TRP/jva 8/29/2005
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 QWEST COMMUNICATIONS CORPORATION
MOTION TO ADMIT EXHIBITS 142 and 142-CBy this ruling Exhibits 142 (a public document) and 142-C (filed under seal as "highly confidential") are hereby admitted into the evidentiary record of this proceeding. On August 17, 2005, Qwest Communications Corporation (Qwest) sought admission into the record of documents marked for identification as Exhibit 142 and 142-C.
A ruling on Qwest's motion to admit Exhibit 142 and 142-C into the evidentiary record was deferred pending receipt of a written response from the Joint Applicants. On August 19, 2005, the Joint Applicants filed a response in opposition to Qwest's motion to admit the exhibits. Qwest filed a third-round reply on August 23, 2005, to Applicants' opposition. Qwest filed both a redacted public version and unredacted confidential version of its third-round reply, and moved for leave file under seal its unredacted response which contained confidential information. SBC Communications Inc. (SBC) supplemented its response through an informal email message sent to the Administrative Law Judge (ALJ) and parties of record on August 24, 2005. Qwest supplemented its reply by email to the service list on August 25, 2005.
Exhibit 142 consists of a cover document entitled "Redacted Supplemental Declaration of Adam L. Sherr Regarding Admission of Data Request Responses," together with copies of redacted responses of the Joint Applicants to certain designated data requests and attachments thereto. Exhibit 142-C (an unredacted confidential version of Exhibit 142) consists of confidential responses to the Joint Applicants to certain data requests and attachments thereto. With one exception (Exhibit 33 thereto), the documents attached to Exhibits 142/142-C were produced by the SBC in response to Qwest Data Requests 4-26 through 4-35. Qwest sought these responses and documents for the purpose of supporting its claims as to the influence of AT&T Corp. (AT&T) over the development of SBC's federally-tariffed special access generic term plans. Qwest claims that Exhibits 142/142-C are relevant in the assessment as to whether the merger will cause competitive harm, and to support Qwest's contention that the merger will enable SBC to raise special access rates to the detriment of competition absent mitigating conditions.
Claims of Lack of Foundation and Untimeliness
Parties' Positions
Applicants object to admission of Exhibits 142/142-C based, in part, on the claim that the underlying documents were not produced in a timely manner and lack foundation. Qwest propounded the discovery that it seeks to enter into the record through Exhibit 142/142C on the same date that its reply testimony was due. Thus, due to the late receipt of the discovery responses, Qwest did not include the responses in testimony of its own witness, nor did it cross examine Applicant witnesses concerning the discovery responses in Exhibits 142/142-C. Applicants thus argue that the documents in Exhibits 142/142C are out of context and deny Applicants the opportunity to provide clarifying context through redirect testimony.
Qwest responds that any lack of timeliness is due to SBC's delay in producing the responsive documents. Qwest accuses SBC of delay in producing the documents in an attempt to get its witnesses on and off the stand before Qwest could review the documents for use in its cross-examination. SBC counterclaims that Qwest bears responsibility for delay in that Qwest started its discovery late in the proceeding and waited until August 18th to review responsive documents that SBC had produced on August 5th.
Discussion
While each side blames the other for the delay in waiting until the end of hearings to produce the documents in Exhibits 142/142-C, the end result is that the delay prevented Qwest from being able to include the documents either in its testimony or for use in cross examination. Even if some responsibility for delay may be attributable to Qwest's actions, SBC also appears to have contributed to the delay, as recounted by Qwest. Qwest should not be deprived of the opportunity to submit Exhibits 142/142-C merely because delays at least partly attributable to SBC precluded Qwest from timely incorporating these documents into its own witness' testimony and/or in cross examining SBC witnesses. Also, the relevance of these documents in examining the question of the effects of AT&T on mitigating SBC's control over special access pricing tips the scales in favor of receiving these documents into evidence.
The authentication of the documents is not in question. SBC has acknowledged the authenticity of the documents.1 SBC objects to admission, however, because it has not been allowed to produce redirect testimony concerning the significance of the documents. By the same token, however, Qwest has not produced any testimony concerning the significance of the documents. Both Qwest and Applicants will have the opportunity to present arguments in opening and reply briefs concerning the significance of documents in Exhibits 142/142-C and resulting inferences that may be drawn. Accordingly, SBC's objections regarding lack of timeliness and foundation do not warrant exclusion of Exhibits 142/142-C from the record.
1 See Reporter's Transcript at 2300-01.
