Organizing Advocacy for Network Services in Maine: Political Background for a Successful Initiative

Paul C. Schroeder
University of Maine, USA

Introduction

On 15 March 1996, Maine's Supreme Judicial Court announced its decision to affirm a set of orders issued by Maine's Public Utilities Commission (PUC) regarding telecommunications policy. Among the issues under consideration, the court rejected an appeal against the commission's authority to allocate $20 million over five years to establish a statewide data network for libraries and schools. The decision marked the end of a two-year advocacy process and the beginning of network implementation of critical importance in this large, rural state marked by underfunded

public institutions. This paper presents an outline of this advocacy effort from the standpoint of Maine's library community. While the process represents a combination of opportunities, stakeholders, and outcomes that are unique to Maine, the issues and approaches that are summarized here are intended to inform similar advocacy efforts in other states.

Origins of the libraries' initiative

The establishment of the school and library network almost seems, in retrospect, to be a necessary result of the convergence of many complex forces, factors, and interests. However, this outcome was not on the horizon at its beginning. The involvement of Maine's library community began with a single person's expression of concern. In mid-December 1993, a public librarian from midcoast Maine addressed a letter to the Maine Library Association's executive board posing a fundamental question: Why do public libraries pay commercial line charges for telephone service? She had asked this question of NYNEX, her library's local exchange carrier (and the largest of Maine's 24 local telephone companies), and of the consumer assistance division at the PUC.

The commission's staff simply informed her of the existing tariffs and of her right to form a group of 10 ratepayers to file a formal complaint, initiating a commission "investigation" of this tariff. She decided to ask the library association to assist in originating a complaint. She cited the increasing dependence of her library on telephone services, beginning with the need to install added lines to support fax for interlibrary loan communication, to support added patron access to reference services, and for dialup access to online data services, as well as increasing dependence on toll services at Maine's high intrastate rates.

The originating issues directly addressed costs of basic voice-grade services and were only marginally directed toward the further costs of library connections to high-speed data services. The dependence of libraries on basic services and their affordability (one quarter of Maine's 200 public libraries were without any telephone service in 1994) were central issues for libraries throughout the subsequent intervention.

Initiating a ratepayer complaint would be a new departure for the library association, which authorized its own inquiry into the situation. Announcement of the concern was made in the association's newsletter, and discussion began on the statewide librarians' listserv, MELIBS-L. A member of the executive board volunteered to research the background of the tariffs, contacted state library agencies in other states in search of other practices and precedents, and tracked discussion of the issue. The issues were discussed among librarians throughout the spring of 1994 and at the association's annual meeting in May. Ultimately, no ratepayer complaint was initiated by the libraries. Instead, the three statewide library associations chose to intervene in two cases, or dockets, underway before the Maine PUC. The three associations were the Maine Library Association (MLA), Maine Educational Media Association (MEMA), representing school librarians, and the Maine Library Commission (MLC), which has policy and oversight authority regarding the Maine State Library.

Maine PUC Dockets 94-123 and 94-254

In spite of its active interest in telephone rate issues during the spring and summer of 1994, the library community was only marginally aware of two important cases being considered by Maine PUC. These cases resulted from the enactment in April of Public Law 1993, ch. 638, Act to Establish an Alternative Form of Telecommunications Regulation in the State. This legislation, patterned on regulatory changes underway in other states, required Maine PUC to undertake an investigation of "alternative approaches to regulation" as part of the commission's general policy goals of "universal service and economic development." Seventeen individuals presented written or oral comments at legislative hearings on this bill (11 for, 2 against, 4 without taking position). Support for the legislation came largely from telecommunications providers and business interests. Pine Tree Legal Assistance and the American Association of Retired Persons (AARP) Maine Chapter were opposed, expressing concerns about the ongoing control of prices for basic telephone services in a deregulated environment.

Maine PUC immediately initiated Docket 94-123 to investigate regulatory alternatives. Background documents prepared by PUC's staff outlined several approaches that would remove telephone service providers from traditional "rate of return" regulation, toward substituting some form of "price cap," "incentive," or "social contract" form of regulation. Early in this process, the actions of two separate citizens' groups created a critical opening for public participation leading to results well beyond the regulatory restructuring that the telephone providers and legislators had initiated. First came the early intervention of the Maine Community Access Network (Maine CAN), a coalition of individuals across Maine interested in promoting community-oriented computer networks. Shortly after, a "10-person complaint" was filed (in fact, initiated by 13 individuals) that asserted that full investigation of NYNEX's earnings and investments were overdue, that NYNEX had invested in fiber optic cables and digital switches to support advanced data services at general ratepayer expense, and that alternative forms of regulation should not be implemented without investigating these issues.

