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HomeMy WebLinkAbout99-1023 BuzydlowskiOPINION OF THE COMMISSION Frank P. Buzydlowski Director - Legislative Matters Bell Atlantic - Pennsylvania, Inc. Strawberry Square, 4th Floor Harrisburg, PA 17101 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Julius Uehlein Louis W. Fryman John J. Bolger Frank M. Brown Susan Mosites Bicket DATE DECIDED: 11/23/99 DATE MAILED: 12/7/99 99 -1023 Re: Lobbying, Lobbyist, Direct Communication, Principal, Legislator, State Official, Quarterly Expense Report, Bell Atlantic - Pennsylvania, Inc., Telecommunication, Technology. Dear Mr. Buzydlowski: This Opinion is issued in response to your advisory request received on September 7, 1999. I. ISSUE: Whether a telephone company's distribution to the legislature of a document which provides information about the company's fiber -optic installation project; its annual capital investment in the Pennsylvania Network; its efforts to upgrade the local telephone network; its efforts to deliver a state -of- the -art telecommunications network throughout Pennsylvania; and its expenditures to open Pennsylvania's local telephone market to competition, would constitute lobbying, such that the related expenses would have to be included in the telephone company's expense report(s) filed pursuant to the Lobbying Disclosure Act. II. FACTUAL BASIS FOR DETERMINATION: As Director of Legislative Matters for Bell Atlantic - Pennsylvania, Inc. (BAPA), you seek an advisory regarding a document which you have submitted for our review under the Lobbying Disclosure Act. The document, which consists of two pages, is incorporated herein by reference. The first page of the document contains the BAPA logo and bears the caption "Promises Kept!" The title of the document is "Fiber Optics Brings Additional Advanced Technology, Services to Bucks County -- $200,000 Invested to Expand, Upgrade Local Buzydlowski, 99 -1023 December 7, 1999 Page 2 Telephone Network." The first paragraph provides information about BAPA's installation of additional fiber -optic cable in upper Bucks County as part of BAPA's effort to upgrade the local telephone network and to provide advanced telecommunications services to BAPA customers. The second and third paragraphs describe the new technology, and explain how the new technology will benefit certain municipalities, industrial parks and other customers. The third paragraph further explains how the new technology will allow BAPA to expand its ability to offer advanced high -speed data services, and how it will provide additional reliability and survivability in BAPA's telephone network. The fourth paragraph states that BAPA is keeping its promise to deliver a state -of- the -art telecommunications network throughout Pennsylvania, and notes that BAPA's construction schedules were accelerated to provide customers with high -speed access to the Internet, work -at -home capabilities, and other "innovative advanced services." The increase in miles of BAPA's fiber -optic cable over the past four years is also indicated. Finally, in the fifth paragraph, BAPA states that it has spent tens of millions of dollars to open Pennsylvania's local telephone market to competition." On the second page of the document, a bar graph illustrates BAPA's Annual Capital Investment in the Pennsylvania Network. A second graph illustrates how many miles of fiber - optics are in the BAPA Pennsylvania Network. At the bottom of the page, the reader is invited to contact you at a designated telephone number for more information. You ask whether the document - -which is distributed to the legislature - -is a "communication" for which BAPA would be required to include the related expenses in its quarterly expense report(s) filed pursuant to the Lobbying Disclosure Act (Act). By letter dated November 2, 1999, you were notified of the date, time, and location of the public meeting at which your request for an Opinion was to be considered. III. DISCUSSION: It is initially noted that pursuant to Section 1308(c) of the Act in conjunction with Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. This Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted, in issuing advisories. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. In order to decide the issues which you have raised, this Commission must review the pertinent definitions and substantive provisions of the Act. Section 1303 of the Act defines "lobbying" as follows: "Lobbying." An effort to influence legislative action or administrative action. The term includes: (1) providing any gift, entertainment, meal, transportation or lodging to a State official or employee for the purpose of advancing the interest of the lobbyist or principal; and (2) direct or indirect communication. 