Minnesota Session Laws - 1999, Regular Session

                            CHAPTER 224-S.F.No. 685 
                  An act relating to telecommunications; deregulating 
                  coin-operated or public pay telephones under state 
                  law; authorizing the public utilities commission to 
                  assess administrative penalties for anticompetitive 
                  activities by telecommunication providers; amending 
                  Minnesota Statutes 1998, sections 237.461, subdivision 
                  2, and by adding subdivisions; and 237.5799; proposing 
                  coding for new law in Minnesota Statutes, chapter 237. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  [237.036] [COIN-OPERATED OR PUBLIC PAY 
        TELEPHONES.] 
           (a) Neither commission approval nor a commission 
        certificate is required to: 
           (1) site a coin-operated or public pay telephone in the 
        state; or 
           (2) implement changes in service, services offered, rates, 
        or location regarding a coin-operated or public pay telephone.  
        Registration under section 237.64 is required to own or operate 
        a coin-operated or public pay telephone in the state. 
           (b) This section does not change the authority of other 
        state or local government entities to regulate aspects of 
        coin-operated or public pay telephone ownership, location, or 
        operation; however, an entity may not regulate aspects of these 
        services that it did not regulate prior to the effective date of 
        this section.  The commission shall retain the authority 
        delegated to it under federal and state law to protect the 
        public interest with regard to coin-operated or public pay 
        telephones. 
           (c) Owners and operators of coin-operated or public pay 
        telephones are exempt from sections 237.06, 237.07, 237.075, 
        237.09, 237.23, 237.295, and 237.39 and the annual reporting 
        requirement of section 237.11. 
           (d) Owners of coin-operated or public pay telephones shall: 
           (1) provide immediate coin-free access, to the extent 
        technically feasible, to 911 emergency service or to another 
        approved emergency service; and 
           (2) provide free access to the telecommunications relay 
        service for the communication impaired. 
           (e) Owners of coin-operated or public pay telephones must 
        post at each coin-operated or public pay telephone location: 
           (1) customer service and complaint information, including 
        the name, address, and telephone number of the owner of the 
        coin-operated or public pay telephone and the operator service 
        handling calls from the coin-operated or public pay telephone; a 
        toll-free number of the appropriate telephone company for the 
        resolution of complaints; and the toll-free number of the public 
        utilities commission; and 
           (2) a toll-free number at which consumers can obtain 
        pricing information regarding rates, charges, terms, and 
        conditions of local and long-distance calls. 
           Sec. 2.  [237.462] [COMPETITIVE ENFORCEMENT; ADMINISTRATIVE 
        PENALTIES TO PROMOTE AND PROTECT LOCAL TELEPHONE COMPETITION.] 
           Subdivision 1.  [AUTHORITY TO ISSUE PENALTY ORDERS.] After 
        a proceeding under section 237.081, the commission may issue an 
        order administratively assessing monetary penalties for knowing 
        and intentional violations of: 
           (1) sections 237.09, 237.121, and 237.16 and any rules 
        adopted under those sections; 
           (2) any standards, limitations, or conditions established 
        in a commission order pursuant to sections 237.09, 237.121, and 
        237.16; 
           (3) an approved interconnection agreement if the violation 
        is material; and 
           (4) any duty or obligation of a telephone company, a 
        telecommunications carrier, or a telecommunications provider 
        imposed upon such telephone company, telecommunications carrier, 
        or telecommunications provider by section 251, paragraph (a), 
        (b), or (c) of the Telecommunications Act of 1996 that relates 
        to service provided in the state.  The penalty order must be 
        issued as provided in this section. 
           Subd. 2.  [AMOUNT OF PENALTY; CONSIDERATIONS.] (a) The 
        commission may issue an order assessing a penalty of between 
        $100 and $10,000 per day for each violation.  
           (b) In determining the amount of a penalty, the commission 
        shall consider: 
           (1) the willfulness or intent of the violation; 
           (2) the gravity of the violation, including the harm to 
        customers or competitors; 
           (3) the history of past violations, including the gravity 
        of past violations, similarity of previous violations to the 
        current violation to be penalized, number of previous 
        violations, the response of the person to the most recent 
        previous violation identified, and the time lapsed since the 
        last violation; 
           (4) the number of violations; 
           (5) the economic benefit gained by the person committing 
        the violation; 
           (6) any corrective action taken or planned by the person 
        committing the violation; 
           (7) the annual revenue and assets of the company committing 
        the violation, including the assets and revenue of any 
        affiliates that have 50 percent or more common ownership or that 
        own more than 50 percent of the company; 
           (8) the financial ability of the company, including any 
        affiliates that have 50 percent or more common ownership or that 
        own more than 50 percent of the company, to pay the penalty; and 
           (9) other factors that justice may require, as determined 
        by the commission.  The commission shall specifically identify 
        any additional factors in the commission's order. 
