4 CCR 723-2-2010 - Regulated Telecommunications Utility Violations, Civil Enforcement, and Enhancement of Civil Penalties

(a) The Commission may impose a civil penalty in accordance with the requirements and procedures contained in § 40-7-113.5, C.R.S.; § 40-7-116.5, C.R.S.; § 29-11-103(7)(b) and (c), C.R.S. and paragraph 1302(b), 4 Code of Colorado Regulations 723-1; for intentional violations of statutes in Articles 1 to 7 and 15 of Title 40, C.R.S.; Commission rules; or Commission orders as specified in §§ 40-7-113.5 and 40-7-116.5, C.R.S.; and in these rules.

(b) The director of the commission or his or her designee shall have the authority to issue civil penalty assessments for the violations enumerated in § 40-7-113.5, C.R.S., or for delinquent payments, penalties, and interest as described in § 29-11-103(7)(b) and (c), C.R.S., subject to hearing before the Commission. When a public utility is cited for an alleged intentional violation, the public utility shall be given notice of the alleged violation in the form of a civil penalty assessment notice.

(c) The public utility cited for an alleged intentional violation may either admit liability for the violation pursuant to § 40-7-116.5(1)(c) or the public utility may contest the alleged violation pursuant to § 40-7-116.5(1)(d), C.R.S. At any hearing contesting an alleged violation, trial staff shall have the burden of demonstrating a violation by a preponderance of the evidence.

(d) In any written decision entered by the Commission pursuant to § 40-6-109, C.R.S., adjudicating a public utility liable for an intentional violation of a statute in Articles 1 to 7 and 15 of Title 40, C.R.S., a Commission rule, or a Commission order, the Commission may impose a civil penalty of not more than two thousand dollars, pursuant to § 40-7-113.5(1), C.R.S. In imposing any civil penalty pursuant to § 40-7-113.5(1), C.R.S., the Commission shall consider the factors set forth in paragraph 1302(b).

(e) The Commission may assess doubled or tripled civil penalties against any public utility, as provided by § 40-7-113.5(3), C.R.S., § 40-7-113.5(4), C.R.S., and this rule.

(f) The Commission may assess any public utility a civil penalty containing doubled penalties only if:

(I) the public utility has admitted liability by paying the civil penalty assessment for, or has been adjudicated by the Commission in an administratively final written decision to be liable for, engaging in prior conduct that constituted an intentional violation of a statute in Articles 1 to 7 and 15 of Title 40, C.R.S., a Commission rule, or a Commission order;

(II) the conduct for which doubled civil penalties are sought violates the same statute, rule, or order as conduct for which the public utility has admitted liability by paying the civil penalty assessment, or conduct for which the public utility has been adjudicated by the Commission in an administratively final written decision to be liable; and

(III) the conduct for which doubled civil penalties are sought occurred within one year after conduct for which the public utility has admitted liability by paying the civil penalty assessment, or conduct for which the public utility has been adjudicated by the Commission in an administratively final written decision to be liable.

(g) The Commission may assess any public utility a civil penalty containing tripled penalties only if:

(I) the public utility has admitted liability by paying the civil penalty assessment for, or has been adjudicated by the Commission in an administratively final written decision to be liable for, engaging in prior conduct that constituted two or more prior intentional violations of a statute in Articles 1 to 7 and 15 of Title 40, C.R.S., a Commission rule, or a Commission order;

(II) the conduct for which tripled civil penalties are sought violates the same statute, rule, or order as conduct for which the public utility has either admitted liability by paying the civil penalty assessment or been adjudicated by the Commission in an administratively final written decision to be liable, in at least two prior instances; and

(III) the conduct for which tripled civil penalties are sought occurred within one year after the two most recent prior instances of conduct for which the public utility has either admitted liability by paying the civil penalty assessment, or been adjudicated by the Commission in an administratively final written decision to be liable.

(h) When more than two instances of prior conduct exist, the Commission shall only consider those instances occurring within one year prior to the date of such alleged conduct for which tripled civil penalties are sought.

(i) Nothing in this rule shall preclude the assessment of tripled penalties when doubled and tripled penalties are sought in the same civil penalty assessment notice.

(j) The Commission shall not issue a decision on doubled or tripled penalties until after the effective date of the administratively final Commission decision upon which the single civil penalty was based.

(k) The civil penalty assessment notice shall contain the maximum penalty amount provided by rule for each individual violation noted, with a separate provision for a reduced penalty of 50 percent of the penalty amount sought if paid within ten days of the public utility's receipt of the civil penalty assessment notice.

(l) The civil penalty assessment notice shall contain the maximum amount of the penalty surcharge pursuant to § 24-34-108(2), C.R.S., if any.

(m) A penalty surcharge referred to in paragraph (l) of this rule shall be equal to the percentage set by the Department of Regulatory Agencies on an annual basis. The surcharge shall not be included in the calculation of the statutory limits set in § 40-7-113.5(5), C.R.S.

(n) Nothing in these rules shall affect the Commission's ability to pursue other remedies in lieu of issuing civil penalties.

Notes

4 CCR 723-2-2010

39 CR 21, November 10, 2016, effective 12/1/2016 40 CR 15, August 10, 2017, effective 9/1/2017 41 CR 03, February 10, 2018, effective 3/2/2018 42 CR 02, January 25, 2019, effective 2/14/2019 42 CR 07, April 10, 2019, effective 4/30/2019 43 CR 02, January 25, 2020, effective 2/14/2020 43 CR 17, September 10, 2020, effective 8/17/2020 44 CR 17, September 10, 2021, effective 8/11/2021 44 CR 18, September 25, 2021, effective 10/15/2021 45 CR 03, February 10, 2022, effective 12/29/2021 45 CR 01, January 10, 2022, effective 1/30/2022 46 CR 05, March 10, 2023, effective 3/30/2023