Verizon Wiretapping - transcript01192007
Transcript of Verizon Wiretapping - transcript01192007
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MAINE PUBLIC UTILITIES COMMISSIONAUGUSTA, MAINE
IN RE: )
) Docket No. 2006-274JAMES D. COWIE, et al., ) January 19, 2007
________________________________ )
Request for Commission Investigation Whether Verizon Is Cooperating In Maine WithThe National Security Agency's Warrantless Domestic Wiretapping Program
APPEARANCES:
ANDREW HAGLER, Hearing ExaminerSTEPHEN WARD, Public Advocate OfficeWILLIAM BLACK, Public Advocate Office
WAYNE JOYNTNER, Public Advocate OfficeZACHARY L. HEIDEN, Maine Civil Liberties UnionDONALD BOECKE, Verizon MaineJAMES D. COWIE, ComplainantCHRISTOPHER B. BRANSON, ESQ., ComplainantCHRIS MILLER, Mainestreet Communications
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CONFERENCE COMMENCED (January 19, 2007, 9:04 a.m.)
MR. HAGLER: Good morning. Were here on Commission docket
number 2006-274, which is a request brought by consumers -- we call it a ten-
person complaint -- with the lead complainant being Mr. Cowie -- requesting a
Commission investigation into whether Verizon is cooperating in Maine with the
National Security Agencys warrantless domestic wire tapping program. My
name is Andrew Hagler. Im the presiding officer in this matter for the
Commission. Id ask that those present note their appearances, please.
MR. BLACK: Bill Black for the public advocate.
MR. JOYNTNER: Wayne Joyntner for the public advocate.
MR. WARD: Steve Ward, public advocate.
MR. COWIE: James Cowie, lead complainant.
MR. BRANSON: (Inaudible) Branson, another complainant.
MR. HEIDEN: Zachary Heiden for intervener, Maine Civil Liberties
Union.
MR. BOECKE: And Don Boecke for Verizon Maine.
MR. MILLER: And Chris Miller, who didn't quite make it onto the docket.
MR. HAGLER: Okay, great. Well, thank you and thank you for coming
this morning. The reason that I scheduled this conference -- case conference
or conference of counsel is to address the issues raised initially by Mr. Cowie in
his letter of January 9th to the Commission. That was followed by -- very
quickly thereafter by a letter by the public advocate. And on January 17th, in
response to those letters, Verizon, through Mr. Boecke, filed a letter with the
Commission. Ive received no other letters or communications -- paper
communications other than those three. Are there any others that I should be
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aware of? Okay. The -- I will in a moment ask -- and give an opportunity for
everyone here -- to indicate if theres additional information or elaboration on
what we've received that we should discuss. I will also give an opportunity for
anyone here who did not submit a letter to speak. I have an initial before I do
that and that is to the lead complainant. And I dont know -- Ill ask this question
going around, but, Doug, your letter indicates the complainants anxious
concern regarding the upcoming nine-month statutory deadline set forth in
Section 1302, which is the Commissions procedure for consumer complaints.
The very narrow question that I have is do you believe that after nine months
has run on a complaint brought to the Commission, that the Commission lacks
jurisdiction to consider the complaint at some further time after the nine months
has expired?
MR. COWIE: I -- I guess the first response is that I don't know, but the
reading of Section 1302 doesn't provide any -- any text that gives the
Commission authority beyond the nine-month deadline to render a decision. So
I dont know whether the Commission has the authority to give itself more time
or -- or what (inaudible-too far from microphone).
MR. HAGLER: Okay. Mr. Branson, do you have a view on that?
MR. BRANSON: No. I have no view on that.
MR. HAGLER: Mr. Boecke?
MR. BOECKE: I have not researched the issue, but Ive always viewed
1302 as being purely procedural and not really substantive. Offhand today I
would say it would not affect the Commissions jurisdiction. The nine month is
clearly a directive in which theyre supposed to complete their investigation, but
the statute doesn't say that at the end of nine months plaintiff wins or defendant
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wins. I think if the legislature had really meant to rob the Commission of
jurisdiction after that nine months, they would have been more explicit.
MR. HAGLER: To be clear, does that mean that following -- is February
3rd, I think, is the date that people seem to be --
MR. BOECKE: I had February 7th. Is that --
MR. JOYNTNER: February 7th, I believe.
MR. HAGLER: Okay. February 7th. If thats the deadline, but if one or
two days or even a month after that deadline -- that date came and went the
Commission were to make a final decision on the complaint -- a final agency
decision on the complaint, would Verizons decision be that that final decision is
void for lack of jurisdiction of the Commission to issue that decision relying
solely on 1302?
MR. BOECKE: I think I can say with full confidence Verizon would not
make such a motion.
MR. HAGLER: The Public Advocate's view on the -- on whether
jurisdiction disappears after the nine months expressed in 1302?
MR. JOYNTNER: Well, I think the Commission has authority on its own
initiative to conduct that investigation without any unreasonable (inaudible-too
far from microphone) so I think it could create a jurisdiction, certainly in a
separate proceeding. I think it is stuck with the deadline the statute provides,
although I wouldnt say today that I think it has no jurisdiction to issue a decision
a few days later. I haven't researched that either, but I think it has jurisdiction
generally to deal with the merits of the case.
