Pa. PUC Urged To Continue Verizon Copper Probe
Two Pennsylvania state offices supported the Public Utilities Commission’s right to investigate the quality of Verizon’s copper network. In briefs filed Friday to the PUC, the state Office of Consumer Advocate and the PUC Bureau of Investigation and Enforcement said the Verizon probe can move forward despite the telco’s arguments that an administrative law judge set an unlawful procedure for the investigation, which was requested last year by the Communications Workers of America (see 1602230036).
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Verizon claimed its due process rights may be violated if the investigation is allowed to continue. “This case cries out for interlocutory review now, before it proceeds down a path that will violate Verizon's due process rights and wastefully expend Commission and party resources,” Verizon said in a brief. Unless the PUC intervenes, the ALJ "plans a full-blown investigation that improperly commingles prosecutorial and advisory functions and delegates prosecutorial authority to a private party, in violation of applicable law and this Commission's own rules." The ALJ issued the contested order March 22, setting a date of May 26 for a prehearing conference.
Verizon cited a Pennsylvania Supreme Court decision, Lyness v. State Board of Medicine, which it said prohibits the same agency officials from determining an investigation should be initiated and then trying the case, because this could lead to a biased decision and violate due process. Verizon said the ALJ violated that court decision when it set out to take evidence on CWA assertions; investigate and find customer complaints; make a decision on whether Verizon violated any law, regulation or order; and then possibly impose civil penalties.
But the Bureau of Investigation and Enforcement (I&E) said Verizon’s concerns are valid only if the PUC treats the proceeding as a formal investigation. Clarifying that the proceeding will continue as a formal complaint would “prevent any procedural defect affecting Verizon’s due process rights,” the bureau said in a brief. "CWA's Petition for Investigation is best suited to be a complaint proceeding to protect the Commission by avoiding any potential commingling of prosecutorial and advisory duties pursuant to [Lyness].” Alternatively, the PUC could dismiss the petition without prejudice and allow CWA to file again following the formal complaint procedure, it said. Procedural issues aside, the I&E supported the commission’s right to probe Verizon, saying the telco failed to show it “will suffer any substantial prejudice or that the potential harm cannot be cured during the Commission's regular review process."
The Pennsylvania consumer advocate rejected Verizon’s procedural objections. "The proposed procedure requires the ALJ to act as a finder of fact, not a prosecutor, and the Commission has the ultimate adjudicatory authority,” the Office of Consumer Advocate said in its brief. "The Commission has broad authority to initiate investigations, particularly when public safety is at issue." The CWA agreed: "Lyness does not prevent regulatory agencies from doing their job."
Verizon allowed for one path forward in the proceeding, saying I&E may grant the CWA petition and open a prosecutorial investigation. “But it must be permitted to act independently in compliance with the separation required by Lyness,” the telco said. I&E agreed this is an option. It’s not ideal because the process would include only the bureau and Verizon, the bureau said. “Given the strong interests of CWA and the various intervenors, and their apparent desire to bring public awareness to the issues addressed in CWA's Petition for Investigation, assigning this matter to I&E would not serve the interests of all parties and, therefore, is not recommended.”
The carrier accused CWA of using the Pennsylvania investigation as a weapon in their ongoing labor battle. About 40,000 CWA and International Brotherhood of Electrical Workers (IBEW) members in eight states and the District of Columbia were planning to strike against Verizon starting at 6 a.m. Wednesday (see 1604110029). "CWA should not be permitted to commandeer the Commission's enforcement authority to pursue its announced plan to put 'regulatory pressure' on [Verizon] as a labor negotiation strategy,” Verizon said.
Pennsylvania isn’t the only state scrutinizing Verizon service quality complaints. The New York Public Service Commission also has agreed to a CWA request for investigation of Verizon copper (see 1603230044), and the union has another petition pending before the Maryland PSC.