As Amended by House Committee
As Amended by Senate Committee
Session of 2000
SENATE BILL No. 455
By Committee on Commerce
1-20
12 AN ACT relating
to the Kansas universal service fund; authorizing
the
13 assessment
of a late payment fee telecommunications; Kansas
uni-
14 versal service fund
and certain fees and penalties related
15 thereto; certain
rates for long distance service; financing of cer-
16 tain emergency
services; telemarketing; amending K.S.A. 1999
17 Supp. 12-5302,
50-6,103 and 66-2010 and repealing the existing
sec-
18
tion sections.
19
20 Be it enacted by the Legislature of the
State of Kansas:
21 Section
1. K.S.A. 1999 Supp. 66-2010 is hereby amended to read as
22 follows: 66-2010. (a) The commission shall
utilize a competitive bidding
23 process to select a neutral, competent and
bonded third party to admin-
24 ister the KUSF.
25 (b) The
administrator shall be responsible for: (1) Collecting and au-
26 diting all relevant information from all
qualifying telecommunications
27 public utilities, telecommunications
carriers or wireless telecommunica-
28 tions service providers receiving funds
from or providing funds to the
29 KUSF; (2) verifying, based on the
calculations of each qualifying telecom-
30 munications carrier, telecommunications
public utility or wireless tele-
31 communications service provider, the
obligation of each such qualifying
32 carrier, utility or provider to generate
the funds required by the KUSF;
33 (3) collecting on a monthly
basis all moneys due to the KUSF from all
34 telecommunications public utilities,
telecommunications carriers and
35 wireless telecommunications service
providers in the state; and (4) dis-
36 tributing amounts on a monthly basis due to
qualifying telecommunica-
37 tions public utilities, wireless
telecommunications service providers and
38 telecommunications carriers receiving KUSF
funding.
39 (c) Any
information made available or received by the administrator
40 from carriers, utilities or providers
receiving funds from or providing
41 funds to the KUSF shall not be subject to
any provisions of the Kansas
42 open records act and shall be considered
confidential and proprietary.
43 (d) The
commission is authorized to assess a late payment fee at a
2
1 rate not to exceed
1% of 1.5% of the assessment
for every month a
2 telecommunications public utility,
telecommunications carrier or wireless
3 telecommunications service provider
fails to pay its KUSF assessment to
4 the administrator. The administrator
or the commission shall be author-
5 ized to maintain an action to collect
any funds owed by any telecommu-
6 nications carrier, public utility or
wireless telecommunications provider
7 in the district court in the county
of the registered office of such carrier,
8 utility or provider or, if such
carrier, utility or provider does not have a
9 registered office in the state, such
an action may be maintained in the
10 county where such carrier's, utility's or
provider's principal office is lo-
11 cated. If such carrier, utility or provider
has no principal office in the
12 state, such an action may be maintained in
the district court of any county
13 in which such carrier, utility or provider
provides service. In any action
14 to revoke or suspend the certificate of
convenience and necessity
15 of a telecommunications carrier or
telecommunications public util-
16 ity, there shall be a presumption that
the carrier or utility is unfit
17 to hold a certificate of convenience and
necessity if such carrier
18 or utility fails to pay any KUSF
assessment for 60 or more days
19 after notice of delinquency in paying
such assessment.
20 (e) Any
telecommunications carrier, telecommunications pub-
21 lic utility or wireless
telecommunications service provider which
22 is required to contribute to the KUSF
pursuant to K.S.A. 1999
23 Supp. 66-2008, and amendments thereto,
and which fails to submit
24 a KUSF calculation worksheet for a
reporting period shall be liable
25 for an administrative penalty imposed by
the commission in a sum
26 not to exceed $1,000 for failure to
submit such worksheet. Each
27 reporting period for which such carrier,
utility or provider fails to
28 submit such worksheet shall constitute a
separate offense.
29 The penalty
provided by this subsection shall be in addition to
30 any other authority the commission has
to enforce compliance.
