Q Link Wireless LLC v. N.M. Pub. Regulation Comm’n (Unpublished Opinion)
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1 The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: May 22, 2023 4 NO. S-1-SC-38812 5 Q LINK WIRELESS LLC, 6 Appellant, 7 v. 8 9 NEW MEXICO PUBLIC REGULATION COMMISSION, 10 Appellee. 11 12 13 14 15 16 17 In the Matter of the Petition of Q Link Wireless LLC for Designation as an Eligible Telecommunications Carrier for the Limited Purpose of Providing Lifeline Service in the State of New Mexico, NMPRC Case No. 12-00389. 18 19 APPEAL FROM THE NEW MEXICO PUBLIC REGULATION COMMISSION 20 21 22 The Law Office of Joseph Yar, P.C. Joseph Yar Albuquerque, NM 23 for Appellant 1 2 3 Russell R. Fisk Associate General Counsel Santa Fe, NM 4 for Appellee OPINION 1 2 VIGIL, Justice. 3 I. INTRODUCTION 4 {1} Q Link Wireless LLC (Q Link) petitioned the New Mexico Public Regulation 5 Commission (Commission) for designation as an eligible telecommunications 6 carrier (ETC). The designation would have made Q Link eligible to access certain 7 federal funds for providing telecommunications services to underserved 8 communities in New Mexico. See NMSA 1978, § 63-9H-6 (2017, amended 2021); 9 47 U.S.C. § 214(e)(1). Following lengthy and protracted proceedings before the 10 Commission’s hearing examiner, Q Link filed a motion to withdraw its petition. The 11 hearing examiner filed an Order Recommending Dismissal of Proceeding with 12 Prejudice (Recommended Decision). The recommendation was to dismiss the 13 petition and to ban Q Link from ever again filing a petition to obtain an ETC 14 designation. The Commission adopted the Recommended Decision in full. Q Link 15 appeals, and we reverse, concluding that the Commission lacks express or implied 16 statutory authority to ban Q Link from ever again seeking an ETC designation. 17 II. BACKGROUND 18 {2} In 2012, Q Link petitioned the Commission requesting an ETC designation to 19 receive low-income federal universal service support funds pursuant to the 1 Communications Act of 1934, as amended by the Telecommunications Act of 1996, 2 Pub. L. No. 104-104, 110 Stat. 56 (federal Telecommunications Act) (codified as 3 amended in scattered Sections of 47 U.S.C.). The petition was filed “solely to 4 provide Lifeline service to qualifying New Mexico households, for both tribal and 5 non-tribal areas.” Lifeline service is a service offered to “qualifying low-income 6 consumers,” allowing the consumer to pay a reduced charge for telephone or 7 broadband internet access. 47 C.F.R. § 54.401(a) (2016). The petition was assigned 8 to a hearing examiner for review and a recommendation. 9 {3} In November 2019, Q Link filed a motion to withdraw its petition for 10 designation as an ETC “without prejudice to its reapplication at some future date.” 11 More than a year later, the hearing examiner issued its Recommended Decision. The 12 Recommended Decision treated Q Link’s motion to withdraw “as a request for 13 dismissal of the proceeding without prejudice for good cause,” under 1.2.2.12(B) 14 NMAC. The Recommended Decision recited an alleged “pattern of concealment, 15 evasion, and misrepresentation . . . by Q Link” throughout the proceedings, and 16 provided that “Q Link’s repeated violations of the [h]earing [e]xaminer’s bench 17 request orders constitute sufficient cause to dismiss outright its [a]mended [p]etition 18 with prejudice.” 2 1 {4} The Recommended Decision concluded that “[t]he public interest . . . would 2 not be served by designating Q Link as an ETC in New Mexico.” The hearing 3 examiner stated, “given its recurring disrespect for Commission processes that 4 counterproductively subverted this proceeding time and again, Q Link has forfeited 5 the opportunity to a hearing before this Commission on the merits of any future 6 request for ETC designation.” The hearing examiner then wrote, “if approved by the 7 Commission, [the dismissal with prejudice] would constitute an adjudication on the 8 merits conclusively rejecting Q Link’s request for designation as an ETC in New 9 Mexico and would effectively bar Q Link from seeking such relief from this 10 Commission or its successor again.” (Footnote omitted.) 