65 Pa.C.S. §1303. The key terms "legislative action" and "direct communication" that are within the definition of "lobbying" are themselves defined as follows: "Legislative action." An action taken by a State official or employee Buzydlowski, 99 -1023 December 7, 1999 Page 3 65 Pa.C.S. §1303. The terms "principal" and "lobbyist" are defined in the statute as follows: "Principal." Any individual, firm, association, corporation, partnership, business trust or business entity: (1) on whose behalf a lobbyist influences or attempts to influence an administrative action or a legislative action; or (2) that engages in lobbying on the principal's own behalf. "Lobbyist." Any individual, firm, association, corporation, partnership, business trust or business entity that engages in lobbying on behalf of a principal for economic consideration. The term includes an attorney who engages in lobbying. Id. involving the preparation, research, drafting, introduction, consideration, modification, amendment, approval, passage, enactment, tabling, postponement, defeat or rejection of legislation; legislative motions; overriding or sustaining a veto by the Governor; or confirmation of appointments by the Governor or of appointments to public boards or commissions by a member of the General Assembly. "Direct communication." An effort, whether written, oral or by any other medium, made by a lobbyist or principal, directed to a State official or employee, the purpose or foreseeable effect of which is to influence legislative action or administrative action. In applying the above provisions of law to the facts which you have submitted, we hold that the submission of the BAPA document to the legislature would constitute a "direct communication" as defined by the Act, and therefore, would constitute lobbying, provided such distribution would be for the purpose or with the foreseeable effect of influencing legislative action. Of course, the purpose or foreseeable effect of the submission of such a document to the legislature is a factual question which we may not decide in the context of this advisory Opinion, particularly in the absence of any submitted facts as to any related legislative initiatives. However, we would note that on its face, the document would seem to suggest an effort to create a viewpoint favoring BAPA in terms of any legislative initiatives in the area of telecommunications. If the document is indeed submitted to the legislature for such a purpose, or if it has such a foreseeable effect, then the submission of the document to the legislature would constitute lobbying, and the related expenses would be reportable under the Act. The propriety of the proposed conduct has only been addressed under the Act and derivatively the Ethics Act to the extent applicable; the applicability of any other statute, code, ordinance, regulation or other code of conduct has not been considered in that they do not involve an interpretation of the Act. IV. CONCLUSION: A telephone company's distribution to the legislature of a document which provides information about the company's fiber -optic installation project; Buzydlowski, 99 -1023 December 7, 1999 Page 4 its annual capital investment in the Pennsylvania Network; its efforts to upgrade the local telephone network; its efforts to deliver a state -of- the -art telecommunications network throughout Pennsylvania; and its expenditures to open Pennsylvania's local telephone market to competition, would constitute a "direct communication" as defined by the Lobbying Disclosure Act, and therefore, would constitute lobbying reportable under the Act, such distribution would be for the purpose or with the foreseeable effect of influencing legislative action. The purpose or foreseeable effect of the submission of such a document to the legislature is a factual question which may not be decided in the context of this advisory Opinion, particularly in the absence of any submitted facts as to any related legislative initiatives. The submission of such a document to the legislature with the purpose or foreseeable effect of creating a viewpoint favoring the telephone company in terms of any legislative initiatives in the area of telecommunications would constitute lobbying such that the related expenses would have to be included in the telephone company's expense report(s) filed pursuant to the Lobbying Disclosure Act. Pursuant to Section 1308 of the Act, a requestor who truthfully discloses all material facts in a request for an advisory and who acts in good faith based upon a written opinion of the Commission issued to the requestor shall not be held liable for a violation of the Act. This Opinion is a public record and will be made available as such. Finally, a party may request this Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §39.1. By the Commission, Daneen E. Reese Chair Commissioner Louis W. Fryman did not participate in this matter.