Verizon Wiretapping - transcript01192007

8/14/2019 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.)

Documents

Verizon Wiretapping - transcript01192007