HF 358

1st Engrossment - 81st Legislature (1999 - 2000) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to telecommunications; deregulating 
  1.3             coin-operated or public pay telephones under state 
  1.4             law; prohibiting frivolous complaints; authorizing the 
  1.5             public utilities commission to assess administrative 
  1.6             penalties for anticompetitive activities by 
  1.7             telecommunication providers and for frivolous 
  1.8             complaints; amending Minnesota Statutes 1998, sections 
  1.9             237.081, by adding a subdivision; and 237.5799; 
  1.10            proposing coding for new law in Minnesota Statutes, 
  1.11            chapter 237. 
  1.12  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.13     Section 1.  [237.036] [COIN-OPERATED OR PUBLIC PAY 
  1.14  TELEPHONES.] 
  1.15     (a) Neither commission approval nor a commission 
  1.16  certificate is required to: 
  1.17     (1) site a coin-operated or public pay telephone in the 
  1.18  state; or 
  1.19     (2) implement changes in service, services offered, rates, 
  1.20  or location regarding a coin-operated or public pay telephone.  
  1.21  Registration under section 237.64 is required to own or operate 
  1.22  a coin-operated or public pay telephone in the state. 
  1.23     (b) This section does not change the authority of other 
  1.24  state or local government entities to regulate aspects of 
  1.25  coin-operated or public pay telephone ownership, location, or 
  1.26  operation; however, an entity may not regulate aspects of these 
  1.27  services that it did not regulate prior to the effective date of 
  1.28  this section.  The commission shall retain the authority 
  2.1   delegated to it under federal and state law to protect the 
  2.2   public interest with regard to coin-operated or public pay 
  2.3   telephones. 
  2.4      (c) Owners and operators of coin-operated or public pay 
  2.5   telephones are exempt from sections 237.06, 237.07, 237.075, 
  2.6   237.09, 237.23, 237.295, and 237.39 and the annual reporting 
  2.7   requirement of section 237.11. 
  2.8      (d) The commission shall require owners of coin-operated or 
  2.9   public pay telephones to provide:  (1) immediate, coin-free 
  2.10  access to 911 emergency services; (2) accurate location and 
  2.11  class of service information to enhanced 911 databases; and (3) 
  2.12  free access to the telecommunication relay service for the 
  2.13  communication impaired.  Owners of coin-operated or public pay 
  2.14  telephones must post at each coin-operated or public pay 
  2.15  telephone location: 
  2.16     (1) customer service and complaint information, including 
  2.17  the name, address, and telephone number of the owner of the 
  2.18  coin-operated or public pay telephone and the operator service 
  2.19  handling calls from the coin-operated or public pay telephone; 
  2.20  the identities of the local exchange carrier handling local 
  2.21  calls and the telecommunications carriers handling long-distance 
  2.22  calls; a toll-free number of the appropriate telephone company 
  2.23  for the resolution of complaints; and the toll-free number of 
  2.24  the public utilities commission; and 
  2.25     (2) a toll-free number at which consumers can obtain 
  2.26  pricing information regarding rates, charges, terms, and 
  2.27  conditions of local and long-distance calls. 
  2.28     Sec. 2.  Minnesota Statutes 1998, section 237.081, is 
  2.29  amended by adding a subdivision to read: 
  2.30     Subd. 1b.  [FRIVOLOUS COMPLAINTS PROHIBITED.] No person may 
  2.31  file a complaint with the commission under this chapter unless 
  2.32  the person has reasonable grounds to believe that the complaint 
  2.33  is well grounded in fact and warranted by existing law or a good 
  2.34  faith argument for the extension, modification, or reversal of 
  2.35  existing law.  No person may file a complaint for an improper 
  2.36  purpose, such as to harass. 
