[Congressional Record Volume 144, Number 59 (Tuesday, May 12, 1998)]
[Senate]
[Pages S4733-S4738]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     COMMUNICATIONS ACT AMENDMENTS

                                 ______
                                 

                McCAIN (AND HOLLINGS) AMENDMENT NO. 2389

  Mr. McCAIN (for himself and Mr. Hollings) proposed an amendment to 
the bill (S. 1618) to amend the Communications Act of 1934 to improve 
the protection of consumers against ``slamming'' by telecommunications 
carriers, and for other purposes; as follows:

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Anti-slamming Amendment 
     Act''.

                           TITLE I--SLAMMING

     SEC. 101. IMPROVED PROTECTION FOR CONSUMERS.

       (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 or 
     reseller of telecommunications services 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 or reseller shall, at a minimum, require the 
     subscriber--
       ``(i) to affirm that the subscriber is authorized to select 
     the provider of that service for the telephone number in 
     question;
       ``(ii) to acknowledge the type of service to be changed as 
     a result of the selection;
       ``(iii) to affirm the subscriber's intent to select the 
     provider as the provider of that service;
       ``(iv) to acknowledge that the selection of the provider 
     will result in a change in providers of that service; and
       ``(v) 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 a complete copy of verification of a 
     change in telephone exchange service or telephone toll 
     service provider in oral, written, or electronic form;
       ``(iii) require the retention of such verification in such 
     manner and form and for such time as the Commission considers 
     appropriate;
       ``(iv) mandate that verification occur in the same language 
     as that in which the change was solicited; and
       ``(v) provide for verification to be made available to a 
     subscriber on request.
       ``(3) Action by unaffiliated reseller not imputed to 
     carrier.--No telecommunications carrier may be found to be in 
     violation of this section solely on the basis of a violation 
     of this section by an unaffiliated reseller of that carrier's 
     services or facilities.
       ``(4) Freeze option protected.--The Commission may not take 
     action under this section to limit or inhibit a subscriber's 
     ability to require that any change in the subscriber's choice 
     of a provider of interexchange service not be effected unless 
     the change is expressly and directly communicated by the 
     subscriber to the subscriber's existing telephone exchange 
     service provider.
       ``(5) Application to wireless.--This section does not apply 
     to a provider of commercial mobile service.''.
       (b) Liability for Charges.--Subsection (b) of such section 
     is amended--
       (1) by striking ``(b) Liability for Charges.--Any 
     telecommunications carrier'' and inserting the following:
       ``(b) Liability for Charges.--
       ``(1) In general.--Any telecommunications carrier or 
     reseller of telecommunications services'';
       (2) by designating the second sentence as paragraph (3) and 
     inserting at the beginning of such paragraph, as so 
     designated, the following:
       ``(3) Construction of remedies.--''; and
       (3) by inserting after paragraph (1), as designated by 
     paragraph (1) of this subsection, the following:
       ``(2) Subscriber payment option.--
       ``(A) In general.--A subscriber whose telephone exchange 
     service or telephone toll service is changed in violation of 
     the provisions of this section, or the procedures prescribed 
     under subsection (a), may elect to pay the carrier or 
     reseller previously selected by the subscriber for any such 
     service received after the change in full satisfaction of 
     amounts due from the subscriber to the carrier or reseller 
     providing such service after the change.
       ``(B) Payment rate.--Payment for service under subparagraph 
     (A) shall be at the rate for such service charged by the 
     carrier or reseller previously selected by the subscriber 
     concerned.''.
       (c) 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 or reseller shall notify the subscriber in a specific 
     and unambiguous writing, not more than 15 days after the 
     change is processed by the telecommunications carrier or the 
     reseller--
       ``(1) of the subscriber's new carrier or reseller; and
       ``(2) that the subscriber may request information regarding 
     the date on which the change was agreed to 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 for a telecommunications carrier or reseller 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 not in excess of 120 days after the 
     telecommunications carrier or reseller receives notice from 
     the subscriber of the complaint. A subscriber may at any time 
     pursue such a complaint with the Commission, in a State or 
     local administrative or judicial body, or elsewhere.
       ``(B) Unresolved complaints.--If a telecommunication 
     carrier or reseller fails to resolve a complaint within the 
     time period prescribed by the Commission, then, within 10 
     days after the end of that period, the telecommunication 
     carrier or reseller shall--
       ``(i) notify the subscriber in writing of the subscriber's 
     right to file a complaint with the Commission and of the 
     subscriber's rights and remedies under this section;
       ``(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 or reseller's possession showing that the 
     change in the subscriber's provider of telephone exchange 
     service or telephone toll service was submitted or executed 
     in accordance with the verification procedures prescribed 
     under subsection (a).
       ``(2) Resolution by commission.--
       ``(A) Determination of violation.--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.