           Subd. 3.  [BURDEN OF PROOF.] The commission may not assess 
        a penalty under this section unless the record in the proceeding 
        establishes by a preponderance of the evidence that the penalty 
        is justified based on the factors identified in subdivision 2. 
           Subd. 4.  [CONTENTS OF ORDER.] An order assessing an 
        administrative penalty under this section shall include: 
           (1) a concise statement of the facts alleged to constitute 
        a violation; 
           (2) a reference to the section of the statute, rule, or 
        order that has been violated; 
           (3) a statement of the amount of the administrative penalty 
        to be imposed and the factors upon which the penalty is based; 
        and 
           (4) a statement of the person's right to review of the 
        order. 
           Subd. 5.  [PENALTY STAYED.] A penalty imposed under this 
        section shall not be payable sooner than 31 days after the 
        commission issues its final order assessing the penalty.  The 
        person subject to the penalty may appeal the commission's 
        penalty order under sections 14.63 to 14.68.  If the person does 
        appeal the commission's penalty order, the penalty shall not be 
        payable until either all appeals have been exhausted or the 
        person withdraws the appeal. 
           Subd. 6.  [EXPEDITED PROCEEDING.] (a) The commission may 
        order an expedited proceeding under section 237.61 and this 
        subdivision, in lieu of a contested case under chapter 14, to 
        develop an evidentiary record in any proceeding that involves 
        contested issues of material fact either upon request of a party 
        or upon the commission's own motion if the complaint alleges a 
        violation described in subdivision 1, clauses (1) to (4).  The 
        commission may order an expedited proceeding under this 
        subdivision if the commission finds an expedited proceeding is 
        in the public interest, regardless of whether all parties agree 
        to the expedited proceeding.  In determining whether to grant an 
        expedited proceeding, the commission may consider any evidence 
        of impairment of the provision of telecommunications service to 
        subscribers in the state or impairment of the provision of any 
        service or network element subject to the jurisdiction of the 
        commission.  
           (b) Any request for an expedited proceeding under this 
        subdivision must be noted in the title of the first filing by a 
        party.  The filing shall also state the specific circumstances 
        that the party believes warrant an expedited proceeding under 
        this subdivision.  
           (c) A complaint requesting an expedited proceeding, unless 
        filed by the department of public service or the attorney 
        general, must set forth the actions and the dates of the actions 
        taken by the party filing the complaint to attempt to resolve 
        the alleged violations with the party against whom the complaint 
        is filed, including any requests that the party against whom the 
        complaint is filed correct the conduct giving rise to the 
        violations alleged in the complaint.  If no such actions were 
        taken by the complainant, the complaint shall set forth the 
        reasons why no such actions were taken.  The commission may 
        order an expedited proceeding even if the filing complaint fails 
        to meet this requirement if the commission determines that it 
        would be in the public interest to go forward with the expedited 
        proceeding without information in the complaint on attempts to 
        resolve the dispute. 
           (d) The complaining party shall serve the complaint along 
        with any written discovery requests by hand delivery and 
        facsimile on the party against whom the complaint is filed, the 
        department of public service, and the office of the attorney 
        general on the same day the complaint is filed with the 
        commission. 
           (e) The party responding to a complaint that includes a 
        request for an expedited proceeding under this subdivision shall 
        file an answer within 15 days after receiving the complaint.  
        The responding party shall state in the answer the party's 
        position on the request for an expedited proceeding.  The 
        responding party shall serve with the answer any objections to 
        any written discovery requests as well as any written discovery 
        requests the responding party wishes to serve on the complaining 
        party.  Except for stating any objections, the responding party 
        is not required to answer any written discovery requests under 
        this subdivision until a time established at a prehearing 
        conference.  The responding party shall serve a copy of the 
        answer and any discovery requests and objections on the 
        complaining party, the department of public service, and office 
        of the attorney general by hand delivery and facsimile on the 
        same day as the answer is filed with the commission. 