  3.1      Sec. 3.  [237.462] [COMPETITIVE ENFORCEMENT; ADMINISTRATIVE 
  3.2   PENALTIES TO PROMOTE AND PROTECT LOCAL TELEPHONE COMPETITION.] 
  3.3      Subdivision 1.  [AUTHORITY TO ISSUE PENALTY ORDERS.] After 
  3.4   a proceeding under section 237.081, the commission may issue an 
  3.5   order administratively assessing monetary penalties for knowing 
  3.6   and intentional violations of: 
  3.7      (1) sections 237.09, 237.121, and 237.16 and any rules 
  3.8   adopted under those sections; 
  3.9      (2) any standards, limitations, or conditions established 
  3.10  in a commission order pursuant to sections 237.09, 237.121, and 
  3.11  237.16; 
  3.12     (3) an approved interconnection agreement; and 
  3.13     (4) any duty or obligation of a telephone company, a 
  3.14  telecommunications carrier, or a telecommunications provider 
  3.15  imposed upon such telephone company, telecommunications carrier, 
  3.16  or telecommunications provider by section 251, paragraph (a), 
  3.17  (b), or (c) of the Telecommunications Act of 1996 that relates 
  3.18  to service provided in the state.  The penalty order must be 
  3.19  issued as provided in this section. 
  3.20     Subd. 2.  [FRIVOLOUS COMPLAINT PENALTY.] After an 
  3.21  opportunity for notice and comment, the commission may issue an 
  3.22  order administratively assessing a monetary penalty under this 
  3.23  section, assessing expenses reasonably attributable to the 
  3.24  complaint including the costs of any investigation and 
  3.25  proceeding, or both, against any person who files a complaint if 
  3.26  the commission finds the complaint is filed in violation of 
  3.27  section 237.081, subdivision 1b. 
  3.28     Subd. 3.  [AMOUNT OF PENALTY; CONSIDERATIONS.] (a) The 
  3.29  commission may issue an order assessing a penalty of between 
  3.30  $100 and $100,000 per day for each violation.  The amount of 
  3.31  penalty assessed per violation per day against a party found to 
  3.32  be in violation shall be limited by the number of local exchange 
  3.33  telephone service subscribers in the state of the party as 
  3.34  follows: 
  3.35     (1) 0 - 50,000 subscribers, up to $5,000 per day per 
  3.36  violation; 
  4.1      (2) 50,000 - 100,000 subscribers, up to $10,000 per day per 
  4.2   violation; 
  4.3      (3) 100,001 - 200,000 subscribers, up to $20,000 per day 
  4.4   per violation; 
  4.5      (4) 200,001 - 300,000 subscribers, up to $30,000 per day 
  4.6   per violation; 
  4.7      (5) 300,001 - 400,000 subscribers, up to $40,000 per day 
  4.8   per violation; 
  4.9      (6) 400,001 - 500,000 subscribers, up to $50,000 per day 
  4.10  per violation; and 
  4.11     (7) over 500,000 subscribers, up to $100,000 per day per 
  4.12  violation. 
  4.13     (b) In determining the amount of a penalty, the commission 
  4.14  shall consider: 
  4.15     (1) the willfulness or intent of the violation; 
  4.16     (2) the gravity of the violation, including the harm to 
  4.17  customers or competitors; 
  4.18     (3) the history of past violations, including the gravity 
  4.19  of past violations, similarity of previous violations to the 
  4.20  current violation to be penalized, number of previous 
  4.21  violations, the response of the person to the most recent 
  4.22  previous violation identified, and the time lapsed since the 
  4.23  last violation; 
  4.24     (4) the number of violations; 
  4.25     (5) the economic benefit gained by the person committing 
  4.26  the violation; 
  4.27     (6) any corrective action taken or planned by the person 
  4.28  committing the violation; and 
  4.29     (7) other factors that justice may require, as determined 
  4.30  by the commission.  The commission shall specifically identify 
  4.31  any additional factors in the commission's order. 
  4.32     Subd. 4.  [BURDEN OF PROOF.] The commission may not assess 
  4.33  a penalty under this section unless the record in the proceeding 
  4.34  establishes by a preponderance of the evidence that the penalty 
  4.35  is justified based on the factors identified in subdivision 3. 
