Verizon is Cooperating in Maine With the National Security Agency’s Warrantless Domestic Wiretapping Program

Docket No. 2006-274 June 23, 2006 PROCEDURAL ORDER

On May 22, 2006, the lead petitioner, James D. Cowie, requested leave to file comments on the May 19, 2006 response of Verizon Maine in which it urged that the complaint be dismissed as without merit pursuant to 35-A M.R.S.A. § 1302(2). I granted Mr. Cowie’s request and also invited the Maine Civil Liberties Union (MCLU) and the Office of the Public Advocate (OPA) to file comments and set a deadline of June 12, 2006 for the submission of such comments. Mr. Cowie, the MCLU, and the OPA each filed comments on June 12. On June 14, 2006, Verizon requested leave to respond to the June 12, 2006 comments. In support, Verizon points to the length of the comments submitted by Mr. Cowie, the MCLU, and the OPA and the limited statutory period which it had to respond to the complaint in the first instance (10 days). Verizon also suggests that its initial response to the complaint is of the nature of a motion to dismiss and that the Commission’s procedural rules grant it the right to reply to the opposition of a nonmoving party. On June 15, 2006, Mr. Cowie and the OPA each objected to Verizon’s request, on the grounds that Verizon’s response to the complaint failed to demonstrate that the complaint is without merit. They note that the governing statute, 35-A M.R.S.A. § 1302, provides that after a public utility has submitted its response to a complaint filed pursuant to that section the Commission shall address two questions: (i) whether “the utility has taken adequate steps to remove the cause of the complaint” or (ii) whether “the complaint is without merit.” If the answer to either inquiry is “yes”, the complaint may be dismissed. The statute does not address whether the Commission may afford either a complainant or the responding utility the opportunity to file comments beyond their initial complaint and response, respectively. Nor does it make provision for comments by proposed intervenors. However, Section 1101(d) of the Commission’s Chapter 110 Rules provides that the Commission may conduct a further inquiry into the allegations of a complaint to determine whether it has merit. It has been Commission practice to gather as much pertinent information as possible before determining whether to open an investigation. Accordingly, Verizon’s request is granted. Based upon the papers submitted by the parties to date, I am of the preliminary view that the complainant’s allegations implicate Section 7 of Chapter 290 of the Commission’s consumer protection rules (requiring Verizon to comply with the Federal

PROCEDURAL ORDER 2 Docket No. 2006-274 Communication Commission's Customer Proprietary Network Information Rules, 47 CFR §§ 64.2001-2009), and also 35-A M.R.S.A. § 7101-A(2) (providing a right on the part of telephone subscribers to limit the dissemination of their telephone numbers to persons of their choosing). A credible claim could also be made that the allegations, if true, would constitute an unreasonable utility practice, especially in light of the statement of policy, annunciated in 35-A M.R.S.A. §7101-A(1), that telephone subscribers have a right to privacy and the protection of this right is of paramount concern to the State. The more difficult issue is whether certain federal statutes and/or the so-called “state secrets privilege” will prevent us from obtaining relevant information in the course of a Commission investigation. Resolution of this issue should be confronted directly, in the correct forum, and with all necessary parties participating. To assist the Commission in deciding how best to ensure that this is accomplished, Verizon should include in its supplemental filing a separately numbered section providing a detailed recommendation about the process the Commission should take to resolve whether federal law precludes an investigation into the areas identified above. In providing its recommendation, Verizon should assume that the Commission would not find that Verizon’s mere invocation of such impediments provides sufficient grounds to dismiss the complaint as without merit. The lead complainant, the MCLU, and the OPA are invited to offer their own recommendations on this issue. A copy of this Procedural Order shall be sent to the United States Attorney for the District of Maine. All filings permitted by this order are to be submitted on or before June 30, 2006. BY ORDER OF THE PRESIDING OFFICER ____________________________________ Andrew S. Hagler