STATE OF MAINE Docket No.

2006-274
PUBLIC UTILITIES COMMISSION
June 23, 2006

MAINE PUBLIC UTILITIES COMMISSION PROCEDURAL ORDER

Request for Commission Investigation into
Whether Verizon is Cooperating in Maine
With the National Security Agency’s
Warrantless Domestic Wiretapping Program

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 non-
moving 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