MR. HAGLER: Okay. My view is that the nine-month period is not a
grant of jurisdiction limited to nine months but that action on a complaint
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brought pursuant to Section 1302 taken, whether by agreement or not of the
parties, beyond nine months is a valid agency action. Separate question of
what the Commission must do or what the statute directs the Commission to do
within a period of time, but I think that any action taken after that time would not
be challengeable, and Im heartened to hear that Verizon indicates that it would
not challenge such on the grounds that it was action taken beyond the nine
months described in 1302. Just so that you know where I am on that issue. I
view that as a preliminary issue, and I wanted to clear it up before we began
this morning. Mr. Cowie --
MR. COWIE: Could you say again what you just said about what your
view is on the nine-month deadline and the Commissions authority to render a
decision after the nine months?
MR. HAGLER: I believe that the Commission retains all the authority
after the nine months -- after a nine-month period -- in this case after February
7th --
MR. COWIE: And what --
MR. HAGLER: -- to do anything it could have done prior to the nine
months. Its a separate question from what I think might be the subject of most
of the discussion here this morning. But if today were February -- or March 1st,
I don't believe the Commission lacks the ability to do anything that it could have
done on December 1st.
MR. COWIE: Can you tell me what the basis of your opinion is and why
do you believe (inaudible-too far from microphone) appropriate for me to ask
you that.
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MR. HAGLER: Sure. Nothing in 1302 creates a cause of action. The
Commission has (inaudible-unfamiliar word) authority to hear the complaints of
consumers brought before the Commission, and nothing in 1302 in effect
creates a cause of action that only survives nine months. In my view 1302 is
directive towards the Commission in terms of how it should process those
complaints.
MR. COWIE: Well, in reading 1302 it says the Commission shall render
a decision upon a complaint no later than nine months after its filing. You don't
see that as -- apparently you don't see that as something -- the Commission
can essentially ignore that and take 18 months?
MR. HAGLER: No, that's not what I'm saying. What Im saying is is that
if the amount of time -- the nine months passes but action is taken after that,
that action is not void or illegal because it didnt occur within the nine months.
MR. JOYNTNER: If I may, I would think Andy isnt saying that the nine-
month directive has no meaning. Hes only saying that the Commission
technically still has jurisdiction after the nine months. (Inaudible-too far from
microphone) distinction there.
MR. COWIE: Yeah.
MR. JOYNTNER: Hes not saying that he can ignore the nine months
yet. I think were going to discuss that this morning.
MR. COWIE: Okay.
MR. HAGLER: But now I'd like to ask, Doug, what you think the
Commission should do?
MR. COWIE: Well, beyond what I said in the letter?
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MR. HAGLER: Yeah. Is there anything else other than whats in the
letter or in response to what Verizon submitted that youd like to ask?
MR. COWIE: Well, I would recommend that the Commission enforce its
August 9th order and give Verizon five days to reply and to hold them in
contempt if they don't.
MR. HAGLER: Okay. Mr. Branson?
MR. BRANSON: I'm in agreement with that.
MR. HEIDEN: I'm also in agreement.
MR. HAGLER: Okay.
MR. BLACK: The public advocate --
MR. HAGLER: Why dont we have the public advocate --
MR. BLACK: The public advocate is in agreement with that.
MR. HAGLER: Okay. And I assume Verizon is not?
MR. BOECKE: Verizon finds itself really caught between two
jurisdictions here. My suspicion is that as soon as the Commission issued such
an order, the United States government would take the appropriate action to
enjoin such action in federal court and that action would be taken before
Verizon would be able to file its response. So I think what youd be doing is just
precipitating more motion practice before the federal court, but I doubt very
much it would in any way -- even if we complied within the five days -- enable
the Commission to reach a decision by February 7th. Thats just a couple of
weeks away.
MR. HAGLER: What's the basis for believing that that would be the
response of the Department of Justice?
MR. BOECKE: The lawsuit that was filed in federal court.
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MR. HAGLER: Okay. Okay.
MR. BOECKE: The specific instructions to Verizon and to the
Commission that Verizon is precluded by federal law from answering the
question.
MR. HAGLER: Would Verizon likewise seek such relief in the federal
district court?
MR. BOECKE: I hadn't considered that. I suppose, though, our opinion
being that we are not permitted under federal law to divulge this information, if
the United States did not take such action, I suspect Verizon would in order to
protect its rights and not be found in violation of federal law. It would seek to
have the federal court declare that the Maine Commission should or should not
have this information.
MR. HAGLER: Ill ask this of anyone whod like to answer and everyone
whod like to answer. Is my understanding correct that there are dispositive
motions pending before the federal district court in Maine -- a motion to dismiss
brought by the Commission brought by the Attorney General and his staff on
behalf of the Commission, and also a motion for summary judgment brought by
the Department of Justice -- and that each of those dispositive motions has
been fully briefed by all parties to that case?
MR. HEIDEN: That's correct.
MR. HAGLER: Okay. Am I also correct that there is a proceeding or a
mechanism that was invoked to transfer that federal district court suit to a
different district court jurisdiction -- I believe the northern district of California --
and that that transfer of that federal court suit has been opposed by the
Attorney General on the Commission's behalf and that argument on whether
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that transfer will occur is to take place on January 25th -- next week -- in
Florida, halfway between here and California?
