[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1618 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 1618

 To amend the Communications Act of 1934 to improve the protection of 
consumers against ``slamming'' by telecommunications carriers, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            February 9, 1998

Mr. McCain (for himself, Mr. Hollings, Ms. Snowe, Mr. Frist, Mr. Reed, 
and Mr. Bryan) introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
 To amend the Communications Act of 1934 to improve the protection of 
consumers against ``slamming'' by telecommunications carriers, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. IMPROVED PROTECTION FOR CONSUMERS AGAINST ``SLAMMING'' BY 
              TELECOMMUNICATIONS CARRIERS.

    (a) Verification of Authorization.--Subsection (a) of section 258 
of the Communications Act of 1934 (47 U.S.C. 258) is amended to read as 
follows:
    ``(a) Prohibition.--
            ``(1) In general.--No telecommunications carrier shall 
        submit or execute a change in a subscriber's selection of a 
        provider of telephone exchange service or telephone toll 
        service except in accordance with this section and such 
        verification procedures as the Commission shall prescribe.
            ``(2) Verification.--
                    ``(A) In general.--In order to verify a 
                subscriber's selection of a telephone exchange service 
                or telephone toll service provider under this section, 
                the telecommunications carrier shall, at a minimum, 
                require the subscriber--
                            ``(i) to acknowledge the type of service to 
                        be changed as a result of the selection;
                            ``(ii) to affirm the subscriber's intent to 
                        select the provider as the provider of that 
                        service;
                            ``(iii) to affirm that the subscriber is 
                        authorized to select the provider of that 
                        service for the telephone number in question;
                            ``(iv) to acknowledge that the selection of 
                        the provider will result in a change in 
                        providers of that service;
                            ``(v) to acknowledge that the individual 
                        making the oral communication is the 
                        subscriber; and
                            ``(vi) to provide such other information as 
                        the Commission considers appropriate for the 
                        protection of the subscriber.
                    ``(B) Additional requirements.--The procedures 
                prescribed by the Commission to verify a subscriber's 
                selection of a provider shall--
                            ``(i) preclude the use of negative option 
                        marketing;
                            ``(ii) provide for verification of a change 
                        in telephone exchange service or telephone toll 
                        service provider in oral, written, or 
                        electronic form; and
                            ``(iii) require the retention of such 
                        verification in such manner and form and for 
                        such time as the Commission considers 
                        appropriate.
            ``(3) Intrastate services.--Nothing in this section shall 
        preclude any State commission from enforcing such procedures 
        with respect to intrastate services.
            ``(4) Section not to apply to wireless.--This section does 
        not apply to a provider of commercial mobile service, as that 
        term is defined in section 332(d)(1) of this Act.''.
    (b) Resolution of Complaints.--Section 258 of the Communications 
Act of 1934 (47 U.S.C. 258) is amended by adding at the end thereof the 
following:
    ``(c) Notice to Subscriber.--Whenever there is a change in a 
subscriber's selection of a provider of telephone exchange service or 
telephone toll service, the telecommunications carrier selected shall 
notify the subscriber in writing, not more than 15 days after the 
change is executed, of the change, the date on which the change was 
effected, and the name of the individual who authorized the change.
    ``(d) Resolution of Complaints.--
            ``(1) Prompt resolution.--
                    ``(A) In general.--The Commission shall prescribe a 
                period of time, not in excess of 120 days, for a 
                telecommunications carrier to resolve a complaint by a 
                subscriber concerning an unauthorized change in the 
                subscriber's selection of a provider of telephone 
                exchange service or telephone toll service.
                    ``(B) Unresolved complaints.--If a 
                telecommunications carrier fails to resolve a complaint 
                within the time period prescribed by the Commission, 
                then, within 10 days after the end of that period, the 
                telecommunications carrier shall--
                            ``(i) notify the subscriber in writing of 
                        the subscriber's right to file a complaint with 
                        the Commission concerning the unresolved 
                        complaint, the subscriber's rights under this 
                        section, and all other remedies available to 
                        the subscriber concerning unauthorized changes;
                            ``(ii) inform the subscriber in writing of 
                        the procedures prescribed by the Commission for 
                        filing such a complaint; and
                            ``(iii) provide the subscriber a copy of 
                        any evidence in the carrier's possession 
                        showing that the change in the subscriber's 
                        provider of telephone exchange service or 
                        telephone toll service was submitted or execute 
                        in accordance with the verification procedures 
                        prescribed under subsection (a).
            ``(2) Resolution by commission.--The Commission shall 
        provide a simplified process for resolving complaints under 
        paragraph (1)(B). The simplified procedure shall preclude the 
        use of interrogatories, depositions, discovery, or other 
        procedural techniques that might unduly increase the expense, 
        formality, and time, involved in the process. The Commission 
        shall issue an order resolving any such complain at the 
        earliest date practicable, but in no event later than--
                    ``(A) 150 days after the date on which it received 
                the complaint, with respect to liability issues; and
                    ``(B) 90 days after the date on which it resolves a 
                complaint, with respect to damages issues, if such 
                additional time is necessary.
            ``(3) Damages awarded by commission.--In resolving a 
        complaint under paragraph (1)(B), the Commission may award 
        damages equal to the greater of $500 or the amount of actual 
        damages. The Commission may, in its discretion, increase the 
        amount of the award to an amount equal to not more than 3 times 
        the amount available under the preceding sentence.
    ``(e) Penalty.--
            ``(1) In general.--Unless the Commission determines that 
        there are mitigating circumstances, violation of subsection (a) 
is punishable by a fine of not less than $40,000 for the first offense, 
and not less than $150,000 for each subsequent offense.
            ``(2) Failure to notify treated as violation of subsection 
        (a).--If a telecommunications carrier fails to comply with the 
        requirements of subsection (d)(1)(B), then that failure shall 
        be treated as a violation of subsection (a).
    ``(f) Recovery of Fines.--The Commission may take such action as 
may be necessary--
            ``(1) to collect any fines it imposes under this section; 
        and
            ``(2) on behalf of any subscriber, any damages awarded the 
        subscriber under this section.''.
    (c) State Right-of-Action.--Section 258 of the Communications Act 
of 1934 (47 U.S.C. 258), as amended by subsection (b), is amended by 
adding at the end thereof the following:
    ``(g) Actions by States.--
            ``(1) Authority of states.--Whenever the attorney general 
        of a State, or an official or agency designated by a State, has 
        reason to believe that a telecommunications carrier has engaged 
        or is engaging in a pattern or practice of changing telephone 
        exchange service or telephone toll service provider without 
        authority from subscribers in that State in violation of this 
        section or the regulations prescribed under this section, the 
        State may bring a civil action on behalf of its residents to 
        enjoin such unauthorized changes, an action to recover for 
        actual monetary loss or receive $500 in damages for each 
        violation, or both such actions. If the court finds the 
        defendant willfully or knowingly violated such regulations, the 
        court may, in its discretion, increase the amount of the award 
        to an amount equal to not more than 3 times the amount 
        available under the preceding sentence.
            ``(2) Exclusive jurisdiction of federal courts.--The 
        district courts of the United States, the United States courts 
        of any territory, and the District Court of the United States 
        for the District of Columbia shall have exclusive jurisdiction 
        over all civil actions brought under this subsection. Upon 
        proper application, such courts shall also have jurisdiction to 
        issue writs of mandamus, or orders affording like relief, 
        commanding the defendant to comply with the provisions of this 
        section or regulations prescribed under this section, including 
        the requirement that the defendant take such action as is 
        necessary to remove the danger of such violation. Upon a proper 
        showing, a permanent or temporary injunction or restraining 
        order shall be granted without bond.
            ``(3) Rights of commission.--The State shall serve prior 
        written notice of any such civil action upon the Commission and 
        provide the Commission with a copy of its complaint, except in 
        any case where such prior notice is not feasible, in which case 
        the State shall serve such notice immediately upon instituting 
        such action. The Commission shall have the right--
                    ``(A) to intervene in the action;
                    ``(B) upon so intervening, to be heard on all 
                matters arising therein; and
                    ``(C) to file petitions for appeal.
            ``(4) Venue; service of process.--Any civil action brought 
        under this subsection in a district court of the United States 
        may be brought in the district wherein the defendant is found 
        or is any inhabitant or transacts business or wherein the 
        violation occurred or is occurring, and process in such cases 
        may be served in any district in which the defendant is an 
        inhabitant or where the defendant may be found.
            ``(5) Investigatory powers.--For purposes of bringing any 
        civil action under this subsection, nothing in this section 
shall prevent the attorney general of a State, or an official or agency 
designated by a State, from exercising the powers conferred on the 
attorney general or such official by the laws of such State to conduct 
investigations or to administer oaths or affirmations or to compel the 
attendance of witnesses or the production of documentary and other 
evidence.
            ``(6) Effect on state court proceedings.--Nothing contained 
        in this subsection shall be construed to prohibit an authorized 
        State official from proceeding in State court on the basis of 
        an alleged violation of any general civil or criminal statute 
        of such State.
            ``(7) Limitation.--Whenever the Commission has instituted a 
        civil action for violation of regulations prescribed under this 
        section, no State may, during the pendency of such action 
        instituted by the Commission, subsequently institute a civil 
        action against any defendant named in the Commission's 
        complaint for any violation as alleged in the Commission's 
        complaint.
            ``(8) Definition.--As used in this subsection, the term 
        `attorney general' means the chief legal officer of a State.
    ``(h) State Law Not Preempted.--Nothing in this section or in the 
regulations prescribed under this section shall preempt any State law 
that imposes more restrictive intrastate requirements or regulations 
on, or which prohibits unauthorized changes in, a subscriber's 
selection of a provider of telephone exchange service or telephone toll 
service.''.

