6. Restraints on Communicating with Commission
Defendants urge that their meetings with the personal advisors cannot be construed as ex parte violations because, to do so, would (a) deny them their right to communicate with the Commissioners on important policy matters, and (b) deprive the Commissioners of important information from the regulated community about problems, solutions to problems, and needed policies. The defendants argue that wide-ranging Commission rulemakings often occur while specific adjudications involving the same issues are also pending before the agency. In their view, an overly strict application of the ex parte rules, in a large, complex regulatory agency as this, might always implicate pending adjudications.
Defendants cite D.06-03-013, adopting Market Rules to Empower Telecommunications Consumers and to Prevent Fraud, which they say put "at issue the interpretation of virtually every consumer protection provision of the Code."28 The rulemaking (R.00-02-004) that produced this decision, however, is very different from the situation confronting us on this record. The rulemaking in R.00-02-004 was commenced on the Commission's own motion; not on the motion of parties as contemplated in the Rules Motion. Also, in R.00-02-004, there was not such a demonstrated linkage, in time, substantive issues, and moving parties, between the adjudication and the requested rulemaking. The overlap of people involved here , the close succession of events (April: failure to secure complete dismissal of complaints; May: attempt to file joint rulemaking motion with Docket Office; June: filing of Rules Motion and Stay Motion, meetings with personal advisors; July: scheduled evidentiary hearing date), and the close relationship of issues pending in the complaints and discussed at the meetings all convincingly indicate the defendants' strategy to defeat the adjudications as a main, if not paramount, goal.
These defendants and other major utilities are far from powerless in getting their views communicated to Commissioners and their advisors. In this instance, they could have waited the few months for the Presiding Officer's decision to be available and then appeal and brief the Section 2883 issues to the full Commission. Joined by other telecommunications carriers, they could have petitioned for a new, freestanding rulemaking under Section 1708.5 and Rule 14.7. They could have sought to arrange for such discussions in an open and public forum. These methods would have allowed Cox and AT&T to communicate their views and perceived problem areas to Commission offices in a permissible manner. Instead, by resorting to private meetings with advisors, the communications at issue evidence a strategy which would almost certainly act to disadvantage UCAN in the adjudications.
Defendants argue that, because of the broad definition of "interested person" in the ex parte rules, our interpretation would preclude other nonparty groups, such as other carriers (who might have a financial interest, as described under Rule 5(h)(2)) or consumer groups from meeting with Commissioners or personal advisors about these issues while an adjudication is pending somewhere in the Commission.
Contrary to defendants' suggestion, it is not necessary to rely on any broad definition of "interested person" in order to find defendant's meetings within the scope of an impermissible communication under the rules. As previously indicated, defendants fit squarely within the statutory definition under Section 1701.1(c)(A) as participants and parties in both the adjudicatory proceeding and Local Competition Docket. Additionally, consistent with Section 1701.1(c)(B) they have a potential financial interest in the outcome of the adjudicatory proceedings. By this Order, we do not intend to establish any standard by which all communications of the nature referenced by the defendants would be in violation of our Rules. In instances such as this, a determination must be guided by the actual events and specific facts involved. Thus, in addition to the above, pertinent facts in this case include:
· The ex parte communication occurred in close proximity in time to a pending adjudication.
· There was an overlap of substantive issues discussed in the communication and a pending adjudication (e.g., interpretation of same statute, same allegations and defenses), as well as an overlap of many of the same parties.
· It was reasonably foreseeable that granting the relief requested in the ex parte communication would have detrimental consequences to parties in the pending adjudication who were not present during the ex parte communication.
When persons such as defendants and their agents initiate a meeting
with an advisor or Commissioners, they have command of the information they seek to impart and the context in which it will be presented. Advisors and Commissioners, who may be asked to participate in such meetings or conversations, attempt to be responsive to these overtures but they cannot be expected to foresee all the possible linkages of the formal proceedings that may be touched upon by interested persons in these meetings. The duty to foresee potential improprieties rests with the parties seeking the meeting, especially when they are represented by sophisticated counsel. (See, e.g., Rule 7.1, "Reporting Ex Parte Communications," indicating that the burden of reporting such communication is upon the interested person who initiated the communication.)
Further, as we have mentioned, communications by parties or nonparty interested persons do not become impermissible ex parte communications if they take place in a hearing, workshop, on the record of the proceeding, or "other public setting." If reasonable, advance notice is given to parties in other pending proceedings where substantive issues might reasonably be affected by a meeting with a Commissioner or personal advisor, an ex parte communication has not occurred under the rules if it occurs in one of these public settings. While additional thought must go to arranging such meetings, the availability of the Commission's website, electronic service lists, and e-mail substantially reduces the time and cost of providing advance notice. The use of this procedure in the appropriate case strikes the necessary balance between the rights or parties and nonparties to communicate with Commissioners on matters of importance and the protection for parties' substantive rights in adjudicatory proceedings.
28 AT&T Opening Brief at 12.
