III. Responses of Pacific and WorldCom

On May 20, 2002, the Assigned Commissioner and ALJ issued a ruling asking Pacific and WorldCom to explain why they failed to comply with the Commission's ex parte rules.

In response, Pacific stated that on the day of the RDM it had indeed hand-delivered to each Commissioner and telecommunications advisor a letter from Pacific's President Lora Watts responding to a May 13, 2002 letter the Commissioners and advisors had received from AT&T's President David Dorman. Pacific believed it was imperative to respond to the Dorman letter and attempted to do so before the RDM but was unsuccessful. Around noon on May 15, Pacific sent an electronic copy of its letter to the service list for the proceeding. Shortly thereafter, the ALJ responded to Pacific's electronic message, informing Pacific that it had apparently violated Commission rules on ex parte communications. Pacific then physically retrieved the letters from each Commissioner's office.

Pacific asks the Commission to exercise discretion and not impose a sanction, citing other examples of recent rulings regarding apparent ex parte violations that admonish the parties involve, but do not impose a sanction.³ Pacific contends that a penalty is inappropriate because its actions in response to the AT&T letter were justified as an attempt to "correct misstatements of fact submitted by AT&T at the last minute." (Pacific response, 5/28/02, p. 4.) Further, Pacific claims that no party was harmed or prejudiced by Pacific's actions because the letters were immediately retrieved as soon as Pacific was contacted by the ALJ.

WorldCom responds that it did not willfully or knowingly violate the rule, but that its failure to comply with Rule 7 was, in part, due to lack of familiarity with RDMs. WorldCom is not aware of an RDM ever occurring in a telecommunications matter. Further, WorldCom states that it intended to comply with Commission rules, but that it relied on an incorrect understanding that any ex parte ban or "quiet time" surrounding an RDM did not begin until the commencement of the actual RDM. WorldCom's attorney left the voicemail message with Commissioner Lynch's advisor at 9:10 a.m. on the morning in question.

Finally, WorldCom suggests that there has been no actual violation of Rule 7 because this is not a ratesetting proceeding in which a hearing has been held. According to WorldCom, the ex parte communication that did occur was very brief and designed only to call attention to a specific pleading contained in the record of the proceeding. Therefore, this inadvertent violation should not warrant harsh penalties. Rather, WorldCom asks the Commission to remind the parties of the rules pertaining to this case and to warn them that sanctions may be applied for any future violations.