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NO. 67. AN ACT RELATING TO TELECOMMUNICATIONS

SERVICE PROVIDERS.

(H.177)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 30 V.S.A. § 208b is added to read:

§ 208b. UNAUTHORIZED BILLING

A company subject to the jurisdiction of the public service board shall not send a bill to a consumer for goods or services that the company provides and that will appear as a charge on the consumer's telecommunications bill without the consumer's consent. The department shall develop a consumer education plan to ensure that consumers of telecommunications services have adequate notice of this requirement. A company that violates this section shall be subject to the remedies authorized by this title, including penalties authorized by section 30 and injunctions authorized by section 209.

Sec. 2. 30 V.S.A. § 218a(e) is amended to read:

(e) The department shall propose and the board shall establish by rule or order a telecommunications equipment grant program to assist deaf, deaf-blind, hearing impaired *[or]* persons, speech impaired persons, and persons with physical disabilities that limit their ability to use standard telephone equipment to communicate by telephone. Pursuant to this program a deaf, deaf-blind, hearing impaired *[or]* person, speech impaired person, or person with a physical disability that limits his or her ability to use standard telephone equipment whose modified adjusted gross income as defined in section 5829(b)(1) of Title 32 for the preceding taxable year was less than 175 percent of the official poverty line established by the federal Department of Health and Human Services for a family of two or the actual number in the family, whichever is greater, published as of October 1 of the preceding taxable year, may be eligible for a benefit of no more than $400.00 towards the purchase *[or]*, upgrade or repair of equipment used to access the relay service or otherwise communicate by telephone. The total benefits allocable under this section shall not exceed $75,000.00 per year. In adopting rules the board shall consider the following:

(1) prior benefits;

(2) degree of functional need;

(3) income;

(4) number of applicants; and

(5) disposition of equipment upon change of residence.

Sec. 3. 30 V.S.A. § 227c is added to read:

§ 227c. NONDOMINANT CARRIERS

(a) The board may modify, reduce or suspend the requirements under this title as applied to nondominant providers of telecommunications service. The board may act by rule, or, after notice and opportunity for hearing, it may act by order. The modifications, reductions or suspensions may apply to one or more classes of nondominant providers, and may apply differently to each class. The board may modify, suspend or reduce any or all of the regulatory requirements under sections 104, 105, 107, 108, 109, 225, 226, 227(a), 229 and 311 of this title.

(b) In determining whether a carrier or class of carriers is nondominant, the board shall consider whether the carriers have sufficient market power to set prices for the market.

(c) In determining whether to modify, reduce or suspend regulatory requirements, the board shall consider whether competition in the market combined with the remaining requirements under this title:

(1) will be sufficient to ensure that the charges, practices, classifications or regulations related to the service are just and reasonable, and are not unjustly or unreasonably discriminatory; and

(2) will afford the public at least as much protection as the applicable regulatory requirements being suspended or reduced.

(d) Upon petition of the department, the board shall, and upon its own initiative the board may, investigate whether it should reimpose any regulatory requirements which it has modified, suspended or reduced under this section. If the board finds, after notice and an opportunity for hearing, and after considering the factors identified in subsection (c) of this section, that the public is not sufficiently protected, the board may reimpose any regulatory provisions that the board deems necessary. Pending any final order, the board may reimpose any regulatory requirements on a temporary basis as it determines is just and reasonable.

Sec. 4. 30 V.S.A. § 231a is added to read:

§ 231a. REGISTRATION OF BILLING AGGREGATORS

(a) Definitions. As used in this section, unless the context otherwise indicates:

(1) "Bill" means a direct statement of payments due and any other form of notice soliciting payment.

(2) "Billing agent" means a local exchange carrier or other person offering telecommunications service who includes in a bill it sends to a customer a charge for a product or service offered by a service provider.

(3) "Billing aggregator" means any person, other than a service provider, who forwards the charge for a product or service offered by a service provider to a billing agent.

(4) "Service provider" means any person, other than the billing agent, that offers a product or service to a customer, the charge for which appears on the bill of a billing agent.

(5) "Telecommunications carrier" means a company subject to the jurisdiction of the public service board under subdivision 203(5) of this title.

(6) "Unauthorized service" means the provision of any service or product by a service provider that a customer has not authorized, and for which a charge appears on the customer's telephone bill. Charges for collect calls shall be exempt from this section.

(b) Registration requirements. Except as provided in this subsection, no billing aggregator may forward charges for a service or product offered by a service provider to a billing agent for presentation to a customer, unless the billing aggregator is registered with the public service board. A registration properly filed with the public service board takes effect 14 days after the filing date, unless the public service department objects to the registration and provides notice of its objection to the registrant within the 14 days. If the public service department objects to the registration, the registration does not become effective, unless expressly approved by the public service board. The public service board shall offer a person whose registration has been rejected an opportunity for a hearing. A registration, once effective, remains effective until revoked by the public service board or surrendered by the holder. A company that provides telecommunications service in this state pursuant to a certificate of public good or equivalent authority under this title is not required to be registered under this subsection.

(c) Revocation of registration; notice.

(1) After opportunity for hearing, the public service board may revoke the registration of a billing aggregator who has:

(A) provided false or deceptive information in registering under this section;

(B) knowingly, negligently or repeatedly forwarded a charge to a billing agent for a product or service that the consumer did not authorize;

(C) failed to provide a notice to customers as required by rule or order of the public service board, or otherwise failed to comply with a rule or order of the public service board; or

(D) engaged in any other false or deceptive practices.

