(November 6, 2008 (8:40a) - Washington UTC Status) The Washington UTC (11/5) granted a joint motion by the staff and the companies to strike Public Counsel's most recent attempt to re-open the record via the introduction of additional evidence. Although this in itself is not surprising, the tone of the order is somewhat telling in that it is clear that the ALJ is becoming weary of the continued efforts of the Public Counsel to delay this case. Excerpts of the ruling include the following:

"The Commission already has reopened the record once at Public Counsel’s request to allow him to introduce materials similar for the most part to what he seeks to introduce here. The material he introduced then was of marginal relevance and cumulative to evidence already in the record which illustrates that financial markets in the U.S. and worldwide currently are volatile. Public Counsel proposes to again update the record by presenting a collection of information concerning recent developments in the financial markets—what he describes as 'late-breaking news'.

"There is a point at which due process requires that the record be closed so that the parties are not having to respond repeatedly to .new. evidence and so that the Commission can do its job. Having allowed the record to be supplemented once with similar information, there should be some compelling reason if we are to allow it again. There is nothing compelling about what Public Counsel seeks to introduce here. Market conditions are different now than when our record closed the first time and if we were to reopen it today they may be different the day or the week after that. The basic point, that we live in uncertain times, is well established in the existing record and adding more of the same to the record adds very little indeed. Contrary to Public Counsel’s suggestion, the Commission is not .operating in a vacuum. in this regard, but is fully aware of current events."

It can be assumed that the ALJ's current attitude is a reflection of the UTC in general. All efforts by Public Counsel, or any third party for that matter, are now essentially pointless as the time for intervention has long since passed in this case. Even with indications of continued concern from the public sector in Washington, it is extremely unlikely that the staff and Commission will alter their respective positions on this transaction at this late stage.

With this latest action against the Public Counsel, it can be speculated that a draft decision is being created, if it has not already been created at this point. It remains fully anticipated that the UTC will approve this transaction under the conditions set forth in the current settlement agreement and this is likely to happen within the next few weeks, if not days.