           (f) Within 15 days of receiving the answer to a complaint 
        in a proceeding in which a party has requested an expedited 
        hearing, the commission shall determine whether the filing 
        warrants an expedited proceeding.  If the commission decides to 
        grant a request by a party or if the commission orders an 
        expedited proceeding on its own motion, the commission shall 
        conduct within seven days of the decision a prehearing 
        conference to schedule the evidentiary hearing.  During the 
        prehearing conference, the commission shall establish a 
        discovery schedule that requires all discovery to be completed 
        no later than three days before the start of the hearing.  An 
        evidentiary hearing under this subdivision must commence no 
        later than 45 days after the commission's decision to order an 
        expedited proceeding.  A quorum of the commission shall preside 
        at any evidentiary hearing under this subdivision unless all the 
        parties to the proceeding agree otherwise.  
           (g) All pleadings submitted under this subdivision must be 
        verified and all oral statements of fact made in a hearing or 
        deposition under this subdivision must be made under oath or 
        affirmation. 
           (h) The commission shall issue a written decision and final 
        order on the complaint within 15 days after the close of the 
        evidentiary hearing under this subdivision.  On the day of 
        issuance, the commission shall notify the parties by facsimile 
        that a final order has been issued and shall provide each party 
        with a copy of the final order. 
           (i) The commission may extend any time periods under this 
        subdivision if all parties to the proceeding agree to the 
        extension or if the commission finds the extension is necessary 
        to ensure a just resolution of the complaint. 
           (j) Except as otherwise provided in this subdivision, an 
        expedited proceeding under this subdivision shall be governed by 
        the following procedural rules: 
           (1) the parties shall have the discovery rights provided in 
        Minnesota Rules, parts 1400.6700 to 1400.7000; 
           (2) the parties shall have the right to cross-examine 
        witnesses as provided in section 14.60, subdivision 3; 
           (3) the admissibility of evidence and development of record 
        for decision shall be governed by section 14.60 and Minnesota 
        Rules, part 1400.7300; and 
           (4) the commission may apply other procedures or standards 
        included in the rules of the office of administrative hearings, 
        as necessary to ensure the fair and expeditious resolution of 
        disputes under this section. 
           Subd. 7.  [TEMPORARY RELIEF PENDING DISPUTE 
        RESOLUTION.] (a) A person filing a complaint may include in the 
        complaint a request that the commission issue an order granting 
        temporary relief under paragraph (c) if the complaint alleges a 
        violation described in subdivision 1, clauses (1) to (4).  Any 
        request for temporary relief under this subdivision must be 
        noted in the title of the complaint.  The complaining party 
        shall provide a copy of the complaint requesting temporary 
        relief by hand delivery and facsimile to the party alleged to be 
        in violation on the same day a complaint requesting such relief 
        is filed with the commission.  The commission shall issue a 
        decision upon such a request within 20 days of the filing of the 
        complaint.  
           (b) The commission may also order temporary relief on its 
        own motion for an alleged violation of one or more of the 
        provisions of subdivision 1, clauses (1) to (4), in accordance 
        with this subdivision.  
           (c) After notice and an opportunity for comment, the 
        commission may grant an order for temporary relief under this 
        subdivision upon a verified factual showing that: 
           (1) the party seeking relief will likely succeed on the 
        merits; 
           (2) the order is necessary to protect the public's interest 
        in fair and reasonable competition; and 
           (3) the relief sought is technically feasible.  
        An order for temporary relief must include a finding that the 
        requirements of this subdivision have been fulfilled.  
           (d) In an order granting temporary relief, the commission 
        shall require the responding party to act or refrain from acting 
        as the commission deems necessary to avoid, prevent, or mitigate 
        the complained-of harm to subscribers or local exchange 
        telephone service providers resulting from the alleged violation 
        of one or more of the provisions in subdivision 1, clauses (1) 
        to (4).  The commission must give the responding party a 
        reasonable period of time to comply with the order. 
           (e) A party may seek review, reconsideration, or rehearing 
        of a temporary relief order prior to a final decision on the 
        complaint by the commission. 
