Additional Comments on Part I: # Intervenor’s Comment(s) CPUC Discussion B.1-4 TURN submitted its NOI within 30 days of the initial prehearing conference held in this docket on January 20, 2016. Pursuant to Rule 17.1(f), TURN submitted a Supplemental Notice of Intent to Claim Compensation on June 13, 2016 for participation in a related federal court matter filed by several parties to this proceeding on May 5, 2016. TURN filed its first substantive pleadings in the federal court matter on May 12, 2016 and was granted intervenor defendant status in that proceeding on May 18, 2016, thus TURN’s Supplemental NOI was timely filed 30 days after the date TURN first filed a pleading in the judicial review proceeding. PART II: SUBSTANTIAL CONTRIBUTION Did the Intervenor substantially contribute to the final decision (see § 1802(i), § 1803(a), and D.98-04-059). Intervenor’s Claimed Contribution(s) Specific References to Intervenor’s Claimed Contribution(s) CPUC Discussion 1. Summary and Background When the Commission adopted its Order Instituting Investigation to open this proceeding in 2015, stakeholders anticipated a comprehensive yet contentious litigation intended to provide the Commission with data and analysis to help define its telecommunications policy roadmap. The events in this proceeding confirmed the predictions. This proceeding was procedurally and substantively complicated and contentious, yet TURN’s advocates and expert witnesses fully participated in all aspects of the Order Instituting Investigation (“OII”), November 12, 2015 ALJ/ACR Ruling on Pending Motions and Schedule, February 4, 2016. Resolution ALJ-328, March 1, 2016 (categorization). Opening Testimony of Susan Baldwin on behalf of TURN in Response to Information Requests, March 15, 2016. Direct Testimony of Trevor Roycroft on behalf of TURN in Verified
judicial review of an ALJ Ruling on document and data production to third parties (including TURN) in this proceeding. As discussed below, TURN participated in that federal court action to protect consumer interests by opposing attempts to preempt the Commission from providing intervenors nondiscriminatory access to data and materials, thus ensuring that intervenors can fully and fairly participate in Commission proceedings. The Final Decision extensively cites to TURN, along with other intervenors, to support its conclusions and findings, each of which is critical to protecting consumer interests and developing a telecommunication policy roadmap for the Commission. Intervenor contributions to the record and Final Decision in this proceeding were so substantial that the Commission explicitly acknowledged, “At the outset, we note that Intervenors play an important role in Commission proceedings and will do so in the future….Comments received in this proceeding have validated that observation, as the many citations in the decision to expert testimony from Intervenors’ experts should make clear.” (FD 169) TURN urges the Commission to find that it has made a substantial contribution to the record in this case. Proposed Decision, November 14, 2016, Final Decision. 2. Categorization The OII tentatively set a ratesetting category for this proceeding, citing to the Commission’s obligation to ensure just and reasonable rates and terms of service as a key issue in the case. The Commission requested comments on the OII, p. 16. AT&T Request for Reconsideration of Categorization, filed November 23, 2015, p.1, 4. Opposition of TURN, Greenlining and CforAT to Verified
and wide-ranging investigation into competition and rates in the California telecommunications market. The OII explicitly anticipated addressing issues regarding landline, cable, and wireless services- both voice and broadband- in its preliminary scope. The Information Requests attached to the OII requested data and analysis on a full range of issues. The majority of the approximately 20 motions filed by carriers in this docket raised various objections to the scope of the docket and, by extension, argued that the Commission lacked jurisdiction to require certain carrier affiliates to participate, to require carriers to provide broadband-related data and analysis. The carriers repeatedly urged the Commission to limit its investigation only to aspects of basic local voice service offered by incumbent carriers. TURN, working closely with other consumer intervenors, opposed each of the carriers’ motions and supported a broad scope and clear statement of jurisdiction by the Commission to ensure a meaningful investigation. In its pleadings, TURN demonstrated that under both federal and state law the Commission retains the authority to require document and data production from a wide variety of carriers and their affiliates, including data regarding wholesale and broadband services and facilities. TURN, with joint consumers, also argued that the Commission must have broad and comprehensive investigative powers to carry out its statutory obligations to ensure consumers have access to safe, reliable and affordable services as well as the Verizon Motion to Remove Verizon Wireless and Wireless Carriers as Respondents (December 15, 2015); Motion by Cox on behalf of its Affiliated Entity to Modify List of Named Respondents (December 18, 2015; Motion by AT&T California and New Cingular to Remove Certain Information Requests and Topics of Investigation (December 22, 2015); Carrier Coalition Motion for Reconsideration of ALJ February 4, 2016 Ruling (March 8, 2016); Carrier Coalition Motion for Reconsideration by the full Commission of the April 1, 2016 Ruling of the ALJ (April 14, 2016). TURN’s Reply to Comments on the ALJ’s Ruling Regarding Clarification of the Information Requests, January 18, 2016. ALJ Ruling on Pending Motions and Issues Discussed at PHC, February 4, 2016. Joint Consumer Response and Opposition to Pending Procedural Motions, January 8, 2016. Joint Consumer Consolidated Response to Motions for Reconsideration, etc., March 24, 2016. ALJ Ruling on Remaining Protective Order Issues and other Issues (April 1, 2016).
