**BEFORE THE**

**POSTAL RATE COMMISSION**

**WASHINGTON, D. C. 20268-0001**

COMPLAINT OF TIME WARNER INC. ET AL.

CONCERNING PERIODICALS RATES Docket No. C2004-1

OPPOSITION OF TIME WARNER INC. ET AL.

TO REQUEST FOR RECONSIDERATION

OF PRESIDING OFFICER'S RULING ON HEARING SCHEDULE

(June 17, 2004)

Time Warner Inc., Condé Nast Publications, a Division of Advance
Magazine Publishers Inc., Newsweek, Inc., The Reader\'s Digest
Association, Inc., and TV Guide Magazine Group, Inc. (collectively,
\"Time Warner Inc. et al.\" or \"complainants\") respectfully oppose the
Request for Reconsideration of Presiding Officer's Ruling on Hearing
Schedule filed by American Business Media (ABM) on the afternoon of June
16 (but incorrectly dated \"June 14, 2004\").

Complainants filed their direct testimony in this proceeding on April
26, 2004. On May 25, the Presiding Officer issued a \"Ruling on
Scheduling Matters\" in which, after noting that discovery had been
\"minimal\" during the month that had passed since the testimony was
submitted (a total of three interrogatories had been filed), he set
Monday, June 14\--49 days after the submission of testimony\--as the
deadline for written discovery. POR C2004-1/1. On June 9, one week prior
to the filing of ABM\'s request, the Presiding Officer issued his ruling
scheduling hearings for Tuesday, June 29, and Wednesday, June
30\--respectively, 15 and 16 days after the deadline for filing written
discovery. POR No. C2004-1/2. That ruling also set Thursday, June 24,
and Friday, June 25, as the respective dates for

designations of written cross-examination for the witnesses testifying
the following Tuesday and Wednesday, and expressly contemplated that
\"\[r\]esponses to discovery filed after those dates may be designated
up to seven days following their filing with the Commission.\" *Id*. at
1.

Based on that ruling, complainants\' witnesses and counsel have made
vacation plans and travel reservations. Witness Stralberg, for instance,
has purchased airline tickets to travel from California to Washington on
Sunday, June 27, in order to prepare for and give his scheduled June 29
testimony, and then to travel directly from Washington to Norway for a
long-planned family gathering.

ABM, on behalf of itself, The McGraw-Hill Companies (McGraw-Hill), and
the National Newspaper Association (NNA), now belatedly stirs itself to
object that the hearing schedule issued by the Presiding Officer eight
days ago is \"unfair,\" \"would present obvious logistical nightmares,\"
and \"would seriously compromise due process rights.\" ABM\'s arguments
for these conclusions are feeble.

ABM worries that \"there is a high probability that responses will be
filed after the dates set for designations.\" It is impossible to
disagree, since that probability was expressly acknowledged and provided
for in the Presiding Officer\'s Ruling of a week earlier. However, the
phenomenon of interrogatory responses being filed after the dates set
for designations is utterly commonplace in Commission proceedings\--so
much so that when receiving written cross-examination into evidence, the
Presiding Officer unfailingly inquires whether any party wishes to
designate additional responses *received subsequent to the date for
designations*.

The prospect that furnishes ABM\'s apparently more weighty ground for
objection\--as we infer from ABM\'s citation of two federal court cases
for the proposition that the practice in question \"would seriously
compromise due process rights\"\--is that \"\[b\]y permitting the
designation of evidentiary material as late as July 5th, seven days
after June 28th \[the due date for responses to

interrogatories filed on the last day of the discovery period\], the
Order would permit the introduction *of written cross-examination* after
all of the sponsoring witnesses have been excused\" (emphasis added). It
is hard to know what answer to give to this objection, the possibilities
being so various. ABM has every right to object to the admission of such
evidence, or to request that the sponsoring witness be recalled.
However, the Commission does not treat designations of written
cross-examination as automatic passports into the evidentiary record.
Rather, when objection is made, the Commission entertains and rules on
the objection. When a request for oral cross-examination of a sponsoring
witness is made, the Commission entertains and rules on that. In fact,
it would be remarkable in the in the highest degree if admitting written
cross-examination after the witness\'s appearance were held to be a
serious compromise of due process rights, since that is what the
Commission has done and continues to do in virtually every rate case
that has ever come before it. It therefore is not remarkable that the
two cases cited by ABM, *United States v, Caudle*, 606 F.2d 451, 458
(4th Cir. 1979) and *United States v. Riggi*, 951 F.2d 1368, 1375-76 (3d
Cir. 1991), turn out to have nothing at all to do with the matter. These
cases concern the right of defendants in *criminal* proceedings, under
the Sixth Amendment\'s Confrontation Clause, to conduct additional
cross-examination \"\[w\]hen material new matters are brought out on
*redirect* examination,\" 951 F.2d at 1375 (emphasis added).

