As Introduced 1
123rd General Assembly 4
Regular Session H. B. No. 177 5
1999-2000 6
REPRESENTATIVES GOODMAN-MEAD-TIBERI-OLMAN-ROMAN-TAYLOR-SCHULER- 8
METZGER-BRITTON-KRUPINSKI-SULLIVAN-DAMSCHRODER-VAN VYVEN- 9
JONES-ALLEN-BOYD-PADGETT-OPFER-CORE-JOLIVETTE-TERWILLEGER- 10
NETZLEY-GARDNER-BUCHY-THOMAS-O'BRIEN-CALLENDER-FLANNERY- 11
GRENDELL-TRAKAS-DePIERO-HARRIS-CATES-BARRETT-BENDER-PRINGLE- 12
PATTON-CORBIN-JERSE-EVANS-WINKLER-AUSTRIA 13
_________________________________________________________________ 15
A B I L L
To amend sections 1345.99 and 4933.99 and to enact 17
sections 4933.41 to 4933.45 of the Revised Code 18
to prohibit any person from switching a 19
consumer's provider of natural gas or public 20
telecommunications service without first 22
obtaining the consumer's verified consent in 23
accordance with rules of the Public Utilities 24
Commission and to provide various remedies and 25
penalties, including application of those under 26
the Consumer Sales Practices Act. 27
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 29
Section 1. That sections 1345.99 and 4933.99 be amended 31
and sections 4933.41, 4933.42, 4933.43, 4933.44, and 4933.45 of 32
the Revised Code be enacted to read as follows: 33
Sec. 1345.99. (A) Whoever violates section 1345.23 or 42
1345.24 of the Revised Code is guilty of a minor misdemeanor. 44
(B) WHOEVER VIOLATES DIVISION (A)(1) OR (2) OF SECTION 46
4933.42 OF THE REVISED CODE IS GUILTY OF A FELONY OF THE FIFTH 48
DEGREE FOR THE FIRST OFFENSE AND A FELONY OF THE FOURTH DEGREE 49
FOR EACH SUBSEQUENT OFFENSE.
Sec. 4933.41. AS USED IN SECTIONS 4933.41 TO 4933.45 OF 51
2
THE REVISED CODE: 53
(A) "CONSUMER" MEANS A PERSON THAT ENGAGES IN A CONSUMER 56
TRANSACTION FOR NATURAL GAS SERVICE OR PUBLIC TELECOMMUNICATIONS 57
SERVICE WITHIN THIS STATE AND INCLUDES A RESIDENTIAL OR BUSINESS 58
CONSUMER.
(B) "CONSUMER TRANSACTION" MEANS THE SALE, LEASE, 61
ASSIGNMENT, AWARD BY CHANCE, OR OTHER TRANSFER OF NATURAL GAS 62
SERVICE OR PUBLIC TELECOMMUNICATIONS SERVICE TO A CONSUMER. 63
(C) "PERSON" INCLUDES AN INDIVIDUAL, CORPORATION, 66
GOVERNMENT, GOVERNMENTAL SUBDIVISION OR AGENCY, BUSINESS TRUST, 67
ESTATE, TRUST, PARTNERSHIP, ASSOCIATION, COOPERATIVE, OR OTHER 68
LEGAL ENTITY.