The ratepayer complaint, which came to be called the "Pease case" after the lead complainant, was accepted by PUC as Docket 94-254. Although it was a separate case, the commission chose to join it with 94-123 and to hear the two cases in parallel as two parts of a unified issue. The commission's attempt to determine a fair revenue base from which to begin an alternative regulatory structure afforded an eventual opportunity for the library community to advance its concerns regarding fair rates and adequate services for public-service information providers. Although instructed early in the proceedings that the issues to be heard were "revenue requirement" issues rather than "rate design" issues, the view of the libraries that these could not be separated from the long-term regulatory framework eventually gained legitimacy with the commissioners.

Parties to Dockets 94-123 and 94-254

Other than the Maine Community Access Network, early intervenors in these cases were interests that had already established long-term stakes in telecommunications regulation: NYNEX and the other independent phone companies operating in the state; interstate carriers including AT&T, MCI, and Sprint; a coalition of cable providers; and cellular phone operators. In addition, PUC's staff, the Office of the Public Advocate (OPA, charged with representing telephone ratepayers in regulatory hearings), AARP, and Maine Telecommunications Users Group (MTUG, an informal coalition of large corporate and institutional purchasers of telecommunications services) joined the cases.

Maine librarians continued discussions of phone rate and service issues throughout 1994. A survey of the 60 libraries affiliated with the Small Public Libraries Association, a section of MLA, raised awareness and gathered data on phone access needs and limitations. In September, not yet aware of the importance of the cases underway and reluctant to initiate a separate formal complaint, the presidents of MLA and MEMA sent a joint letter of concern to the legislature and PUC, asking for help in resolving library phone rate issues. By that time, the only suggestion that had been made to the libraries by NYNEX or PUC staff was that they attempt to collectively negotiate a "special contract" through which services could be bought at a discount statewide. Due to the diversity and institutional autonomy of public libraries, and their representation only through a volunteer professional organization, the likelihood of success through this option seemed small.

Several members of the MLA executive board who also were members of the Maine CAN organization realized that intervention with Maine CAN in the open dockets might be an avenue through which the library issues could be addressed. Meetings were convened with the Maine CAN intervenor and with attorneys from OPA to explore the possibility of library intervention. It was determined that the quasi-judicial process was open to the public, not just to lawyers, and that the period for intervention was still open, even though the cases had been underway for nearly six months. In October, the three library associations joined together in an intervention and appointed a volunteer coordinator. The associations were granted intervenor status in November 1994, the same month the Maine Department of Education (DOE) also joined the cases.

Libraries and schools: Separate interventions, common interests

A process of growing awareness of how regulatory changes might impact their constituent institutions brought the libraries and the schools into these cases at the same time. Although there was frequent sharing of perspectives between their representatives, the interventions of DOE and the library associations were separately conducted from the beginning. The issues that brought them into the process were distinct. The libraries sought long-term reductions in rates across the board, especially for services for their smallest and most underfinanced libraries, often located in rural inland and coastal communities without local calling to the services available to urban regional libraries. Assuring affordable public access to information services over the long term was the central justification for the libraries' position. DOE's intervention was aimed at ensuring school access to advanced telecommunications for instructional and school administrative purposes.

Mobilizing support for special rates and services

The decision to intervene began a year of continuous activity toward securing community, local library, and legislative support for library objectives within the PUC process. In December 1994, PUC held five "public witness" hearings, at which over 30 representatives of school and public libraries, museums, and school administrations testified, equaling witnesses from all other sectors combined. This turnout at hearings on the topic of alternative forms of regulation was the first notice to the commission of the serious nature of library and school concerns regarding the telecommunications environment.

The final hearing, at Presque Isle in northernmost Aroostook County, attracted only four members of the public, all of whom were from the library and school community (one of whom was to become the next commissioner of education in a new state administration). Bad weather and a concurrent Department of Transportation hearing in that city kept attendance low. This low turnout, however, gave the commissioners an opportunity to ask questions of those present about their specific issues and hear detailed replies about high line costs, schools and libraries with service territories spanning calling areas, the movement toward commercialized information resources, and the public benefit of supporting telecommunications services to schools and libraries.