MR. HEIDEN: That's also correct.
MR. COWIE: It's also been opposed by --
MR. HAGLER: By the government.
MR. COWIE: -- by the proposed defendant interveners (inaudible-too far
from microphone) --
MR. HAGLER: Right.
MR. HEIDEN: The complainants.
MR. COWIE: -- (inaudible-too far from microphone).
MR. HAGLER: The complainants in this case oppose the transfer to --
MR. COWIE: -- northern district --
MR. HAGLER: -- of a federal district court matter to California.
MR. COWIE: We filed a motion to vacate that order.
MR. HAGLER: And what's the harm in letting that play out -- all of -- both
of those motions -- the federal district court motion and the transfer motion?
What, as a practical matter, would be achieved by what Mr. Boecke
characterized as motion practice -- in effect the Commission doing what the
complainants and interveners in this matter would like the Commission to do,
which is have a finding of contempt based on Verizon's failure -- presumably
based on Verizons failure to comply with an August 9th order of the
Commission on August -- which had a deadline of August 21st and drawing, as
the Commission drew from that order, a lawsuit -- drawing an injunction motion
at this point, given the status of where that matter is in federal court?
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MR. JOYNTNER: My response is that it wouldn't be reasonable for the
Commission to ignore state statute based upon the speculation about whats
going to happen in another court, which has no way enjoined the Commission
from its normal jurisdiction. The Commission has said repeatedly in its filings
with the court that the subject matter of the Commissions order of August 9th in
no way intrudes into the sphere of national security or state secrets doctrine.
And, in fact, it hasnt, and I think everybody in this room probably understands
that it hasn't. And given those facts, it would be particularly unreasonable for
the Commission to pretend that it's enjoined when it, in fact, is not enjoined and
ignore a clear directive from the legislature to process this case.
MR. HAGLER: J. COWIE? Okay. (Inaudible-mumbling). Doug?
MR. COWIE: I agree with that -- what the public advocate just said and
also in looking at the Commissions memorandum in opposition to the motion
for summary judgment, in at least a half a dozen places the Commission insists
that it has the authority to investigate the complaint (inaudible-too far from
microphone) potentially ask Verizon did it provide records to NSA. Thats actual
text thats in the -- in that (inaudible-too far from microphone). So the
Commission is telling the court that it does have the authority to do -- well, at
least to do what the Commission says in the memorandum which would
essentially say that the Commission has the authority to investigate the
complaint. So -- and since it hasnt been enjoined from doing that by the court
-- well, I disagree with the analysis (inaudible-too far from microphone). The
complainants dont see any advantage (inaudible-too far from microphone). If
the Commission has the authority to do it -- says it has the authority to do it, we
feel it should do it.
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MR. JOYNTNER: Let me also --
MR. HAGLER: One minute. Let me just ask -- just follow up. Has
anything from the complainant's perspective bearing on that question changed
from August 21st to last week when this was brought to the Commission's
attention?
MR. COWIE: Has anything -- are you asking me --
MR. HAGLER: Yeah. Im --
MR. COWIE: (Inaudible-too far from microphone).
MR. HAGLER: I believe that you are correct that there is no injunction --
there is no injunction -- impediment against the Commission. However, since
August 21st through and including today, the Commission has taken -- there
has been no action in the Commission in this matter. Has something changed
between that time and today that causes imminent anxiety in light of the fact
that I think we agree -- or at least Im telling you that its my belief that the
Commission wont lose jurisdiction on February 7th?
MR. COWIE: Well, as far as the complainants are concerned, we view
this lawsuit as, I dont know, capricious. I think its an absurd lawsuit. Its
disappointing to us that the judge didn't dismiss it out of hand because of the
Commissions order (inaudible-too far from microphone) sworn affidavits by a
knowledgeable person as to the truth of public statements (inaudible-too far
from microphone). Had those statements included any national security
information, its too late. Theyre now public. And had they, Im sure the
Department of Justice would have swooped in on Verizon and taken some kind
of legal action against them. So we dont see any -- any -- that the lawsuit -- all
the lawsuit did was -- looked like it did was to put our complaint case -- taking it
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and putting it in the freezer -- putting it on ice, and the Commission could have,
as it says in its memorandum in opposition to the summary judgment motion --
could have if it wanted to -- and even though Verizon didnt make the public
statement -- could have asked Verizon had it provided call records to NSA. So
we dont see any change really other than a lot of legal work that the Justice
Departments lawsuit has created.
MR. HAGLER: Then -- then -- then my question, not meant to carry with
it any -- not to be charged at all, is why was the January 9th letter that you
wrote to the Commission not written earlier than January 9?
MR. COWIE: I -- I should have written it earlier. I was worried from the
day -- first, our complainants, as you know, are disappointed with the
Commissions lack of investigation into the complaint -- very disappointed, but I
was worried from the date of August 21st what the impact of the -- that lawsuit
was going to be on what the Commission did on the complaint.
MR. HAGLER: Okay.
