5. Discussion

The documents sought by Applicants here are relevant to the issues of whether the Verizon/MCI merger will have a significant competitive impact in the markets for telecommunications and Internet services, as Cox alleges. (Cox Protest, at 14-16.) The question of relevancy is whether the information has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Cal. Evid. Code § 210.) The information sought in this discovery dispute has a tendency to prove or disprove the existence of competition for telecommunications services (i.e., the potential for cable telephony services). The existence or non-existence of competition for telecommunications services is a fact that is of consequence in this proceeding. The discovery request cannot be said to be unduly burdensome, and Cox has not so alleged. To the extent that Cox is concerned about the confidentiality of its marketing documents and the marketing documents of its affiliates, the data can be made subject to "Lawyers Only" nondisclosure agreements similar to those that apply to Cox's receipt of Verizon and MCI documents. (See ALJ's Ruling Granting, in Part, Motion for Protective Order, dated July 15, 2005.)

Applicants seek documents concerning Cox's broadband communications services in California. The Commission has held that the number and strength of competitors remaining in the market after a merger is relevant in determining whether the merger would adversely affect competition. Thus, in the Enova/Pacific Enterprises merger case, the Commission upheld an ALJ's ruling requiring Southern California Edison Company to produce documents relating to its "current plans in the area of competition," and ordering sanctions for refusing to provide such documents. (Re Pacific Enterprises (1998) 70 CPUC 2d 343.) The ALJ had found that such documents were relevant to analyzing the "competitive environment that will exist subsequent to the consummation of the proposed merger." The Commission also noted that "[w]hat matters in assessing a merger is how the merger will change the competitive circumstances that would obtain absent the merger." (70 CPUC 2d at 378.)

Similarly, in the Telesis/SBC merger case, the Commission noted the importance of considering the future plans of potential competitors in the California markets for local exchange or intrastate services. (Re Pacific Telesis Group (1997) 71 CPUC 2d 351.) Likewise, in the GTE/Bell Atlantic merger case, the Commission relied on the presence of other actual and potential competitors, and their relative strengths and weaknesses, in finding that the proposed merger would not adversely affect competition. (Re GTE Corporation and Bell Atlantic Corporation (2000) D.00-03-021, at 106.)

The relevance of competitive broadband service information to a merger proceeding is, among other things, that such information may assist the Commission in evaluating the competitive landscape that a combined Verizon/MCI would face and assess whether, within that landscape, the new company would be able to exercise market power.

In summary, Cox in the context of this case and this data request has not provided a convincing rationale as to why it should not be required to produce responsive documents to the extent that it possesses or in the ordinary course of business has access to the responsive documents. Accordingly, Cox is directed to provide responses to modified Data Request 3-12 as specified below.

IT IS RULED that:

1. The Applicants' Joint Motion to Compel Responses by Cox California Telcom, LLC (Cox) to Applicants' Third Set of Data Requests is granted.

2. Parties shall promptly meet and confer as necessary to resolve specific details concerning materials to be produced and the degree of confidentiality, if any, to be accorded such documents.

3. Cox shall produce relevant documents that are responsive to Applicants' Data Request 3-12.

4. Cox's production of documents in response to Applicants' Data Request 3-12 shall be made within three business days of the date of this ruling, unless otherwise mutually agreed by the parties.

Dated September 6, 2005, at San Francisco, California.

		/s/ GLEN WALKER
		Glen Walker Administrative Law Judge

CERTIFICATE OF SERVICE

I certify that I have by mail this day served a true copy of the original attached Administrative Law Judge's Ruling Addressing Applicants' Motion to Compel Responses by Cox California Telcom, LLC on all parties of record in this proceeding or their attorneys of record.

Dated September 6, 2005, at San Francisco, California.

/s/ KE HUANG

Ke Huang

NOTICE

Parties should notify the Process Office, Public Utilities Commission, 505 Van Ness Avenue, Room 2000, San Francisco, CA 94102, of any change of address to ensure that they continue to receive documents. You must indicate the proceeding number on the service list on which your name appears.