[[Page S4734]]

     The Commission shall determine whether there has been a 
     violation of subsection (a) and shall issue a decision or 
     ruling at the earliest date practicable, but in no event 
     later than 150 days after the date on which it received the 
     complaint.
       ``(B) Determination of damages and penalties.--If the 
     Commission determines that there has been a violation of 
     subsection (a), it shall issue a decision or ruling 
     determining the amount of the damages and penalties at the 
     earliest practicable date, but in no event later than 90 days 
     after the date on which it issued its decision or ruling 
     under subparagraph (A).
       ``(3) Damages awarded by Commission.--If a violation of 
     subsection (a) is found by the Commission, the Commission may 
     award damages equal to the greater of $500 or the amount of 
     actual damages for each violation. 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) Disqualification and Reinstatement.--
       ``(1) Disqualification from certain activities based on 
     conviction.--
       ``(A) Disqualification of persons.--Subject to subparagraph 
     (C), any person convicted under section 2328 of title 18, 
     United States Code, in addition to any fines or imprisonment 
     under that section, may not carry out any activities covered 
     by section 214.
       ``(B) Disqualification of companies.--Subject to 
     subparagraph (C), any company substantially controlled by a 
     person convicted under section 2328 of title 18, United 
     States Code, in addition to any fines or imprisonment under 
     that section, may not carry out any activities covered by 
     section 214.
       ``(C) Reinstatement.--
       ``(i) In general.--The Commission may terminate the 
     application of subparagraph (A) to a person, or subparagraph 
     (B) to a company, if the Commission determines that the 
     termination would be in the public interest.
       ``(ii) Effective date.--The termination of the 
     applicability of subparagraph (A) to a person, or 
     subparagraph (B) to a company, under clause (i) may not take 
     effect earlier than 5 years after the date on which the 
     applicable subparagraph applied to the person or company 
     concerned.
       ``(2) Certification requirement.--Any person described in 
     subparagraph (A) of paragraph (1), or company described in 
     subparagraph (B) of that paragraph, not reinstated under 
     subparagraph (C) of that paragraph shall include with any 
     application to the Commission under section 214 a 
     certification that the person or company, as the case may be, 
     is described in paragraph (1)(A) or (B), as the case may be.
       ``(f) Civil Penalties.--
       ``(1) In general.--Unless the Commission determines that 
     there are mitigating circumstances, violation of subsection 
     (a) is punishable by a forfeiture 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 or reseller fails to 
     comply with the requirements of subsection (d)(1)(B), then 
     that failure shall be treated as a violation of subsection 
     (a).
       ``(g) Recovery of forfeitures.--The Commission may take 
     such action as may be necessary--
       ``(1) to collect any forfeitures it imposes under this 
     section; and
       ``(2) on behalf of any subscriber, to collect any damages 
     awarded the subscriber under this section.
       ``(h) Change Includes Initial Selection.--For purposes of 
     this section, the initiation of service to a subscriber by a 
     telecommunications carrier or a reseller shall be treated as 
     a change in a subscriber's selection of a provider of 
     telephone exchange service or telephone toll service.''.
       (d) Criminal Penalty.--
       (1) In general.--Chapter 113A of title 18, United States 
     Code, is amended by adding at the end thereof the following:

     Sec. 2328. Slamming

       ``Any person who submits or executes a change in a provider 
     of telephone exchange service or telephone toll service not 
     authorized by the subscriber in willful violation of the 
     provisions of section 258 of the Communications Act of 1934 
     (47 U.S.C. 258), or the procedures prescribed under section 
     258(a) of that Act--
       ``(A) shall be fined in accordance with this title, 
     imprisoned not more than 1 year, or both; but
       ``(B) if previously convicted under this paragraph at the 
     time of a subsequent offense, shall be fined in accordance 
     with this title, imprisoned not more than 5 years, or both, 
     for such subsequent offense.''.
       ``(2) Conforming amendment.--The chapter analysis for 
     chapter 113A of title 18, United States Code, is amended by 
     adding at the end thereof the following:

``2328. Slamming''.

