HOUSE BILL No. 5474


     March 2, 2000, Introduced by Reps. Kowall, Gosselin, Rick Johnson, Richardville, Hager, Shackleton, Woodward and
Bradstreet and referred to the Committee on Energy and Technology.


        A bill to amend 1991 PA 179, entitled

   "Michigan telecommunications act,"

   (MCL 484.2101 to 484.2604) by adding section 507.

               THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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           SEC. 507.  (1) A TELECOMMUNICATIONS PROVIDER SHALL NOT

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      INCLUDE OR ADD OPTIONAL SERVICES IN AN END USER'S TELECOMMUNICA-

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      TIONS SERVICE PACKAGE WITHOUT THE AUTHORIZATION OF THE END USER.

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           (2) THE COMMISSION SHALL ISSUE ORDERS TO ENSURE THAT A TELE-

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      COMMUNICATIONS PROVIDER DOES NOT INCLUDE OR ADD OPTIONAL SERVICES

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      IN THE END USER'S TELECOMMUNICATIONS SERVICE PACKAGE WITHOUT THE

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      END USER'S ORAL AUTHORIZATION, WRITTEN CONFIRMATION, CONFIRMATION

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      THROUGH AN INDEPENDENT THIRD PARTY, OR OTHER VERIFICATION PROCE-

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      DURES APPROVED BY THE COMMISSION, CONFIRMING THE END USER'S

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      INTENT TO RECEIVE THE OPTIONAL SERVICES.  THE ORDERS ISSUED UNDER

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      THIS SECTION SHALL REQUIRE THAT ALL PROVIDERS COMPLY WITH ANY


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      REGULATIONS ESTABLISHED BY THE FEDERAL COMMUNICATIONS COMMISSION

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      REGARDING THE PROVIDING OF OPTIONAL TELECOMMUNICATIONS SERVICES.

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           (3) UPON THE RECEIPT OF A COMPLAINT FILED BY A PERSON ALLEG-

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      ING A VIOLATION OF THIS SECTION OR UPON THE COMMISSION'S OWN

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      MOTION, THE COMMISSION MAY CONDUCT A CONTESTED CASE AS PROVIDED

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      UNDER SECTION 203.

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           (4) IF THE COMMISSION FINDS THAT A PERSON HAS VIOLATED THIS

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      SECTION OR AN ORDER ISSUED UNDER THIS SECTION, THE COMMISSION

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      SHALL ORDER REMEDIES AND PENALTIES TO PROTECT AND MAKE WHOLE END

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      USERS AND OTHER PERSONS WHO HAVE SUFFERED DAMAGES AS A RESULT OF

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      THE VIOLATION, INCLUDING, BUT NOT LIMITED TO, 1 OR MORE OF THE

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      FOLLOWING:

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           (A) ORDER THE PERSON TO PAY A FINE FOR THE FIRST OFFENSE OF

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      NOT LESS THAN $10,000.00 OR MORE THAN $20,000.00.  FOR A SECOND

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      AND ANY SUBSEQUENT OFFENSE, THE COMMISSION SHALL ORDER THE PERSON

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      TO PAY A FINE OF NOT LESS THAN $25,000.00 OR MORE THAN

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      $40,000.00.  IF THE COMMISSION FINDS THAT THE SECOND OR ANY OF

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      THE SUBSEQUENT OFFENSES WERE KNOWINGLY MADE IN VIOLATION OF

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      SECTION 505, THE COMMISSION SHALL ORDER THE PERSON TO PAY A FINE

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      OF NOT MORE THAN $50,000.00.

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           (B) ORDER THE PROVIDER TO REFUND TO THE END USER ANY AMOUNT

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      THE END USER PAID TO THE PROVIDER FOR THE UNAUTHORIZED SERVICES.

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           (C) IF THE PERSON IS LICENSED UNDER THIS ACT, REVOKE THE

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      LICENSE IF THE COMMISSION FINDS A PATTERN OF VIOLATIONS OF THIS

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      SECTION.

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           (D) ISSUE CEASE AND DESIST ORDERS.





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           (5) NOTWITHSTANDING SUBSECTION (4), A FINE SHALL NOT BE

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      IMPOSED FOR A VIOLATION OF THIS SECTION IF THE PROVIDER HAS

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      OTHERWISE FULLY COMPLIED WITH THIS SECTION AND SHOWS THAT THE

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      VIOLATION WAS AN UNINTENTIONAL AND BONA FIDE ERROR NOTWITHSTAND-

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      ING THE MAINTENANCE OF PROCEDURES REASONABLY ADOPTED TO AVOID THE

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      ERROR.  EXAMPLES OF A BONA FIDE ERROR INCLUDE CLERICAL, CALCULA-

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      TION, COMPUTER MALFUNCTION, PROGRAMMING, OR PRINTING ERRORS.  AN

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      ERROR IN LEGAL JUDGMENT WITH RESPECT TO A PERSON'S OBLIGATIONS

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      UNDER THIS SECTION IS NOT A BONA FIDE ERROR.  THE BURDEN OF PROV-

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      ING THAT A VIOLATION WAS AN UNINTENTIONAL AND BONA FIDE ERROR IS

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      ON THE PROVIDER.

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           (6) IF THE COMMISSION FINDS THAT A PARTY'S COMPLAINT OR

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      DEFENSE FILED UNDER THIS SECTION IS FRIVOLOUS, THE COMMISSION

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      SHALL AWARD TO THE PREVAILING PARTY COSTS, INCLUDING REASONABLE

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      ATTORNEY FEES, AGAINST THE NONPREVAILING PARTY AND THEIR

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      ATTORNEY.

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           (7) AS USED IN THIS SECTION:

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           (A) "END USER" MEANS THE RETAIL SUBSCRIBER OF A TELECOMMUNI-

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      CATIONS SERVICE.

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           (B) "TELECOMMUNICATIONS PROVIDER" OR "PROVIDER" MEANS A

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      PERSON THAT PROVIDES 1 OR MORE TELECOMMUNICATIONS SERVICES FOR

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      COMPENSATION.  TELECOMMUNICATIONS PROVIDER DOES NOT INCLUDE A

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      PROVIDER OF COMMERCIAL MOBILE SERVICE AS DEFINED IN SECTION

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      332(d)(1) OR PART I OF TITLE III OF THE COMMUNICATIONS ACT OF

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      1934, CHAPTER 652, 96 STAT. 1096, 47 U.S.C. 332.







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