Wednesday, May 5, 2004 - The Progress & Freedom Foundation Blog

Commissioner Martin's Request

Telecommunications Reports [subscription required] reports that Commissioner Martin's office is asking for proposals exchanged between Talk America and ILECs:

In an e-mail sent yesterday to George Vinall, Talk America's executive vice president-business development, Mr. Gonzalez said Commissioner Martin "would like copies of all proposals exchanged between Talk America and the ILECs with respect to the provision of UNEs after the [mandate from the U.S. Court of Appeals vacating the FCC's UNE rules] is issued.

"In particular, Commissioner Martin would like copies of all responses by either party to the proposals made by the other and relating any documentation showing the willingness of either party to facilitate a transition from a UNE-P to a facilities-based UNE-L," Mr. Gonzalez wrote.

This reads like a discovery request that would be interposed during litigation. More likely, it is designed to change the dynamic such that no real negotiation goes on. If this were litigation, Federal Rule of Evidence 408 would preclude the admission of such documents before the fact-finder. Likewise, a common law mediation privilege might apply, as outlined here. In any event, both of these privileges are based on the sound assumption that parties will behave -- and negotiate -- differently if the court, or in this case regulator, is going to be looking at all of the proposals the parties' discuss. Indeed, the premise of these privileges is that parties will not negotiate and instead resort to posturing if all must be divulged.

The question is: What company will negotiate in good faith with the knowledge it may receive a similar requests? Of course, that may have been the point.

posted by Ray Gifford @ 5:28 PM | General