MR. COWIE: I was advised by counsel that if I tried to press the
Commission, it would bring about an injunction motion from the Department of
Justice or some kind of motion -- TRO, which would officially, if the judge
agreed with it, shut down the complaint case anyway. But I decided finally that I
was not going to wait any longer and just essentially tell the Commission it had
less than a month left to -- what I considered (inaudible-too far from
microphone) what the statute said -- to render a decision upon the complaint.
So thats why I waited all that time. I was advised not to do it, and I finally did it
anyway.
MR. HAGLER: Okay. Don?
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MR. BOECKE: I was just going to touch on that same subject that the
Commissions order had set a deadline for the 21st. Its now almost five months
later and no one had seen any change in circumstances that warranted sending
the letter earlier. I also just wanted to disagree with the OPA's characterization
of what the Commission is doing as ignoring its jurisdiction or ignoring the
legislatures mandate to investigate. The Commission is very much aware of
the situation its in, and the presumption that it has jurisdiction is the central
question. If the Commission doesnt have jurisdiction, then it clearly has no
1302 investigation to conduct. The Commission believes it has jurisdiction.
The United States government strongly believes it does not. And that question
is now in the appropriate forum before a federal judge, and thats the question I
believe that has to be decided before the Commission and the parties can
proceed with whatever direction it goes. And I dont think its fair to say the
Commissions ignoring Section 1302. I think its doing everything it practically
can do. And the suggestion that, I think, even Mr. Cowie said that if the
Commission were to take some further action in its investigation, either in
August or in January, its going to involve the parties in more motion practice
and unlikely to move this case, you know, one inch.
MR. HAGLER: Mr. Ward?
MR. WARD: Yeah, I do have one comment. I do think there is great
value in the PUC upholding the substance of the 1302 law and giving it
meaning within the time frame the legislature anticipated it should have
meaning. On the other hand I certainly agree with the observation that the
Commission has its own independent authority to act in this matter, and it
certainly will not lose jurisdiction if it fails to act (inaudible-mumbling). One
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suggestion is purely procedural -- it's not substantive -- that you might want to
consider. The nine-month deadline as established by the Law Court initially is a
parallel to the nine-month deadline that exists in rate cases for processing rate
filings when utilities request changes in the rates. For many years now the
Commission has dealt with that nine-month rate case deadline in a sort of
ingenious way where they put out whats called a part A order that basically
says in order to act before the end of the nine-month period, we will say nothing
whatever about any basis for any decision, but we will authorize a change in
rates in X amount. Its impossible for any of the litigants at that point to know
how their rights have been affected, how -- what the basis for the decision is,
whether an appeal is necessary, whether an appeal is legitimate. In short it
does nothing whatever to terminate the case. The case then continues until
theres a part B order. Sometimes its as much as six months later. It says and
heres why. At that point appeal rights attach, and at that point the parties are
free to pursue whatever remedies they think are appropriate.
MR. HAGLER: What does that suggest as a suggested course of action
here?
MR. WARD: Well, I'm thinking out loud here, of course, but Im thinking
that there may be some value prior to the end of the nine-month period in the
Commission putting out what is equivalent to a part A order saying it continues
to believe it has jurisdiction in this matter and it continues to believe that its
initial requirements of Verizon were lawful and should be (inaudible-mumbling).
And then, having acted at least to that extent, make explicit its desire to
continue to exercise authority beyond the nine-month period under a variety of
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statutes, including the statute that says all Commission laws and rules should
be liberally (inaudible-mumbling). Anyway, its just a thought.
MR. HAGLER: Would that have the effect of denying the complainants a
right to go to a superior court to seek mandamus under the 1302 deadline?
MR. WARD: As a practical matter, no. As a practical matter, I think
complainants have that right until such time as the Commission acts in the
quote/unquote part B portion of the order. If the Commission never issued a
part B order --
MR. HAGLER: Right.
MR. WALKER: -- then justice would be frustrated and fair processing of
the complaint would be, obviously, denied, but thats not what Im proposing
here.
MR. HAGLER: Okay.
MR. BOECKE: Steve, just so Im clear. The purpose of getting some
order out from the Commission before February 7th would be more or less just
to affirm Andy's assessment before that the Commission wouldnt lose any
jurisdiction after the nine months?
MR. WARD: That's correct, and also to add some, lets say, legal force
to the arguments the Attorney General will be making on behalf of the
Commission in the federal proceedings.
MR. COWIE: (Inaudible-too far from microphone) legal force in
(inaudible-too far from microphone)?
MR. WARD: Legal force in the federal proceedings to the extent that the
state, by not acting within the nine-month time frame, is not by implication
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indicating a lack of desire to act or a lack of interest in the issues or a lack of
concern with the complainants allegations.
MR. BRANSON: May I?
MR. HAGLER: Yes, please.
