Kahan Testimony
Finally, ORA and TURN claim that Exhibit 1 to Kahan's direct testimony also crosses the line of what is permissible testimony for a percipient witness. Kahan attaches a report to his testimony, identified as Exhibit 1, entitled "Trends in the Competitive Communications Market in California." Kahan asserts that he neither authored the report nor knows the author. Likewise, he does not state that it is a source typically relied on in his industry. Given these deficiencies, ORA and TURN move to strike argue that its admission would be impermissible for any witness, let alone a percipient witness.
Applicants object, claiming that ORA and TURN wrongly give the impression that they do not know the source of the document, and, as a result, that they will be prejudiced if the document is admitted. Applicants argue that they have provided responses to 44 data requests (not counting subparts) about this document, beginning in May.9 In addition to the discovery responses, Applicants claim that the document itself includes extensive citations to FCC and industry analyst reports, most of which are publicly available, so that TURN and ORA may assess the reliability of the information published by those organizations. Applicants argue that this report is no different from dozens of other documents analyzing the competitive marketplace in both Applicants' and protestants' testimonies. They claim there is thus no justification for striking this report, and only this report, from the record.
9 TURN data requests 6-16, 6-45 through 6-82, 8-7, 8-8, 8-10, 8-11, 8-13. These questions seek information about the author (as ORA and TURN suggest is necessary), the audience and its use of the report, particular data sources and Applicants' contentions about specific matters addressed in the exhibit. Applicants indicate they have fully responded to these requests.
