Q Link Wireless LLC v. N.M. Pub. Regulation Comm’n

Office of the Director
08:35:55 2023.08.16 New Mexico
Compilation
'00'06- Commission
2020.005.30514
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2023-NMSC-012

Filing Date: May 22, 2023

No. S-1-SC-38812

Q LINK WIRELESS LLC,

Appellant,

v.

NEW MEXICO PUBLIC REGULATION
COMMISSION,

Appellee.

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.

APPEAL FROM THE NEW MEXICO PUBLIC REGULATION
COMMISSION

The Law Office of Joseph Yar, P.C.
Joseph Yar
Albuquerque, NM

for Appellant

Russell R. Fisk
Associate General Counsel
Santa Fe, NM

for Appellee

OPINION

VIGIL, Justice.
I. INTRODUCTION

{1} Q Link Wireless LLC (Q Link) petitioned the New Mexico Public Regulation
Commission (Commission) for designation as an eligible telecommunications carrier
(ETC). The designation would have made Q Link eligible to access certain federal funds
for providing telecommunications services to underserved communities in New Mexico.
See NMSA 1978, § 63-9H-6 (2017, amended 2021); 47 U.S.C. § 214(e)(1). Following
lengthy and protracted proceedings before the Commission’s hearing examiner, Q Link
filed a motion to withdraw its petition. The hearing examiner filed an Order
Recommending Dismissal of Proceeding with Prejudice (Recommended Decision). The
recommendation was to dismiss the petition and to ban Q Link from ever again filing a
petition to obtain an ETC designation. The Commission adopted the Recommended
Decision in full. Q Link appeals, and we reverse, concluding that the Commission lacks
express or implied statutory authority to ban Q Link from ever again seeking an ETC
designation.

II. BACKGROUND

{2} In 2012, Q Link petitioned the Commission requesting an ETC designation to
receive low-income federal universal service support funds pursuant to the
Communications Act of 1934, as amended by the Telecommunications Act of 1996,
Pub. L. No. 104-104, 110 Stat. 56 (federal Telecommunications Act) (codified as
amended in scattered Sections of 47 U.S.C.). The petition was filed “solely to provide
Lifeline service to qualifying New Mexico households, for both tribal and non-tribal
areas.” Lifeline service is a service offered to “qualifying low-income consumers,”
allowing the consumer to pay a reduced charge for telephone or broadband internet
access. 47 C.F.R. § 54.401(a) (2016). The petition was assigned to a hearing examiner
for review and a recommendation.

{3} In November 2019, Q Link filed a motion to withdraw its petition for designation
as an ETC “without prejudice to its reapplication at some future date.” More than a year
later, the hearing examiner issued its Recommended Decision. The Recommended
Decision treated Q Link’s motion to withdraw “as a request for dismissal of the
proceeding without prejudice for good cause,” under 1.2.2.12(B) NMAC. The
Recommended Decision recited an alleged “pattern of concealment, evasion, and
misrepresentation . . . by Q Link” throughout the proceedings, and provided that “Q
Link’s repeated violations of the [h]earing [e]xaminer’s bench request orders constitute
sufficient cause to dismiss outright its [a]mended [p]etition with prejudice.”

{4} The Recommended Decision concluded that “[t]he public interest . . . would not
be served by designating Q Link as an ETC in New Mexico.” The hearing examiner
stated, “given its recurring disrespect for Commission processes that
counterproductively subverted this proceeding time and again, Q Link has forfeited the
opportunity to a hearing before this Commission on the merits of any future request for
ETC designation.” The hearing examiner then wrote, “if approved by the Commission,
[the dismissal with prejudice] would constitute an adjudication on the merits conclusively
rejecting Q Link’s request for designation as an ETC in New Mexico and would
effectively bar Q Link from seeking such relief from this Commission or its successor
again.” (Footnote omitted.)

{5} Q Link raised four exceptions to the Recommended Decision. First, Q Link
argued the Recommended Decision was improperly based upon the hearing examiner’s
incorrect interpretation of information and documents that were irrelevant to Q Link’s
motion to withdraw. Second, Q Link asserted the hearing examiner considered
extrajudicial information obtained through his own independent factual investigation.
Third, Q Link argued that adopting the Recommended Decision would deprive Q Link of
property rights without due process. Lastly, Q Link argued that the Commission lacked
the statutory authority to adopt the Recommended Decision because there is no statute
authorizing the Commission to dismiss the petition with prejudice and the
Recommended Decision did not cite any such authority.