MR. BRANSON: I guess I would like to reinforce a couple of points that
-- (inaudible-too far from microphone). I think that 1302 very finally states the
Commissions obligation to act within nine months, and I think I agree with the
analysis that its probably not a jurisdictional nine months. Its a directive thats
something other than jurisdictional and that the Commission will have
jurisdiction after that. But I dont think that answers the question whether the
(inaudible-too far from microphone). I dont think the fact that its not
jurisdictional implies that the Commission can, therefore, ignore it. And the
question is -- and the only reason Ive heard suggested this morning why the
Commission shouldnt act within the nine months is fear of the unknown -- a
fear that something might happen in the federal court, which I dont think Ive
heard a single suggestion that says why that has any legal bearing whatsoever
on what the Commission should do. That is a separate proceeding. It has no
direct bearing on this -- on the Commissions actions and that the court has
taken no action whatsoever to -- to interfere with this proceeding. The
Commission retains jurisdiction and has a legal obligation to hear any and all
issues before it. I think the Commission has to go forward until it is ordered
otherwise. So I don't -- I really don't understand the suggestion that we should
-- the implied suggestion that the Commission can and should consider holding
back for fear that the federal court might take some action. That doesn't make
sense to me. As to whats -- with regard to the question of has there been any
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change that now makes it more urgent for the Commission to act, I would like to
point out that every day has a change in this case. Were talking about serious
constitutional violations, serious incursions on consumers' privacy rights. And
theres very serious allegations out there of the violations, and its important that
we get to the bottom of that. Every day that passes is a delay. Justice delayed
is justice denied in this case. I think its a very serious concern (inaudible-too
far from microphone).
MR. HAGLER: Mr. Heiden?
MR. HEIDEN: No, nothing in addition.
MR. BOECKE: Again, I just want to -- at the risk of repeating myself, I
think its really unfair to say the Commissions ignoring the complaint.
MR. COWIE: Who has said that the Commission is ignoring this
complaint?
MR. BOECKE: Well, I just heard Mr. Branson say it. I heard Wayne
Joyntner say it. We can get the record out -- I believe theres three or four
references to the Commission cant ignore Section 1302. With all due respect it
is not ignoring 1302. It knows its responsibility. It has, by its counsel,
participated actively in the federal court to protect its jurisdiction. The problem
here is theres a difference of opinion on a question of legal jurisdiction, and Mr.
Branson called it fear -- I think its well-placed fear. I believe at least one federal
court has already ruled that the United States government is correct that certain
of this information cannot be divulged. So --
MR. JOYNTNER: They haven't ruled on these facts.
MR. HAGLER: Lets --
MR. BOECKE: I understand --
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MR. HAGLER: Please let --
MR. BOECKE: All Im saying is theres a legitimate difference of opinion
on a legal threshold question which is the Commissions jurisdiction thats going
to be resolved by the federal court. If the Commission takes one more step to
proceed with this investigation now, its not going to get any closer to that
answer. Its going to get a motion for a temporary restraining order or for
preliminary relief. So I think its a vain act for people to counsel the
Commission, you know, go ahead and try and move forward with this case
before the federal court rules.
MR. COWIE: Can I ask you how you know that thats going to happen?
MR. BOECKE: How do I know that's going to happen? I think it's logical
to assume that since the United States government has commenced the lawsuit
and directed the Department of Justice to oppose the Commissions
investigation, if the Commission took one more step in furtherance of its
jurisdiction, the United States government would be prompted to act. I have no
inside information. Thats just my surmise.
MR. HEIDEN: It is a worthwhile question to consider, though, because
the federal government has a number of lawyers. Theyre well trained. They
know how to make a motion for an injunction. Your question to the
complainants about why not could easily be directed at the United States
government. Why havent they asked for an injunction if it was so -- such a
matter of concern for them that the Commission stop an investigation.
MR. BOECKE: I think they presumed correctly that the Commission
would be interested in having the question resolved. Thats exactly what the
Commission has done. Thats exactly what every party in this room has done
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for the last five months was to await the court's ruling. Now the Commissions
being counseled to not wait any longer. I think that would prompt the
Department of Justice to change their view.
MR. HAGLER: My question -- and -- and, ultimately, my resolution of it
would be a recommendation to the Commission in one fashion or another -- is
to what extent -- how much is required of the Commission in -- in -- by 1302 --
by a nine-month deadline? How much should the Commission consider what
the parties have provided, the work thats taken place here in consideration of
the complaint, the work that has taken place in the federal district court on the
Commissions behalf by not less than three of the ablest Assistants Attorney
Generals in that office weighed against -- I mean, should -- should and can the
Commission consider likely and possible outcomes and the worth of taking the
action that Mr. Cowie suggests, which is enforcement through contempt
proceedings? Should we look at what the likely outcome is? Should we look at
how much effort that might take? Should we look at what the results are likely
to be as compared against whats happening now that we can see in the federal
district court? I read what comes out of the federal district court and whats filed
in the federal district court. Most recently there was an order involving
something about page limits or, you know, the -- its something procedural in the
district court, and Judge Woodcock indicated in the course of it -- and I don't
want to -- that this case is in a unique posture. There is currently an order
transferring the case to the northern district of California. We discussed that.
Although for the moment this court retains jurisdiction, it has expressed its
reluctance to issue an order that could affect the orderly disposition of the case.
I dont know -- I don't offer a belief as to what Judge Woodcock might do upon
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the receipt of a motion for an injunction brought against the enforcement action
that the complainants seek. But I wonder whether it would result in the sort of
closure or ability for the Commission -- practical ability for the Commission to
advance the matter before it any quicker than would be to wait to see what
happens both in Florida -- and as I understand it what happens in that -- before
that forum happens very quickly. And then youre sent to California of youre
sent back to the district of Maine with dispositive motions in the can, ready to be
decided. Can I recommend to the Commission that it consider those
practicalities in discharging its duty under 1302?