(D) "PUBLIC TELECOMMUNICATIONS SERVICE" HAS THE SAME 71
MEANING AS IN SECTION 4927.01 OF THE REVISED CODE. 73
(E) "PURPOSELY" HAS THE SAME MEANING AS IN SECTION 2901.22 75
OF THE REVISED CODE. 76
Sec. 4933.42. (A)(1) NO PERSON, IN CONNECTION WITH A 79
CONSUMER TRANSACTION, SHALL PURPOSELY REQUEST OR SUBMIT, OR CAUSE 80
TO BE REQUESTED OR SUBMITTED, A CHANGE IN A CONSUMER'S PROVIDER 82
OF NATURAL GAS SERVICE OR PUBLIC TELECOMMUNICATIONS SERVICE 83
WITHIN THIS STATE, WITHOUT FIRST OBTAINING, OR CAUSING TO BE 84
OBTAINED, THE VERIFIED CONSENT OF THE CONSUMER IN ACCORDANCE WITH 85
RULES ADOPTED BY THE PUBLIC UTILITIES COMMISSION PURSUANT TO 86
SECTION 4933.43 OF THE REVISED CODE. 87
(2) NO PERSON SHALL PURPOSELY VIOLATE OR FAIL TO COMPLY 90
WITH ANY PROVISION OF A RULE ADOPTED BY THE COMMISSION PURSUANT 91
TO SECTION 4933.43 OF THE REVISED CODE. 92
(3) NO PERSON SHALL PURPOSELY VIOLATE OR FAIL TO COMPLY 95
WITH ANY PROVISION OF AN ORDER MADE WITH RESPECT TO THE PERSON 96
AND ISSUED UNDER DIVISION (B) OR (C) OF SECTION 4933.44 OF THE 99
REVISED CODE.
(B) FOR THE PURPOSES OF DIVISION (A) OF THIS SECTION, THE 102
ACT, OMISSION, OR FAILURE OF ANY OFFICER, AGENT, OR OTHER 103
INDIVIDUAL, ACTING FOR OR EMPLOYED BY ANOTHER PERSON, WHILE 104
3
ACTING WITHIN THE SCOPE OF THAT AUTHORITY OR EMPLOYMENT, IS THE 105
ACT OR FAILURE OF THAT OTHER PERSON. 106
Sec. 4933.43. THE PUBLIC UTILITIES COMMISSION SHALL ADOPT 109
COMPETITVELY NEUTRAL RULES PRESCRIBING PROCEDURES NECESSARY FOR
VERIFYING THE CONSENT OF A CONSUMER FOR THE PURPOSES OF SECTION 111
4933.42 OF THE REVISED CODE AND ANY PROCEDURES NECESSARY FOR THE 113
FILING OF A SECURITY UNDER DIVISION (C)(5) OF SECTION 4933.44 OF 114
THE REVISED CODE, AND MAY ADOPT SUCH OTHER COMPETITIVELY NEUTRAL 116
RULES AS THE COMMISSION CONSIDERS NECESSARY TO CARRY OUT SECTIONS 118
4933.41 TO 4933.44 OF THE REVISED CODE. WITH RESPECT TO PUBLIC 119
TELECOMMUNICATIONS SERVICE ONLY, THE RULES PRESCRIBING PROCEDURES 120
NECESSARY FOR VERIFYING CONSUMER CONSENT SHALL BE CONSISTENT WITH 121
THE RULES OF THE FEDERAL COMMUNICATIONS COMMISSION IN 47 C.F.R. 122
64.1100 AND 64.1150. 123
Sec. 4933.44. (A) THE PUBLIC UTILITIES COMMISSION, UPON 126
COMPLAINT BY ANY PERSON OR COMPLAINT OR INITIATIVE OF THE 127
COMMISSION, HAS JURISDICTION UNDER SECTION 4905.26 OF THE REVISED 128
CODE REGARDING ANY VIOLATION OF DIVISION (A)(1), (2), OR (3) OF 130
SECTION 4933.42 OF THE REVISED CODE BY A PERSON THAT IS A PUBLIC 133