nondiscriminatory access to advanced services. TURN’s expert witnesses also submitted testimony stating that the Commission must take a broad approach to its investigation, including all voice and broadband providers, to gain a clear “snapshot” of today’s communications marketplace. The ALJ, Assigned Commissioner, and full Commission ultimately rejected each of the carriers’ motions regarding scope and jurisdiction, including requests for interlocutory appeal to the full Commission. Decision makers agreed with TURN that the Commission’s relevant jurisdiction, along with the scope of this docket, should be defined broadly across technologies and corporate entities. The July 1, 2016 Scoping Memo explicitly noted that, “The landline voice market cannot be understood without understanding the telecommunications ecosystem as a whole,” including digital services and devices. The Final Decision agreed that voice and broadband markets are inextricably linked and, as a result, the Commission’s investigation must encompass all relevant “submarkets” and services offered over a variety of communications technologies. ACR/ALJ Ruling re: Outstanding Motions, May 3, 2016. ALJ Ruling re: Carrier Motions for Reconsideration and to Stay, May 5, 2016. Scoping Ruling (July 1, 2016), pp. 1-3. Final Decision: p. 3 (voice market is tied to the broadband market in a number of ways). p. 29 (Commission will examine markets and services including voice, broadband, wholesale and retail, mobile, landline and fixed wireline technologies). COL 1 (continued statutory obligation to ensure just and reasonable charges and services). COL 6, 7- Commission policies must encourage wide choice of advanced telecommunications services. COL 11 (Telecommunications markets extend to all types of services and technologies). 4.Document Production The carriers’ data responses to the OII’s Information Requests were at the core of the record in this proceeding. OII, pp. 2, 10, 14-15. ALJ Ruling Adopting Protective Order, March 4, 2016. Verified
affordability, market concentration, and inefficiencies in the wholesale and broadband markets. P. 79. Moreover the Final Decision notes that the Commission remains concerned about the lack of competition in the intramodal stand-alone voice and broadband markets. P. 80. Rejecting the carriers’ objections to the use of the HHI analysis, the Final Decision relies on the HHI measure, along with data and analysis from experts like Dr. Roycroft and ORA and other intervenor witnesses, as one of several tools to measure levels of competition and competitive impact on the market. P. 12, PP. 53, 55. 7. Market Definition- wireless substitution A necessary pre-condition to the Commission’s investigation into competition in the voice and broadband markets in California is a clear set of market definitions, including the identification of market substitutes. The issue of substitutability between wireline and wireless voice, for example, was the subject of much debate in this proceeding. Dr. Roycroft submitted testimony on the issue of whether wireline and wireless voice services can be considered substitutes. If the services are competitive substitutes, then any competition analysis would have to include both wireline and wireless voice services. In his testimony, Dr. Roycroft acknowledged that consumers appear to treat wireless voice services as competitive substitutes to traditional wireline services. However, Direct Testimony of Trevor Roycroft on behalf of TURN in response to Information Requests, June 1, 2016, pp. 28-36, 65. Rebuttal Testimony of Trevor Roycroft, July 15, 2016, pp. 9-11. Direct Testimony of Debra Aron on behalf of AT&T, at pp. 26. TURN Opening Brief, pp. 9-13. Final Decision at pp. 9, 28, 37-44, 72. Verified