James D.

Cowie 32 North Street Portland Maine 04101 207-774-2365 January 25, 2007 ELECTRONICALLY FILED ON 01-25-07 THIS IS A VIRTUAL DUPLICATE OF THE ORIGINAL HARD COPY SUBMITTED TO THE COMMISSION IN ACCORDANCE WITH ITS ELECTRONIC FILING INSTRUCTIONS Ms. Karen Geraghty, Administrative Director Maine Public Utilities Commission 242 State Street, 18 State House Station Augusta Maine 04333-0018 RE: MAINE PUBLIC UTILITIES COMMISSION Request for Commission Investigation into Whether Verizon is Cooperating in Maine With the National Security Agency’s Warrantless Domestic Wiretapping Program Docket No. 2006-274

Dear Ms. Geraghty: The following are Complainants’ reactions to the conference of counsel the PUC held Friday, January 19, which was to discuss issues the Public Advocate and the complainants raised in our January 9 filings – namely, that the 9-month statutory deadline in 35-A MRSA §1302 was only a month [now two weeks] away and the PUC had yet carry out its obligations under that statute to promptly set a date for a public hearing and investigate the complaint. A much-discussed matter in the conference was whether the word “shall” in §1302 – as in the clause: “the commission shall render a decision upon the complaint no later than 9 months after its filing” – implies the 9-month statutory period is compulsory or only directive or permissive, i.e., that “shall” in §1302 can be taken as equivalent to “may,” a view to which the PUC’s presiding officer, Andrew Hagler, seemed to lean, and which suggests the PUC could effectively ignore that provision of the statute and take as long as it wants to process our complaint. Black’s Law Dictionary, however, says the permissive interpretation of “shall” is acceptable in cases where no party’s right or benefit is impaired by not interpreting it in its compulsory sense. Therefore, should the PUC interpret “shall” in §1302 to be permissive, the complainants will contest it, because we would lose the benefit of a PUC decision being made on our complaint within 9 months, and we'd lose [and indeed we have at this point all but lost] our right to have the PUC protect the privacy of our telephone calls under §7101-A in this case. Considerable concern was expressed at the conference by Mr. Hagler and

2 Verizon over the impact of an increase in attorneys’ workloads should the Department of Justice seek a restraining order in federal court if the PUC carries out its §1302 obligations or enforces its August 9, 2006 Order to Verizon. No concern, however, was expressed for the complainants’ rights under that statute and under 35-A MRSA §7101-A, Maine’s telephone privacy statute, which is at the very heart of our complaint. Further, as Attorney and Complainant Christopher Branson said at the conference, the possibility that a motion for a restraining order would increase attorneys’ workloads should have no bearing on the decision by the PUC whether to fulfill its §1302 obligations, and he also observed that the complainants have waited every day for over eight months for the PUC to provide some protection and justice inherent in §7101-A, and that the PUC’s puzzling and unexplained lack of action in this case has us in a situation where “justice delayed is justice denied.” On the matter of the PUC not taking action in this case, the complainants and the Public Advocate reminded Mr. Hagler that the Maine District Court has issued no order enjoining the PUC from carrying out its §1302 obligations or from enforcing its Order to Verizon. I mentioned the several statements in the PUC’s opposition to the DoJ’s summary judgment motion that asserted it has the authority to take such actions as to order Verizon to disclose whether it has provided the NSA with customers’ records, to determine whether Verizon has been acting lawfully, to ensure that Verizon is protecting the telephone privacy of its customers in Maine pursuant to 35-A MRSA §§ 103, 7101-A, and the PUC also asserted that the NSA Act does not immunize private parties. like Verizon, from responding to inquiries from state agencies, like the PUC. Taken together those assertions amount to a manifest rejection by the PUC of the positions of Verizon and the DoJ that it lacks the authority to investigate our complaint, and if the PUC would only exercise the authorities it asserts it has, the result would be an investigation of the complaint. Should the PUC actually carry out its §1302 obligations or enforce its Order, as all parties but Verizon recommended it do, we acknowledged the DoJ may seek a restraining order, but that the court would grant it is by no means a certainty. Moreover, even were the court to grant such a motion, I pointed out that since August 21, 2006, when the DoJ filed suit against the PUC, the complainants have already been living with a de facto injunction, which the PUC apparently imposed on itself, and which has resulted in nothing whatsoever being done about our complaint for the last five-and-a-half months. So for the complainants there would be no observable difference between a court-ordered injunction and the de facto injunction we’ve been enduring. Further, as Christopher Branson pointed out in the conference, if the federal court were to consider the substance of this case, it would be much easier were there actually a significant PUC action the court could consider. Up to now, but for its one and only Order to Verizon [which could hardly be more benign], the PUC has done nothing in this case, and therefore there is no clear factual basis for a court decision. The court can only guess what the PUC would do if the case proceeded. Thus, the federal case would be advanced if the PUC clarified what action it

3 would take on our complaint. Finally, by continuing to operate in its apparently self-imposed de facto injunction, the PUC undermines the powerful authorities it told the federal court it has in its opposition to the DoJ’s motion for summary judgment; for if the PUC really believes it has those powers, why has it not used them? In the three months prior to the day the PUC issued its Order to Verizon, it had issued only two procedural orders and had served no discovery on Verizon in this case. So, as the January 19 conference of counsel was to be the very first time in the eight-and-a-half months since we filed the complaint that someone from the PUC would actually meet with the complainants, I was looking forward to something hopeful coming out of it; that did not seem to happen as the conference adjourned, perhaps it will yet. Meanwhile, the complainants continue to wait for the PUC to fulfill its §1302 obligations and to demonstrate its recognition of our rights under that statute and under Maine’s telephone privacy statute, 35-A MRSA §7101-A. Respectfully submitted, James D. Cowie Lead Complainant Cc: Andrew S. Hagler, Esq.; Donald W. Boecke, Esq., Verizon; William C. Black, Esq. and Wayne R. Jortiner, Esq., OPA; Zachary L. Heiden, Esq., MCLU