       ``(e) State Right-of-Action.--Section 258 of the 
     Communications Act of 1934 (47 U.S.C. 258), as amended by 
     subsection (c), is amended by adding at the end thereof the 
     following:
       ``(i) Action by States.--
       ``(1) In General.--The attorney general of a State, or an 
     official or agency designated by a State--
       ``(A) may bring an action on behalf of its residents to 
     recover damages on their behalf under subsection (d)(3);
       ``(B) may bring a criminal action to enforce this section 
     under section 2328 of title 18, United States Code; and
       ``(C) may bring an action for the assessment of civil 
     penalties under subsection (f), and for purposes of such an 
     action, subsections (d)(3) and (f)(1) shall be applied by 
     substituting ``the court'' for ``the Commission''.
       ``(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 actions brought under this section. 
     When a State brings an action under this section, the court 
     in which the action is brought has pendant jurisdiction of 
     any claim brought under the law of that State. 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 subscriber 
     or defendant is found or is an inhabitant or transacts 
     business or wherein the violation occurred or is occurring, 
     and process in such cases may be served 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.
       ``(j) State Law Not Preempted.--
       ``(1) In general.--Nothing in this section or in the 
     regulations prescribed under this section shall preempt any 
     State law that imposes more restrictive requirements, 
     regulations, damages, costs, or penalties on changes in a 
     subscriber's service or selection of a provider of telephone 
     exchange service or telephone toll services than are imposed 
     under this section.
       ``(2) Effect on state court proceedings.--Nothing contained 
     in this section 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 or any specific civil or criminal statute of 
     such State not preempted by this section.
       ``(3) Limitations.--Whenever a complaint is pending before 
     the Commission involving a violation of regulations 
     prescribed under this section, no State may, during the 
     pendency of such complaint, institute a civil action against 
     any defendant party to the complaint for any violation 
     affecting the same subscriber alleged in the complaint.
       ``(k) Reports on Complaints.--
       ``(1) Reports required.--Each telecommunications carrier or 
     reseller shall submit to the Commission, quarterly, a report 
     on the number of complaints of unauthorized changes in 
     providers of telephone exchange service or telephone toll 
     service that are submitted to the carrier or reseller by its 
     subscribers. Each report shall specify each provider of 
     service complained of and the number of complaints relating 
     to such provider.
       ``(2) Limitation on scope.--The Commission may not require 
     any information in a report under paragraph (1) other than 
     the information specified in the second sentence of that 
     paragraph.
       ``(3) Utilization.--The Commission shall use the 
     information submitted in reports under paragraph (1) to 
     identify telecommunications carriers or resellers that engage 
     in patterns and practices of unauthorized changes in 
     providers of telephone exchange service or telephone toll 
     service.
       ``(l) Definitions.--For purposes of this section--
       ``(1) Attorney general.--The term `attorney general' means 
     the chief legal officer of a State.
       ``(2) Subscriber.--The term `subscriber' means the person 
     named on the billing statement or account, or any other 
     person authorized to make changes in the providers of 
     telephone exchange service or telephone toll service.''.
       (f) Report on Carriers Executing Unauthorized Changes or 
     Telephone Service.--
       (1) Report.--Not later than October 31, 1998, the Federal 
     Communications Commission shall submit to Congress a report 
     on unauthorized changes of subscribers' selections

[[Page S4735]]

     of providers of telephone exchange service or telephone toll 
     service.
       (2) Elements.--The report shall include the following:
       (A) A list of the 10 telecommunications carriers or 
     resellers that, during the 1-year period ending on the date 
     of the report, were subject to the highest number of 
     complaints of having executed unauthorized changes of 
     subscribers from their selected providers of telephone 
     exchange service or telephone toll service when compared with 
     the total number of subscribers served by such carriers or 
     resellers.
       (B) The telecommunications carriers or resellers, if any, 
     assessed forfeitures under section 258(f) of the 
     Communications Act of 1934 (as added by subsection (d)), 
     during that period, including the amount of each such 
     forfeiture and whether the forfeiture was assessed as a 
     result of a court judgment or an order of the Commission or 
     was secured pursuant to a consent decree.

     SEC. 102. ADDITIONAL ENFORCEMENT AUTHORITY.

       Section 504 of the Communications Act of 1934 (47 U.S.C. 
     504) is amended by adding at the end thereof the following: 
     ``Notwithstanding the preceding sentence, the failure of a 
     person to pay a forfeiture imposed for violation of section 
     258(a) may be used as a basis for revoking, denying, or 
     limiting that person's operating authority under section 214 
     or 312.''.

     SEC. 103. OBLIGATIONS OF BILLING AGENTS.

       (a) In General.--Part I of title II of the Communications 
     Act 1934 (47 U.S.C. 201 et seq.) is amended by adding at the 
     end thereof the following:

     ``SEC. 231. OBLIGATIONS OF TELEPHONE BILLING AGENTS.

       ``(a) In General.--A billing agent, including a 
     telecommunications carrier or reseller, who issues a bill for 
     telephone exchange service or telephone toll service to a 
     subscriber shall
       ``(1) state on the bill--
       ``(A) the name and toll-free telephone number of any 
     telecommunications carrier or reseller for the subscriber's 
     telephone exchange service and telephone toll service;
       ``(B) the identity of the presubscribed carrier or 
     reseller; and
       ``(C) the charges associated with each carrier's or 
     reseller's provision of telecommunications service during the 
     billing period;
       ``(2) for services other than those described in paragraph 
     (1), state on a separate page--
       ``(A) the name of any company whose charges are reflected 
     on the subscriber's bill;
       ``(B) the services for which the subscriber is being 
     charged by that company;
       ``(C) the charges associated with that company's provision 
     of service during the billing period;
       ``(D) the toll-free telephone number that the subscriber 
     may call to dispute that company's charges; and
       ``(E) that disputes about that company's charges will not 
     result in disruption of telephone exchange service or 
     telephone toll service; and
       ``(3) show the mailing address of any telecommunications 
     carrier or reseller or other company whose charges are 
     reflected on the bill.
       ``(b) Knowing Inclusion of Unauthorized or Improper Charges 
     Prohibited.--A billing agent may not submit charges for 
     telecommunications services or other services to a subscriber 
     if the billing agent knows, or should know, that the 
     subscriber did not authorize the charges or that the charges 
     are otherwise improper.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     applies to bills to subscribers for telecommunications 
     services sent to subscribers more than 60 days after the date 
     of enactment of this Act.

     SEC. 104. FCC JURISDICTION OVER BILLING SERVICE PROVIDERS.

       Part III of title II of the Communications Act of 1934 (47 
     U.S.C. 271 et seq.) is amended by adding at the end thereof 
     the following:

     ``SEC. 277. JURISDICTION OVER BILLING SERVICE PROVIDERS.