MR. COWIE: Can I (inaudible-too far from microphone)? We are in a de
facto injunction (inaudible-too far from microphone) since August 21st
(inaudible-too far from microphone). Quite frankly, I don't -- I'm sure that if the
Commission did what I recommended at the beginning -- namely to enforce its
order -- if that brings about a motion by the Department of Justice to (inaudible-
too far from microphone) temporary restraining order -- whatever the legal thing
would be -- what -- what difference -- what difference would it make in
(inaudible-too far from microphone) -- in this complaint case? Nothing is
happening with the complaint case. Nothing has happened. Only one thing did
happen -- namely the Commissions order (inaudible-too far from microphone)
three months after the filing of the complaint. So what difference would it make
with the complaint? Would it -- in your opinion or anybody's opinion, would it --
what would it do other than what were already (inaudible-too far from
microphone) -- namely a de facto injunction? What would be -- what do you
think would be the impact of it?
MR. BRANSON: Andy, (inaudible-too far from microphone)?
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MR. HAGLER: (Inaudible).
MR. BRANSON: Thank you. To address your question of can you -- can
the Commission consider practical considerations such as time, expense, or
what not -- I dont know -- in weighing whether to move forward or not, I -- I
cannot -- I'm not aware of any support for that in the statutes or regulations.
Certainly neither 1302 nor the underlying statute on privacy suggest that the
Commissions authority is any how -- in any way limited or constrained by the
expense of enforcing those rights or investigation. (Inaudible-too far from
microphone) obligation to investigate is not within reason or within certain
limited -- within expenses. It's an absolute obligation to investigate. And
similarly the (inaudible-too far from microphone) obligation is absolute. Its not
conditioned on as long as it doesnt cost the Commission more than X or take
more than this much time. So I think as far as applying for authority for that
suggestion -- but I want to also put another thing on the table, which is I don't
agree with the suggestion that (inaudible-mumbling). I think the Commission
could be helping everything by actually moving forward. We have paralysis --
breeding paralysis in these two cases right now. And theres a very real
possibility that if the federal court says do nothing -- because its going to say
the Commission has not done -- taken any action yet. So were -- you know --
which is exactly what I think Verizon and the government would like to see
which is nothing happened which leads everybody to say, oh, we cant do
anything. Thats my worst fear about the federal court right now. Theyre likely
to look at this and say, look, the Commission hasnt done anything. They
havent -- they have an order out there thats not been acted on, the nine
months have come and gone, they still havent acted on it. What are we going
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to do. We can't enjoin anything. It might -- and the federal court record is
noticeably thin in terms of what's actually happened. So the federal courts
going to have to guess at what the Commission -- this Commission might or
might not do in terms of trying to give some order. So it may actually help in a
very real way to have some action because then well actually have a case in
controversy to discuss. We have -- we really dont have one.
MR. HAGLER: Don?
MR. BOECKE: I'm not sure I understand that last point. I believe there
are dispositive motions pending in federal court. I believe the federal court has
jurisdiction. I believe there is a case in controversy. I dont see what -- you
know, the Commission order directing Verizon to answer that August 9th order
under five days under threat of --
MR. BLACK: Contempt.
MR. BOECKE: -- yeah -- excuse me -- Im not sure that adds any
additional facts that the court needs. I think it has the facts. Again, I think the
Commission is doing all that it practically can. I think prompting this further
processing of the case and the inevitable motion practice thats going to be
involved with no real further clarification or crystallization for the courts benefit
or for the parties benefit of what already is the threshold issue -- does the
Commission have jurisdiction in this case or does it not. Everyone in here has
been presuming that the Commission does. The -- you know, the United States
government has a different view and has instructed Verizon of its view and told
Verizon that if it supplies the information to the Public Utilities Commission, it
will be in violation of federal law. Thats the question thats pending in federal
court.
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MR. JOYNTNER: One of the benefits of being in a democracy is that we
dont have a federal executive branch that can tell everybody what to do absent
the court system. I agree with Doug that we're in a de facto injunction now.
There isnt a whole lot to lose as far as the complainants are concerned. What
the Commission has asked Verizon to do is so incredibly mild that it can't be
construed, as the Commission has repeatedly said to the federal court -- cant
be construed as intruding into state secrets issue.
MR. BOECKE: But that's the contested allegation.
MR. JOYNTNER: And the people in this room, I think, are prepared to
ask the Commission to do nothing more than enforce its August 9th order,
which it already (inaudible).
MR. HEIDEN: I would further just add -- youve referred to the work
thats gone on to the defendants in the United States v. Adams, et al. case -- its
worth, I think, referring in specific to the position taken by defendants in that --
namely, one, that the government had failed to state a claim, and that was part
of their motion to dismiss -- that they were asking for an advisory opinion -- and
also that the federal court should abstain from deciding the matter because of
(inaudible-unfamiliar words) doctrine based on the Commissions ongoing state
proceeding. So the two are connected in an important way that goes back to
the points that Mr. Branson (inaudible-mumbling).
MR. COWIE: Could I ask a question? We're assuming that if the
Department of Justice files a motion for TRO or whatever that (inaudible-too far
from microphone). Isnt that -- wouldnt that be a high hurdle?