  4.36     Subd. 5.  [CONTENTS OF ORDER.] An order assessing an 
  5.1   administrative penalty under this section shall include: 
  5.2      (1) a concise statement of the facts alleged to constitute 
  5.3   a violation; 
  5.4      (2) a reference to the section of the statute, rule, or 
  5.5   order that has been violated; 
  5.6      (3) a statement of the amount of the administrative penalty 
  5.7   to be imposed and the factors upon which the penalty is based; 
  5.8   and 
  5.9      (4) a statement of the person's right to review of the 
  5.10  order. 
  5.11     Subd. 6.  [PENALTY STAYED.] A penalty imposed under this 
  5.12  section shall not be payable sooner than 31 days after the 
  5.13  commission issues its final order assessing the penalty.  The 
  5.14  person subject to the penalty may appeal the commission's 
  5.15  penalty order under sections 14.63 to 14.68.  If the person does 
  5.16  appeal the commission's penalty order, the penalty shall not be 
  5.17  payable until either the Minnesota court of appeals issues a 
  5.18  decision sustaining the commission's penalty order or the person 
  5.19  withdraws the appeal. 
  5.20     Subd. 7.  [EXPEDITED PROCEEDING.] (a) The commission may 
  5.21  order an expedited proceeding under section 237.61 and this 
  5.22  subdivision, in lieu of a contested case under chapter 14, to 
  5.23  develop an evidentiary record in any proceeding that involves 
  5.24  contested issues of material fact either upon request of a 
  5.25  person filing a complaint or upon the commission's own motion if 
  5.26  the complaint alleges a violation of: 
  5.27     (1) section 237.09, 237.121, or 237.16 or any rules adopted 
  5.28  under those sections; 
  5.29     (2) any standard, limitation, or condition established in a 
  5.30  commission order pursuant to section 237.09, 237.121, or 237.16; 
  5.31     (3) an approved interconnection agreement; or 
  5.32     (4) a duty or obligation of a telephone company, a 
  5.33  telecommunications carrier, or a telecommunications provider 
  5.34  imposed upon such telephone company, telecommunications carrier, 
  5.35  or telecommunications provider by section 251, paragraph (a), 
  5.36  (b), or (c) of the Telecommunications Act of 1996 that relates 
  6.1   to service provided in the state.  The commission may order an 
  6.2   expedited proceeding under this subdivision if the commission 
  6.3   finds an expedited proceeding is in the public interest, 
  6.4   regardless of whether all parties agree to the expedited 
  6.5   proceeding.  In determining whether to grant an expedited 
  6.6   proceeding, the commission may consider any evidence of 
  6.7   impairment of the provision of telecommunications service to 
  6.8   subscribers in the state or impairment of the provision of any 
  6.9   service or network element subject to the jurisdiction of the 
  6.10  commission.  
  6.11     (b) Any request for an expedited proceeding under this 
  6.12  subdivision must be noted in the title of the complaint.  The 
  6.13  complaint shall also state the specific circumstances that the 
  6.14  complaining party believes warrant an expedited proceeding under 
  6.15  this subdivision.  The complaining party shall serve the 
  6.16  complaint along with any written discovery requests by hand 
  6.17  delivery and facsimile on the party against whom the complaint 
  6.18  is filed, the department of public service, and the office of 
  6.19  the attorney general on the same day the complaint is filed with 
  6.20  the commission. 
  6.21     (c) The party responding to a complaint that includes a 
  6.22  request for an expedited proceeding under this subdivision shall 
  6.23  file an answer within 15 days after receiving the complaint.  
  6.24  The responding party shall state in the answer the party's 
  6.25  position on the request for an expedited proceeding.  The 
  6.26  responding party shall serve with the answer any objections to 
  6.27  any written discovery requests as well as any written discovery 
  6.28  requests the responding party wishes to serve on the complaining 
  6.29  party.  Except for stating any objections, the responding party 
  6.30  is not required to answer any written discovery requests under 
  6.31  this subdivision until a time established at a prehearing 
  6.32  conference.  The responding party shall serve a copy of the 
  6.33  answer and any discovery requests and objections on the 
  6.34  complaining party, the department of public service, and office 
  6.35  of the attorney general by hand delivery and facsimile on the 
  6.36  same day as the answer is filed with the commission. 