Support for the library and school positions also was shown in the form of many letters sent to the commission detailing specific cases in which public service and education were impaired due to excessive communications costs. At this point, however, it was not clear that any resolution of these issues could result from the open dockets. All other parties to the cases still saw these issues as being separate from the rate and regulatory alternatives cases, only to be addressed through separate proceedings. The telephone providers did not want to establish precedents for creating special rates for selected ratepayer groups other than the already-established business/residential distinction. The commission's staff and OPA, while very willing to share technical and procedural expertise with the library groups, had a primary objective of creating the fairest across-the-board rate structure for the public at large. Also, the representatives of MTUG saw special rates for public institutions as a threat to lower rates for the corporate interests they represented. Increasing the legitimacy of library outcomes became the next task of the advocacy.

Addressing legislative authority for commission policy decisions

Attempts to establish legitimacy of library objectives through the regulatory process led to the conclusion that the commission should be granted explicit authority to mandate discounted rates and services for libraries. While general language pertaining to universal service and economic development already was included in statutes governing telecommunications policy, direct mention of the importance of public access to advanced information services, and of the role of libraries in enabling that access, was not part of the law. To resolve any doubts about the commission's authority, library advocates approached legislators who shared their concerns. Legislation expanding the commission's mandate was introduced in January 1995.

Opening a legislative front created a new challenge to the all-volunteer library effort. The intent of the legislation, LD 828, was explained to librarians statewide through newsletters, meetings, and online discussions. Managing the legislative initiative in parallel with the demanding schedule of two PUC dockets tested the resolve of the core advocacy group. Formal direction for these initiatives became the responsibility of the libraries' Joint Legislative Committee, a standing cooperative committee of the three associations (MLA, MEMA, and MLC). A growing sense of ultimate success began to motivate the effort.

During the spring of 1995, the legislature's Joint Committee on Utilities and Energy conducted several hearings and committee work sessions to consider LD 828 and similar issues. Many questions and diverse views that had already been voiced in the intervention were repeated in committee sessions. No clear policy approach emerged, and the committee eventually decided to neither recommend nor reject the proposals. The issues were held over by the legislature while awaiting results of the PUC process. LD 828 was enacted in March 1996, providing support for library access to affordable telecommunications, financed in part through a fund based on intrastate revenues from all telecommunications providers. This legislation reflected the widespread acceptance of the approach created in the commission's orders and also relied for precedent on provisions put forward in the federal Telecommunications Law of 1996.

The season of endless documents: Spring 1995

A significant deterrent to effective public participation in proceedings like utilities cases is the massive amount of documentation that is produced, distributed, and digested. Because the greatest portion of this is generated by lawyers and "expert witnesses," the cost of creating the documents is very high. Added to this is the requirement to distribute all filings to each of the parties and interested persons in the cases. For Dockets 94-123 and 94-254, this amounted to a service list of nearly 40 persons, all of whom were owed a copy of each document on the day of its filing. The libraries' advocacy team accumulated nearly six linear shelf feet of files directly

related to these two cases.

On the other hand, because the process is dominated by lawyers and expert witnesses, a committed public advocacy group with a clear public interest agenda may be heard as a welcome, fresh voice by the regular participants, including commissioners. The library advocates made no attempt to keep pace with the well-financed efforts of corporate advocates and public agency intervenors. Rather, library documents were crafted to clearly articulate public institutional and individual access concerns at each stage: initial structured comments, briefs, reply briefs, and comments on the positions of other parties. The intention was to present a consistent, clear set of documents that would not be ignored by those charged with determining policies.

One category of documents produced in the regulatory hearings process is requests for information, or "data requests." A requirement of the process is that parties must answer formally submitted questions asked of each other, in writing, in a timely fashion. Library advocates presented 17 questions to NYNEX, ranging from inquiry into the results of internal studies conducted by NYNEX into telecommunications services to schools, to the manner in which NYNEX bills itself for use of its own phone network. Requests were also made for data regarding special rates in other states served by NYNEX and whether NYNEX had studied or considered eliminating intrastate toll charges in Maine.

Approximately 1,000 data requests were filed by parties to this case. The responses to such requests can provide valuable information for anyone who is looking into the structure and practices of the telecommunications industry. As with much information that is controlled by provider corporations, answers to data requests may be protected by "nondisclosure agreements." Generally, parties to regulatory cases sign such protective agreements, allowing access to information to build cases but not allowing the distribution of this information to the public. Because of a general commitment to open information practices, the library advocates did not sign any nondisclosure agreements; and some information was not available to the library group that was available to other parties. Also, only edited or "redacted" copies of other parties' briefs were distributed to the library advocates, from which all protected information was excluded.

