Thomas Horton in support of the Supplemental Application (Exhibit 2). Because these statements were provided by individuals who did not submit testimony and who will not be subject to cross-examination, ORA and TURN argue that their Declarations cannot be relied upon, and should be stricken from the record.
Applicants respond that they submitted these Declarations not as testimony, but as part of their Application and other pleadings to satisfy the Commission's standards.6 Both ORA and TURN have conducted extensive discovery regarding these Declarations,7 and have submitted reply testimony addressing the Declarants' contentions. On that basis, Applicants argue that ORA and TURN have not been denied due process with respect to these Declarations.
Applicants also argue that there is no requirement that the Commission hold hearings in every case, and that it often issues decisions based upon comments and declarations. Applicants argue that the Commission traditionally forgoes evidentiary hearings entirely in proceedings to evaluate the transfer of certificated affiliates, demonstrating that cross-examination is not always necessary.
6 Commission Rule of Practice and Procedure Rule 35 requires the Application to contain data regarding "(a) The character of business performed and the territory served by each applicant.... (c) Detailed reasons upon the part of each applicant for entering into the proposed transaction, and all facts warranting the same....[and] (e) Other pertinent facts."
7 TURN data requests 4-29, 4-30, and ORA data requests 10-1 through 10-13 sought information related to these Declarations.
