May 24, 2005, Introduced by Senator JOHNSON and referred to the Committee on Technology and Energy.
A bill to promote deployment of and investment in
communications services in this state; and to prescribe the powers
and duties of certain state agencies and officials.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the
"communication act".
Sec. 2. As used in this act:
(a) "Commission" means the Michigan public service commission.
(b) "Communications provider" or "provider" means a person who
provides a communications service for compensation. A
communications provider is not a public utility.
(c) "Communications service" means a telecommunications
service as that term is defined in 47 USC 153 and the implementing
orders and regulations of the federal communications commission.
(d) "End user" means the retail subscriber of a communications
service.
(e) "Person" means an individual, corporation, partnership,
association, or any other legal entity. Person does not include a
governmental entity.
(f) "Regulated services" means a wholesale service over which
the commission has authority under this act.
(g) "Telecommunications act of 1996" means 110 Stat. 56.
(h) "Wholesale service" means the provision of communications
service under the requirements of 47 USC 251 and 252.
Sec. 3. (1) The commission may not regulate the rates,
charges, terms, or conditions for, or entry into or exit from, the
provision of any communications service. This act does not prevent
any person from providing communications services in competition
with another person.
(2) A governmental entity shall not provide a communications
service except for the use of the entity itself.
(3) A person shall not provide a communications service in
this state without first registering with the commission. The
registration shall include all of the following information:
(a) The name of the provider.
(b) The address and telephone number of the provider's
principal office.
(c) If the provider is not located in this state, the address
and telephone number of the registered office and the name and
telephone number of the registered agent authorized to receive
service of process in this state.
(4) The registration shall be accompanied by a registration
fee of $100.00.
(5) The registration is effective immediately upon filing with
the commission and the payment of the registration fee and shall
remain in effect for 1 year from its effective date.
(6) A registration may be renewed for 1 year by filing with
the commission a renewal registration on a form provided by the
commission and the payment of a renewal fee of $100.00.
Sec. 4. (1) In administering this act, the commission is
limited to the express powers and duties prescribed by this act.
(2) Except as otherwise provided by this act, the commission
has the jurisdiction and authority to administer all federal
telecommunications laws, rules, orders, and regulations that are
delegated to the state. The commission shall exercise its
jurisdiction and authority consistent with this act and all federal
telecommunications laws, rules, orders, and regulations.
(3) The commission may promulgate rules under the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328, that are necessary to administer this act.
Sec. 5. (1) Upon receipt of an application or complaint filed
regarding a provision of this act, the commission shall conduct an
investigation, hold hearings, and issue its findings and orders in
accordance with the contested hearings provisions of the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328. An application or complaint filed under this section shall
contain all information, testimony, exhibits, or other documents
and information within the person's possession on which the person
intends to rely to support the application or complaint.
Applications or complaints that do not meet the requirements of
this subsection shall be dismissed or suspended pending the filing
with the commission of the required information. If the complainant
or applicant requires information in the possession of the
respondent, not within the complainant's or applicant's possession,
the commission may allow a reasonable opportunity for discovery to
allow the complainant or applicant to provide all relevant
information, testimony, exhibits, or other documents on which the
complainant or applicant intends to rely to support its application
or compliant. The burden of proving a case filed under this act is
with the party filing the application or complaint.
(2) The commission may administer oaths, certify to all
official acts, and compel the attendance of witnesses and the
production of papers, books, accounts, documents, and testimony.
(3) The commission shall issue a final order in a case filed
under this act within 90 days from the initiation date of the case.
In a contested case, the commission shall issue a final order
within 180 days from its initiation date.
(4) An order of the commission shall be subject to review by
the filing of a claim of appeal with the court of appeals within 30
days of the date the order is issued.
(5) If a complaint filed under this section alleges facts that
warrant emergency relief, the complainant may request an emergency
relief order. On the date of filing, the complaint and request for
emergency relief shall be hand-delivered to the respondent at its
principal place of business in this state. The commission shall
allow 5 business days for a filing in response to the request for
emergency relief. The commission shall review the complaint, the
request for emergency relief, the response, and all supporting
materials and determine whether to deny the request for emergency
relief or to conduct an initial evidentiary hearing. The initial
evidentiary hearing shall be conducted within 5 business days from
the date of the notice of hearing, and the commission shall issue
an order granting or denying the request for emergency relief. An
order for emergency relief may require a party to act or refrain
from action to protect competition. Any action required by an order
for emergency relief shall be technically feasible and economically
reasonable, and the respondent shall be given a reasonable period
of time to comply with the order. At the hearing for emergency
relief, the respondent has the burden of showing that the order is
not technically feasible and not economically reasonable. If the
commission finds that extraordinary circumstances exist that
warrant expedited review before the commission's issuance of a
final order, it shall set a schedule providing for the issuance of
a partial final order as to all or part of the issues for which
emergency relief was granted within 90 days of the issuance of the
emergency relief order.