UTILITY UNDER SECTION 4905.02 OF THE REVISED CODE. 134
(B) UPON ANY COMPLAINT OR INITIATIVE UNDER DIVISION (A) OF 138
THIS SECTION, IF THE COMMISSION FINDS, AFTER NOTICE AND HEARING 139
PURSUANT TO SECTION 4905.26 OF THE REVISED CODE, THAT A PERSON 140
THAT IS A PUBLIC UTILITY AS DEFINED IN SECTION 4905.02 OF THE 142
REVISED CODE HAS VIOLATED DIVISION (A)(1), (2), OR (3) OF SECTION 144
4933.42 OF THE REVISED CODE, THE COMMISSION, BY ORDER, SHALL DO 148
ALL OF THE FOLLOWING:
(1) RESCIND THE AGGRIEVED CONSUMER'S CHANGE IN SERVICE 151
PROVIDER OR SUBSCRIPTION TO NEW SERVICE, AS APPLICABLE; 152
(2) REQUIRE SUCH PERSON TO ABSOLVE THE AGGRIEVED CONSUMER 155
OF ANY LIABILITY FOR ANY CHARGES ASSESSED THE CONSUMER, OR REFUND 156
TO THE AGGRIEVED CONSUMER ANY CHARGES COLLECTED FROM THE 157
CONSUMER, BY SUCH PERSON DURING SUCH PERIOD, AFTER THE VIOLATION 158
OR FAILURE TO COMPLY OCCURRED, THAT IS DETERMINED REASONABLE BY 159
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THE COMMISSION;
(3) REQUIRE SUCH PERSON TO REFUND OR PAY TO THE AGGRIEVED 162
CONSUMER ANY FEES PAID OR COSTS INCURRED BY THE CONSUMER 163
RESULTING FROM THE CHANGE OF THE CONSUMER'S SERVICE OR SERVICE 164
PROVIDER OR PROVIDERS, OR FROM THE RESUMPTION OF THE CONSUMER'S 165
SERVICE WITH THE SERVICE PROVIDER OR PROVIDERS FROM WHICH THE 166
CONSUMER WAS SWITCHED;
(4) REQUIRE THE SERVICE PROVIDER OR PROVIDERS FROM WHICH A 169
CONSUMER WAS SWITCHED TO MAKE THE CONSUMER WHOLE REGARDING ANY 170
BONUSES OR BENEFITS, SUCH AS AIRLINE MILEAGE OR PRODUCT 171
DISCOUNTS, TO WHICH THE CONSUMER IS ENTITLED, BY RESTORING 172
BONUSES OR BENEFITS THE CONSUMER LOST AS A RESULT OF THE 173
VIOLATION OR FAILURE TO COMPLY AND PROVIDING BONUSES OR BENEFITS 174
THE CONSUMER WOULD HAVE EARNED IF NOT FOR THE VIOLATION OR 175
FAILURE TO COMPLY, OR BY PROVIDING SOMETHING OF EQUAL VALUE. 176
(C) IN ADDITION TO THE REMEDIES UNDER DIVISION (B) OF THIS 180
SECTION, IF THE COMMISSION FINDS, AFTER NOTICE AND HEARING
PURSUANT TO SECTION 4905.26 OF THE REVISED CODE, THAT A PERSON 182
THAT IS A PUBLIC UTILITY AS DEFINED IN SECTION 4905.02 OF THE 184
REVISED CODE HAS VIOLATED DIVISION (A)(1), (2), OR (3) OF SECTION 186
4933.42 OF THE REVISED CODE OR HAS VIOLATED OR FAILED TO COMPLY 190
WITH AN ORDER UNDER THIS DIVISION OR DIVISION (B) OF THIS 191
SECTION, THE COMMISSION, BY ORDER, MAY IMPOSE ANY OF THE 192
FOLLOWING REMEDIES OR FORFEITURES: 193
(1) REQUIRE SUCH PERSON TO COMPLY OR UNDERTAKE ANY 196
NECESSARY CORRECTIVE ACTION;