Interwoven with the imaginary \"procedural and due process problems\"
that ABM tries to conjure up is the repeated suggestion that the
schedule is simply too tight and would impose burdens that ABM is not up
to handling. ABM fears a \"logistical nightmare\" if it has to designate
responses for the record that may have been filed only a day earlier
(although this situation has been a routine occurrence in previous
cases). It is certain that \"it will be nearly impossible to
cross-examine witness Stralberg on June 29th with respect to
interrogatory responses and

documents produced the day before\" (although ABM and other parties have
found it possible on many past occasions to conduct cross-examination in
these circumstances). It even frets over \"its concern, already real
rather than theoretical, that its witnesses will face the far more
serious issues than those faced by the complainants\' witnesses in
selecting available dates in July\"\--a cause for concern that, putting
aside its total irrelevance to the subject at hand, is farfetched at
best, since the probability is somewhere between infinitesimal and
nonexistent that the Commission, having concluded hearings on the
complainants\' case on the last day of June, would then require ABM to
produce testimony, undergo discovery, and put its witnesses on the stand
all before the end of July.

Since the relevant procedural dates, and their proximity to one another,
were abundantly clear from the moment the Presiding Officer issued his
ruling scheduling hearings, ABM is driven to suggest that it is not so
much the procedural schedule in itself that is the source of the problem
as the volume of interrogatories filed on the last day of discovery.
After primly exonerating itself from any responsibility for this
unfortunate state of affairs (\"American Business Media submitted nearly
all of its discovery requests more than two weeks ago\"), ABM
regretfully observes, \"by our count there were 137 separately numbered
requests . . . filed on June 14th. Many of these requests call for
answers that will be complex.\" Complainants sympathize with the burden
that this volume of last-minute interrogatories must place on ABM.
Still, we cannot help remarking that: (1) June 14 was established as the
last day for discovery by the Presiding Officer on May 25 (POR No.
C2004-1/1), so that it should not have come as an absolute surprise to
ABM that interrogatories were still being filed on that date; (2)
although ABM itself may have been exemplary in its quickness off the
mark, it ought to have noticed, when counting the 137 requests it states
were filed on June 14, that 63 of them came from NNA and 44 from
McGraw-Hill, the two parties that join in its

request; and (3) that permitting parties to have the established
procedural schedule thrown out, based on claims of unfairness and denial
of due process that are traceable to their own dilatoriness, would set
an unwholesome example for future litigants in Commission proceedings.

ABM\'s final reason for requesting that the procedural schedule upon
which complainants have based their plans be revoked by the Presiding
Officer is of a piece with its preceding reasons:

> There is a great deal at stake in this case for both sides. The
> multi-million dollar rate reductions hoped for by the complainants, if
> they are successful, would be matched with equivalent increases for
> many smaller publishers.

For a party that professes its concern chiefly with \"permit\[ting\] the
parties and the Commission to develop a factual record in a fair and
orderly fashion,\" ABM has a disquieting propensity to assume the
answers to the questions this proceeding is about, such as whether its
members will change their mailing characteristics, and to argue its case
by simply repeating the same unsupported assertions at every conceivable
opportunity.

Complainants do not share ABM\'s own low opinion of its ability to deal
with the procedural pace that has been set by the Presiding Officer.
However, they do share ABM\'s aversion to \"logistical nightmares,\"
which in their case would be occasioned not by honoring the established
procedural schedule but by rescinding it. Therefore, in order that there
be no doubt that ABM will have an adequate amount of time to choose the
responses it wishes to designate as evidence and to prepare its
cross-examination of complainants\' witnesses, complainants are prepared
to commit themselves to filing responses to all outstanding
interrogatories by June 23, six days before the first day of scheduled
hearings. Complainants are also prepared to support one minor adjustment
in the procedural schedule\--namely, making designations for witnesses
Stralberg

and Gordon due on June 25 rather than June 24, as currently scheduled,
so that there will be at least one full day intervening between the date
on which all interrogatory responses have been filed and the date on
which ABM must make its designations.

> Respectfully submitted,
>
> [s/]{.underline}
>
> John M. Burzio
>
> Timothy L. Keegan
>
> [Counsel for]{.smallcaps}
>
> [Time Warner Inc.]{.smallcaps}

Burzio & McLaughlin

Canal Square, Suite 540

1054 31st Street, N. W.

Washington, D. C. 20007-4403

Telephone: (202) 965-4555

Fax: (202) 965-4432

E-mail: burziomclaughlin@covad.net