           (f) If there is a material issue of fact and the commission 
        issues an order based on written pleadings without an 
        evidentiary hearing, the order may not remain in effect for more 
        than 30 days prior to which time the commission shall hold an 
        evidentiary hearing to determine whether the order for temporary 
        relief should be continued, modified, or reversed.  Otherwise, 
        an order for temporary relief shall remain in effect until a 
        final order is issued by the commission unless the commission or 
        a court issues an order or decision reversing the order for 
        temporary relief. 
           Subd. 8.  [ENFORCEMENT.] The attorney general, on behalf of 
        the state, may proceed to enforce and collect penalties that are 
        due and payable under this section in any manner provided to the 
        attorney general by other law. 
           Subd. 9.  [CUMULATIVE REMEDIES.] The attorney general may 
        not seek civil penalties under section 237.461 for the same 
        violations for which the commission has issued an order imposing 
        administrative monetary penalties under this section.  The 
        imposition of administrative penalties in accordance with this 
        section is in addition to all other remedies available under 
        statutory or common law.  The payment of a penalty does not 
        preclude the use of other enforcement provisions, under which 
        penalties are not assessed, in connection with the violation or 
        violations for which the penalty was assessed. 
           Subd. 10.  [PENALTY PROCEEDS DEPOSITED IN GENERAL 
        FUND.] The proceeds of any penalty assessed under this section 
        paid to the state shall be deposited in the general fund. 
           Subd. 11.  [PRIVATE REMEDIES.] Nothing in this section 
        affects the ability of a telephone company, telecommunications 
        provider, telecommunications carrier, or subscriber to bring a 
        private cause of action in court against a provider of local 
        exchange telephone service based on conduct for which a penalty 
        is imposed under this section. 
           Subd. 12.  [APPLICATION.] This section applies to any 
        telecommunications provider, telephone company, or 
        telecommunications carrier that offers local exchange telephone 
        service within the service territory of a telephone company with 
        50,000 subscribers or more, regardless of where the violation 
        occurs.  
           Sec. 3.  Minnesota Statutes 1998, section 237.461, 
        subdivision 2, is amended to read: 
           Subd. 2.  [CIVIL PENALTY.] A person who knowingly and 
        intentionally violates a provision of this chapter or rule or 
        order of the commission adopted under this chapter shall forfeit 
        and pay to the state a penalty, in an amount to be determined by 
        the court, of at least $100 and not more than $5,000 for each 
        day of each violation.  The civil penalties provided for in this 
        section may be recovered by a civil action brought by the 
        attorney general in the name of the state.  Amounts recovered 
        under this section must be paid into the state treasury. 
           Sec. 4.  Minnesota Statutes 1998, section 237.461, is 
        amended by adding a subdivision to read: 
           Subd. 3.  [CIVIL PENALTY FOR LOCAL COMPETITION VIOLATIONS.] 
        Notwithstanding subdivision 2, a person who knowingly and 
        intentionally commits a violation described in section 237.462, 
        subdivision 1, clauses (1) to (4), shall forfeit and pay to the 
        state a penalty, in an amount to be determined by the court, of 
        at least $100 and not more than $55,000 for each day of each 
        violation.  In determining the amount of the penalty under this 
        subdivision, the court shall consider the factors in section 
        237.462, subdivision 2, paragraph (b). 
           Sec. 5.  Minnesota Statutes 1998, section 237.461, is 
        amended by adding a subdivision to read: 
           Subd. 4.  [CIVIL PENALTY ACTION; TREASURY.] The civil 
        penalties provided for in this section may be recovered by a 
        civil action brought by the attorney general in the name of the 
        state.  Amounts recovered under this section must be paid into 
        the state treasury. 
           Sec. 6.  Minnesota Statutes 1998, section 237.5799, is 
        amended to read: 
           237.5799 [EXPIRATION OF COMPETITIVE SERVICE LAWS.] 
           Sections 237.58, 237.59, 237.60, subdivisions 1, 2, and 5, 
        237.61, 237.62, and 237.625, 237.63, 237.64, 237.65, and 237.68 
        expire on August 1, 1999. 
           Sec. 7.  [SUNSET.] 
           Sections 2 and 4 and Minnesota Statutes 1998, sections 
        237.63, 237.65, and 237.68, expire on December 31, 2004. 
           Sec. 8.  [EFFECTIVE DATE.] 
           This act is effective the day following final enactment.  
        Sections 2 and 4 do not apply to dockets pending on the date of 
        enactment. 
           Presented to the governor May 21, 1999 
           Signed by the governor May 25, 1999, 11:28 a.m.