II

105TH CONGRESS

1ST SESSION S. 1137

To amend section 258 of the Communications Act of 1934 to establish

additional protections against the unauthorized change of subscribers

from one telecommunications carrier to another.

IN THE SENATE OF THE UNITED STATES

JULY 31, 1997

Mr. DURBIN introduced the following bill; which was read twice and referred

to the Committee on Commerce, Science, and Transportation

A BILL

To amend section 258 of the Communications Act of 1934

to establish additional protections against the unauthorized change of subscribers from one telecommunications

carrier to another.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Slamming Protection

5 Act’’.
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1 SEC. 2. ADDITIONAL PROTECTIONS AGAINST UNAUTHOR2 IZED CHANGES OF PROVIDERS OF TELE3 PHONE SERVICE.

4 Section 258 of the Communications Act of 1984 (47

5 U.S.C. 258) is amended by adding at the end the follow6 ing:

7 ‘‘(c) CRIMINAL PENALTIES.—

8 ‘‘(1) PERSONS.—Any person who executes a

9 change in a provider of telephone exchange service

10 or telephone toll service in willful violation of the

11 procedures prescribed under subsection (a)—

12 ‘‘(A) shall be fined not more than $1,000,

13 imprisoned not more than 30 days, or both, for

14 the first offense; and

15 ‘‘(B) shall be fined not more than $10,000,

16 imprisoned not more than 9 months, or both,

17 for any subsequent offense.

18 ‘‘(2) TELECOMMUNICATIONS CARRIERS.—Any

19 telecommunications carrier who executes a change in

20 a provider of telephone exchange service or telephone

21 toll service in willful violation of the procedures pre22 scribed under subsection (a) shall be fined not more

23 than $50,000 for the first offense and shall be fined

24 not more than $100,000 for any subsequent offense.

25 ‘‘(d) PRIVATE RIGHT OF ACTION.—
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1 ‘‘(1) IN GENERAL.—A subscriber whose pro2 vider of telephone exchange service or telephone toll

3 service is changed in violation of the procedures pre4 scribed under subsection (a) may, within one year

5 after discovery of the change, bring in an appro6 priate court an action—

7 ‘‘(A) for an order to revoke the change;

8 ‘‘(B) for an award of damages in an

9 amount equal to the greater of—

10 ‘‘(i) the actual monetary loss resulting

11 from the change; or

12 ‘‘(ii) an amount not to exceed $2,000;

13 or

14 ‘‘(C) for relief under both subparagraphs

15 (A) and (B).

16 ‘‘(2) INCREASED AWARD.—If the court finds

17 that the defendant executed the change in willful

18 and knowing violation of the procedures prescribed

19 under subsection (a), the court may, in its discre20 tion, increase the amount of the award under para21 graph (1) to an amount equal to not more than

22 three times the maximum amount awardable under

23 subparagraph (B) of that paragraph.

24 ‘‘(e) ACTIONS BY STATES.—
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1 ‘‘(1) AUTHORITY OF STATES.—Whenever the

2 attorney general of a State, or an official or agency

3 designated by a State, has reason to believe that any

4 person has engaged or is engaging in a pattern or

5 practice of unauthorized changes in providers of tele6 phone exchange service or telephone toll service of

7 residents in such State in violation of the procedures

8 prescribed under subsection (a), the State may bring

9 a civil action on behalf of its residents to enjoin such

10 practices, to recover damages equal to the actual

11 monetary loss suffered by such residents, or both. If

12 the court finds the defendant executed such changes

13 in willful and knowing violation of such procedures,

14 the court may, in its discretion, increase the amount

15 of the award to an amount equal to not more than

16 three times the amount awardable under the preced17 ing sentence.

18 ‘‘(2) EXCLUSIVE JURISDICTION OF FEDERAL

19 COURTS.—The district courts of the United States

20 shall have exclusive jurisdiction over all civil actions

21 brought under this subsection. Upon proper applica22 tion, such courts shall also have jurisdiction to

23 award declaratory relief, or orders affording like re24 lief, commanding the defendant to comply with the

25 procedures prescribed under subsection (a). Upon a
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1 proper showing, a permanent or temporary injunc2 tion or restraining order shall be granted without

3 bond.

4 ‘‘(3) NOTICE TO COMMISSION.—A State shall

5 serve prior written notice of any civil action under

6 this subsection upon the Commission with a copy of

7 its complaint, except in any case where prior notice

8 is not feasible, in which case the State shall serve

9 such notice immediately after instituting such ac10 tion.

11 ‘‘(4) RIGHTS OF COMMISSION.—Upon receiving

12 notice of an action under this subsection, the Com13 mission shall have the right—

14 ‘‘(A) to intervene in the action;

15 ‘‘(B) upon so intervening, to be heard on

16 all such matters arising therein; and

17 ‘‘(C) to file petitions for appeal.

18 ‘‘(5) VENUE; SERVICE OF PROCESS.—Any civil

19 action under this subsection may be brought in the

20 district wherein the defendant is found or is an in21 habitant or transacts business or wherein the viola22 tion occurred or is occurring, and process in such

23 cases may be served in any district in which the de24 fendant is an inhabitant or where the defendant may

25 be found.
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1 ‘‘(6) EFFECT ON STATE COURT PROCEED2 INGS.—Nothing contained in this subsection shall be

3 construed to prohibit an authorized State official

4 from proceeding in State court on the basis of an al5 leged violation of any general civil or criminal stat6 ute of such State.

7 ‘‘(f) CLASS ACTIONS.—For any class action brought

8 with respect to the violation of the procedures prescribed

9 under subsection (a), the total damages awarded may not

10 exceed an amount equal to three times the total actual

11 damages suffered by the members of the class, irrespective

12 of the minimum damages provided for in subsection (d).

13 ‘‘(g) NO PREEMPTION OF STATE LAW.—Nothing in

14 this section shall preempt the availability of relief under

15 State law for unauthorized changes of providers of intra16 state telephone exchange service or telephone toll serv17 ice.’’.

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