       ``The Commission has jurisdiction to assess and recover any 
     penalty imposed under title V of this Act against an entity 
     not a telecommunications carrier or reseller to the extent 
     that entity provides billing services for the provision of 
     telecommunications services, or for services other than 
     telecommunications services that appear on a subscriber's 
     telephone bill for telecommunications services, but the 
     Commission may assess and recover such penalties only if that 
     entity knowingly or willfully violates the provisions of this 
     Act or any rule or order of the Commission.''.

     SEC. 105. REPORT; STUDY.

       (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 and other 
     solicitation practices used by telecommunications carriers or 
     resellers or their agents or employees for the purpose of 
     changing the telephone exchange service or telephone toll 
     service provider of a subscriber.
       (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 
     independent third party administration of presubscribed 
     interexchange carrier changes; and
       (3) whether wireless carriers should continue to be exempt 
     from the requirements imposed by section 258 of the 
     Communications Act of 1934 (47 U.S.C. 258).
       (c) Rulemaking.--If the Commission determines that 
     particular telemarketing or other solicitation 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.

     SEC. 106. DISCLOSURE OF CERTAIN RECORDS FOR INVESTIGATIONS OF 
                   TELEMARKETING FRAUD.

       Section 2703 (c)(1)(B) of title 18, United States Code, is 
     amended by--
       (1) by striking ``or'' at the end of clause (ii);
       (2) striking the period at the end of clause (iii) and 
     inserting ``; or''; and
       (3) adding at the end the following:
       ``(iv) submits a formal written request relevant to a law 
     enforcement investigation concerning telemarketing fraud for 
     the name, address, and place of business of a subscriber or 
     customer of such provider, which subscriber or customer is 
     engaged in telemarketing (as such term is in section 2325 of 
     this title).''.

                     TITLE II--SWITCHLESS RESELLERS

     SEC. 201. REQUIREMENT FOR SURETY BONDS FROM 
                   TELECOMMUNICATIONS CARRIERS OPERATING AS 
                   SWITCHLESS RESELLERS.

       Part I of title II of the Communications Act of 1934 (47 
     U.S.C. 201 et seq.) is amended by adding at the end the 
     following: , as amended by section 103 of this Act,

     ``SEC. 232. SURETY BONDS FROM TELECOMMUNICATIONS CARRIERS 
                   OPERATING AS SWITCHLESS RESELLERS.

       ``(a) Requirement.--Under such regulations as the 
     Commission shall prescribe, any telecommunications carrier 
     operating or seeking to operate as a switchless reseller 
     shall furnish to the Commission a surety bond in a form and 
     an amount determined by the Commission to be satisfactory for 
     purposes of this section.
       ``(b) Surety.--A surety bond furnished pursuant to this 
     section shall be issued by a surety corporation that meets 
     the requirements of section 9304 of title 31, United States 
     Code.
       ``(c) Claims Against Bond.--A surety bond furnished under 
     this section shall be available to pay the following:
       ``(1) Any fine or penalty imposed against the carrier 
     concerned while operating as a switchless reseller as a 
     result of a violation of the provisions of section 258 
     (relating to unauthorized changes in subscriber selections to 
     telecommunications carriers).
       ``(2) Any penalty imposed against the carrier under this 
     section.
       ``(3) Any other fine or penalty, including a forfeiture 
     penalty, imposed against the carrier under this Act.
       ``(d) Resident Agent.--A telecommunications carrier 
     operating as a switchless reseller that is not domiciled in 
     the United States shall designate a resident agent in the 
     United States for receipt of service of judicial and 
     administrative process, including subpoenas.
       ``(e) Penalties.--
       ``(1) Suspension.--The Commission may suspend the right of 
     any telecommunications carrier to operate as a switchless 
     reseller--
       ``(A) for failure to furnish or maintain the surety bond 
     required by subsection (a);
       ``(B) for failure to designate an agent as required by 
     subsection (d); or
       ``(C) for a violation of section 258 while operating as a 
     switchless reseller.
       ``(2) Additional penalties.--In addition to suspension 
     under paragraph (1), any telecommunications carrier operating 
     as a switchless reseller that fails to furnish or maintain a 
     surety body under this section shall be subject to any 
     forfeiture provided for under sections 503 and 504.
       ``(f) Billing Services for Unbonded Switchless Resellers.--
       ``(1) Prohibition.--No common carrier or billing agent may 
     provide billing services for any services provided by a 
     switchless reseller unless the switchless reseller--
       ``(A) has furnished the bond required by subsection (a); 
     and
       ``(B) in the case of a switchless reseller not domiciled in 
     the United States, has designated an agent under section (d).
       ``(2) Penalty.--
       ``(A) Penalty.--Any common carrier or billing agent that 
     knowingly and willfully provides billing services to a 
     switchless reseller in violation of paragraph (1) shall be 
     liable to the United States for a civil penalty not to exceed 
     $50,000.
       ``(B) Applicability.--For purposes of subparagraph (A), the 
     provision of services to any particular reseller in violation 
     of paragraph (1) shall constitute a separate violation of 
     that paragraph.
       ``(3) Commission authority to assess and collect 
     penalties.--The Commission shall have the authority to assess 
     and collect any penalty provided for under this subsection 
     upon a finding by the Commission of a violation of paragraph 
     (1).
       ``(g) Return of Bonds.--
       ``(1) Review.--
       ``(A) In general.--The Commission may from time to time 
     review the activities of a telecommunications carrier that 
     has furnished a surety bond under this section for

