Pa. Commission Clarifies, Continues Copper Probe
A contested review of Verizon service quality in Pennsylvania will move forward, but as a formal complaint proceeding rather than as an investigation, the Public Utility Commission ruled Thursday. At the PUC’s open meeting, commissioners voted 3-2 to approve an order resolving a Verizon petition for interlocutory review. The telco had said an administrative law judge set an unlawful procedure for the copper investigation (see 1604120039), which was requested last year by the Communications Workers of America.
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The company challenged the planned procedure for the investigation because a Pennsylvania Supreme Court decision, Lyness v. State Board of Medicine, 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. In an April 8 brief responding to Verizon, the Bureau of Investigation and Enforcement (I&E) said the telco’s concerns are valid only if the proceeding continued as a formal investigation.
In its order Thursday, the commission disagreed with Verizon that the CWA petition should be dismissed. “Nonetheless, we perceive not only from the ALJ’s discussion but also from the parties’ briefs a potential lack of clarity as to the nature of the proceeding,” the PUC order said. Addressing the CWA’s petition as a formal complaint moots Verizon’s process concerns and allows the matter to proceed according to the ALJ’s plan, PUC Chairman Gladys Brown said in a statement. "No parties' due process rights are harmed” if the CWA petition is treated as a formal complaint, she said. “The Parties and the public will be given a meaningful opportunity to be heard on the CWA's claims. Because a complaint proceeding is more transparent, efficient, and circumvents any Lyness challenges, I support treating the CWA Petition as a Formal Complaint.”
By continuing the process as a formal complaint, CWA will be required to prove its allegations disparaging the state of Verizon’s copper infrastructure in Pennsylvania. At the end of the process, the ALJ will issue a recommended decision on the CWA claims, including its request for penalties. Then the commission will examine the ALJ’s decision and decide what to do.
Vice Chairman Andrew Place and Commissioner Pamela Witmer dissented. In a joint statement, Place and Witmer said they believed the proceeding should go forward before the ALJ and that the commission should reject Verizon’s legal concerns, but they “disagree with deeming, transforming, or otherwise reclassifying this proceeding as a complaint.” Instead, the recommended findings should be limited to the nature and scope of the contested material facts and not the future standing of the parties, and shouldn't include ALJ recommendations on potential penalties if violations are found, they said. “Such recommended findings of fact would then form the basis for a future Commission decision to formally refer or not refer this matter for investigation to I&E.”
“We’re proud of our service quality record in Pennsylvania,” a Verizon spokesman said. “While we’re still reviewing the order, I want to point out that the Commission made clear that ‘there is no basis for the ALJ or any party to conclude that this is a Commission-instituted investigation.’ Instead, this is simply a private complaint filed by the CWA, and the CWA will have the burden to prove its baseless claims.”
The New York Public Service Commission also is investigating a CWA complaint about Verizon copper service quality (see 1603240062), and similar probes have been requested in New Jersey and Maryland. The District of Columbia PSC completed a two-year investigation about the same issue last year, and is now pursuing two rulemakings on copper abandonment and backup power for fiber (see 1604200046). Verizon, which announced Q1 earnings Thursday, is also dealing with a strike by union workers organized by CWA and the International Brotherhood of Electrical Workers (see 1604210043).