Toward resolution of library issues

The first formal recognition of the place of library and school concerns within the context of Dockets 94-123 and 94-254 was the inclusion of a special section in the commission's procedural order of 28 February 1995, establishing a standard outline for briefs to be submitted by parties to the cases. Section III.C.9 of each party's brief was to address the issue of "consistency of the proposed plans with increased affordable access to the modern information network by libraries and public educational institutions."

The libraries' brief addressed this section exclusively, arguing that any revised framework of regulation should allow the removal of libraries from the class of business customers; that toll charges should be removed between schools in one school district that spans more than one calling area and for libraries whose primary service territory spans more than one calling area; that adequate Internet connectivity that is not time-sensitive should be provided for all customers, including libraries; that any should allow broad range of special contracts for public institutions; and that any new form of regulation must not preclude the libraries' ability to pursue their objectives through traditional ratepayer and legislative channels.

Later in the spring, after all briefs were filed and expert witness hearings were completed, a set of negotiations among parties were scheduled, aimed at resolution of all issues without proceeding to full adjudication before the commission. At that stage, the major outstanding issues centered on the wide difference between levels of revenues put forward by NYNEX versus those advocated by PUC staff and OPA. The negotiations never resolved the $40 million to $60 million difference in justifiable annual revenues claimed by these parties, but eight hours of direct talks gave full airing of the many issues that separated the parties in their calculations. The talks were near their unsuccessful conclusion when library advocates insisted that library and school issues be discussed fully. The discussion that followed was the first extended examination of these issues among the parties and resulted in part in OPA's adoption of these issues into their more general ratepayer interest agenda.

The commission's order regarding schools and libraries

Filings in the dockets continued through the spring of 1995 with the exchange of reply briefs, the issuance of PUC examiners' reports on the cases, and replies to those reports. The reports did not support library positions on the issues. However, on 1 May, in public deliberations on the cases, Thomas Welch, chair of the Maine PUC, advocated services to schools and libraries as an element of resolution of 94-254, the Pease rate case: "Finally, I would permit NYNEX to use up to $4 million of the rate reduction we require to provide rate reductions or other services to the libraries and schools of Maine."

This approach was embodied in the order, which allocated up to $4 million in services per year for a period of five years "to reduce rates and/or to provide additional services or equipment to libraries and schools. We do this in the belief that significant benefits to the public may be realized by providing limited support for additional access to information networks and services." It was left to NYNEX to develop a plan for allocating these funds, to be developed in cooperation with other parties, "particularly libraries and education." Until the plan could be developed and presented for approval, NYNEX was required to establish an account that accrued $333,333 per month until disbursed under the terms of the order.

The terms of this order were open to challenge from any of the parties to the case, including NYNEX. Motions to reconsider the order were filed by the Pease complainants and AARP on various grounds, substantially centered on the argument that the overall rate reduction as ordered by the commission (nearly $15 million per year) and ongoing ratepayer safeguards were inadequate. NYNEX did not challenge the order, sensing that the overall order was favorable to them financially and in terms of the AFOR (alternative form of regulation), and accepting the school and library allocation as a potential public relations asset for the company. The cable companies, represented by New England Cable Telephone Association, argued that the order, in fact, would strengthen NYNEX's hold on the growing data transmission market and set about positioning itself to become a partial beneficiary of the allocations that at least temporarily were within NYNEX's ability to direct.

Negotiating the network and other service options

The order allowed NYNEX less than six weeks to develop a proposal to satisfy the terms of the commission. Given that only a week before, none of the parties had considered this outcome to be even a remote possibility, the challenge of devising a plan was considerable. The libraries and schools, conducting parallel interventions with separate outcomes in mind, were now cast with NYNEX in the position of negotiating an outcome in a matter of weeks that would meet present expressed needs but that also would be flexible enough to accommodate changing technologies five years into the future.

Negotiations began in earnest, with meetings conducted once or twice a week in the state capital over a two-month period. Extensions were granted twice, with final submission of the NYNEX proposal on 31 July. Interest in the process increased dramatically when it became clear that a statewide network for public institutions would be built, and was not just a dream. While a dozen representatives of the library community, the schools, NYNEX, the independent telephone companies, and the commission staff sat at a table discussing the project direction in detail, a growing contingent of observers attended, including representatives of the larger school and library community, state and university network administrators, computer consultants, and cable operators.