[[Page S4736]]

     purposes of determining whether or not to retain the bond 
     under this section.
       ``(B) Standards of review.--The Commission shall prescribe 
     any standards applicable to its review of activities under 
     this paragraph.
       ``(C) First review.--The Commission may not first review 
     the activities of a carrier under subparagraph (A) before the 
     date that is 3 years after the date on which the carrier 
     furnishes the bond concerned under this section.
       ``(2) Return.--The Commission may return a surety bond as a 
     result of a review under this subsection.
       ``(h) Definitions.--In this section:
       ``(1) Billing agent.--The term `billing agent' means any 
     entity (other than a telecommunications carrier) that 
     provides billing services for services provided by a 
     telecommunications carrier, or other services, if charges for 
     such services appear on the bill of a subscriber for 
     telecommunications services.
       ``(2) switchless reseller.--The term `switchless reseller' 
     means a telecommunications carrier that resells the switched 
     telecommunications service of another telecommunications 
     carrier without the use of any switching facilities under its 
     own ownership or control.
       ``(i) Detariffing Authority Not Impaired.--Nothing in this 
     section is intended to prohibit the Commission from adopting 
     rules providing for the permissive detariffing of long-
     distance telephone companies, if the Commission determines 
     that such permissive detariffing would otherwise serve the 
     public interest, convenience, and necessity.''.

                          TITLE III--SPAMMING

     SEC. 301. REQUIREMENTS RELATING TO TRANSMISSIONS OF 
                   UNSOLICITED COMMERCIAL ELECTRONIC MAIL.

       (a) Information To Be Included in Transmissions.--
       (1) In general.--A person who transmits an unsolicited 
     commercial electronic mail message shall cause to appear in 
     each such electronic mail message the information specified 
     in paragraph (2).
       (2) Covered information.--The following information shall 
     appear at the beginning of the body of an unsolicited 
     commercial electronic mail message under paragraph (1):
       (A) The name, physical address, electronic mail address, 
     and telephone number of the person who initiates transmission 
     of the message.
       (B) The name, physical address, electronic mail address, 
     and telephone number of the person who created the content of 
     the message, if different from the information under 
     subparagraph (A).
       (C) A statement that further transmissions of unsolicited 
     commercial electronic mail to the recipient by the person who 
     initiates transmission of the message may be stopped at no 
     cost to the recipient by sending a reply to the originating 
     electronic mail address with the word ``remove'' in the 
     subject line.
       (b) Routing Information.--All Internet routing information 
     contained within or accompanying an electronic mail message 
     described in subsection (a) must be accurate, valid according 
     to the prevailing standards for Internet protocols, and 
     accurately reflect message routing.
       (c) Effective Date.--The requirements in this section shall 
     take effect 30 days after the date of enactment of this Act.

     SEC. 302. FEDERAL OVERSIGHT OF UNSOLICITED COMMERCIAL 
                   ELECTRONIC MAIL.

       (a) Transmissions.--
       (1) In general.--Upon notice from a person of the person's 
     receipt of electronic mail in violation of a provision of 
     section 301 or 305, the Commission--
       (A) may conduct an investigation to determine whether or 
     not the electronic mail was transmitted in violation of such 
     provision; and
       (B) if the Commission determines that the electronic mail 
     was transmitted in violation of such provision, may--
       (i) impose upon the person initiating the transmission a 
     civil fine in an amount not to exceed $15,000;
       (ii) commence in a district court of the United States a 
     civil action to recover a civil penalty in an amount not to 
     exceed $15,000 against the person initiating the 
     transmission;
       (iii) commence an action in a district court of the United 
     States a civil action to seek injunctive relief; or
       (iv) proceed under any combination of the authorities set 
     forth in clauses (i), (ii), and (iii).
       (2) Deadline.--The Commission may not take action under 
     paragraph (1)(B) with respect to a transmission of electronic 
     mail more than 2 years after the date of the transmission.
       (b) Administration.--
       (1) Notice by electronic means.--The Commission shall 
     establish an Internet web site with an electronic mail 
     address for the receipt of notices under subsection (a).
       (2) Information on enforcement.--The Commission shall make 
     available through the Internet web site established under 
     paragraph (1) information on the actions taken by the 
     Commission under subsection (a)(1)(B).
       (3) Assistance of other federal agencies.--Other Federal 
     agencies may assist the Commission in carrying out its duties 
     under this section.

     SEC. 303. ACTIONS BY STATES.

