[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1618 Engrossed in Senate (ES)]
105th CONGRESS
2d Session
S. 1618
_______________________________________________________________________
AN ACT
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. SHORT TITLE.
This Act may be cited as the ``Anti-slamming Amendments 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
selected 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
telecommunications 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 telecommunications 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. 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) Actions 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 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.
``(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 of 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 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 of
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) 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.), as amended by section 103 of this Act, is amended by adding
at the end the following:
``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 bond 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 subsection (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 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 Mariana 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.--Section 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
service 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 service provider is located, 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.
(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 Transmissions.--
(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.
TITLE IV--MISCELLANEOUS PROVISIONS
SEC. 401. 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.''.
SEC. 402. 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.
SEC. 403. CONSUMER TRUTH IN BILLING DISCLOSURE ACT.
(a) Findings.--Congress makes the following findings:
(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 of 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
changes 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).
Passed the Senate May 12, 1998.
Attest:
Secretary.
105th CONGRESS
2d Session
S. 1618
_______________________________________________________________________
AN ACT
To amend the Communications Act of 1934 to improve the protection of
consumers against ``slamming'' by telecommunications carriers, and for
other purposes.