2005 Minnesota Statutes

     237.462 Competitive enforcement; administrative penalty 
  orders. 

    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, 237.16, and 237.411 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, 
 237.16, and 237.411; 

    (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 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, 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, 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 by attorney general.  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.  

    HIST: 1999 c 224 s 2; 1Sp2001 c 4 art 6 s 59; 2004 c 261 art 6 
 s 2 

*   NOTE:  This section, as added by Laws 1999, chapter 224, 
*section 2, expires on August 1, 2005.  Laws 1999, chapter 
*224, section 7, as amended by Laws 2004, chapter 261, article 6, section 
*3.