31
(e) (f) The KUSF administrator
shall be responsible to ensure that
32 funds do not fall below the level necessary
to pay all amounts collectively
33 owed to all qualifying telecommunications
public utilities, wireless tele-
34 communications service providers and
telecommunications carriers. The
35 administrator shall have the authority to
retain and invest in a prudent
36 and reasonable manner any excess funds
collected in any period to help
37 ensure that adequate funds are available to
cover amounts payable in
38 other periods.
39 (g) In amending subsection
(d), it is the intent of the legislature
40 to clarify existing authority of the
commission to assess a late pay-
41 ment fee. Nothing in subsection (d)
shall be construed as granting
42 new or additional authority to the
commission.
43 New Sec.
2. If a provider of intraLATA long distance telecom-
3
1 munications service in this state
offers to any customer in this state
2 the option of making unlimited
long distance calls within the cus-
3 tomer's LATA, as defined in K.S.A.
1999 Supp. 66-1,187, and
4 amendments thereto, for a flat
rate, the state corporation com-
5 mission shall not disapprove such
rate as long as such service is
6 available to any customer located
within the LATA under the same
7 terms and conditions as such
service is made available to customers
8 of the offering provider.
9 Sec.
3. K.S.A. 1999 Supp. 12-5302 is hereby amended to read
10 as follows: 12-5302. (a) In addition to
other powers for the protec-
11 tion of the public health and welfare, a
governing body may pro-
12 vide for the operation of an emergency
telephone service and may
13 pay for it by imposing an emergency
telephone tax for such service
14 in those portions of the governing
body's jurisdiction for which
15 emergency telephone service has been
contracted. The governing
16 body may do such other acts as are
expedient for the protection
17 and preservation of the public health
and welfare and are neces-
18 sary for the operation of the emergency
telephone system. The
19 governing body is hereby authorized by
ordinance in the case of
20 cities and by resolution in the case of
counties to impose such tax
21 in those portions of the governing
body's jurisdiction for which
22 emergency telephone service has been
contracted. The amount of
23 such tax shall not
exceed be as follows:
24 (1) For wire
service, not more than $.75 per month per exchange
25 access line or its equivalent;
and
26 (2) for
wireless service, an amount per wireless calling device
equal
27 to: (A) The tax per exchange access line
or equivalent for wire service if
28 the emergency telephone service has the
capacity to locate where a wire-
29 less communication originates; or (B)
1/2 the tax per exchange access line
30 or equivalent for wire service if the
emergency telephone service does not
31 have the capacity to locate where a
wireless communication originates.
32 (b) Within 60
days of the publication of a resolution by a county
33 adopted pursuant to subsection (a) there
may be filed with the
34 county election officer of the county a
petition signed by not less
35 than 5% of the registered voters of the
county, and within 60 days
36 of publication of an ordinance adopted
pursuant to subsection (a)
37 there may be filed with the county
election officer of the county
38 in which the city is located a petition
signed by not less than 5%
39 of the registered voters of the city, in
either such case requesting
40 that the question of the installation
and operation of emergency
41 telephone service and imposition of tax
therefor be submitted to
42 the qualified voters of the county. Upon
determination of the suf-
43 ficiency of such petition and
certification thereof by the county
4
1 election officer, the proposition
shall be submitted to the qualified
2 voters of the county or city as
the case may be at the next primary
3 or general election of county
officers following by not less than 60
4 days the certification of such
petition. If a majority of the votes
5 cast at such election are for the
installation and operation of emer-
6 gency telephone service and
imposition of tax therefor, or if no
7 protest petition is filed within
the time hereinbefore prescribed,
8 the governing body may provide for
the installation and operation
9 of such service and impose such
tax. If a tax is imposed on the
10 effective date of this act or
thereafter, any proposed increase in
11 the amount of the tax shall be subject
to the protest petition pro-
12 vided in this subsection. The proceeds
of the tax shall be utilized
13 to pay for the operation of emergency
telephone service as set
14 forth in subsection (b) of K.S.A.
12-5304, and amendments thereto,
15 and may be imposed at any time
subsequent to execution of a con-
16 tract with the provider of such service
at the discretion of the gov-
17 erning body. The collection of such tax
may begin at the time de-
18 termined to be necessary to generate
revenue in an amount
19 necessary to pay the nonrecurring
expenses of establishing the
20 emergency telephone service,
including nonrecurring expenses of es-
21 tablishing capability to locate where a
wireless communication originates.
