Decision No. R01-1280-I

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO DOCKET NO. 01B-493T

RUBY RANCH INTERNET COOPERATIVE ASSOCIATION,

PETITIONER, V.

QWEST CORPORATION,

RESPONDENT.

INTERIM ORDER OF ADMINISTRATIVE LAW JUDGE KEN F. KIRKPATRICK SETTING PROCEDURES

Mailed Date: December 13, 2001

I. STATEMENT

A. A prehearing conference in this matter was held on December 12, 2001. Various procedural matters were discussed and a procedural schedule was established. It was determined that no testimony need be filed in advance of the hearing. However, upon reflection the Administrative Law Judge ("ALJ") has determined that it would be useful for the parties to file and serve a witness and exhibit list no later than two weeks prior to hearing. The exhibit list may be supplemented if exhibits subsequently become known to the party after the filing.

B. A decision was made to conduct the hearing in Denver. While this will work some hardship on the Ruby Ranch Internet Cooperative Association ("Ruby Ranch") witnesses, overall the substantial majority of participants are located in the Denver area, and good facilities for the hearing are easily obtained.

C. A Commission decision in this matter is due March 1, 2002. The hearing is set for January 31, 2002. Under this schedule, due and timely execution of the Commission's functions imperatively and unavoidable require that the recommended decision of the administrative law judge be omitted and the Commission make the initial decision.1 Therefore a transcript will be required. Under the Commission's rules governing arbitration of interconnection agreements the Commission may order the parties to an arbitration to pay for a transcript of the arbitration hearing.2 The ALJ considered the relative resources of the parties, as well as the fact that the hearing was going to be conducted in Denver, and determined that a fair allocation of the costs of the transcript would be 1 percent to Ruby Ranch and 99 percent to Qwest Corporation ("Qwest").

D. Concerning the service of documents, it was determined that the parties were authorized to serve opposing parties by email or fax but that all documents filed with the Commission must be filed in hard copy. Further, the ALJ reduced the number of copies that both parties must file to an original and one. Upon further reflection, there does not appear to be a need to reduce the number of copies of any documents filed by Qwest. Therefore Qwest shall file the number of copies required by the Rules of Practice and Procedure. The response time to motions to compel and other motions is shortened by the order below. A hearing date is further scheduled below.

E. Carl Oppedahl, Esq., is a board member of Ruby Ranch. Although an attorney, he seeks to represent Ruby Ranch under § 13-1-127, C.R.S., and not enter a formal appearance as attorney of record. He seeks to do this so that he can testify as to substantive matters in the proceeding, including technical matters that no other Ruby Ranch witnesses are capable of presenting. Rule 3.7 of the Colorado Rules of Professional Conduct discuss the Lawyer as Witness. Rule 3.7(a) states as follows:

A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

F. The Rule does not make a distinction between a lawyer who has entered an appearance and one who has not. The comments to this Rule are consistent with the idea that the Rule is addressing roles and that formal appearances have nothing to do with the general prohibition. The comment also makes clear that when evaluating the exception in (a)(3), there is a balancing of interests between the client and the opposing party. Here, Ruby Ranch is a cooperative with no assets and no revenues. Oppedahl has the ability to present evidence that other members of the cooperative cannot. Qwest was unable to identify any specific prejudice it would suffer if Oppedahl were allowed to be both an advocate and witness. Therefore the ALJ will allow Oppedahl to proceed in this fashion.3

G. The parties committed to having at least one face-to-face negotiating session prior to the hearing.

II. ORDER

A. It Is Ordered That:

1. The hearing in this matter will be held as follows:

DATE: January 31, 2002

TIME: 9:00 a.m.

PLACE: Commission Hearing Room

1580 Logan Street, OL2

Denver, Colorado

2. Qwest Corporation is granted a one-week extension of time to and including January 3, 2002 to respond to discovery served on it by Ruby Ranch Internet Cooperative Association.

3. Ruby Ranch Internet Cooperative Association will be limited to one additional round of written discovery consisting of no more than 20 data requests, however denominated.

4. The parties shall file a witness and exhibit list by January 17, 2002. The exhibit list may be supplemented with exhibits which become known after the filing of the witness and exhibit list.

5. The parties shall arrange for a transcript of the hearing to be filed with the Commission no later than February 8, 2002. The transcript shall be paid for 1 percent by Ruby Ranch Internet Cooperative Association and 99 percent by Qwest Corporation. The parties shall serve documents on the opposing party by email or fax. All documents filed with the Commission must be filed according to the Rules of Practice and Procedure, except that Ruby Ranch Internet Cooperative Association shall file an original and one copy of any documents filed at the Commission.

6. The response time to any Motion to Compel is shortened to three business days. The response time to all other motions is shortened to seven calendar days. All requests for relief contained in the reply in support of its Petition for Arbitration filed November 29, 2001 by Ruby Ranch Internet Cooperative Association are denied.

7. This Order shall be effective immediately.

THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO

KEN F. KIRKPATRICK _______________________________

Administrative Law Judge ( S E A L )

ATTEST: A TRUE COPY

Bruce N. Smith

Director

G:\ORDER\493T.DOC

Footnotes:

1 See § 40-6-109(6), C.R.S.

2 4 Code of Colorado Regulations 723-46-6.5

3 Of course, Oppedahl must be cognizant of which "hat" he is wearing. The ALJ will help to ensure that the roles are kept as clear as possible.