       (a) In General.--Whenever the attorney general of a State 
     has reason to believe that the interests of the residents of 
     the State have been or are being threatened or adversely 
     affected because any person is engaging in a pattern or 
     practice of the transmission of electronic mail in violation 
     of a provision of section 301 or 305, the State, as parens 
     patriae, may bring a civil action on behalf of its residents 
     to enjoin such transmission, to enforce compliance with such 
     provision, to obtain damages or other compensation on behalf 
     of its residents, or to obtain such further and other relief 
     as the court considers appropriate.
       (b) Notice to Commission.--
       (1) Notice.--The State shall serve prior written notice of 
     any civil action under this section on the Commission and 
     provide the Commission with a copy of its complaint, except 
     that if it is not feasible for the State to provide such 
     prior notice, the State shall serve written notice 
     immediately on instituting such action.
       (2) Rights of commission.--On receiving a notice with 
     respect to a civil action under paragraph (1), the Commission 
     shall have the right--
       (A) to intervene in the action;
       (B) upon so intervening, to be heard in all matters arising 
     therein; and
       (C) to file petitions for appeal.
       (c) Actions by Commission.--Whenever a civil action has 
     been instituted by or on behalf of the Commission for 
     violation of a provision of section 301 or 305, no State may, 
     during the pendency of such action, institute a civil action 
     under this section against any defendant named in the 
     complaint in such action for violation of any provision as 
     alleged in the complaint.
       (d) Construction.--For purposes of bringing a civil action 
     under subsection (a), nothing in this section shall prevent 
     an attorney general from exercising the powers conferred on 
     the attorney general by the laws of the State concerned to 
     conduct investigations or to administer oaths or affirmations 
     or to compel the attendance of witnesses or the production of 
     documentary or other evidence.
       (e) Venue; Service of Process.--Any civil action brought 
     under subsection (a) in a district court of the United States 
     may be brought in the district in which the defendant is 
     found, is an inhabitant, or transacts business or wherever 
     venue is proper under section 1391 of title 28, United States 
     Code. Process in such an action may be served in any district 
     in which the defendant is an inhabitant or in which the 
     defendant may be found.
       (f) Actions by Other State Officials.--Nothing in this 
     section may be construed to prohibit an authorized State 
     official from proceeding in State court on the basis of an 
     alleged violation of any civil or criminal statute of the 
     State concerned.
       (g) Definitions.--In this section:
       (1) Attorney general.--The term ``attorney general'' means 
     the chief legal officer of a State.
       (2) State.--The term ``State'' means any State of the 
     United States, the District of Columbia, Puerto Rico, Guam, 
     American Samoa, the United States Virgin Islands, the 
     Commonwealth of the Northern Marina Islands, the Republic of 
     the Marshall Islands, the Federated States of Micronesia, the 
     Republic of Palau, and any possession of the United States.

     SEC. 304. INTERACTIVE COMPUTER SERVICE PROVIDERS

       (a) Exemption for Certain Transmissions.--
       (1) Exemption.--Sections 301 or 305 shall not apply to a 
     transmission of electronic mail by an interactive computer 
     service provider unless--
       (A) the provider initiates the transmission; or
       (B) the transmission is not made to its own customers.
       (2) Construction.--Nothing in this subsection may be 
     construed to require an interactive computer service provider 
     to transmit or otherwise deliver any electronic mail message.
       (b) Actions by Interactive Computer Service Providers.--
       (1) In general.--In addition to any other remedies 
     available under any other provision of law, any interactive 
     computer service provider adversely affected by a violation 
     of a provision of section 301 or 305 may, within 1 year after 
     discovery of the violation, bring a civil action in a 
     district court of the United States against a person who 
     violates such provision. Such an action may be brought to 
     enjoin the violation, to enforce compliance with such 
     provision, to obtain damages, or to obtain such further and 
     other relief as the court considers appropriate.
       (2) Damages.--
       (A) In general.--The amount of damages in an action under 
     this subsection for a violation specified in paragraph (1) 
     may not exceed $15,000 per violation.
       (B) Relationship to other damages.--Damages awarded for a 
     violation under this subsection are in addition to any other 
     damages awardable for the violation under any other provision 
     of law.
       (C) Cost and fees.--The court may, in issuing any final 
     order in any action brought under paragraph (1), award costs 
     of suit, reasonable costs of obtaining services of process, 
     reasonable attorney fees, and expert witness fees for the 
     prevailing party.
       (3) Venue; service of process.--Any civil action brought 
     under paragraph (1) in a district court of the United States 
     may be brought in the district in which the defendant or in 
     which the interactive computer

[[Page S4737]]

     service provider is located, is an inhabitant, or transacts 
     business or wherever venue is proper under section 1391 or 
     title 28, United States Code. Process in such an action may 
     be served in any district in which the defendant is an 
     inhabitant or in which the defendant may be found.
       (c) Interactive Computer Service Provider Defined.--In this 
     section, the term ``interactive computer service provider'' 
     has the meaning given the term ``interactive computer 
     service'' in section 230(e)(2) of the Communications Act of 
     1934 (47 U.S.C. 230(e)(2)).

     SEC. 305. RECEIPT OF TRANSMISSIONS BY PRIVATE PERSONS.