  7.1      (d) Within 15 days of receiving the answer to a complaint 
  7.2   for which an expedited proceeding is requested, the commission 
  7.3   shall determine whether the complaint warrants an expedited 
  7.4   proceeding.  If the commission decides to grant a request by a 
  7.5   complaining party or if the commission orders an expedited 
  7.6   proceeding on its own motion, the commission shall conduct 
  7.7   within seven days of the decision a prehearing conference to 
  7.8   schedule the evidentiary hearing.  During the prehearing 
  7.9   conference, the commission shall establish a discovery schedule 
  7.10  that requires all discovery to be completed no later than three 
  7.11  days before the start of the hearing.  An evidentiary hearing 
  7.12  under this subdivision must commence no later than 45 days after 
  7.13  the commission's decision to order an expedited proceeding.  A 
  7.14  quorum of the commission shall preside at any evidentiary 
  7.15  hearing under this subdivision unless all the parties to the 
  7.16  proceeding agree otherwise.  
  7.17     (e) All pleadings submitted under this subdivision must be 
  7.18  verified and all oral statements of fact made in a hearing or 
  7.19  deposition under this subdivision must be made under oath or 
  7.20  affirmation. 
  7.21     (f) The commission shall issue a written decision and final 
  7.22  order on the complaint within 15 days after the close of the 
  7.23  evidentiary hearing under this subdivision.  On the day of 
  7.24  issuance, the commission shall notify the parties by facsimile 
  7.25  that a final order has been issued and shall provide each party 
  7.26  with a copy of the final order. 
  7.27     (g) The commission may extend any time periods under this 
  7.28  subdivision if all parties to the proceeding agree to the 
  7.29  extension or if the commission finds the extension is necessary 
  7.30  to ensure a just resolution of the complaint. 
  7.31     Subd. 8.  [TEMPORARY, EMERGENCY RELIEF PENDING DISPUTE 
  7.32  RESOLUTION.] (a) A person filing a complaint may include in the 
  7.33  complaint a request that the commission issue an order granting 
  7.34  temporary, emergency relief under paragraph (c) if the complaint 
  7.35  alleges a violation of: 
  7.36     (1) section 237.09, 237.121, or 237.16 or any rules adopted 
  8.1   under those sections; 
  8.2      (2) any standard, limitation, or condition established in a 
  8.3   commission order pursuant to section 237.09, 237.121, or 237.16; 
  8.4      (3) an approved interconnection agreement; or 
  8.5      (4) a duty or obligation of a telephone company, a 
  8.6   telecommunications carrier, or a telecommunications provider 
  8.7   imposed upon such a telephone company, telecommunications 
  8.8   carrier, or telecommunications provider by section 251, 
  8.9   paragraph (a), (b), or (c) of the Telecommunications Act of 1996 
  8.10  that relates to service provided in the state.  Any request for 
  8.11  temporary, emergency relief under this subdivision must be noted 
  8.12  in the title of the complaint.  The complaining party shall 
  8.13  provide a copy of the complaint requesting temporary, emergency 
  8.14  relief by hand delivery and facsimile to the party alleged to be 
  8.15  in violation on the same day a complaint requesting such relief 
  8.16  is filed with the commission.  The commission shall issue a 
  8.17  decision upon such a request within 20 days of the filing of the 
  8.18  complaint.  
  8.19     (b) The commission may also order temporary, emergency 
  8.20  relief on its own motion for an alleged violation of one or more 
  8.21  of the provisions of paragraph (a), clauses (1) to (4) in 
  8.22  accordance with this subdivision.  
  8.23     (c) After notice and an opportunity for comment, the 
  8.24  commission may grant an order for temporary, emergency relief 
  8.25  under this subdivision upon a verified factual showing that: 
  8.26     (1) the party seeking relief will likely succeed on the 
  8.27  merits; 
  8.28     (2) the order is necessary to protect the public's interest 
  8.29  in fair and reasonable competition or to prevent irreparable 
  8.30  harm to a provider of or a subscriber to local exchange 
  8.31  telephone service in the state; and 
  8.32     (3) the relief sought is technically feasible.  