Negotiators now faced the task of reaching cooperative solutions in what had been an adversarial process. With much at stake, some issues of trust remained to be settled. NYNEX entered the meetings with a fully developed proposal for pervasive connections via 56kb lines and frame relay technology, which had not been implemented in Maine. On what basis would the value of network services be calculated when no tariff for them had even been filed? Differences in negotiating style and constituencies emerged between DOE, represented by a coherent administrative center based in Augusta, and the volunteer library representatives, whose constituents were hundreds of autonomous institutions scattered across the state. Issues of language arose, including whether this would be a NYNEX proposal with support from other parties, or a "joint" proposal issued unanimously by the negotiators. NYNEX and DOE indicated strong interest in network development, while library issues related to voice lines and rates struggled for acceptance at the table. Two approaches to rates--permanent discounts on all services (the library position) versus free service for selected network services for the duration of the plan (NYNEX and DOE position)--seemed to be settled with an offer by NYNEX to unilaterally extend free services for an additional two years, for a total of seven. The seven-year service term, however, was not part of the commission's final order on the plan.

A plan was eventually devised that met the expectations of all parties. A frame relay network will be built and extended to all public school facilities and libraries in the state, with access free of charge for five years. The network will extend through and include access devices on site and will include free network support services and Internet access. Where appropriate, funds from the order can be allocated to alternate providers such as community cable systems under an "equivalent value funding" formula. Governance of the network will be the responsibility of Maine PUC, advised by an officially constituted advisory board composed of intervenors to the dockets. Funding for a training component is proposed, matching approximately $500,000 in the project's first year with funds provided by the Maine Science and Technology Foundation. Business rates have been removed for up to two voice-grade lines in all libraries. Libraries also have the option to choose a voice-grade modem with 22 hours of free in-state toll and Internet access in place of a 56kb line, if this is seen as appropriate. In an agreement reached separately from the order, all libraries and schools would be eligible for a new intrastate toll program, cutting long-distance costs by as much as one-third. Finally, in response to advocacy by a single library supporter from one of the most underserved regions of the state, funding for in-house computing equipment would be made available to schools and libraries for adequate network connection.

Implementation begins

The final order from the commission implementing the library and school plan according to the general terms outlined above was issued 5 January 1996. The Maine Supreme Judicial Court's refusal to consider an appeal brought by the Pease group, on procedural rather than substantive grounds, was issued on 15 March. Final legislative approval of LD 828 was voted on 28 March.

Pilot network installation began during the final half of 1995, and full network deployment is projected by mid-1997. Policy issues of which institutions will qualify for service and how public access will be assured have been resolved, while many technical issues surrounding network implementation, training, and security remain.

Related events unfold at the national and state levels. The passage of the Telecommunications Act of 1996, with its provisions favoring rural libraries, schools, and health care centers, complements access and funding provisions in Maine's LD 828. Protection of the interests of commercial Internet service providers and of Maine's independent telephone companies has led to a policy decision that limits dial-in access to the school and library network, renewing efforts to ensure local call points of presence or toll-free dialing to Internet providers throughout the state. The passage of a $15 million state bond in November 1995 for purchase of in-school equipment supporting asynchronous transfer mode-based interactive video and data transmission among secondary schools presents questions about the source for funds to support the projected $2,000-per-month line charges per site for that technology. Immediate demand for online services from libraries statewide has made passage of a proposed library bond essential if services at the State Library and university system level are to keep pace with local advances.

In the end, very different agendas and needs were accommodated in the data network and other basic services achieved through the regulatory process. Interorganizational bonds were strengthened, especially between the schools and the libraries, which will create an opportunity to share learning and information resources during the coming years.

The unprecedented connection of all libraries and schools statewide has brought widespread optimism for long-term educational benefits for Maine's school children and broad public access to information technologies in all of Maine's libraries. Hundreds of professional educators and librarians have shown their willingness to participate in building network resources. The network has given the state a new opportunity to take a positive look at its future.

A basic lesson of public advocacy was learned again through the process: Don't be deterred from speaking up even when up against overwhelming odds, and speak loud enough to be heard.

Acknowledgments

I wish to thank Valerie Osborne (president, Maine Library Association), Karl Beiser (Maine State Library), Bill Black (Office of the Public Advocate), Jay Johnson (University of Maine System Computing and Data Processing Service), Ann Carabia (Bridgton Academy), and Bill Lowell (Central Aroostook High School) for reading and commenting on a draft of this paper. Responsibility for the views expressed is my own. Thanks are due to Chairman Thomas Welch and Commissioner William Nugent of the Maine Public Utilities Commission for their vision in creating the opportunity for statewide networking among public institutions in Maine. Finally, thanks to all Maine's librarians, who were instrumental in this successful advocacy.