22 Any interest earned on revenue derived
from such tax shall be used
23 to pay the expenses authorized by K.S.A.
12-5304, and amend-
24 ments thereto. Such tax shall not be
imposed until after the expi-
25 ration of the protest period or until
after approved at an election
26 if a sufficient protest petition is
filed.
27 (c) As an
alternative to the procedure provided in subsection
28 (b), the governing body may submit, on
its own initiative, the pro-
29 posal to establish an emergency
telephone service to the qualified
30 voters of the city or county for
approval. Any such election shall
31 be called and held in the manner
provided by the general bond
32 law.
33 (d) Such tax
shall be imposed only upon exchange access lines
34 or their equivalent. No such tax shall
be imposed upon more than
35 100 exchange access facilities or their
equivalent per person per
36 location.
37 (e) Every
billed service user shall be liable for any tax imposed
38 under this act until it has been paid to
the service supplier. Wireless
39 service users shall be exempt from
the emergency telephone tax.
40 (f) The duty
to collect any tax imposed under authority of this
41 act from a service user shall commence
at such time as specified
42 by the governing body. Taxes imposed
under authority of this act
43 and required by it to be collected by
the service supplier shall be
5
1 added to and may be stated
separately in the billings to the service
2 user.
3 (g) The
service supplier shall have no obligation to take any
4 legal action to enforce the
collection of any tax imposed under
5 authority of this act. The service
supplier shall provide annually
6 the governing body with a list of
amounts uncollected along with
7 the names and addresses of those
service users which carry a bal-
8 ance that can be determined by the
service supplier to be nonpay-
9 ment of any tax imposed under
authority of this act.
10 (h) Any tax
imposed under authority of this act shall be col-
11 lected insofar as practicable at the
same time as, and along with,
12 the charges for the tariff rate in
accordance with the regular billing
13 practice of the service
supplier.
14 Sec.
4. K.S.A. 1999 Supp. 50-6,103 is hereby amended to
read
15 as follows: 50-6,103. (a) As used in
this section:
16
(1) ``Existing local exchange carrier or telecommunications
carrier''
17 does not mean an affiliate or subsidiary
of the local exchange carrier or
18 telecommunications carrier.
19 (1)
(2) ''Express authorization`` means an express,
affirmative
20 act by a consumer clearly agreeing
to the a change in the con-
21 sumer's telecommunications carrier or
local exchange carrier to
22 another carrier or the addition
of any supplemental telecommunications
23 services to the consumer's
account.
24
(3) ``Supplemental telecommunication services'' means any
property
25 or services for which any charge or
assessment appears on a billing state-
26 ment directed to a consumer by a local
exchange carrier or telecommu-
27 nications carrier, including but not
limited to personal 800 number serv-
28 ices, calling card plans, internet
advertisement and website services, voice
29 mail services, paging services, psychic
services, psychic memberships, dat-
30 ing services or memberships, travel club
memberships, internet access
31 services and service maintenance plans.
``Supplemental telecommunica-
32 tion services'' does not include direct
dial services to which a per use
33 charge applies.
34 (2)
(4) ``Telecommunications services'' has the meaning
pro-
35 vided by K.S.A. 66-1,187 and amendments
thereto.
36 (b) No local
exchange carrier or telecommunications carrier
37 shall submit or cause to be
submitted to a local exchange carrier an
38 order to change a consumer's
telecommunications carrier or local
39 exchange carrier to another carrier
without having obtained the
40 express authorization of the consumer
authorized to make the
41 change. The local exchange carrier or
telecommunications carrier
42 requesting the change shall have the
burden of proving the express
43 authorization by a preponderance of the
evidence. It shall not be a
6
1 violation of this subsection for a
local exchange carrier to assign a con-
2 sumer to a telecommunications
carrier for purposes of intraLATA services
3 pursuant to order of the state
corporation commission.