  8.33  An order for temporary, emergency relief must include a finding 
  8.34  that the requirements of this subdivision have been fulfilled.  
  8.35     (d) In an order granting temporary, emergency relief, the 
  8.36  commission shall require the responding party to act or refrain 
  9.1   from acting as the commission deems necessary to avoid, prevent, 
  9.2   or mitigate the complained-of harm to subscribers or local 
  9.3   exchange telephone service providers resulting from the alleged 
  9.4   violation of one or more of the provisions in paragraph (a), 
  9.5   clauses (1) to (4).  The commission must give the responding 
  9.6   party a reasonable period of time to comply with the order. 
  9.7      (e) A party may seek review, reconsideration, or rehearing 
  9.8   of a temporary, emergency relief order prior to a final decision 
  9.9   on the complaint by the commission. 
  9.10     (f) If there is a material issue of fact and the commission 
  9.11  issues an order based on written pleadings without an 
  9.12  evidentiary hearing, the order may not remain in effect for more 
  9.13  than 30 days prior to which time the commission shall hold an 
  9.14  evidentiary hearing to determine whether the order for 
  9.15  temporary, emergency relief should be continued, modified, or 
  9.16  reversed.  Otherwise, an order for temporary, emergency relief 
  9.17  shall remain in effect until a final order is issued by the 
  9.18  commission unless the commission or a court issues an order or 
  9.19  decision reversing the order for temporary, emergency relief. 
  9.20     Subd. 9.  [ENFORCEMENT.] The attorney general, on behalf of 
  9.21  the state, may proceed to enforce and collect penalties that are 
  9.22  due and payable under this section in any manner provided to the 
  9.23  attorney general by other law. 
  9.24     Subd. 10.  [CUMULATIVE REMEDIES.] The attorney general may 
  9.25  not seek civil penalties under section 237.461 for the same 
  9.26  violations for which the commission has issued an order imposing 
  9.27  administrative monetary penalties under this section.  The 
  9.28  imposition of administrative penalties in accordance with this 
  9.29  section is in addition to all other remedies available under 
  9.30  statutory or common law.  The payment of a penalty does not 
  9.31  preclude the use of other enforcement provisions, under which 
  9.32  penalties are not assessed, in connection with the violation or 
  9.33  violations for which the penalty was assessed. 
  9.34     Subd. 11.  [PENALTY PROCEEDS DEPOSITED IN GENERAL 
  9.35  FUND.] The proceeds of any penalty assessed under this section 
  9.36  paid to the state shall be deposited in the general fund. 
 10.1      Subd. 12.  [PRIVATE REMEDIES.] Nothing in this section 
 10.2   affects the ability of a telephone company, telecommunications 
 10.3   provider, telecommunications carrier, or subscriber to bring a 
 10.4   private cause of action in court against a provider of local 
 10.5   exchange telephone service based on conduct for which a penalty 
 10.6   is imposed under this section. 
 10.7      Subd. 13.  [APPLICATION.] This section applies to any 
 10.8   telecommunications provider, telephone company, or 
 10.9   telecommunications carrier that offers local exchange telephone 
 10.10  service within the service territory of a telephone company with 
 10.11  50,000 subscribers or more, regardless of where the violation 
 10.12  occurs.  
 10.13     Sec. 4.  Minnesota Statutes 1998, section 237.5799, is 
 10.14  amended to read: 
 10.15     237.5799 [EXPIRATION OF COMPETITIVE SERVICE LAWS.] 
 10.16     Sections 237.58, 237.59, 237.60, subdivisions 1, 2, and 5, 
 10.17  237.61, 237.62, and 237.625, 237.63, 237.64, 237.65, and 237.68 
 10.18  expire on August 1, 1999. 
 10.19     Sec. 5.  [SUNSET.] 
 10.20     Section 3 and Minnesota Statutes 1998, sections 237.63, 
 10.21  237.65, and 237.68 expire on December 31, 2004. 
 10.22     Sec. 6.  [EFFECTIVE DATE.] 
 10.23     This act is effective immediately upon enactment and does 
 10.24  not apply to dockets pending on the date of enactment.