MR. BOECKE: No. I think its almost a certainty that -- to preserve the
status quo in the case since what the Commission would be ordering Verizon to
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do would go to the heart of the issue. Itd be asking Verizon to disclose
information which, if disclosed, is a violation of federal law. I think theres
probably a very, very high probability that the United States Department of
Justice could get that motion. It might even be able to get it ex parte.
MR. HAGLER: I can tell you I wouldn't venture that sort of guess. First
of all, its not my role. I do know that there would be, however, an issue of
whether the judge needed to confront the merits of the legal positions taken in
the dispositive motions, in addition to status quo questions. And I wonder
whether the likelihood of success on the merits of the claims is something that
would be forthcoming from the court within the time frame that 1302 asks this
Commission to act, especially in light of the federal district courts obvious
concern about whether the case is its ultimately to decide or whether it's off to
California for some amount of process. But Im focused on the question of what
does 1302 require and to what degree does it require of the Commission before
nine months, and your comments and your views and your writings have been
very helpful to me for that. Is there anything else that you think I ought to
know?
MR. JOYNTNER: One thing that hasn't been mentioned is that there
should be a fear of litigation on the other side as well because as soon as the
Commission fails to render a decision within nine months, the complainants can
seek an appeal or an action for mandamus.
MR. HAGLER: Right. And the result of that, I believe -- I believe that the
1302 nine-month requirement is directory rather than mandatory as that sort of
concept comes out of Bradbury Memorial Nursing v. Tall Pines Manor
Associates, Maine 1984, and that the result of the -- of such an action brought
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by the complainants in superior court is likely to be directory that the
Commission make a decision. If the decision -- what decision, I dont know,
might come from the -- from such an action, but I dont think that that sort of
litigation in the superior court would result in a remedy for these complainants
on the merits of the complaint they brought before the Commission. It's not
going to be like the rates are, therefore, in effect or the rates are, therefore, not
in effect. Its likely to be a direction for the Commission to take some action,
which is why Im here so quickly after the letters were filed today because I
want to advise the Commission as to what it needs and ought to do and
consider in the face of what I believe is a directory instruction in the statute.
MR. COWIE: What does that mean -- a directory instruction?
(Inaudible-too far from microphone)?
MR. HAGLER: Yeah. Sometimes shall in a statute means must, and
sometimes shall in a statute means should. I don't know if that -- if thats a --
MR. BLACK: Good.
MR. BOECKE: They teach you that in law school.
MR. COWIE: So (inaudible-too far from microphone) means should?
Does that -- does that --
MR. HAGLER: There is no rights-defining consequence, which --
listening to myself -- by the Commission be not fulfilling -- not doing something
by the nine-month deadline in this statute in my view. What the consequence
could be is that a superior court could direct the Commission to do something.
But a superior court is not going to order the Commission to grant whatever
relief your complaint here asks for, which is tell Verizon not to cooperate with
the NSA, and Im only paraphrasing. That wouldnt be the --
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MR. COWIE: No, excuse me, but people keep characterizing that
complaint. Theyre saying -- it did say -- it says a lot more things before it says
tell Verizon to stop doing it, and asks for an investigation into whether Verizon
(inaudible-too far from microphone). That's what hasn't happened.
MR. HAGLER: Right. And the superior court likely, in a mandamus
action -- what were -- the possibility is that the -- in that situation is that the
Commission would be directed to do what 1302 tells it to do and the superior
court could find that the Commission hadnt.
MR. JOYNTNER: That's really quite symmetrical with the other side.
The federal court could tell the Commission not to do something. The superior
court in Maine could tell the Commission to do something.
MR. HAGLER: Correct.
MR. JOYNTNER: Those are the two possibilities that the Commission
acts or doesnt act.
MR. HAGLER: And what I hear this morning is that there is not an
agreement among the parties to avoid -- that would avoid either result that we
could walk away from today and that its up to me to make a recommendation to
the Commission to come up with something.
MR. BOECKE: Other than I think you have the agreement of the parties
that certainly the nine months does not in any way rob the Commission of
jurisdiction if it doesnt -- if the (inaudible-mumbling).
MR. BRANSON: That's correct.
MR. BOECKE: Were all in agreement on that.
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MR. COWIE: Has the Commission ever, in a 10-person complaint,
written an order that gave itself more than nine months to render a decision.
Arent you saying they don't have to?
MR. HAGLER: I'm saying that any action the Commission takes after
nine months would not be void for the fact that it occurred after nine months.
That's all that I'm saying, and thats all that I agree the -- I believe the parties
agreed to. Not I dont concede it. You may not.
MR. COWIE: Well --
MR. BRANSON: The jurisdictional issue, I think, is beyond me
(inaudible-too far from microphone) at this point so I dont have anything to add
to that. But I do want to make another point, which is if the Commission is
inclined to weigh cost balances and what not, Ill tell you my sincere belief that if
you want -- the quickest way to end this pain and the ongoing litigation is to act.
What is almost certain if the Commission fails to act is long, drawn out multi-
district litigation which will cost this state and our taxpayers dearly because
were going to be wrapped up in many other cases that are from all over the
country and (inaudible-too far from microphone) in California. If the
Commission acts we will probably get, as promised, a motion which will
probably get some direction from the federal court which is clearly lacking now.