       (a) Termination of Transmissions.--A person who receives 
     from any other person an electronic mail message requesting 
     the termination of further transmission of commercial 
     electronic mail shall cease the initiation of further 
     transmissions of such mail to the person making the 
     request.
       (b) Affirmative Authorization of Transmission.--
       (1) In general.--Subject to paragraph (2), a person may 
     authorize another person to initiate transmissions of 
     unsolicited commercial electronic mail to the person.
       (2) Availability of termination.--A person initiating 
     transmissions of electronic mail under paragraph (1) shall 
     include, with each transmission of such mail to a person 
     authorizing the transmission under that paragraph, the 
     information specified in section 301(a)(2)(C).
       (c) Constructive Authorization of Transmissions.--
       (1) In general.--Subject to paragraphs (2) and (3), a 
     person who secures a good or service from, or otherwise 
     responds electronically to, an offer in a transmission of 
     unsolicited commercial electronic mail shall be deemed to 
     have authorized the initiation of transmissions of 
     unsolicited commercial electronic mail from the person who 
     initiated the transmission.
       (2) No authorization for requests for termination.--An 
     electronic mail request to cease the initiation of further 
     transmissions of electronic mail under subsection (a) shall 
     not constitute authorization for the initiation of further 
     electronic mail under this subsection.
       (3) Availability of termination.--A person initiating 
     transmissions of electronic mail under paragraph (1) shall 
     include, with each transmission of such mail to a person 
     deemed to have authorized the transmission under that 
     paragraph, the information specified in section 301(a)(2)(C).
       (d) Effective Date of Termination Requirements.--
     Subsections (a), (b)(2), and (c)(3) shall take effect 30 days 
     after the date of enactment of this Act.

     SEC. 306. DEFINITIONS.

       In this title.
       (1) Commercial electronic mail.--The term ``commercial 
     electronic mail'' means any electronic mail that--
       (A) contains an advertisement for the sale of a product or 
     service;
       (B) contains a solicitation for the use of a telephone 
     number, the use of which connects the user to a person or 
     service that advertises the sale of or sells a product or 
     service; or
       (C) promotes the use of or contains a list of one or more 
     Internet sites that contain an advertisement referred to in 
     subparagraph (A) or a solicitation referred to in 
     subparagraph (B).
       (2) Commission.--The term ``Commission'' means the Federal 
     Trade Commission.
       (3) The term ``initiate the transmission'' in the case of 
     an electronic mail message means to originate the electronic 
     mail message, and does not encompass any intervening 
     interactive computer service whose facilities may have been 
     used to relay, handle, or otherwise retransmit the electronic 
     mail message, unless the intervening interactive computer 
     service provider knowingly and intentionally retransmits, any 
     electronic mail in violation of section 301 or 305.
                                 ______
                                 

                      FEINGOLD AMENDMENT NO. 2390

  Mr. McCAIN (for Mr. Feingold) proposed an amendment to the bill, S. 
1618, supar; as follows:

       At the appropriate place, insert the following:

     SEC. __. ENFORCEMENT OF REGULATIONS REGARDING CITIZENS BAND 
                   RADIO EQUIPMENT.

       Section 302 of the Communications Act of 1934 (47 U.S.C. 
     302) is amended by adding at the end the following:
       ``(f)(1) Except as provided in paragraph (2), a State or 
     local government may enforce the following regulations of the 
     Commission under this section:
       ``(A) A regulation that prohibits a use of citizens band 
     radio equipment not authorized by the Commission.
       ``(B) A regulation that prohibits the unauthorized 
     operation of citizens band radio equipment on a frequency 
     between 24 MHz and 35 MHz.
       ``(2) Possession of a station license issued by the 
     Commission pursuant to section 301 in any radio service for 
     the operation at issue shall preclude action by a State or 
     local government under this subsection.
       ``(3) The Commission shall provide technical guidance to 
     State and local governments regarding the detection and 
     determination of violations of the regulations specified in 
     paragraph (1).
       ``(4)(A) In addition to any other remedy authorized by law, 
     a person affected by the decision of a State or local 
     government enforcing a regulation under paragraph (1) may 
     submit to the Commission an appeal of the decision on the 
     grounds that the State or local government, as the case may 
     be, acted outside the authority provided in this subsection.
       ``(B) A person shall submit an appeal on a decision of a 
     State or local government to the Commission under this 
     paragraph, if at all, not later than 30 days after the date 
     on which the decision by the State or local government 
     becomes final.
       ``(C) The Commission shall make a determination on an 
     appeal submitted under subparagraph (B) not later than 180 
     days after its submittal.
       ``(D) If the Commission determines under subparagraph (C) 
     that a State or local government has acted outside its 
     authority in enforcing a regulation, the Commission shall 
     reverse the decision enforcing the regulation.
       ``(5) The enforcement of a regulation by a State or local 
     government under paragraph (1) in a particular case shall not 
     preclude the Commission from enforcing the regulation in that 
     case concurrently.
       ``(6) Nothing in this subsection shall be construed to 
     diminish or otherwise affect the jurisdiction of the 
     Commission under this section over devices capable of 
     interfering with radio communications.''.
                                 ______
                                 

                      FEINSTEIN AMENDMENT NO. 2391

  Mr. DORGAN (for Mrs. Feinstein) proposed an amendment to the bill, S. 
1618, supra; as follows:

       At the appropriate place, insert the following:

     SEC. __. MODIFICATION OF EXCEPTION TO PROHIBITION ON 
                   INTERCEPTION OF COMMUNICATIONS.