4 (c) No
supplier, other than the consumer's existing local exchange
5 carrier or telecommunications
carrier, shall:
6 (1) Add
or cause to be added any supplemental telecommunications
7 services to a consumer's account
without having obtained the express au-
8 thorization of the consumer
authorized to make the addition and the sup-
9 plier requesting the addition
shall have the burden of proving the express
10 authorization by a preponderance of the
evidence; or
11 (2) directly
or indirectly, bill, collect, attempt to bill or collect or
cause
12 to be billed or collected, charges
arising from a change in a consumer's
13 local exchange carrier or
telecommunications carrier to another carrier
14 or charges arising from the addition of
any supplemental telecommuni-
15 cations services to a consumer's account
when such supplier knew or had
16 reason to know that the consumer's
express authorization for such change
17 or addition was not obtained.
18 (c)
(d) No local exchange carrier,
telecommunications carrier or third
19 party utilized to verify an order
to change a consumer's telecommunica-
20 tions carrier or local exchange
carrier to another carrier supplier
shall:
21 (1) Engage in
any activity, conduct or representation that has
22 the capacity to mislead, deceive or
confuse the consumer, while soliciting
23 or verifying a change in a consumer's
telecommunications carrier or local
24 exchange carrier to another carrier
that has the capacity to mislead, de-
25 ceive or confuse the
consumer or while soliciting or verifying the
addition
26 of any supplemental telecommunications
services to a consumer's account;
27 (2) employ a
box or container used to collect entries for sweep-
28 stakes, contests or drawings to gather
letters of agency or other
29 documents that constitute authorizations
by consumers to change
30 the consumers' telecommunications
carrier or local exchange car-
31 rier to another carrier or to change or
add to the consumers' other
32 accounts any supplemental
telecommunications services; or
33 (3) use any
methods not approved by statute, regulations of the
34 federal communications commission
statutes, rules and regulations or fed-
35 eral trade commission (as in
effect on the effective date of this act)
36 or state corporation commission rules
and regulations to change a
37 consumer's telecommunications carrier or
local exchange carrier
38 to another carrier or to add
supplemental telecommunications services
39 to a consumer's account.
40 (d)
(e) Any local exchange carrier or
telecommunications carrier sup-
41 plier that violates subsection
(b) or (c), (c) or (d) shall be
subject to
42 a civil penalty of not less than $5,000
nor more than $20,000 for
43 each such violation instead of the
penalty provided for in subsec-
7
1 tion (a) of K.S.A. 50-636, and
amendments thereto.
2
(e) (f) Any violation of this
section is a deceptive and uncon-
3 scionable act or practice under
the provisions of the Kansas con-
4 sumer protection act and shall be
subject to any and all of the
5 enforcement provisions of the
Kansas consumer protection act.
6 Nothing in this section shall
preclude the state corporation com-
7 mission from exerting its
authority as it pertains to intrastate serv-
8 ices nor the attorney general from
pursuing violations of any other
9 provisions of the Kansas consumer
protection act by a local
10 exchange carrier or
telecommunications carrier supplier.
11 (f)
(g) All local exchange carriers shall offer
consumers the op-
12 tion of notifying the local exchange
carrier in writing that they do
13 not desire any change of
telecommunications carrier regardless of
14 any orders to the contrary submitted by
any third party. The con-
15 sumer shall be permitted to cancel such
notification or to change
16 its telecommunications carrier by
notifying the consumer's local
17 exchange carrier accordingly. All local
exchange carriers shall an-
18 nually notify the consumers of the
carrier's telecommunications
19 services of the availability of this
option.
20 (h) Any
person alleging a violation of this section may bring a
private
21 action to seek relief pursuant to K.S.A.
50-634, 50-636 and this section,
22 and amendments thereto and such person
may be defined as a consumer
23 pursuant to K.S.A. 50-624, and
amendments thereto for the purposes of
24 such private action.
25 (g)
(i) This section shall be part of and supplemental
to the Kan-
26 sas consumer protection act.
27 Sec.
2. 5. K.S.A. 1999 Supp.
66-2010 is 12-5302, 50-6,103 and
66-
28 2010 are hereby repealed.
29 Sec. 3.
6. This act shall take effect and be in force from and
after its
30 publication in the statute
book Kansas register.