{6} The Commission adopted all of the findings of fact and conclusions of law of the
Recommended Decision and rejected each of Q Link’s exceptions. The Commission
determined that the record cast strong doubt on Q Link’s trustworthiness to serve the
public interest and that Q Link “sought to conceal important information as to its adverse
regulatory treatment in other states.” In rejecting Q Link’s third and fourth exceptions,
the Commission reasoned that although permanently banning Q Link from seeking an
ETC designation is a severe sanction, the Recommended Decision presented a
sufficient record to make a substantive finding on the merits that designating Q Link as
an ETC would not be in the public interest. Finally, the Commission rejected Q Link’s
request for oral argument. See 1.2.2.37(D) NMAC.

{7} Q Link appeals pursuant to NMSA 1978, Section 63-9H-12 (1999), arguing each
of the exceptions it made to the hearing examiner’s Recommended Decision. Because
it is dispositive, we address only one of Q Link’s arguments: that the Commission does
not have the authority to permanently ban Q Link from seeking an ETC designation.

III. THE COMMISSION LACKS AUTHORITY TO PERMANENTLY BAN Q LINK
FROM SEEKING AN ETC DESIGNATION

{8} Q Link argues that the Commission cannot permanently bar a corporate entity
from applying for an ETC designation by dismissing a petition with prejudice. Q Link
emphasizes that while the Commission’s regulations “permit a particular . . . proceeding
or complaint to be dismissed with finality as to that proceeding,” the regulations “do not
permit the Commission to forever bar a company from seeking to conduct business” in
the state. See 1.2.2.12(B) NMAC (allowing any party to move to dismiss all or a portion
of a proceeding).

{9} In response, the Commission argues it “did not exceed its statutory authority by
dismissing Q Link’s [p]etition with prejudice.” To support its assertion, the Commission
cites federal statutes which set forth the requirements the Commission must take into
account when evaluating an ETC petition. See 47 C.F.R. 54.101-54.203 (2021); see
also 47 U.S.C. § 214(e)(2) (granting state commissions authority to designate ETCs if
the requirements of Section 214(e)(1) are met).
{10} This Court “shall affirm the [C]ommission’s order unless it is: (1) arbitrary,
capricious or an abuse of discretion; (2) not supported by substantial evidence in the
record; or (3) otherwise not in accordance with law.” NMSA 1978, § 63-9H-13(B) (1999).
On the last point, this Court considers whether the Commission’s decision is “outside
the scope of the agency’s authority.” Doña Ana Mut. Domestic Water Consumers Ass’n
v. N.M. Pub. Regul. Comm’n, 2006-NMSC-032, ¶ 9, 140 N.M. 6, 139 P.3d 166.
“Agencies are created by statute, and limited to the power and authority expressly
granted or necessarily implied by those statutes.” Qwest Corp. v. N.M. Pub. Regul.
Comm’n, 2006-NMSC-042, ¶ 20, 140 N.M. 440, 143 P.3d 478. Thus, whether the
Commission has the authority to permanently ban Q Link from filing a petition for an
ETC designation is an issue of statutory interpretation.

{11} “Statutory interpretation is a question of law which we review de novo.” Id.
“Because statutory construction is outside the realm of the Commission’s expertise, we
afford little, if any, deference to the Commission on this matter.” Pub. Serv. Co. v. N.M.
Pub. Util. Comm’n, 1999-NMSC-040, ¶ 14, 128 N.M. 309, 992 P.2d 860 (internal
quotation marks and citation omitted). It is also a well-settled principle of statutory
construction that the specific governs over the general. See Schultz ex rel. Schultz v.
Pojoaque Tribal Police Dep’t, 2010-NMSC-034, ¶ 14, 148 N.M. 692, 242 P.3d 259. “A
statute enacted for the primary purpose of dealing with a particular subject prescribing
terms and conditions covering the subject matter supersedes a general statute which
does not refer to that subject although broad enough to cover it.” Lopez ex rel. Lopez v.
Barreras, 1966-NMSC-209, ¶ 12, 77 N.M. 52, 419 P.2d 251 (internal quotation marks
and citation omitted).

{12} With these principles in mind, this Court’s primary concern is to examine the plain
language of the relevant statutes and then give effect to the legislative intent. See Pub.
Serv. Co., 1999-NMSC-040, ¶ 18. We begin with the intersection of federal and state
law relating to an ETC designation. We then turn to other New Mexico statutes and
regulations governing telecommunication carriers.

{13} The federal Telecommunications Act, directs the Federal Communications
Commission and the states to act jointly when establishing support mechanisms
ensuring the delivery of basic telecommunications services to consumers. 47 U.S.C. §§
254, 410. In order to preserve and advance universal service, the federal
Telecommunications Act requires every carrier that provides interstate
telecommunications services to contribute to a universal service fund. 47 U.S.C. §
254(d). A carrier may receive federal universal service funding to provide
telecommunications services if the carrier is designated as an ETC. 47 U.S.C. §
214(e)(1). Designation as an ETC is left to the states using federal standards. Id. §
214(e)(2). The federal Telecommunications Act directs that “[a] State commission shall
upon its own motion or upon request designate a common carrier that meets [federal
requirements] as an [ETC].” 47 U.S.C. § 214(e)(2) (emphasis added); see also 47
C.F.R. § 54.401(d).