11 {5} 12 argued the Recommended Decision was improperly based upon the hearing 13 examiner’s incorrect interpretation of information and documents that were 14 irrelevant to Q Link’s motion to withdraw. Second, Q Link asserted the hearing 15 examiner considered extrajudicial information obtained through his own 16 independent factual investigation. Third, Q Link argued that adopting the 17 Recommended Decision would deprive Q Link of property rights without due 18 process. Lastly, Q Link argued that the Commission lacked the statutory authority 19 to adopt the Recommended Decision because there is no statute authorizing the Q Link raised four exceptions to the Recommended Decision. First, Q Link 3 1 Commission to dismiss the petition with prejudice and the Recommended Decision 2 did not cite any such authority. 3 {6} 4 the Recommended Decision and rejected each of Q Link’s exceptions. The 5 Commission determined that the record cast strong doubt on Q Link’s 6 trustworthiness to serve the public interest and that Q Link “sought to conceal 7 important information as to its adverse regulatory treatment in other states.” In 8 rejecting Q Link’s third and fourth exceptions, the Commission reasoned that 9 although permanently banning Q Link from seeking an ETC designation is a severe 10 sanction, the Recommended Decision presented a sufficient record to make a 11 substantive finding on the merits that designating Q Link as an ETC would not be in 12 the public interest. Finally, the Commission rejected Q Link’s request for oral 13 argument. See 1.2.2.37(D) NMAC. 14 {7} 15 each of the exceptions it made to the hearing examiner’s Recommended Decision. 16 Because it is dispositive, we address only one of Q Link’s arguments: that the 17 Commission does not have the authority to permanently ban Q Link from seeking 18 an ETC designation. The Commission adopted all of the findings of fact and conclusions of law of Q Link appeals pursuant to NMSA 1978, Section 63-9H-12 (1999), arguing 4 1 2 III. THE COMMISSION LACKS AUTHORITY TO PERMANENTLY BAN Q LINK FROM SEEKING AN ETC DESIGNATION 3 {8} Q Link argues that the Commission cannot permanently bar a corporate entity 4 from applying for an ETC designation by dismissing a petition with prejudice. Q 5 Link emphasizes that while the Commission’s regulations “permit a particular . . . 6 proceeding or complaint to be dismissed with finality as to that proceeding,” the 7 regulations “do not permit the Commission to forever bar a company from seeking 8 to conduct business” in the state. See 1.2.2.12(B) NMAC (allowing any party to 9 move to dismiss all or a portion of a proceeding). 10 {9} In response, the Commission argues it “did not exceed its statutory authority 11 by dismissing Q Link’s [p]etition with prejudice.” To support its assertion, the 12 Commission cites federal statutes which set forth the requirements the Commission 13 must take into account when evaluating an ETC petition. See 47 C.F.R. 54.101- 14 54.203 (2021); see also 47 U.S.C. § 214(e)(2) (granting state commissions authority 15 to designate ETCs if the requirements of Section 214(e)(1) are met). 16 {10} 17 capricious or an abuse of discretion; (2) not supported by substantial evidence in the 18 record; or (3) otherwise not in accordance with law.” NMSA 1978, § 63-9H-13(B) 19 (1999). On the last point, this Court considers whether the Commission’s decision 20 is “outside the scope of the agency’s authority.” Doña Ana Mut. Domestic Water This Court “shall affirm the [C]ommission’s order unless it is: (1) arbitrary, 5 1 Consumers Ass’n v. N.M. Pub. Regul. Comm’n, 2006-NMSC-032, ¶ 9, 140 N.M. 6, 2 139 P.3d 166. “Agencies are created by statute, and limited to the power and 3 authority expressly granted or necessarily implied by those statutes.” Qwest Corp. 4 v. N.M. Pub. Regul. Comm’n, 2006-NMSC-042, ¶ 20, 140 N.M. 440, 143 P.3d 478. 5 Thus, whether the Commission has the authority to permanently ban Q Link from 6 filing a petition for an ETC designation is an issue of statutory interpretation. 7 {11} 8 “Because statutory construction is outside the realm of the Commission’s expertise, 9 we afford little, if any, deference to the Commission on this matter.” Pub. Serv. Co. 10 v. N.M. Pub. Util. Comm’n, 1999-NMSC-040, ¶ 14, 128 N.M. 309, 992 P.2d 860 11 (internal quotation marks and citation omitted). It is also a well-settled principle of 12 statutory construction that the specific governs over the general. See Schultz ex rel. 13 Schultz v. Pojoaque Tribal Police Dep’t, 2010-NMSC-034, ¶ 14, 148 N.M. 692, 242 14 P.3d 259. “A statute enacted for the primary purpose of dealing with a particular 15 subject prescribing terms and conditions covering the subject matter supersedes a 16 general statute which does not refer to that subject although broad enough to cover 17 it.” Lopez ex rel. Lopez v. Barreras, 1966-NMSC-209, ¶ 12, 77 N.M. 52, 419 P.2d 18 251 (internal quotation marks and citation omitted). “Statutory interpretation is a question of law which we review de novo.” Id. 6 1 {12} With these principles in mind, this Court’s primary concern is to examine the 2 plain language of the relevant statutes and then give effect to the legislative intent. 3 See Pub. Serv. Co., 1999-NMSC-040, ¶ 18. We begin with the intersection of federal 4 and state law relating to an ETC designation. We then turn to other New Mexico 5 statutes and regulations governing telecommunication carriers. 6 {13} 7 Commission and the states to act jointly when establishing support mechanisms 8 ensuring the delivery of basic telecommunications services to consumers. 47 U.S.C. 9 §§ 254, 410. In order to preserve and advance universal service, the federal 10 Telecommunications Act requires every carrier that provides interstate 11 telecommunications services to contribute to a universal service fund. 47 U.S.C. § 12 254(d). A carrier may receive federal universal service funding to provide 13 telecommunications services if the carrier is designated as an ETC. 47 U.S.C. § 14 214(e)(1). Designation as an ETC is left to the states using federal standards. Id. § 15 214(e)(2). The federal Telecommunications Act directs that “[a] State commission 16 shall upon its own motion or upon request designate a common carrier that meets 17 [federal requirements] as an [ETC].” 47 U.S.C. § 214(e)(2) (emphasis added); see 18 also 47 C.F.R. § 54.401(d). The federal Telecommunications Act, directs the Federal Communications 7 1 {14} Article XI, Section 2 of the New Mexico Constitution provides that the 2 Commission “shall have responsibility for regulating public utilities as provided by 3 law . . . [and] may have responsibility for regulation of other public service 4 companies in such manner as the legislature shall provide.” (Emphasis added.) 5 Under its general powers and duties, “[t]he [C]ommission shall administer and 6 enforce the laws with which it is charged and has every power conferred by law.” 7 NMSA 1978, § 62-19-9(A) (2020). Further, the Commission is given the discretion 8 to “take administrative action by issuing orders not inconsistent with law to assure 9 implementation of and compliance with the provisions of law for which the 10 [C]ommission is responsible and to enforce those orders by appropriate 11 administrative action and court proceedings.” Section 62-19-9(B)(5). These 12 provisions limit the Commission to the power and authority expressly or impliedly 13 conferred by applicable statutes. The governing statute here is the Rural 14 Telecommunications Act of New Mexico (Rural Telecommunications Act), NMSA 15 1978, §§ 63-9H-1 to -14 (1999, as amended through 2021). 16 {15} 17 Telecommunications Act. Pertinent here, the Commission must implement and 18 maintain a fund, called the “‘state rural universal service fund,’” that is “financed by 19 a surcharge on intrastate retail public telecommunications services.” Section 63-9H- The Rural Telecommunications Act is the state’s counterpart to the federal 8 1 6(A), (B). The Commission is required to “establish eligibility criteria for 2 participation in the fund consistent with federal law that ensure the availability of 3 universal service at affordable rates.” Section 63-9H-6(D)(1). A carrier that desires 4 to receive support from the fund may petition the Commission for an ETC 5 designation. Section 63-9H-6(E). “[U]pon a finding that granting the [petition] is in 6 the public interest,” id., and “consistent with federal law,” § 63-9H-6(D)(1), the 7 Commission may grant the ETC designation. 