MPUC Docket No. P-421,
et al./PA-10-456
OAH Docket No.
11-2500-21391-2
STATE OF MINNESOTA
OFFICE
OF ADMINISTRATIVE HEARINGS
FOR THE PUBLIC
UTILITIES COMMISSION
|
In the Matter of the Joint Petition for Approval of Indirect Transfer of Control
of Qwest Operating Companies to CenturyLink
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ORDER REGARDING JOINT
PETITIONERS’ EMERGENCY MOTION
FOR RECONSIDERATION OF NOVEMBER 12, 2010,
SCHEDULING ORDER AND REQUEST FOR ORAL ARGUMENT
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On November 12, 2010, the
Administrative Law Judge issued an order granting the Joint CLECs’ Motion for
Leave to File Additional Supplemental Testimony and for Modification of the
Schedule and setting a modified post-hearing schedule. On November 15, 2010, the Joint Petitioners
filed an Emergency Motion for Reconsideration of the November 12, 2010
Scheduling Order and Request for Oral Argument.
On November 16, 2010, the Joint CLECs and Sprint filed responses in
opposition to the Motion; the Joint Petitioners filed a Reply in Support of the
Motion; and the Joint CLECs filed a further response.
Based on the record and proceedings in
this matter, and for the reasons set forth in the Memorandum below, the
Administrative Law Judge issues the following:
ORDER
IT IS HEREBY ORDERED as
follows:
1.
The Joint Petitioners’ Motion is GRANTED as to the date on which
exceptions and replies to exceptions to the Administrative Law Judge’s report
shall be filed, but is otherwise DENIED.
2.
The November 12, 2010, Order is hereby modified
to specify that Exceptions to the Report of the Administrative Law Judge shall
be filed on January 18, 2011, and Replies to those Exceptions shall be filed on
January 25, 2011.
Date: November 17, 2010
/s/ Barbara L. Neilson______________
BARBARA
L. NEILSON
Administrative
Law Judge
MEMORANDUM
In their Motion, the Joint Petitioners urge the Administrative Law Judge to
reconsider the November 12, 2010, Ruling and adopt a modified schedule. The Joint Petitioners reiterate many of the
arguments they previously made in their initial Response in Opposition to the
Joint CLECs’ motion. For example, they
again contend that an adjustment in the schedule under these circumstances will
have the improper effect of “punishing” partial-party settlements by imposing
delay and additional hearings; they argue that the Joint CLECs’ decision not to
highlight differences in their positions during the hearing should not be
rewarded; and they maintain that the schedule adjustment will cause significant
prejudice to the Joint Petitioners because they wish to close the transaction
as early as possible in 2011. They
further argue that the cases relied upon by the Joint CLECs in their reply
brief are distinguishable from the present case and did not involve situations
in which a partial-party settlement resulted in the submission of further
testimony or a delay in the proceedings.
Finally, they claim that the November 12 Ruling is the second time that
delay and expansion of the proceedings have resulted from a significant
settlement reached in this case.
The Joint Petitioners’ contention that the initial modification that was
made to the schedule on October 6 was ordered “as a result of” the DOC
settlement is not supported by the record in this matter. Rather, it is clear that the schedule modification
ordered on October 6 was primarily motivated by the fact that the Joint
Petitioners did not produce documents sought by the Intervenors in discovery
until shortly before the October evidentiary hearing began. These documents were produced only after the
filing of multiple motions to compel and consideration of Joint Petitioners’
further motions for reconsideration, in
camera inspection, and revision of the protective order. Discussions of the possible need for a
schedule adjustment due to this delayed production began in early September
(well before the DOC settlement was filed on October 4) in connection with the
motions to compel filed by Sprint, Integra, and the CWA,
and an extension of the timeline was contemplated in the ALJ’s September 21,
2010, Order regarding the Motions to Compel. Possible schedule modifications to allow time
for the Intervenors to review the documents produced by Joint Petitioners, file
additional testimony, and hold a supplemental hearing were discussed with
counsel during a telephone conference call on September 23, 2010, and the
Administrative Law Judge indicated that there could be further discussions at
the October evidentiary hearings, after the parties completed their review of
the documents and determined whether or not additional proceedings were
necessary. On October 6, at the beginning of the second
day of hearing, the parties notified the Administrative Law Judge that they had
been unable to reach agreement on a revised schedule. After the parties presented their respective
positions, the Administrative Law Judge granted the Intervenors’ proposed
adjustment to the schedule to allow for the submission of supplemental
testimony and an additional hearing day, noting that their proposal was granted
because of “due process concerns and the fact that documents have been provided
late in this proceeding.” Because the DOC Settlement had been filed on
October 4, the Intervenors’ request to also address the terms of that Agreement
in the subsequent testimony and cross-examination was granted.
The Joint Petitioners correctly note that the partial-party settlement
reached in the Minnesota Power rate case that was relied upon in the November
12 Ruling
did not necessitate the receipt of additional information regarding the
settlement after the hearing was concluded.