(2) REQUIRE SUCH PERSON TO COMPENSATE THE SERVICE PROVIDER 199
OR PROVIDERS FROM WHICH THE AGGRIEVED CONSUMER WAS SWITCHED IN 200
THE AMOUNT OF ALL CHARGES THE CONSUMER WOULD HAVE PAID THAT 201
PARTICULAR SERVICE PROVIDER FOR THE SAME OR COMPARABLE SERVICE 202
HAD THE VIOLATION OR FAILURE TO COMPLY NOT OCCURRED; 203
(3) REQUIRE SUCH PERSON TO COMPENSATE THE SERVICE PROVIDER 206
OR PROVIDERS FROM WHICH THE AGGRIEVED CONSUMER WAS SWITCHED FOR 207
ANY COSTS THAT THE PARTICULAR SERVICE PROVIDER INCURS AS A RESULT 208
5
OF MAKING THE CONSUMER WHOLE AS PROVIDED IN DIVISION (B)(4) OF 210
THIS SECTION OR OF EFFECTING THE RESUMPTION OF THE CONSUMER'S 211
SERVICE;
(4) ASSESS UPON SUCH PERSON FORFEITURES OF NOT MORE THAN 213
ONE THOUSAND DOLLARS FOR EACH DAY OF EACH VIOLATION OR FAILURE TO 215
COMPLY. HOWEVER, IF THE COMMISSION FINDS THAT THE PERSON HAS
ENGAGED OR IS ENGAGING IN A PATTERN OR PRACTICE OF COMMITTING ANY 217
SUCH VIOLATIONS OR FAILURES TO COMPLY, THE COMMISSION MAY ASSESS 218
UPON THAT PERSON FORFEITURES OF NOT MORE THAN FIVE THOUSAND 219
DOLLARS FOR EACH DAY OF EACH VIOLATION OR FAILURE. ANY
FORFEITURE COLLECTED PURSUANT TO THIS DIVISION SHALL BE DEPOSITED 221
INTO THE STATE TREASURY TO THE CREDIT OF THE GENERAL REVENUE 222
FUND.
(5) REQUIRE SUCH PERSON TO FILE WITH THE COMMISSION A 225
SECURITY PAYABLE TO THE STATE IN SUCH AMOUNT AND UPON SUCH TERMS 226
AS THE COMMISSION DETERMINES NECESSARY TO ENSURE COMPLIANCE AND 227
PAYMENT OF ANY FORFEITURES ASSESSED PURSUANT TO DIVISION (C)(4) 228
OF THIS SECTION; 229
(6) RESCIND SUCH PERSON'S AUTHORITY TO PROVIDE NATURAL GAS 232
SERVICE OR PUBLIC TELECOMMUNICATIONS SERVICE WITHIN THIS STATE. 233
(D) PROCEEDINGS OF THE COMMISSION PURSUANT TO DIVISION (B) 237
OR (C) OF THIS SECTION ARE GOVERNED BY CHAPTER 4903. OF THE 240
REVISED CODE. 241
(E) THE COMMISSION MAY DIRECT THE ATTORNEY GENERAL TO 244
COMMENCE AN ACTION UNDER SECTION 4905.57 OR 4905.60 OF THE 246
REVISED CODE TO ENFORCE AN ORDER OF THE COMMISSION ISSUED UNDER 247
DIVISION (B) OR (C) OF THIS SECTION, INCLUDING ORDERS ASSESSING 250
FORFEITURES. NOTWITHSTANDING SECTION 4905.57 OF THE REVISED 251
CODE, AN ACTION AUTHORIZED UNDER THIS DIVISION MAY BE BROUGHT IN 252
THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY OR THE COURT OF 254
COMMON PLEAS OF ANY COUNTY IN WHICH VENUE IS PROPER UNDER THE 255
RULES OF CIVIL PROCEDURE. SUCH ACTION IN A COURT OF COMMON PLEAS 257
HAS PRECEDENCE OVER ALL OTHER CIVIL ACTIONS IN THE COURT.
