THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY GREENLEAF, TARTAGLIONE, RAFFERTY, O'PAKE, ERICKSON, LOGAN, ALLOWAY, WILLIAMS, BROWNE AND M. WHITE, FEBRUARY 20, 2009

REFERRED TO CONSUMER PROTECTION AND PROFESSIONAL LICENSURE, FEBRUARY 20, 2009  

AN ACT

Providing for the regulation of commercial mobile radio service

providers; further providing for the powers and duties of the

Pennsylvania Public Utility Commission; and imposing

penalties.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Wireless

Telephone Consumer Protection Act.

Section 2.  Legislative findings and declaration.

The General Assembly finds and declares as follows:

(1)  Section 332(c)(3)(A) of the Communications Act of

1934 (48 Stat. 1064, 47 U.S.C. § 332(c)(3)(A)) expressly

states that no state or local government shall have the

authority to regulate the rates charged by any commercial

mobile service or private mobile service, but nothing shall

prohibit a state from regulating the other terms and

conditions of commercial mobile service.

(2)  As commercial mobile radio service in this

Commonwealth has expanded dramatically in recent years,

customer complaints regarding wireless telephone service,

such as early termination fees, have steadily increased.

(3)  Currently, no quality service standards exist for

acceptable commercial mobile radio service in this

Commonwealth, and, in order to protect the health, safety and

welfare of its citizens, the Commonwealth must act, to the

extent authorized by Federal law, to afford broad protection

to consumers against deceptive and unfair commercial mobile

radio service practices.

(4)  It is in the public interest of the citizens of this

Commonwealth to require the Pennsylvania Public Utility

Commission to develop quality service standards for wireless

telephone service, including proper disclosure of rates and

terms of service, payment and billing standards, trial

periods, customer service, registration, privacy and service

termination procedures that commercial mobile service

providers must abide by when providing wireless telephone

service to all Pennsylvanians.

Section 3.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Commercial mobile radio service" or "service."  Commercial

mobile service as defined in section 332(d) of the

Communications Act of 1934 (48 Stat. 1064, 47 U.S.C. § 332(d)).

"Commercial mobile radio service provider" or "provider."  A

person who provides commercial mobile radio service as defined

in section 332(d) of the Communications Act of 1934 (48 Stat.

1064, 47 U.S.C. § 332(d)). The term shall not include a person

who provides only paging or messaging services or other text-

based services utilizing facilities that are licensed by the

Federal Communications Commission, including, but not limited

to, narrowband personal communication services described in 47

CFR Pt. 24 Subpt. D (relating to narrowband PCS), as in effect

October 1, 2001.

"Commercial mobile radio service subscriber" or "subscriber."

A person, firm or corporation designated on provider records as

the party responsible for payment of bills for wireless

telephone service.

"Commission."  The Pennsylvania Public Utility Commission.

"Material rates, terms and conditions."  Any provisions

imposed by a provider to which a subscriber is bound, through a

service agreement or contract, that may result in or increase a

charge on a subscriber's bill or limit a subscriber's use of a

product or service. The term shall include, but not be limited

to, service territory availability, activation or initiation

fees, monthly access fees or base charges, per-unit usage

charges, usage allowances, extended coverage or roaming charges,

any required contract term, early termination fees, the time of

any peak and off-peak calling periods and any provision relating

to whether any additional taxes, fees or surcharges apply.

"Provider charges."  Fees or charges of any type that a

provider imposes for service rendered under a contract

pertaining to such service other than those fees and charges

which are mandated by and remitted to a Federal, State or local

governmental or regulatory body.

Section 4.  Pennsylvania Public Utility Commission.

Notwithstanding any other provision of 66 Pa.C.S (relating to

public utilities) to the contrary, within 180 days of the

effective date of this section, the commission shall provide by

order interim guidelines to protect a subscriber and monitor and

enforce compliance with those guidelines. The commission shall

thereupon promulgate regulations setting forth permanent

standards to protect a subscriber under this act. The interim

guidelines shall be effective until the commission promulgates

final rules and regulations. The rules and regulations shall

include, but not be limited to:

(1)  Specifying quality of service standards and

requirements that commercial mobile radio service providers

must meet.

(2)  Requiring a provider to disclose, in an accurate and

plainly stated format approved by the commission, the rate

and service terms of all service plans and offers made to

residential subscribers. A provider may not change service or

modify the material rates, terms and conditions of a

subscriber's contract without providing a reasonable advance,

clear and conspicuous notice of a proposed change in service

or modification and allowing the subscriber a time period of

not less than 21 days to cancel the contract with no early

termination fee. Every notice of either a change in service

or modification of material rates, terms and conditions of a

subscriber's contract shall provide, in accordance with the

format approved by the commission, the right of the

subscriber to cancel the contract with no early termination

fee.