       (a) Modification.--Section 2511(2)(d) of title 18, United 
     States Code, is amended by adding at the end the following: 
     ``Notwithstanding the previous sentence, it shall not be 
     unlawful under this chapter for a person not acting under the 
     color of law to intercept a wire, oral, or electronic 
     communication between a health insurance issuer or health 
     plan and a subscriber of such issuer or plan, or between a 
     health care provider and a patient, only if all of the 
     parties to the communication have given prior express consent 
     to such interception. For purposes of the preceding sentence, 
     the term `health insurance issuer' has the meaning given that 
     term in section 733 of the Employee Retirement Income 
     Security Act of 1974 (29 U.S.C. 1191b), the term `health 
     plan' means a group health plan, as defined in such section 
     of such Act, an individual or self-insured health plan, the 
     medicare program under title XVIII of the Social Security Act 
     (42 U.S.C. 1395 et seq.), the medicaid program under title 
     XIX of such Act (42 U.S.C. 1396 et seq.), the State 
     children's health insurance program under title XXI of such 
     Act (42 U.S.C. 1397aa et seq.), and the Civilian Health and 
     Medical Program of the Uniformed Services under chapter 55 of 
     title 10, and the term `health care provider' means a 
     physician or other health care professional.''.
       (b) Recording and Monitoring of Communications with Health 
     Insurers.--
       (1) Communication without recording or monitoring.--
     Notwithstanding any other provision of law, a health 
     insurance issuer, health plan, or health care provider that 
     notifies any customer of its intent to record or monitor any 
     communication with such customer shall provide the customer 
     the option to conduct the communication without being 
     recorded or monitored by the health insurance issuer, health 
     plan, or health care provider.
       (2) Definitions.--In this subsection:
       (A) Health care provider.--The term ``health care 
     provider'' means a physician or other health care 
     professional.
       (B) Health insurance issuer.--The term ``health insurance 
     issuer'' has the meaning given that term in section 733 of 
     the Employee Retirement Income Security Act of 1974 (29 
     U.S.C. 1191b).
       (C) Health plan.--The term ``health plan'' means--
       (i) a group health plan, as defined in section 733 of the 
     Employee Retirement Income Security Act of 1974 (29 U.S.C. 
     1191b);
       (ii) an individual or self-insured health plan;
       (iii) the medicare program under title XVIII of the Social 
     Security Act (42 U.S.C. 1395 et seq.);
       (iv) the medicaid program under title XIX of such Act (42 
     U.S.C. 1396 et seq.);
       (v) the State children's health insurance program under 
     title XXI of such Act (42 U.S.C. 1397aa et seq.); and
       (vi) the Civilian Health and Medical Program of the 
     Uniformed Services under chapter 55 of title 10, United 
     States Code.
                                 ______
                                 

                     ROCKEFELLER AMENDMENT NO. 2392

  Mr. DORGAN (for Mr. Rockefeller) proposed an amendment to the bill, 
S. 1618, supra; as follows:

       At the appropriate place, insert the following:

     SEC.  . CONSUMER TRUTH IN BILLING DISCLOSURE ACT.

       (a) Findings.--Congress makes the following findings--

[[Page S4738]]

       (1) Billing practices by telecommunications carriers may 
     not reflect accurately the cost or basis of the additional 
     telecommunications services and benefits that consumers 
     receive as a result of the enactment the Telecommunications 
     Act of 1996 (Public Law 104-104) and other Federal regulatory 
     actions taken since the enactment of that Act.
       (2) The Telecommunications Act of 1996 was not intended to 
     allow providers of telecommunications services to 
     misrepresent to customers the costs of providing services or 
     the services provided.
       (3) Certain providers of telecommunications services have 
     established new, specific charges on customer bills commonly 
     known as ``line-item charges''.
       (4) Certain providers of telecommunications services have 
     described such charges as ``Federal Universal Service Fees'' 
     or similar fees.
       (5) Such charges have generated significant confusion among 
     customers regarding the nature of and scope of universal 
     service and of the fees associated with universal service.
       (6) The State of New York is considering action to protect 
     consumers by requiring telecommunications carriers to 
     disclose fully in the bills of all classes of customers the 
     fee increases and fee reductions resulting from the enactment 
     of the Telecommunications Act of 1996 and other regulatory 
     actions taken since the enactment of that Act.
       (7) The National Association of Regulatory Utility 
     Commissioners adopted a resolution in February 1998 
     supporting action by the Federal Communications Commission 
     and the Federal Trade Commission to protect consumers of 
     telecommunications services by assuring accurate cost 
     reporting and billing practices by telecommunications 
     carriers nationwide.
       (b) Requirements.--Any telecommunications carrier that 
     includes any change resulting from Federal regulatory action 
     shall specify in such bill--
       (1) the reduction in charges or fees for each class of 
     customers (including customers of residential basic service, 
     customers of other residential services, small business 
     customers, and other business customers) resulting from any 
     regulatory action of the Federal Communications Commission;
       (2) total monthly charges, usage charges, percentage 
     charges, and premiums for each class of customers (including 
     customers of residential basic service, customers of other 
     residential services, small business customers, and other 
     business customers);
       (3) notify consumers one billing cycle in advance of any 
     charges in existing charges or imposition of new charges; and
       (4) disclose, upon subscription, total monthly charges, 
     usage charges, percentage charges, and premiums for each 
     class of customers (including residential basic service, 
     customers of other residential service, small business 
     customers, and other business customers).

                          ____________________