(6) An order for emergency relief may be granted under
subsection (1) if the commission finds all of the following:
(a) That the party has demonstrated exigent circumstances that
warrant emergency relief.
(b) That the party seeking relief will likely succeed on the
merits.
(c) That the party will suffer irreparable harm in its ability
to serve customers if emergency relief is not granted.
(d) That the order is not adverse to the public interest.
(7) The commission may require the complainant to post a bond
in an amount sufficient to make whole the respondent in the event
that the order for emergency relief is later found to have been
erroneously granted.
(8) An order for emergency relief shall expire upon the sooner
of any of the following:
(a) Ninety days after its issuance.
(b) Issuance of the commission's partial final order.
(c) An earlier date set by the commission. Notwithstanding
this subsection, the commission may extend the emergency relief
order to a date no later than the date on which the final order in
the proceeding is issued.
(9) An order granting or denying emergency relief under
subsection (1) shall be subject to immediate review in the court of
appeals as a matter of right by the party aggrieved. The court may
stay an order granting emergency relief upon the posting of a bond
or other security in an amount and on terms set by the court.
Regardless of whether an appeal is made under this subsection, the
commission shall proceed with the case and issue a final order as
otherwise required under this section.
(10) If a complaint is filed under this section by a provider
against another provider, the provider of service shall not
discontinue service during the period of the contested case if the
provider receiving the service has posted a surety bond, provided
an irrevocable letter of credit, or provided other adequate
security in an amount and on a form as determined by the
commission.
(11) The parties to a contested case may agree to use any
alternative means that will result in a settlement of the case,
including, but not limited to, settlement conferences, mediation,
and other informal dispute resolution methods.
(12) The commission shall provide for the electronic filing of
pleadings and other documents. The electronic filing of materials
shall be effective upon submission of the materials to the
commission.
(13) In addition to any other relief provided by this act, the
commission or a party may seek to compel compliance with a
commission order by proceedings in mandamus, injunction, or by
other appropriate civil remedies in the circuit court or other
court of proper jurisdiction.
Sec. 6. (1) If the commission finds that a party's position in
a proceeding under this act was frivolous, the commission shall
award to the prevailing party the costs, including reasonable
attorney fees, against the nonprevailing party.
(2) As used in this section:
(a) "Frivolous" means that at least 1 of the following
conditions is met:
(i) The party's primary purpose in initiating the proceeding or
asserting the defense was to harass, embarrass, or injure the
prevailing party.
(ii) The party had no reasonable basis to believe that the
facts underlying that party's legal position were true.
(iii) The party's legal position was devoid of arguable legal
merit.
(b) "Prevailing party" means a party who wins in the
proceeding.
Sec. 7. (1) Except under the terms of a mandatory protective
order, trade secrets and commercial or financial information
submitted under this act are exempt from the freedom of information
act, 1976 PA 442, MCL 15.231 to 15.246.
(2) If information is disclosed under a mandatory protective
order, then the information may be included in the commission's
evidentiary record if admissible but it shall remain confidential.
(3) There is a rebuttable presumption that cost studies,
customer usage data, marketing studies, and contracts between
providers are trade secrets or commercial or financial information
protected under subsection (1). The burden of removing the
presumption under this subsection is with the party seeking to have
the information disclosed.
Sec. 8. Providers of a regulated service in this state shall
pay assessments in an amount equal to the expenses of the
commission under 1972 PA 299, MCL 460.111 to 460.120.
Sec. 9. (1) The commission shall issue orders that assign the
telephone digits 2-1-1 to community resource information and
referral answering points established under subsection (3) and
prescribe appropriate interconnection orders to carry out the
intent of this section.
(2) Each provider of basic local exchange service in this
state shall assign the telephone number 2-1-1 only to a community
resource information and referral answering point established under
subsection (3).
(3) The commission shall designate a community resource
information and referral entity to be the 2-1-1 answering point for
various geographical areas within this state. In making its
determination, the commission shall consider all of the following:
(a) The recommendations of the Michigan alliance for
information and referral systems.