If the Commission wants direction from the federal court, we can get it, but the
Commission needs to act. But that will bring it to a swift end and in the end its
going to cost everybody a lot less and itll take a lot less time.
MR. JOYNTNER: And one positive aspect of that (inaudible-mumbling)
these facts (inaudible-mumbling) actually Maine are -- would be the most
difficult of any of the situations around the country for a federal court to see as
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something that should be -- that needs to be enjoined because what the
Commission has done is so mild. It hasn't started any substantive investigation.
It simply asked Verizon to reaffirm its own statement. So these are great facts
to test before the federal court. I disagree with Don. I think we would win. I
dont think hed get an injunction on his facts.
MR. BOECKE: But the only thing that's going to bring this to an end is a
dispositive ruling by the federal court on the Commissions jurisdiction. Barring
a dispositive ruling, Verizon isn't going to turn over anything. And barring a
dispositive motion, the United States government isnt going to consent to let
the investigation go forward. I just dont see how its going to precipitate a
dispositive decision on the motion. It will precipitate wasting more legal
expenses to put us right back where we are right now. Youll get a formal court
order that says the Commission should do what it's been doing for 5 months. It
should await the due process of law, and if thats what it entails, I dont think a
federal judge would have a problem signing that order telling the Commission to
wait for the process to unfold.
MR. WARD: Well, even that outcome I dont necessarily see as a
negative. Im inclined to agree with the statement just made by Mr. Branson
that otherwise we confront the possibility of an endless -- lets call it a Mexican
stand off. Maybe thats the wrong term for you.
MR. BOECKE: It can't be endless, Steve, because the motions are
pending in federal court. Youre saying --
MR. WARD: The motions -- the motions will involve delicate questions
about state sovereignty and federal jurisdiction.
MR. BOECKE: They do.
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MR. WARD: And there could be a desire to let them move as slowly as
possible.
MR. BOECKE: By the federal court?
MR. WARD: Yes.
MR. HAGLER: If theres anything 1302 law that you know of --
MR. WARD: I have one -- one item (inaudible-mumbling). There was a
1981 New England telephone case in which a rate order that was granted in the
tenth month was voided. So prior to that -- prior to that date there was no
expectation that there were legal rights that attached to the nine-month
expectation --
MR. HAGLER: In a rate case?
MR. WARD: In a rate case. So prior to that point, it was directive. But
then as a result of that case law, it became mandatory and thats when the Part
A/Part B formula got put into place that enabled the Commission simultaneously
to satisfy a nine-month statutory deadline and still complete the orderly
processing of extremely complex cases.
MR. JOYNTNER: And in terms of --
MR. HAGLER: And that reasoning, you believe, would carry over to the
mandatory directory distinction in --
MR. WARD: -- this morning is there may be a basis for using that
procedure to uphold the validity of the investigations law and the nine-month
deadline and at the same time account for these other events which are clearly
beyond our control.
MR. JOYNTNER: And 1302 would -- rather 1302 itself, which was the
subject of Agro -- I think the Agro case is probably the only thing thats out there,
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but its -- it has some pretty -- pretty narrow directives to the Commission like
how it should process specifically a 1302 complaint.
MR. HAGLER: Cited in your letter?
MR. JOYNTNER: Yes. I dont think Agro leaves a whole lot of room for
the Commission to --
MR. HAGLER: And 1981 is New England Telephone versus --
MR. WARD: Maybe it's '79.
MR. BOECKE: There are actually two cases, like NET 1 and NET 2.
MR. WARD: Right.
MR. HAGLER: If the parties want to send me an e-mail with citations, Ill
look them up.
MR. BOECKE: I would just point out, Andy, that the Agro case didnt
directly involve the nine-month statute -- that was not the question before the
Law Court whether the Commission has to act within nine months. I believe the
Commission in that case did act prior to the nine months by dismissing the
complaint, and whether they should have dismissed was the issue the Law
Court addressed.
MR. HAGLER: I will read them all. You can send me --
MR. BOECKE: (Inaudible-multiple speakers).
MR. HAGLER: -- feel free to send whatever youd like. You need not -- I
don't want to complicate what has been -- with more motion practice before me
because that doesnt seem to make sense. But giving me the citations -- and
Im sure that I can find them on my own -- but I need to make a
recommendation in some manner to the Commission regarding its Section 1302
obligations and what it can consider in the course of fulfilling those
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responsibilities. And I appreciate all of -- all of the input that I've received today
here. And Im not going to make a decision about a recommendation today.
MR. COWIE: Well, would it be likely that therell be another procedure
order (inaudible-too far from microphone) the Commission decides (inaudible-
too far from microphone) so we hear -- will we hear anything -- see anything?
MR. HAGLER: I really don't know -- dont know. I'm cognizant of what
appears to have been agreed as a date of the expiration of the 1302 timeline
being February 7th.
MR. BLACK: And you're cognizant of the request made by at least three
parties for the enforcement of its order?
MR. HAGLER: And I would not be here today if it were otherwise.
Thank you.
MR. HEIDEN: Thank you.
CONFERENCE ADJOURNED (January 19, 2007, 10:05 p.m.)