{14} Article XI, Section 2 of the New Mexico Constitution provides that the
Commission “shall have responsibility for regulating public utilities as provided by law
. . . [and] may have responsibility for regulation of other public service companies in
such manner as the legislature shall provide.” (Emphasis added.) Under its general
powers and duties, “[t]he [C]ommission shall administer and enforce the laws with which
it is charged and has every power conferred by law.” NMSA 1978, § 62-19-9(A) (2020).
Further, the Commission is given the discretion to “take administrative action by issuing
orders not inconsistent with law to assure implementation of and compliance with the
provisions of law for which the [C]ommission is responsible and to enforce those orders
by appropriate administrative action and court proceedings.” Section 62-19-9(B)(5).
These provisions limit the Commission to the power and authority expressly or impliedly
conferred by applicable statutes. The governing statute here is the Rural
Telecommunications Act of New Mexico (Rural Telecommunications Act), NMSA 1978,
§§ 63-9H-1 to -14 (1999, as amended through 2021).

{15} The Rural Telecommunications Act is the state’s counterpart to the federal
Telecommunications Act. Pertinent here, the Commission must implement and maintain
a fund, called the “‘state rural universal service fund,’” that is “financed by a surcharge
on intrastate retail public telecommunications services.” Section 63-9H-6(A), (B). The
Commission is required to “establish eligibility criteria for participation in the fund
consistent with federal law that ensure the availability of universal service at affordable
rates.” Section 63-9H-6(D)(1). A carrier that desires to receive support from the fund
may petition the Commission for an ETC designation. Section 63-9H-6(E). “[U]pon a
finding that granting the [petition] is in the public interest,” id., and “consistent with
federal law,” § 63-9H-6(D)(1), the Commission may grant the ETC designation.

{16} Thus, under the plain language of 47 U.S.C. Section 214(e)(2) and Section 63-
9H-6, upon the filing of a request from a carrier for an ETC designation, the Commission
must evaluate whether the carrier meets the federal requirements and whether an ETC
designation would be in the public interest. Although Q Link did not seek state funds
under the Rural Telecommunications Act, the Commission’s Final Order created
eligibility criteria that prevent Q Link from ever receiving federal or state universal
service support in New Mexico. In other words, the Commission made a determination
that no set of circumstances would justify Q Link as an ETC as long as Q Link exists as
a corporation even though the reasons for the Commission’s action may dissipate over
time. See 18 C.J.S. Corporations § 67 (2018) (“Corporations continue in existence until
terminated by constitutional or statutory provisions, until the expiration of the corporate
charter, or until legally dissolved.”). Neither 47 U.S.C. Section 214(e)(2) nor Section 63-
9H-6 authorize the Commission to make such a determination. Therefore, the
Commission acted outside its authority.

{17} Apart from establishing eligibility criteria that prohibit Q Link from receiving
federal or state service support in New Mexico, the hearing examiner converted Q link’s
motion to withdraw to a motion to dismiss and recommended dismissal with prejudice to
permanently bar Q Link from filing any petition in the future. Under the Commission’s
rules, parties to a proceeding

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.

1.2.2.12(B) NMAC. While the hearing examiner may recommend dismissal of a
proceeding, and the Commission has the power to dismiss a proceeding on its own
motion, the plain language of 1.2.2.12(B) NMAC does not evidence the power of the
Commission to dismiss a petition for an ETC designation with prejudice to permanently
bar a carrier from filing any petition in the future. Nor do we recognize any such
authority in the Rural Telecommunications Act.

{18} In sum, neither the Recommended Decision nor the Final Order cite any authority
allowing the Commission to dismiss Q Link’s petition with prejudice to permanently bar
Q Link from ever filing a petition in the future. This Court has not found, and the
Commission has not identified, any provision within federal or state law that allows the
Commission to dismiss an ETC petition with prejudice with this consequence. We
therefore conclude that the Commission did not have the authority to dismiss Q Link’s
petition with prejudice and bar Q Link from ever again seeking designation as an ETC.

IV. CONCLUSION

{19} For the foregoing reasons, we conclude that the Final Order adopting the
Recommended Decision’s dismissal with prejudice is not in accordance with law
because it is beyond the scope of the Commission’s authority. Accordingly, we vacate
and annul the Commission’s Final Order and remand for further proceedings. See
NMSA 1978, § 62-11-5 (1982) (“The supreme court shall vacate and annul the order
complained of if it is made to appear to the satisfaction of the court that the order is
unreasonable or unlawful.”).

{20} IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

C. SHANNON BACON, Chief Justice

DAVID K. THOMSON, Justice

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice