```

[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.
```