SEC. 2. REPORT ON TELEMARKETING PRACTICES.

    (a) In General.--The Federal Communications Commission shall issue 
a report within 180 days after the date of enactment of this Act on the 
telemarketing practices used by telecommunications carriers or their 
agents or employees for the purpose of soliciting changes by 
subscribers of their telephone exchange service or telephone toll 
service provider.
    (b) Specific Issues.--As part of the report required under 
subsection (a), the Commission shall include findings on--
            (1) the extent to which imposing penalties on telemarketers 
        would deter unauthorized changes in a subscriber's selection of 
        a provider of telephone exchange service or telephone toll 
        service;
            (2) the need for rules requiring third-party verification 
        of changes in a subscriber's selection of such a provider; and
            (3) whether wireless carriers should continue to be exempt 
        from the verification and retention requirements imposed by 
        section 258(a)(2)(B)(iii) of the Communications Act of 1934 (47 
        U.S.C. 258(a)(2)(B)(iii)).
    (c) Rulemaking.--If the Commission determines that particular 
telemarketing practices are being used with the intention to mislead, 
deceive, or confuse subscribers and that they are likely to mislead, 
deceive, or confuse subscribers, then the Commission shall initiate a 
rulemaking to prohibit the use of such practices within 120 days after 
the completion of its report.
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