7-59-312 - Personal claims Findings of noncompliance Civil penalties Revocation of certificate.
7-59-312. Personal claims Findings of noncompliance Civil penalties Revocation of certificate.
(a) Individuals possess standing to bring claims as established in this part only for personal claims and not on behalf of other individuals. A municipality or county possesses standing to pursue claims on behalf of citizens residing within the county or municipality. In addition to all other remedies available under the law, upon receipt of a complaint from an individual, or upon receipt of a complaint brought by a municipality or county alleging a violation of § 7-59-311(a) or (b) concerning nondiscrimination and deployment of services, § 7-59-304(a)(1) requiring a franchise, § 7-59-305(c)(8) and (10) concerning notice requirements, § 7-59-305(h) concerning terminations of franchises, § 7-59-305(i) concerning amendments to state-issued certificates of franchise authority, § 7-59-309 concerning public, educational and governmental access channels, and § 7-59-313 concerning minority owned business participation plans by a holder of a state-issued certificate of franchise authority, the department shall investigate the complaint and make a determination as to whether a violation has occurred. Except as expressly provided by this section or other specific provisions of this part, the department has no authority to regulate cable or video service provided by a holder of a state-issued certificate of franchise authority in this state, including, but not limited to, the rates, terms, or conditions of that service, and except to the extent that complaint authority is explicitly provided for in this section, the department has no general complaint authority to hear matters related to cable or video service or franchising.
(b) Upon receipt of the complaint, except as otherwise provided by this part, the department shall serve a copy of the complaint on the subject holder of a state-issued certificate of franchise authority who shall have thirty (30) days after receipt to submit a written response and any other relevant information the holder wishes to submit in response to the complaint.
(c) Upon a finding by the department that a violation of § 7-59-311(a) has occurred, the holder of a state-issued certificate of franchise authority shall have a reasonable period of time, as determined by the department, to cure the noncompliance. If the holder of a state-issued certificate of franchise authority fails to cure within the specified time as determined by the department, the department may assess a civil penalty of not more than five thousand dollars ($5,000) for each such violation or noncompliance. For purposes of this section, discrimination against each individual member of a group constitutes a separate violation and is subject to a separate penalty as set forth in this section.
(d) (1) Upon a finding by the department that a violation of any provision enumerated in subsection (a), other than a violation of § 7-59-311(a) or (b) or a violation of § 7-59-313, has occurred, the holder of a state-issued certificate of franchise authority shall have a reasonable period of time, as determined by the department, to cure the noncompliance. If the holder of a state-issued certificate of franchise authority fails to cure within the specified time as determined by the department, the department may assess a civil penalty of not more than one thousand dollars ($1,000) for each day of the violation or noncompliance, not to exceed a total of ten thousand dollars ($10,000), counting all subscribers as a single violation or act of noncompliance; provided, however, that if the violation or noncompliance arises from the failure of the holder to meet the requirements of § 7-59-311(b), then the department may assess a civil penalty of not more than ten thousand dollars ($10,000) for each day of the violation or noncompliance, not to exceed a total of two million dollars ($2,000,000).
(2) Upon a finding by the department that a violation of § 7-59-313 has occurred, the holder of a state-issued certificate of franchise authority shall have a reasonable period of time, as determined by the department, to cure the noncompliance. If the holder of a state-issued certificate of franchise authority fails to cure within the specified time as determined by the department, the department may assess a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000), per violation.
(e) In determining whether a civil penalty is appropriate, the department shall consider all of the following factors:
(1) The seriousness of the noncompliance;
(2) The good faith efforts of the holder to comply;
(3) The holder's history of noncompliance;
(4) The financial resources of the holder; and
(5) Any other circumstances as determined by the department.
(f) The department may revoke, in whole or in part, a state-issued certificate of franchise authority if the department finds that a holder has acted in bad faith by repeatedly and knowingly failing to comply with a final department order requiring it to remedy violations of and noncompliance with § 7-59-311(a) and (b). A determination to revoke a state-issued certificate of franchise authority shall take into account each of the factors enumerated in subdivisions (e)(1)-(5).
(g) Imposition of any civil penalty or a determination to revoke a franchise may be appealed by the holder within forty-five (45) days of the issuance of the penalty. Appeals shall be filed in any court of competent jurisdiction, which shall review the underlying decision de novo. The filing of an appeal shall not automatically stay a monetary penalty or order to cure, but an appeal shall automatically stay any order of revocation. Upon a showing of cure after the imposition of any penalty or revocation, the department may, but is not required to, reduce the penalty or rescind the revocation.
(h) Any penalties assessed under subsections (c) or (d) shall be paid to the state treasurer for deposit into the Tennessee broadband deployment fund, created pursuant to § 7-59-315.
[Acts 2008, ch. 932, § 13.]