\—— Donald W. Boecke verizon Assistant General Counsel 185 Franklin Street 13” Floor Boston, MA 02110- 1585 Tol (617) 743-5769 Fax (617) 737-0648 donald.w.boecke@ verizon.com ELECTRONICALLY FILED ON 01-17-07 January 17, 2007 THIS IS A VIRTUAL DUPLICATE OF THE ORIGINAL HARDCOPY SUBMITTED TO THE COMMISSION IN ACCORDANCE WITH ITS ELECTRONIC FILING INSTRUCTIONS, Mr. Karen Geraghty, Administrative Director State of Maine, Public Utilities Commission 242 State Street, State House Station 18 Augusta, Maine 04333-0018 RE: MAINE PUBLIC UTILITIES COMMISSION, Request for Commission Investigation into Whether Verizon is Cooperating in Maine With the National Security Ageney’s Warrantless Domestic Wiretapping Program, Docket No. 2006-274 Dear Ms. Geraghty ‘The Lead Complainant and the Office of Public Advocate have written separate letters to you dated January 9, 2007 to advise the Commission that Section 1302’s nine month deadline to reach a decision on a ten party complaint, if applied to this proceeding, would expire on February 7. They urge the Commission to initiate a formal investigation of this matter and to set a date for a Section 1302 hearing prior to February 7. The Commission has scheduled a conference of counsel for January 19 to discuss the matter. Verizon Maine offers this letter for the Commission’s consideration in preparing for the January 19 conference. ‘The Complainant’s and the OPA’s view that Section 1302 compels further action by the Commission is not correct. That statute presupposes the Commission’s jurisdiction to determine whether a “complaint is without merit” and thus “may be dismissed.” 35-A M.RS.A. §1302(2), As the Law Court has explained, “the phrase, ‘without merit’ must be understood to mean that .. . the PUC has no authority to grant the relief requested.” Agro v. Public Utils, Comm'n, 611 A.2d 566, 569 (Me. 1992). Here, though, whether the Commission has “authority to grant the relief requested,” id., or, on the other hand, whether the “complaint is without merit,” 35-A M.R.S.A. §1302(2), is precisely the question pending before the federal district court. And since the answer to that question turns on federalpreemption law and the applicability of the state secrets privilege, it is for the federal court— not this Commission—to decide. See Response of Verizon Maine to Ten-Person Complaint, filed in Docket No. 2006-274 on May 19, 2006, at 6. Section 1302’s animating presupposition—that itis within the power of the Commission, without waiting for another body to act, to decide whether the complaint before it is without merit—thus does not fit this case. Neither does the policy behind the nine-month deadline, which is “to require the PUC to promptly and seriously consider consumer complaints brought to its attention through a section 1302 complaint.” Agro, 611 A.2d at 569. There can be no reasonable argument here that the Commission has shirked this duty—it took comments from the parties and issued a prompt order on August 9, 2006. The United States immediately filed suit against the Commission and Verizon on the grounds that the Commission’s attempts to obtain certain information relating to the Complaint “are invalid under the Supremacy Clause of the United States Constitution and are preempted by the United States Constitution and various federal statutes.” Complaint, United States v. Adams, et al. at 2 (D. Me,, filed on August 21, 2006). ‘The Commission is appropriately waiting for the federal court to decide the fundamental federal law issues concerning its jurisdiction. The Commission obviously has no control over the timing of the federal court proceeding, and thus this is not a case in which the ‘Commission has failed to act on a consumer complaint. To the contrary, until the federal court acts, the Commission has done all it reasonably can, Courts have long recognized that statutes of limitations—which are designed to force plaintiffs to act within a specified period of time, just as Section 1302’s nine-month deadline is designed to require the Commission to act within a particular period—by their nature implicitly except those circumstances where application would be unreasonable because failure to satisfy the deadline is not the fault of the party subject to the deadline. See, e.g., Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946) (“equitable [tolling] doctrine is read into every federal statute of limitation.”); Shropshear v, Corporation Counsel of the City of Chicago, 275 F.3d 593, 595 (7th Cir. 2001) (“equitable tolling” doctrine is based on “the principle that even if the defendant is not responsible for the plaintiff's failure to sue within the limitations period, the latter can get an extension of time within which to sue if it would have been unreasonable to expect him to be able to sue earlier”), Similarly, the Federal Communications Commission has long recognized that, even where “the statute [of limitations] is not discretionary, there are two basic situations in which the strict application of the statute may be altered or affected,” one of which being that “the running of the period of limitations may be suspended or tolled by various [equitable] causes.” Memorandum Opinion and Order, Bunker Ramo Corp. v. Western Union Tel. Co., 31 F.C.C.24 449, 4 12 €.C.C. 1971). Applying that principle, the Law Court has recognized that a “statute of limitations is tolled when strict application of the statute of limitations would be inequitable.” Dasha III v. Maine Med. Cen., 665 A.2d 993, 996 n.2 (Me. 1995) (citing Lambert v. United States, 44 F.3d 296, 298 (Sth Cir. 1995). Lambert, in turn, recognized that one such circumstance would be “where a [complainant’s] motion for appointment of counsel is pending and equity would justify tolling the statutory period until the motion is acted upon.” Lambert, 44 F.3d at299 (quoting Baldwin County Welcome Cen. v, Brown, 466 U.S. 147, 151 (1984)). That scenario is analogous to the one currently facing the Commission—the federal preemption and state secrets questions that must be decided by the federal court before the Commission can possibly ascertain whether the Complaint is without merit are pending in the District of Maine, and thus “equity . ..justiffies] tolling the statutory period until the [Department of Justice’s] motion is acted upon.” Id. ‘The Complainant’s and OPA’s contrary position simply ignores the reality of this unique situation. ‘They suggest that a statute clearly intended to apply only in those situations where the Commission could lawfully actif it wished must be read in this case to force the Commission to fly blind ahead of the federal court. The Commission need not, and should not, adopt such an unyielding and counterproductive construction of Section 1302. Instead, the Commission should find that Section 1302 does not apply—or, at the very least, is tolled—when a federal court must decide whether the Commission even has jurisdiction to determine whether the complaint in question is “without merit.” Such a decision would not leave the Complainants without recourse. They could challenge that judgment at the Law Court by petition for mandamus. The Law Court, however, has noted, in connection with ten party complaints, that Maine law affords the Commission “control over its own cases and substantial discretion as to the manner in which it addresses such complaints, conducts investigations and generally administers its dockets.” Agro, 611 A.2d at 570. The Commission’s election under these circumstances to await a decision by the federal court is a reasonable exercise of its discretion. Respectfully submitted, VERIZON MAINE Nao Donald W. Boecke Attorney for Verizon Maine CC: Andrew 8. Hagler, Esq. All Parties