(3)  Providing that a contract or agreement offered by a

provider to a subscriber:

(i)  May not extend for a period longer than one

year.

(ii)  May not contain an arbitration clause or an

automatic renewal clause unless the contract provides for

a renewal option for continued membership which must be

affirmatively accepted by the subscriber at the

expiration of each contract term.

(iii)  Shall contain a provision permitting the

subscriber or the subscriber's legal representative to

cancel the contract if the subscriber dies or becomes

permanently disabled which precludes the subscriber from

utilizing the service and requiring the provider, upon

receipt of written notice of cancellation, including a

copy of the death certificate or physician verification

of disability, to waive any early termination fee and

refund any remaining balance that was paid in advance.

(iv)  Shall contain a provision permitting the

subscriber to cancel the contract if the subscriber moves

out of the calling area and is unable to transfer the

contract to the subscriber's new location and requiring

the provider to, upon receipt of such notice of

cancellation, waive any early termination fee.

(4)  Requiring that all forms of solicitation and

advertisements to a residential subscriber disclose the

material rates, terms and conditions in the equivalent of

ten-point type or larger and requiring such solicitations,

which include advertising and other marketing materials, to

clearly, conspicuously and accurately disclose material

rates, terms and conditions.

(5)  Requiring that wireless telephone bills:

(i)  Be clearly outlined and only contain charges for

products and services authorized by the subscriber.

(ii)  Include the legal name of the service provider,

the amount charged for each product and service,

description of each product and service, the period of

service covered by the bill, the payment due date, the

late payment charge, methods of payment and the

provider's toll-free telephone number along with postal

address and e-mail address, if applicable, where the

subscriber may send billing inquiries or complaints.

(iii)  Separately identify provider charges from

taxes, fees and other charges collected by the provider

and remitted to Federal, State or local governments.

(6)  Requiring a provider to extend to a new subscriber a

30-day trial period to rescind the contract or agreement and

terminate service, without fees, charges or penalties, except

for usage fees incurred prior to the cancellation of the

contract or agreement, provided that the subscriber complies

with applicable return policies, exchange policies or both.

Every new contract or agreement for service shall provide, in

accordance with a format approved by the commission,

reasonable notice of the 30-day trial period and the right of

the subscriber to rescind the contract or agreement with no

early termination fee during that period.

(7)  Requiring a provider to establish a means for

logging subscriber questions, comments or complaints and for

expeditiously resolving those subscriber questions,

complaints or disputes, which shall include the

establishment, maintenance and staffing of a toll-free

telephone number, during normal business hours, to respond to

subscribers' questions or comments.

(8)  Requiring a provider to preserve for a minimum of

four years written or recorded disputes and complaints and to

keep the records within this Commonwealth at an office

located in the territory served by it and to make the records

available for examination by the commission or its staff.

Information to be maintained under this paragraph shall

include the following:

(i)  The payment performance of each of its

subscribers.

(ii)  The number of settlement agreements made by the

provider and a synopsis of the terms, conditions and

standards upon which agreements were made.

(iii)  The number of service terminations and

reconnections.

(iv)  Communications to or from subscribers regarding

interruptions, discontinuances, terminations and

reconnections of service, including the name and address

of each such subscriber, the date and character of the

dispute or complaint and the adjustment or disposal made

of the matter.

(9)  Requiring a provider to clearly and conspicuously

notify subscribers in writing and obtain their written

consent before using confidential customer information for

any purpose other than the provision or billing of the

service or if the provider plans to give the information to a

third party.

(10)  Requiring a provider to notify a subscriber in

writing at least ten days prior to terminating service for

nonpayment of overdue bills.

(11)  Authorizing the commission to resolve any informal

or formal complaint arising under the provisions of this act

not otherwise resolved by the provider and the subscriber.

(12)  Requiring a provider to file a registration form

with the commission in a format to be developed by the

commission that contains essential information that the

commission deems necessary to comply with this act.

Section 5.  Penalties and enforcement.

(a)  Imposition of penalties.--The commission may impose

fines and other civil penalties on a commercial mobile radio

service provider or any of its agents or vendors that fail to

comply with the rules and regulations promulgated by the

commission pursuant to this act.

(b)  Unfair trade practice.--A violation of the interim

guidelines or rules and regulations promulgated under this act

shall constitute a violation of the act of December 17, 1968

(P.L.1224, No.387), known as the Unfair Trade Practices and

Consumer Protection Law, and shall be subject to the enforcement

provisions, civil penalties and private rights of action

contained in that act.

(c)  Injunctive relief.--Nothing in the rules and regulations

promulgated by the commission shall be construed to preclude a

district attorney, the Attorney General or any law enforcement

agency from obtaining injunctive relief, civil penalties and

other relief permitted by law against a provider or any of its

agents or vendors that engage in business practices that violate

such rules and regulations.

Section 6.  Effective date.

This act shall take effect in 60 days.