8 {16} 9 63-9H-6, upon the filing of a request from a carrier for an ETC designation, the 10 Commission must evaluate whether the carrier meets the federal requirements and 11 whether an ETC designation would be in the public interest. Although Q Link did 12 not seek state funds under the Rural Telecommunications Act, the Commission’s 13 Final Order created eligibility criteria that prevent Q Link from ever receiving 14 federal or state universal service support in New Mexico. In other words, the 15 Commission made a determination that no set of circumstances would justify Q Link 16 as an ETC as long as Q Link exists as a corporation even though the reasons for the 17 Commission’s action may dissipate over time. See 18 C.J.S. Corporations § 67 18 (2018) (“Corporations continue in existence until terminated by constitutional or 19 statutory provisions, until the expiration of the corporate charter, or until legally Thus, under the plain language of 47 U.S.C. Section 214(e)(2) and Section 9 1 dissolved.”). Neither 47 U.S.C. Section 214(e)(2) nor Section 63-9H-6 authorize the 2 Commission to make such a determination. Therefore, the Commission acted outside 3 its authority. 4 {17} 5 federal or state service support in New Mexico, the hearing examiner converted Q 6 link’s motion to withdraw to a motion to dismiss and recommended dismissal with 7 prejudice to permanently bar Q Link from filing any petition in the future. Under the 8 Commission’s rules, parties to a proceeding Apart from establishing eligibility criteria that prohibit Q Link from receiving 9 10 11 12 13 may at any time move to dismiss a portion or all of a proceeding for lack of jurisdiction, failure to meet the burden of proof, failure to comply with the rules of the [C]ommission, or for other good cause shown. The presiding officer may recommend dismissal or the [C]ommission may dismiss a proceeding on [its] own motion. 14 1.2.2.12(B) NMAC. While the hearing examiner may recommend dismissal of a 15 proceeding, and the Commission has the power to dismiss a proceeding on its own 16 motion, the plain language of 1.2.2.12(B) NMAC does not evidence the power of 17 the Commission to dismiss a petition for an ETC designation with prejudice to 18 permanently bar a carrier from filing any petition in the future. Nor do we recognize 19 any such authority in the Rural Telecommunications Act. 20 {18} 21 authority allowing the Commission to dismiss Q Link’s petition with prejudice to In sum, neither the Recommended Decision nor the Final Order cite any 10 1 permanently bar Q Link from ever filing a petition in the future. This Court has not 2 found, and the Commission has not identified, any provision within federal or state 3 law that allows the Commission to dismiss an ETC petition with prejudice with this 4 consequence. We therefore conclude that the Commission did not have the authority 5 to dismiss Q Link’s petition with prejudice and bar Q Link from ever again seeking 6 designation as an ETC. 7 IV. CONCLUSION 8 {19} For the foregoing reasons, we conclude that the Final Order adopting the 9 Recommended Decision’s dismissal with prejudice is not in accordance with law 10 because it is beyond the scope of the Commission’s authority. Accordingly, we 11 vacate and annul the Commission’s Final Order and remand for further proceedings. 12 See NMSA 1978, § 62-11-5 (1982) (“The supreme court shall vacate and annul the 13 order complained of if it is made to appear to the satisfaction of the court that the 14 order is unreasonable or unlawful.”). 15 {20} IT IS SO ORDERED. 16 17 MICHAEL E. VIGIL, Justice 11 1 WE CONCUR: 2 3 C. SHANNON BACON, Chief Justice 4 5 DAVID K. THOMSON, Justice 6 7 JULIE J. VARGAS, Justice 8 9 BRIANA H. ZAMORA, Justice 12
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