4 CCR 723-1-1302 - Formal Complaints and Show Cause Proceedings

(a) Any person may file a formal complaint at any time. A formal complaint shall set forth sufficient facts and information to adequately advise the respondent and the Commission of the relief sought and, if known, how any statute, rule, tariff, price list, time schedule, decision, or agreement memorialized, accepted, or approved by Commission decision is alleged to have been violated. In addition, a formal complaint shall meet the following requirements, as applicable:

(I) a complaint that seeks to modify, limit, suspend, annul, or revoke a certificate, permit, registration, license or other authority shall be signed and sworn by the complainant;

(II) a complaint that claims unreasonable rates or charges of any gas, electric, water, or telephone public utility shall comply with the provisions of § 40-6-108(1)(b), C.R.S.; and

(III) a complaint against a cooperative electric association shall comply with the provisions of § 40-9.5-106, C.R.S., if applicable.

(b) The Commission may impose a civil penalty, when provided by law. The Commission will consider any evidence concerning some or all of the following factors:

(I) the nature, circumstances, and gravity of the violation;

(II) the degree of the respondent's culpability;

(III) the respondent's history of prior offenses;

(IV) the respondent's ability to pay;

(V) any good faith efforts by the respondent in attempting to achieve compliance and to prevent future similar violations;

(VI) the effect on the respondent's ability to continue in business;

(VII) the size of the respondent's business; and

(VIII) such other factors as equity and fairness may require.

(c) The Commission may expedite a formal complaint proceeding on its own motion or upon the motion of a party if such motion shows good cause or the consent of all the parties, thereby adjudicating the proceeding as an accelerated complaint. If the Commission expedites a formal complaint, it shall enter a procedural decision that:

(I) establishes the expedited schedule, including hearing dates;

(II) details the limits, if any, that the Commission, in its discretion, places on discovery; and

(III) requires compliance with the following paragraphs, if applicable: 1205(c); 1308(d); 1308(e); 1400(c); 1405(i); and 1409(b).

(d) Formal complaints to enforce a telecommunication provider's interconnection duties or obligations, and formal complaints regarding interconnection service quality matters, shall be treated as accelerated telecommunication interconnection complaints if:

(I) at least ten days prior to filing the complaint, the complainant has personally served upon the respondent written notice of intent to file an accelerated complaint, together with identification of the provision of any applicable law or agreement that the complainant contends is not being complied with, and a description of the facts demonstrating any alleged violation of any applicable law or agreement;

(II) the complainant has attached to the complaint copies of all relevant non-confidential documents, including correspondence and work papers;

(III) the complaint includes a certification that any and all methods of dispute resolution established in any applicable agreement, including escalation to higher levels of management within the parties' organizations, have been exhausted;

(IV) the complaint provides specific facts demonstrating that the complainant engaged in good faith negotiations to resolve the disagreement, and that despite those negotiations the parties failed to resolve the issue;

(V) the complaint includes a certification of the complainant's compliance with subparagraph (d)(I) above; and

(VI) on the same day as the complaint is filed with the Commission, the complainant serves a copy of the complaint by hand-delivery or through the E-Filings System during normal business hours on the person designated by the respondent to receive service of process.

(e) In complaint proceedings where discontinuance of service becomes an issue, the Commission or an Administrative Law Judge may issue an interim decision to a regulated entity requiring it to provide service pending a hearing:

(I) if the customer has posted a deposit or bond with the regulated entity equal to the amount in dispute or as otherwise prescribed by interim decision, the amount of which may be increased, or the terms adjusted, by the Commission, Hearing Commissioner or Administrative Law Judge as needed at any time while the dispute is pending;

(II) if the customer has previously made an informal complaint to the Commission, and Commission staff investigation indicates probable success of the customer; or

(III) upon such other good cause as the Commission may deem appropriate.

(f) Upon the filing of any formal complaint, except as provided in rule 1205(c), the Director shall promptly serve the respondent with the complaint, an order to satisfy the complaint or file an answer, and a notice setting the date, time, and location of the hearing. Except in the case of an accelerated complaint, the order shall require the respondent to satisfy the complaint or file its answer within 20 days of service of the order. If the complaint is an accelerated complaint the order shall require the respondent to satisfy or answer within ten days. For accelerated complaints, the Commission shall set the hearing to occur within 45 days of the filing of the complaint. Unless all parties agree otherwise or the Commission finds exceptional circumstances warrant, a hearing on an accelerated complaint may not be continued beyond 60 days after the filing of the complaint.

(g) Show cause proceedings. The Commission may issue a decision ordering a regulated entity to appear before the Commission and explain why the regulated entity allegedly took certain actions that violate Title 40 of the Colorado Revised Statutes, an effective Commission decision, or an effective Commission rule, or allegedly failed to take action in contravention of the same, and why the Commission should or should not grant some form of relief against the regulated entity. The show cause decision shall issue on the Commission's own motion or through the following process.

(I) Affidavit and proposed order to show cause.

(A) When Commission staff intends to request an order to show cause against any regulated entity, the staff shall file an affidavit supporting a request for issuance of an order to show cause and a proposed order to show cause with the Commission and serve the same upon the regulated entity that is the subject of the proposed order. The proposed order to show cause shall contain the request being made, or relief sought by the party filing, and an identification of all proposed parties to the proceeding. A supporting affidavit must accompany the proposed order to show cause. The affidavit shall contain the following information, at a minimum:

(i) the name and address of the party that is the subject of the proposed order to show cause;

(ii) the name and address of the party that is proposing the order to show cause;

(iii) a clear statement of the facts and law which form the basis alleged for the issuance of the decision;

(iv) the relief, remedy, or sanction that may be ordered, including any reparations, or an order to revoke, limit, or modify any authority granted by the Commission; and

(v) any supporting documents that will support the request for issuance of an order to show cause.

(B) The affidavit, including any supporting documents attached, and a proposed order to show cause, must be filed though the E-Filings System as a request for a new proceeding. Upon receipt of the filing, the Director shall promptly serve the respondent with a notice setting the date, time and location of a hearing before an Administrative Law Judge.

(C) The regulated entity may prepare a response or answer to the proposed order to show cause, stating any objections to the issuance of the order requested. This response must be e-filed into the proceeding no later than ten business days after service of the affidavit and proposed order to show cause.

(D) Staff and all respondents must appear at the hearing to present their cases to the Administrative Law Judge, who will then render an interim decision either granting issuance or dismissing the order to show cause. The Administrative Law Judge must render the decision within ten business days of the hearing.

(E) A determination to issue an interim decision ordering a regulated entity to show cause is based on the information then available. The determination is not, and shall not be taken or assumed to be, a decision on the merits or on any factual allegation.

(F) If the decision entered by the Administrative Law Judge grants issuance of the order to show cause, the show cause proceeding will be returned to the full Commission for a decision regarding referral on the merits. The proceeding shall be processed pursuant to the procedures in these rules and the applicable provisions of § 40-6-101, et seq., C.R.S.

Notes

4 CCR 723-1-1302

38 CR 02, January 25, 2015, effective 2/14/2015 38 CR 20, October 25, 2015, effective 11/14/2015 43 CR 13, July 10, 2020, effective 7/30/2020 45 CR 07, April 10, 2022, effective 4/30/2022