TRP/jva 8/4/2005
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
In the Matter of the Joint Application of SBC Communications Inc. ("SBC") and AT&T Corp. ("AT&T") for Authorization to Transfer Control of AT&T Communications of California (U-5002), TCG Los Angeles, Inc. (U-5462), TCG San Diego (U-5389), and TCG San Francisco (U-5454) to SBC, Which Will Occur Indirectly as a Result of AT&T's Merger With a Wholly-Owned Subsidiary of SBC, Tau Merger Sub Corporation.
Application 05-02-027
(Filed February 28, 2005)
ADMINISTRATIVE LAW JUDGE'S RULING REGARDING
MOTION TO COMPEL AND FOR DEPOSITION BY QWEST COMMUNICATIONS CORPORATION
This ruling addresses unresolved issues in the Motion to Compel filed by Qwest Communications Corporation (Qwest) on July 22, 2005, relating to Qwest's second and fourth sets of data requests. Applicants filed a response in opposition on July 26, 2005. Qwest filed a third-round reply on July 28, 2005. Parties also presented oral arguments concerning the motion at the Prehearing Conference (PHC) held on July 29, 2005. This ruling also addresses the related motion of Qwest, filed on July 26, 2005, for a determination that deposition of Joint Applicants' witnesses falls within permissible discovery limits. Joint Applicants filed a response in opposition to the July 26th motion on August 3, 2005.
The second and fourth sets of data requests, as identified in Qwest's motion, relate to the provision of special access and Voice over Internet Protocol (VOIP)/stand-alone Digital Subscriber Line (DSL) services. As argued by Qwest, discovery concerning SBC's provision of these services bears upon the question of whether the proposed merger will adversely affect competition for telecommunications services in California.
Applicants asserted various objections to the data requests, including lack of relevance, burdensomeness, and commercial sensitivity of the materials sought. At the PHC, the ALJ concluded that the data requests were relevant discovery, and that previously adopted safeguards adequately addressed Applicants' objections on the basis of commercial sensitivity of the requested data. The ALJ agreed with Applicants' objections, however, to the extent the data requests called for production of documents that are not readily available or maintained in the normal course of business.
The ALJ has previously ruled that SBC is not required to provide information in response to data requests that it does not maintain in the normal course of business. See Administrative Law Judge's Ruling Regarding ORA's Second Motion to Compel, entered June 8, 2005, at 5-6 (citing Civ. Proc. Code §§ 2030(f)(2), 2031(A)(1)). SBC objected to the data requests to the extent that they request information that SBC does not maintain in the normal course of its business.
As affirmed by ruling at the PHC, consistent with this limitation on the company's obligations, SBC shall not be required to produce any further responsive materials in reference to those data requests which would require additional sorting, tabulating, and categorization that would be beyond what is produced in the normal course of business. (TR. 68:8-15).
At the July 29th PHC, however, the ALJ noted that parties had failed to meet and confer in an attempt to resolve their disputes over the fourth set of data requests. Accordingly, the ALJ directed the parties to meet and confer to resolve, or at least narrow, their differences concerning the fourth set of data requests at issue in Qwest's motion to compel. SBC and Qwest each separately reported to the ALJ by email on August 2, 2005 regarding the results of that meet and confer session.
In reporting on the meet-and-confer session as ordered by the ALJ, Qwest states that SBC has yet to produce responsive data (with one exception) or documents responsive to the Special Access DRs, and has gotten no further than identifying the 12 records custodians it believes would have responsive documents. SBC agreed to update Qwest as to the status of its search on August 3rd.
This ruling resolves the remaining disputes between the parties relating to the fourth set of data requests that were not resolved through the meet-and-confer session.
Data Requests 4-26 through 4-35 (Subsections (a) through (c))
The fourth set of data requests (DRs 4-26 through 4-35) ask an identical series of questions as to ten different SBC special access plans. Subsections (a) through (c) ask for dates the plans were first made available by tariff and each modification of the plan since it was first offered. In addition to the other information already produced regarding special access services, SBC provided Qwest with access to its tariffs, which describe the terms and conditions under which SBC provides special access services to customers. SBC argues that the details sought by Qwest-such as "all documents . . . that relate in any way" to SBC's tariffs-are irrelevant to any analysis of the merger's effect on competition.
SBC informed Qwest that its tariff plans are available on SBC's website Qwest agreed to look at that website to determine if that is sufficient, but asked SBC to investigate whether it has this historical information readily available. Qwest suggested that a tariff manager employed by SBC may track and maintain the information requested in subsections (a) through (c).
SBC indicates that its historical tariff plans are also publicly available and can be accessed via the Public Access section of the FCC Wireline Competition Bureau's Electronic Tariff Filing System (ETFS). At this website, customized searches can be performed for SBC's tariffs back to January 1, 1997. Qwest agreed to review this website and inform SBC whether additional information is required. SBC believes that this information answers sub-parts (a)-(c) of DRs 4-26 through 4-35.
Based upon the inquiry conducted thus far, SBC believes that changes to its tariff plans are reflected in the tariffs themselves and may be reflected in the transmittal letters that accompanied the tariffs when filed. The tariffs are publicly available. SBC claims that to retrieve, review and provide hard copies of these tariffs would impose a substantial burden. Based on its preliminary assessments, SBC believes these materials are very voluminous, and that it would take at least a week to retrieve, review and produce these documents.
Discussion
It is concluded that SBC has provided a sufficient response to data requests 4-26 through 4-35, subsections a-c, through the providing access to pertinent links on its own website, as well as that of the FCC. Since Qwest can access these websites independently, SBC shall not be compelled to retrieve, review and provide hard copies of the requested tariffs for Qwest. With the provision of the website information, Applicants' response to subsections a-c shall be deemed complete.
