4. Analysis of Cox's Arguments
Cox responded to the motion on August 31, 2005. It challenges the relevance of the Form 477 data, arguing that Applicants cannot prepare a market analysis because it has not requested such data from "many other broadband service providers in California," and that, in any event, similar information may be available from the FCC. These arguments have little merit. That Applicants may need additional information from other sources to establish their contentions does not mean that Cox may withhold information that it has and can readily provide. Whether similar information may be available from the FCC is irrelevant, since Cox is being asked to provide existing reporting forms and not to perform analyses that could be deemed burdensome.
Cox argues that its response, if any, should be limited to Verizon's service territory pursuant to the parties' prior agreement concerning discovery limitations. (See Administrative Law Judge's (ALJ) Ruling Addressing Applicants' Motion to Compel Responses by Cox California Telcom, LLC dated August 5, 2005, at 4.) That prior agreement, however, related to other discovery. There is no assertion that the parties have entered into a similar agreement in this dispute.
Cox also contends that because broadband services are outside the Commission's jurisdiction, Cox cannot be compelled to produce information relating to its affiliate's provision of those services in California. This issue has already been decided in this proceeding in the August 5, 2005 Ruling Addressing Motions of Qwest to Compel Responses. There, Verizon's objection to providing data subject to regulation by the FCC was rejected on grounds that Verizon "took too narrow a view in terms of permitted discovery." The ruling noted that the Commission has "made it clear that, in evaluating a proposed merger," it "can consider issues typically outside of its jurisdiction to the extent they affect California ratepayers." A similar ruling was made on July 27, 2005, in the SBC/AT&T proceeding, finding that the "Commission has previously confirmed its jurisdiction to consider competitive impacts and mitigating measures for a merger under Section 854(b), even where a federally regulated service is involved." (ALJ's Ruling Denying, in Part, Applicants' Motion to Strike Reply Testimony of Various Witnesses.)
Finally, Cox asserts that it should not be required to produce Form 477 filings in the possession of an affiliate that is not a party to this proceeding. (Opposition of Cox, at 7.) On the contrary, Cox is required to produce documents over which it has possession, custody or control. If Cox in the ordinary course of business can obtain such documents from its affiliates, Cox has control over such documents and they should be produced. (See, e.g., Camden Iron & Metal, Inc. v. Marubeni America Corporation (D. N.J. 1991) 138 F.R.D. 438, 441-442 (subsidiary corporation has "control" over parent company's documents if "[t]here is access to documents when the need arises in the ordinary course of business"); see also Choice-Intersil Microsystems, Inc. v. Agere Systems, Inc. (N.D. Cal. 2004) 224 F.R.D. 471, 472-73.)
In fact, the ALJ's ruling on Applicants' motion to compel against Qwest already addressed this issue. The ruling stated that "it is clear that California-related information sought from Qwest's California affiliates and its corporate parent is relevant to this proceeding and should be produced," while information sought from affiliates that do not operate in California need not be produced absent a further showing of relevance. (See ALJ's Ruling Addressing Applicants' Motion to Compel Responses, July 29, 2005, at 5.)