(b) Whether the relevant state-endorsed multipurpose
collaborative bodies are in agreement.
(c) Whether the entity has established a framework to assure
the provision of coverage of the 2-1-1 telephone number 24 hours
per day, 7 days per week.
(d) Whether the entity meets 2-1-1 standards adopted by the
Michigan alliance for information and referral systems.
(4) Each community resource information and referral entity
designated by the commission to be the 2-1-1 answering point for a
particular geographical area within the state shall establish the
framework to provide sufficient resources to operate the 2-1-1
telephone number 24 hours per day, 7 days per week.
Sec. 10. (1) The commission shall require each provider to
make available a text telephone communications device for the deaf
at costs to each individual who is certified as deaf or severely
hearing or speech impaired by a licensed physician, audiologist, or
qualified state agency, and to each primary public safety answering
point or secondary public safety answering point as those terms are
defined in section 102 of the emergency telephone service enabling
act, 1986 PA 32, MCL 484.1102.
(2) The commission shall require each provider to make
available a communication relay service whereby persons using a
text telephone communications device for the deaf can communicate
with persons using a voice telephone through the use of third party
intervention or automated translation. Each provider shall
determine whether to provide a communication relay service on its
own, jointly with other providers, or by contract with other
providers. The commission shall determine the technical standards
and essential features of text telephone and communication relay
service to ensure their compatibility and reliability.
(3) The commission shall appoint a 3-person advisory board
consisting of a representative of deaf individuals, the commission
staff, and providers to assist in administering this section. The
advisory board shall hold meetings, open to the public, at least
once each 3 months, shall periodically seek input on the
administration of this section from individuals who are deaf or are
hearing or speech impaired, and shall report to the commission at
least annually. The advisory board shall investigate and make
recommendations on the feasibility of hiring a reasonable number of
individuals who are deaf or are hearing or speech impaired to work
in the provision of telecommunication relay service.
(4) Rates and charges for calls placed through a communication
relay service shall not exceed the rates and charges for calls
placed directly from the same originating location to the same
terminating location. Unless ordered by the commission, a provider
of a communication relay service is not required to handle calls
from public telephones except for calls charged collect, cash, to a
credit card, or third-party number.
Sec. 11. (1) As used in this section:
(a) "Attachment" means any wire, cable, facility, or other
apparatus installed upon any pole or in any duct or conduit, owned
or controlled, in whole or in part, by a provider.
(b) "Usable space" means the total distance between the top of
a utility pole and the lowest possible attachment point that
provides the minimum allowable grade clearance and includes the
space which separates communication and power lines.
(2) A provider shall allow and establish the rates, terms, and
conditions for attachments by another provider, a cable service, or
an educational institution. The rates, terms, and conditions shall
be just and reasonable. A rate is just and reasonable if it assures
the provider recovery of not less than the additional costs of
providing the attachments, or more than an amount determined by
multiplying the percentage of the total usable space, or the
percentage of the total duct or conduit capacity, which is occupied
by the attachment, by the sum of the operating expenses and actual
capital costs of the provider attributable to the entire pole,
duct, or right-of-way.
(3) An attaching provider or cable service shall obtain any
necessary authorization before occupying public ways or private
rights-of-way with its attachment.
(4) This section does not limit the commission's authority to
regulate the rates, terms, and conditions of attachments upon poles
or in ducts or conduits owned or controlled by utilities engaged in
the transmission of electricity for light, heat, or power.
Sec. 12. (1) An end user of a provider shall not be switched
to another provider without the end user's oral authorization,
written confirmation, confirmation through an independent third
party, or other verification procedures subject to commission
approval, confirming the end user's intent to make a switch and
that the end user has approved the details of the switch.
(2) A provider shall not include or add optional services in
an end user's telecommunications service package without the end
user's oral authorization, written confirmation, confirmation
through an independent third party, or other verification
procedures subject to commission approval.
(3) The commission shall adopt rules to enforce this section.
The rules shall require that all providers comply with the
regulations established by the federal communications commission on
verification procedures for the switching of an end user's
communications provider.
Sec. 13. A provider that receives federal universal service
support for telecommunications services provided to eligible
elementary and secondary schools or libraries under the
telecommunications act of 1996 shall provide those intrastate
services at discounts equal to the discounts applicable for
eligible interstate services.
Sec. 14. (1) A provider shall not do any of the following:
(a) Make a statement or representation, including the omission
of material information, regarding the rates, terms, or conditions
of providing a telecommunication service that is false, misleading,
or deceptive.