That case was cited, however, simply for the proposition that the
Commission will “scrutinize settlements with care” to ensure that the public
interest is adequately protected. The Administrative
Law Judge recognizes that the circumstances presented in this case are unique. Integra was a significant participant in this
proceeding and one of the major proponents of the joint testimony offered in
this matter. Its entry into a settlement
agreement at this stage of the proceedings undoubtedly has an impact on the
remaining CLECs. Because it appears that
any differences in the interests of the CLECs would be relevant to the
Commission’s consideration of whether the terms of the Integra Settlement
provide adequate protection of wholesale customers and competition, the
Administrative Law Judge remains convinced that a limited adjustment to the
schedule to allow supplementation of the record to address this issue is proper
and in keeping with due process principles.
After consideration of the remainder of the Joint Petitioners’ Motion for
Reconsideration and the Joint CLECs’ Response in Opposition to the Motion, the
Administrative Law Judge has determined that the November 12 Ruling
appropriately allowed a limited adjustment to the schedule to allow for the
receipt of additional factual information regarding the Integra Settlement as
it relates to the Joint CLECs’ interests and the broader public interest.
The Administrative Law Judge also declines to adopt the Joint
Petitioners’ alternative schedule,
with the exception of the deadline for the filing of the parties’ exceptions to
the ALJ’s Report and replies to those exceptions. The Joint Petitioners pointed out in their
motion that the November 12 Ruling allowed two weeks for the preparation of
exceptions. It was not the intention of
the Administrative Law Judge to extend the number of days the parties would
have to submit their exceptions beyond the eight days that was contemplated
when the schedule in this matter was originally established. Accordingly, the date for the filing of
exceptions is corrected to January 18, 2011, and the date for the filing of
replies to exceptions accordingly will be January 25, 2011.
Apart from the above modification, the Administrative Law Judge is not
persuaded that the schedule set in the November 12 Ruling should be
modified. As noted by the Joint CLECs,
the schedule is still quite compressed. The
November 12 Ruling set the deadline for the filing of initial post-hearing
briefs and the Joint CLECs’ affidavits as November 24, 2010, in order to ensure
that the Joint CLECs would have received relevant discovery responses and would
file all of their affidavits relating to the Integra Settlement at that time. By setting a deadline of November 24, the Administrative
Law Judge sought to avoid the filing of additional affidavits with the reply
brief of the Joint CLECs. The deadline
for reply briefs, proposed findings, and the Joint Petitioners’ responsive
affidavits was set for December 8, 2010, in order to allow adequate time for
the preparation of those submissions in light of the intervening Thanksgiving
holiday. It is reasonable to allow the
parties until December 10, 2010, to review the submissions and notify the
Administrative Law Judge if they wish to request cross examination. The approach established in the November 12
Ruling provides for the orderly presentation of evidence, provides the Joint
Petitioners the opportunity to respond to all of the CLECs’ affidavits at the
time the reply briefs are filed, and hopefully will minimize or eliminate the
need for further cross examination while still ensuring that all parties will
have an opportunity to request cross examination if deemed necessary. A thirty-day timeline for the Administrative
Law Judge to consider the record as a whole and render an informed decision in
this matter is reasonable and necessary given the size of the record and the
complexity of the issues.
The Notice and Order for Hearing in this matter contemplated that the
Administrative Law Judge could, and should, adjust the target date for the
Report in this matter to the extent required by “due process, full evidentiary
development and due deliberation.” Several of the Commissioners also
acknowledged this during their discussion of this matter on June 10, 2010.
Under the circumstances, it has become
necessary to grant a limited extension to the schedule to ensure due process,
full evidentiary development, and due deliberation, in keeping with the
directives of the Notice and Order for Hearing. The anticipated 19-day extension of time in
the date on which the matter will be before the Commission is modest and will
not cause undue prejudice to the Joint Petitioners.
For all of these reasons, the Joint Petitioners’ Motion for Reconsideration
has been denied, with the exception of the adjustment in the dates for filing
exceptions and replies to exceptions.
B. L. N.
Minnesota Office of Administrative Hearings
600 North
Robert Street
Saint Paul, Minnesota
55101
Mailing
Address: Voice: (651) 361-7900
P.O. Box 64620 TTY: (651) 361-7878
St. Paul, Minnesota
55164-0620 Fax: (651) 361-7936
November 17, 2010
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To All Parties as Listed on
the E-Docket Service List
|
|
Re: In
the Matter of the Joint Petition for Approval of Indirect Transfer
of Control of
Qwest Operating Companies to CenturyLink
OAH
Docket No. 11-2500-21391-2;
PUC Docket No. P-421,
et al/PA-10-456
Dear Parties:
Enclosed
and served upon you as indicated on the E-Docket Service List please find the
Administrative Law Judge’s Order Regarding Joint Petitioners’ Emergency Motion
for Reconsideration of November 12, 2010, Scheduling Order and Request for Oral
Argument in the above matter.
Sincerely,
s/Barbara
L. Neilson
BARBARA
L. NEILSON
Administrative
Law Judge
Telephone:
(651) 361-7845
Enclosure