(2) Immediately following a revocation of registration under this subsection, the public service board shall provide notice of the revocation, in a form and manner established by the public service board by rule, to all telecommunications carriers doing business in this state.

(d) Procedure upon complaint. If a customer of a telecommunications carrier claims that a charge for an unauthorized service has been included in the customer's telephone bill, the telecommunications carrier shall immediately suspend collection efforts on that portion of the customer's bill. The telecommunications carrier shall either cease collection efforts entirely with regard to the disputed charge or request evidence from the billing aggregator that the customer authorized the service for which payment is sought. If the telecommunications carrier ceases collection efforts or sufficient evidence of customer authorization is not presented to the telecommunications carrier within a reasonable time, the telecommunications carrier shall immediately remove any charges associated with the unauthorized service from the customer's bill and refund to the customer any amounts paid for the unauthorized service that were billed by the telecommunications carrier during the six months prior to the customer's complaint. If sufficient evidence of customer authorization is provided to the telecommunications carrier, the telecommunications carrier may restore the charges on the customer's bill and reinstitute collection efforts. The customer or the billing aggregator may appeal the telecommunications carrier's determination to the public service board.

(e) Enforcement authority. In addition to any other authority the public service board may have pursuant to other law, the public service board may enforce the provisions of this section in accordance with this subsection:

(1) In an adjudicatory proceeding, the public service board may impose an administrative penalty upon the following entities for the following violations:

(A) a billing aggregator who forwards charges to a billing agent for an unauthorized product or service;

(B) a billing aggregator who is required to be registered under subsection (b) of this section and who is not properly registered pursuant to that subsection and who forwards charges for a product or service that appear on the bill of a billing agent;

(C) a billing agent who knowingly bills on behalf of a billing aggregator who is required to be registered under subsection (b) of this section and who is not properly registered pursuant to that subsection at the time the bill which is to be sent to the customer is generated, except that a billing agent who bills on behalf of a billing aggregator whose registration has been revoked shall not be subject to administrative penalty if the bill which is to be sent to the customer was generated within 14 days of the revocation of the registration and the billing agent did not have actual notice of the revocation;

(D) a telecommunications carrier that, without having first obtained evidence of authorization that the telecommunications carrier believed in good faith to be sufficient, does not remove the charges for any service which is the subject of a complaint under subsection (d) of this section and does not refund to the customer any amounts paid for the unauthorized service that were billed by the telecommunications carrier during the six months prior to the customer's complaint. For purposes of this section, evidence that a call was dialed from the number that is the subject of the charge shall be considered sufficient evidence of authorization for that call.

(2) The amount of any administrative penalty imposed under subdivision (1) of this subsection may not exceed $1,000.00 per violation arising out of the same incident or complaint, and must be based on:

(A) the severity of the violation, including the intent of the violator, the nature, circumstances, extent and gravity of any prohibited acts;

(B) the history of previous violations; and

(C) the amount necessary to deter future violations.

(f) Rulemaking. The public service board shall adopt such rules as it deems necessary to implement this section.

Sec. 5. 9 V.S.A. § 2466 is added to read:

§ 2466. GOODS AND SERVICES APPEARING ON TELEPHONE BILL

(a) No seller shall bill a consumer for goods or services that will appear as a charge on the person's local telephone bill without the consumer's express authorization.

(b) No later than the tenth business day after a seller has entered into a contract or other agreement with a consumer to sell or lease or otherwise provide for consideration goods or services that will appear as a charge on the consumer's local telephone bill, the seller shall send, or cause to be sent, to the consumer, by first-class mail, postage prepaid, a notice of the contract or agreement.

(c) The notice shall clearly and conspicuously disclose:

(1) The nature of the goods or services to be provided;

(2) The cost of the goods or services;

(3) Information on how the consumer may cancel the contract or agreement;

(4) The consumer assistance address and telephone number specified by the attorney general;

(5) That the charges for the goods or services may appear on the consumer's local telephone bill; and

(6) Such other information as the attorney general may prescribe by rule.

(d) The notice shall be a separate document sent for the sole purpose of providing to the consumer the information required by subsection (c) of this section. The notice shall not be combined with any sweepstakes offer or other inducement to purchase goods or services.

(e) The sending of the notice required by this section is not a defense to a claim that a consumer did not consent to enter into the contract or agreement.

(f) No person shall arrange on behalf of a seller of goods or services, directly or through an intermediary, with a local exchange carrier, to bill a consumer for goods or services unless the seller complies with this section. This prohibition applies, but is not limited, to persons who aggregate consumer billings for a seller and to persons who serve as a clearinghouse for aggregated billings.

(g) Failure to comply with this section is an unfair and deceptive act and practice in commerce under this chapter.

(h) The attorney general may make rules and regulations to carry out the purposes of this section.

(i) Nothing in this section limits the liability of any person under existing statutory or common law.

(j) This section does not apply to sellers regulated by the Vermont public service board under Title 30, other than section 231a of Title 30. Nothing in this section affects any rule issued by the Vermont public service board.

Sec. 6. TRANSITION

30 V.S.A. § 231a shall take effect on July 1, 2000, except that no person shall suffer a penalty under 30 V.S.A. § 231a(d) as to any telecommunications billing for a service rendered before October 1, 2000.

Approved: February 23, 2000