(b) Charge an end user for a subscribed service that the end
user did not make an initial affirmative order for. Failure to
refuse an offered or proposed subscribed service is not an
affirmative order for the service.
(c) If an end user has cancelled a service, charge the end
user for service provided after the effective date the service was
canceled.
(d) If a residential end user has orally ordered a service,
fail to confirm the order in writing within 15 days after the
service is ordered.
(e) Disparage the services, business, or reputation of another
by false or misleading representation of fact.
(f) Represent to a party to whom services are supplied that
the services are being supplied in response to a request made by or
on behalf of the party when they are not.
(g) Cause a probability of confusion or a misunderstanding as
to the legal rights, obligations, or remedies of a party to a
transaction.
(h) Represent or imply that the subject of a transaction will
be provided promptly, or at a specified time, or within a
reasonable time, if the provider knows or has reason to know it
will not be so provided.
(i) Cause coercion and duress as a result of the time and
nature of a sales presentation.
(2) The commission may accept an assurance of discontinuance
of a method, act, or practice which is alleged to be unlawful under
this section from the person who is alleged to have engaged, be
engaging, or be about to engage in the method, act, or practice.
The assurance shall not be an admission of a violation of this act
or be introduced in any other proceeding. Unless rescinded by the
parties or voided by the court for good cause, the assurance may be
enforced in the circuit court by the parties to the assurance. The
assurance may include a stipulation for any of the following:
(a) The voluntary payment by the person for the cost of
investigation.
(b) An amount to be held in escrow pending the outcome of an
action.
(c) An amount for restitution to an aggrieved person.
Sec. 15. A provider shall not refuse, charge, delay, or impair
the speed of connection of a person to a communications emergency
service.
Sec. 16. (1) If after notice and hearing under section 5 the
commission finds that a person has violated this act or rules
promulgated under this act, the commission shall order remedies and
penalties where applicable as follows:
(a) Except as provided in subdivision (b), order the person to
pay a fine for the first violation of not less than $1,000.00 or
more than $20,000.00, and for each subsequent offense, a fine of
not less than $2,000.00 or more than $40,000.00.
(b) If the provider has less than 250,000 access lines, order
the provider to pay a fine for the first violation of not less than
$200.00 or more than $500.00, and for each subsequent violation, a
fine of not less than $500.00 or more than $1,000.00.
(c) Order the revocation of the person's registration.
(d) Order the person to cease and desist.
(2) Except as provided in subsection (3), the commission shall
not have authority to award compensatory damages for any violation
of this act.
(3) If after notice and hearing the commission finds that a
person has violated sections 12 through 15 or rules promulgated
under those sections, the commission shall order remedies and
penalties to protect and make whole end users and other persons who
have suffered damages as a result of the violation, including, but
not limited to, 1 or more of the following:
(a) Order the person to pay a fine for the first violation of
not less than $20,000.00 or more than $30,000.00. For a second and
any subsequent violation, the commission shall order the person to
pay a fine of not less than $30,000.00 or more than $50,000.00. If
the commission finds that the second or any of the subsequent
violations were knowingly made in violation of section 13, 14, or
15, the commission shall order the person to pay a fine of not more
than $70,000.00. Each switch made or service added in violation of
section 12 or 14 shall be a separate violation under this
subdivision.
(b) Order an unauthorized provider to refund to the end user
any amount greater than the end user would have paid to an
authorized provider.
(c) Order that a portion between 10% and 50% of the fine
assessed under subdivision (a) be paid directly to the customer who
suffered the violation of section 12 or 14.
(d) Order an unauthorized provider to reimburse an authorized
provider an amount equal to the amount paid by the end user that
should have been paid to the authorized provider.
(e) Revoke the registration if the commission finds a pattern
of violations of section 12 or 14.
(f) Issue cease and desist orders.
(3) Notwithstanding subsection (2), a fine shall not be
imposed for a violation of section 12 if the provider has otherwise
fully complied with section 12 and shows that the violation was an
unintentional and bona fide error notwithstanding the maintenance
of procedures reasonably adopted to avoid the error. Examples of a
bona fide error include clerical, calculation, computer
malfunction, programming, or printing errors. An error in legal
judgment with respect to a person's obligations under section 12 is
not a bona fide error. The burden of proving that a violation was
an unintentional and bona fide error is on the provider.
Sec. 17. This act takes effect January 1, 2006.