Legal Hearing May Determine Revised Timeline, Scope of California PUC's Comcast/TWC Review
A hearing before California Public Utilities Commission (CPUC) Administrative Law Judge Jean Vieth set for Thursday is likely to clarify CPUC’s schedule for its review of the Comcast/Time Warner Cable deal and associated TWC Information Services and Bright House Networks deals, industry stakeholders told us. The hearing is also likely to clarify the scope of discovery requests sought by the commission’s Office of Ratepayer Advocates (ORA), stakeholders said. The CPUC temporarily paused its review last week pending Thursday’s hearing. The delay is in part a reaction to the FCC’s decision to pause its own review of Comcast/TWC until at least Oct. 29, but it’s also due to an ORA request that CPUC revise its review timeline because of the extensive outstanding ORA data requests that Comcast, TWC and others need to fill 1410140022.
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The ORA is seeking a delay in CPUC’s review timeline that would move the commission’s final decision on the deal to some time between February and April. The CPUC’s original timeline proposes a final decision in January. ORA’s two proposed options would move the deadline for opening briefs in the review to either Nov. 14 or 17, from the original Oct. 20 deadline, and the reply briefs deadline to either Dec. 5 or 9, from the original Oct. 27. ORA wants the CPUC to delay release of a draft decision on the deal until some point between January and March (http://bit.ly/1sJLWdk). The calls for a delay to the CPUC’s review “aren’t a surprise to anyone given that the applications that were put forward in support of these deals were incredibly bare bones, nowhere near the amount of information that Comcast very well should have known was necessary to thoroughly review the merger,” said Stephanie Chen, Greenlining Institute policy director-energy and telecom.
Comcast and other telcos involved in the deals have opposed a delay in CPUC’s review, while most other parties support it because of those companies' “failure to timely and completely comply with data requests,” ORA said (http://bit.ly/ZtN1dv). Comcast and the other telcos said ORA’s delay request is an “unjustified collateral attack” on the CPUC’s scoping memo for the review. ORA is basing its delay request on “on lengthy and baseless discovery objections and previously rejected arguments that testimony and evidentiary hearings are necessary to develop a record” for the CPUC’s review, Comcast and the other telcos said (http://bit.ly/1wJ0zgb). Comcast didn’t comment. Media Alliance Executive Director Tracy Rosenberg told us she has been receiving “a great deal of papers on a daily basis” from Comcast and other telcos related to the data requests, but “it’s clear that a good chunk of the data requested hasn’t yet been sent.” Rosenberg projected she’ll end up with several million pages of data based on the ORA requests. “How to handle that volume of data is an issue for everyone involved,” she said.
It’s likely that Thursday’s hearing will clarify CPUC’s review timeline, but whether the administrative law judge revises the timeline to match ORA’s proposals remains an open question, Rosenberg said. The judge will likely also rule on the scope of ORA’s outstanding requests given the objections raised by Comcast and the other telcos, she said. The scope of ORA’s requests will be important to determining the extent of CPUC’s review, since the discovery period is the “only time consumers get information that is relevant to how a company operates in the market,” said California Emerging Technology Fund Senior Vice President Susan Walters. A timeline delay would likely also give other parties in the review more time respond to the data provided by Comcast and the other telcos in a “fair and usable manner,” Walters said. “People need to be able to have time to digest this and get their thoughts in.”
Thursday’s hearing may yield some “hard numbers” on the extent of outstanding data requests that Comcast and the other telcos still need to provide, which is “interesting for all of us to hear about,” Rosenberg said. Walters said she'll be listening for specific areas of the data requests that Comcast and the other telcos will push back against. Their pushback could be similar to the objections they raised initially about the scope of the CPUC’s review, Walters said. The telcos had urged CPUC to undertake a pro forma review of the deal, but CPUC released a scoping memo for the review in August that observers have said indicates the commission’s review will be very thorough.
The hearing also may provide some indication of how long the FCC’s open-ended pause of its Comcast/TWC review is likely to last, Rosenberg said. The FCC’s delay was a major factor in the CPUC’s decision to delay, so any indications about how long the FCC delay is likely extend beyond Oct. 29 will factor into the timeline the CPUC’s administrative law judge orders, Rosenberg said. “The CPUC wants its review to be impactful on what’s happening at the FCC,” she said. “I’m encouraged that the CPUC is taking such a proactive action, that they want make a difference” in the outcome of the FCC’s review. “That probably means that the CPUC doesn’t intend to go back to exercising the pro forma review option.”