A. For purposes of this section:

(1) "commission" means the public regulation commission; and

(2) "telecommunications provider" means any telegraph company, telephone company, transmission company, telecommunications common carrier, telecommunications company, cellular service company or pay telephone provider regulated in whole or in part by the commission under law, including the Telephone and Telegraph Company Certification Act [Chapter 63, Article 9 NMSA 1978], the New Mexico Telecommunications Act [Chapter 63, Article 9A NMSA 1978], the Cellular Telephone Services Act [Chapter 63, Article 9B NMSA 1978] and Sections 63-9E-1 and 63-9E-3 NMSA 1978.

B. The commission may impose an administrative fine on a telecommunications provider for any act or omission that the provider knew or should have known was a violation of any applicable law or rule or order of the commission.

C. Except in the case of disputes between telecommunications providers, an administrative fine of not more than one thousand dollars ($1,000) may be imposed for each violation or each of multiple violations arising out of the same facts up to a maximum of twenty-five thousand dollars ($25,000); or an administrative fine of not more than one thousand dollars ($1,000) may be imposed for each day of a continuing violation arising out of the same facts up to a maximum of twenty-five thousand dollars ($25,000). Notwithstanding any other provision of this subsection, the commission may impose an administrative fine not to exceed twenty-five thousand dollars ($25,000) for a single violation:

(1) that results in substantial harm to the customers of the telecommunications provider or substantial harm to the public interest; or

(2) for failure to obtain a certificate of public convenience and necessity required by law or for operation outside the scope of that certificate.

D. In the case of disputes between telecommunications providers, an administrative fine of not more than one hundred thousand dollars ($100,000) may be imposed for the violation of a telecommunications provider interconnection agreement, telecommunications provider wholesale tariff, or commission regulation or order otherwise relating to the provision of services between telecommunications providers. An administrative fine of not more than one hundred thousand dollars ($100,000) may be imposed for each day of a continuing violation.

E. The amount of the fine should bear a reasonable relationship to the nature and severity of the violation.

F. The commission shall initiate a proceeding to impose an administrative fine by giving written notice to the provider that the commission has facts as set forth in the notice that, if not rebutted, may lead to the imposition of an administrative fine under this section and that the telecommunications provider has an opportunity for a hearing. The commission may only impose an administrative fine by written order that, in the case of contested proceedings, shall be supported by a preponderance of the evidence.

G. The commission may initiate a proceeding to impose an administrative fine within two years from the date of the commission's discovery of the violation, but in no event shall a proceeding be initiated more than five years after the date of the violation. This limitation shall not run against any act or omission constituting a violation under this section for any period during which the telecommunications provider has fraudulently concealed the violation.

H. The commission shall consider mitigating and aggravating circumstances in determining the amount of administrative fine imposed.

I. For purposes of establishing a violation, the act or omission of any officer, agent or employee of a telecommunications provider, within the scope of such person's authority, duties or employment, shall be deemed the act or omission of the telecommunications provider.

J. Any telecommunications provider or other person aggrieved by an order assessing an administrative fine may appeal the order to the supreme court of New Mexico. A notice of appeal shall be filed within thirty days after the entry of the commission's order. Notice of appeal shall name the commission as appellee and shall identify the order from which the appeal is taken.

K. The commission shall promulgate procedural rules for the implementation of this section.

History: Laws 1995, ch. 175, § 1; 1998, ch. 108, § 51; 2000, ch. 100, § 2; 2000, ch. 102, § 2.

The 2000 amendment, effective March 7, 2000, added "Except in the case of disputes between telecommunications providers" at the beginning of Subsection C, added present Subsections D and E and redesignated the remaining subsections accordingly.

Laws 2000, ch. 100, § 2 and Laws 2000, ch. 102, § 2, both effective March 7, 2000, enacted identical amendments to this section. The section was set out as amended by Laws 2000, ch. 102, § 2. See 12-1-8 NMSA 1978.

The 1998 amendment, effective January 1, 1999, substituted "public regulation" for "state corporation" near the end of Paragraph A(1); deleted "but not limited to Article 11 of the constitution of New Mexico" following "the Telephone and" near the end of Subsection A; deleted "or violations" following "arising out of the" near the middle of Subsection C; substituted "that" for "any such" at the end of Paragraph C(2); substituted "appeal" for "remove" near the beginning of Subsection H; deleted "as authorized by the provisions of Article 11, Section 7 of the constitution of New Mexico. Any telecommunications provider or other person aggrieved by an order assessing an administrative fine that is not removable to the supreme court of New Mexico under the provisions of Article 11, Section 7 of the constitution of New Mexico may file a notice of appeal in the supreme court of New Mexico asking for a review of the commission's order therein" near the middle of Subsection H; and deleted "and regulations" following "for the implementation" at the end of Subsection I.