(F) THE REMEDY AVAILABLE UNDER SECTION 4905.61 OF THE 261
6
REVISED CODE MAY BE APPLIED TO ANY VIOLATION OF DIVISION (A)(1), 262
(2), OR (3) OF SECTION 4933.42 OF THE REVISED CODE OR ANY 265
VIOLATION OF ANY PROVISION OF AN ORDER ISSUED UNDER DIVISION (B) 267
OR (C) OF THIS SECTION. 268
(G) THE POWERS, REMEDIES, FORFEITURES, AND PENALTIES 271
PROVIDED BY SECTIONS 4933.41 TO 4933.44 AND DIVISION (E) OF 272
SECTION 4933.99 OF THE REVISED CODE ARE IN ADDITION TO ANY OTHER 275
POWER, REMEDY, FORFEITURE, OR PENALTY PROVIDED BY LAW. 276
Sec. 4933.45. (A) A VIOLATION OF DIVISION (A)(1), (2), OR 279
(3) OF SECTION 4933.42 OF THE REVISED CODE IS AN UNFAIR OR 282
DECEPTIVE ACT OR PRACTICE IN VIOLATION OF SECTION 1345.02 OF THE 284
REVISED CODE. IN THE APPLICATION TO A CONSUMER AND A CONSUMER 286
TRANSACTION UNDER SECTIONS 1345.01 TO 1345.13 OF THE REVISED 287
CODE, THIS DIVISION SHALL BE ENFORCED IN ACCORDANCE WITH THE 289
FOLLOWING:
(1) "CONSUMER" HAS THE SAME MEANING AS IN SECTION 4933.41 291
OF THE REVISED CODE. 292
(2) "CONSUMER TRANSACTION" HAS THE SAME MEANING AS IN 294
SECTION 4933.41 OF THE REVISED CODE, BUT EXCLUDES TRANSACTIONS 296
THAT ARE EXCLUDED FROM THE DEFINITION OF "CONSUMER TRANSACTION"
UNDER SECTION 1345.01 OF THE REVISED CODE. 298
(B) THE AUTHORITY OF THE ATTORNEY GENERAL UNDER DIVISION 302
(A) OF THIS SECTION IS IN ADDITION TO ANY OTHER APPLICABLE POWERS 303
OF THE ATTORNEY GENERAL, INCLUDING AUTHORITY UNDER DIVISION (C) 305
OF THIS SECTION TO INITIATE CRIMINAL PROCEEDINGS. 306
(C) THE ATTORNEY GENERAL MAY INITIATE CRIMINAL PROCEEDINGS 309
FOR A PROSECUTION UNDER DIVISION (B) OF SECTION 1345.99 OF THE 311
REVISED CODE BY PRESENTING EVIDENCE OF CRIMINAL VIOLATIONS TO THE 312
PROSECUTING ATTORNEY OF ANY COUNTY IN WHICH THE OFFENSE MAY BE 313
PROSECUTED. IF THE PROSECUTING ATTORNEY DOES NOT PROSECUTE THE 314
VIOLATIONS, OR AT THE REQUEST OF THE PROSECUTING ATTORNEY, THE 315
ATTORNEY GENERAL MAY PROCEED IN THE PROSECUTION WITH ALL THE 316
RIGHTS, PRIVILEGES, AND POWERS CONFERRED BY LAW ON PROSECUTING 317
ATTORNEYS, INCLUDING THE POWER TO APPEAR BEFORE GRAND JURIES AND 318
7
TO INTERROGATE WITNESSES BEFORE GRAND JURIES. 319
Sec. 4933.99. (A) Whoever violates section 4933.16 of the 328
Revised Code is guilty of a misdemeanor of the third degree. 329
(B) Whoever violates section 4933.20, 4933.22, 4933.24, or 332
4933.25 of the Revised Code is guilty of a misdemeanor of the 333
fourth degree. 334
(C) Whoever violates section 4933.21 or 4933.23 of the 337
Revised Code is guilty of a misdemeanor of the first degree. 338
(D) Whoever violates division (E) of section 4933.28 of 341
the Revised Code is guilty of a misdemeanor of the fourth degree. 342
Each day of a violation of that division constitutes a separate 345
offense.
(E) WHOEVER VIOLATES DIVISION (A)(1), (2), OR (3) OF 347
SECTION 4933.42 OF THE REVISED CODE IS GUILTY OF A FELONY OF THE 349
FIFTH DEGREE ON A FIRST OFFENSE AND A FELONY OF THE FOURTH DEGREE 350
ON EACH SUBSEQUENT OFFENSE.
Section 2. That existing sections 1345.99 and 4933.99 of 352
the Revised Code are hereby repealed. 353