1997 Wisconsin Act 218

3. Any good faith attempt to comply with the agreement after the party receives notice of a failure to comply

4. Any other factor that the court determines is relevant.

(c) In an action to recover a forfeiture under par. (a), a finding by the commission in a proceeding under this subsection that a party to an interconnection agreement has failed to comply with the agreement shall be, subject to review under s. 227.52, conclusive proof that the party failed to comply with the agreement.

218,11 Section 11 . 196.202 (title) of the statutes is amended to read:

196.202 (title) Exemption of cellular commercial mobile radio telecommunications service providers.

218,12 Section 12 . 196.202 (1) of the statutes, as affected by 1997 Wisconsin Act 27, is repealed.

218,13m Section 13m. 196.202 (2) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

196.202 (2) Scope of regulation. A cellular commercial mobile radio telecommunications utility service provider is not subject to ch. 184 or this chapter, except a cellular commercial mobile radio telecommunications utility service provider is subject to s. 196.218 (3) to the extent not preempted by federal law. If the application of s. 196.218 (3) to a cellular commercial mobile radio telecommunications utility service provider is not preempted, a cellular commercial mobile radio telecommunications utility service provider shall respond, subject to the protection of the cellular commercial mobile radio telecommunications utility's service provider's competitive information, to all reasonable requests for information about its operations in this state from the commission necessary to administer the universal service fund.

218,15 Section 15 . 196.202 (5) of the statutes is amended to read:

196.202 (5) Billing. A cellular commercial mobile radio telecommunications utility service provider may not charge a customer for an incomplete call.

218,16 Section 16 . 196.205 of the statutes is renumbered 196.205 (1m).

218,17 Section 17 . 196.205 (2) of the statutes is created to read:

196.205 (2) Notwithstanding sub. (1m), a telecommunications cooperative shall be subject to s. 196.26 if it is a party in a proceeding on a complaint specified in s. 196.26 (1) (a) 2. or 3.

218,18 Section 18 . 196.215 (2d) of the statutes is created to read:

196.215 (2d) Notwithstanding sub. (2), a small telecommunications utility shall be subject to s. 196.26 if it is a party in a proceeding on a complaint specified in s. 196.26 (1) (a) 2. or 3.

218,19 Section 19 . 196.215 (2m) (e) of the statutes is created to read:

196.215 (2m) (e) Notwithstanding pars. (a) to (d), a small telecommunications utility is subject to s. 196.26 if it is a party in a proceeding on a complaint specified in s. 196.26 (1) (a) 2. or 3.

218,20 Section 20 . 196.219 (1) of the statutes is renumbered 196.219 (1) (intro.) and amended to read:

196.219 (1) (title) Definition Definitions. (intro.) In this section, “consumer":

(a) “Consumer" means any person, including a telecommunications provider, that uses the services, products or facilities provided by a telecommunications utility or the local exchange services offered by a telecommunications provider that is not a telecommunications utility.

218,21 Section 21 . 196.219 (1) (b) of the statutes is created to read:

196.219 (1) (b) “Local exchange service" has the meaning given in s. 196.50 (1) (b) 1.

218,22 Section 22 . 196.219 (2) (a) of the statutes is amended to read:

196.219 (2) (a) Notwithstanding any exemptions identified in this chapter except s. 196.202, a telecommunications utility or provider shall provide protection to its consumers under this section unless exempted in whole or in part by rule or order of the commission under this section. The commission shall promulgate rules that identify the conditions under which provisions of this section may be suspended.

218,23 Section 23 . 196.219 (2) (d) of the statutes is amended to read:

196.219 (2) (d) If the commission grants an exemption under this subsection, it may require the telecommunications utility or provider to comply with any condition necessary to protect the public interest.

218,24 Section 24 . 196.219 (2m) (a) of the statutes is renumbered 196.219 (2m) and amended to read:

196.219 (2m) Access services. A telecommunications utility or provider shall provide access services under tariff under the same rates, terms and conditions to all telecommunications providers, except that a provider is not obligated to provide to competitors access to dedicated access services provided to end user customers as part of an interexchange service.

218,25 Section 25 . 196.219 (2m) (b) of the statutes is repealed.

218,26 Section 26 . 196.219 (3) (intro.) and (a) of the statutes are amended to read:

196.219 (3) Prohibited practices. (intro.) A telecommunications utility may not do any of the following with respect to its regulated services or any other telecommunications provider with respect to its offering of local exchange services may not do any of the following:

(a) Refuse to interconnect within a reasonable time with another person to the same extent that the federal communications commission requires the telecommunications utility or provider to interconnect. The public service commission may require additional interconnection based on a determination, following notice and opportunity for hearing, that additional interconnection is in the public interest and is consistent with the factors under s. 196.03 (6).

218,27 Section 27 . 196.219 (3) (e) of the statutes is amended to read:

196.219 (3) (e) Fail to provide a service, product or facility to a consumer other than a telecommunications provider in accord with the telecommunications utility's or provider's applicable tariffs, price lists or contracts and with the commission's rules and orders.

218,28 Section 28 . 196.219 (3) (em) of the statutes is amended to read:

196.219 (3) (em) Refuse to provide a service, product or facility to a telecommunications provider, in accord with the that telecommunications utility's or provider's applicable tariffs, price lists or contracts and with the commission's rules and orders, to another telecommunications provider.

218,29 Section 29 . 196.219 (3) (f) of the statutes is amended to read:

196.219 (3) (f) Refuse to provide basic local exchange service, business access line and usage service within a local calling area and access service on an unbundled basis to the same extent that the federal communications commission requires the telecommunications utility or provider to unbundle the same services provided under its jurisdiction. The public service commission may require additional unbundling of intrastate telecommunications services based on a determination, following notice and opportunity for hearing, that additional unbundling is required in the public interest and is consistent with the factors under s. 196.03 (6). The public service commission may order unbundling by a small telecommunications utility.

218,30 Section 30 . 196.219 (3) (h) of the statutes is amended to read:

196.219 (3) (h) To the extent prohibited by the federal communications commission, or by the public service commission under rules promulgated consistent with the factors under s. 196.03 (6), give preference or discriminate in the provision of services, products or facilities to an affiliate, or to the telecommunications utility's or provider's own or an affiliate's retail department that sells to consumers.

218,31 Section 31 . 196.219 (3) (m) of the statutes is amended to read:

196.219 (3) (m) Provide telecommunications service to any person acting as a telecommunications utility, telecommunications provider, alternative telecommunications utility or telecommunications carrier if the commission has ordered the telecommunications utility or provider to discontinue service to that person.

218,32 Section 32 . 196.219 (4) of the statutes is amended to read:

196.219 (4) Enforcement. (a) On the commission's own motion or upon complaint filed by the consumer, the commission shall have jurisdiction to take administrative action or to commence civil actions against telecommunications utilities or providers to enforce this section.

(b) The commission may, at its discretion, institute in any court of competent jurisdiction a proceeding against a telecommunications utility or provider for injunctive relief to compel compliance with this section, to compel the accounting and refund of any moneys collected in violation of this section or for any other relief permitted under this chapter.

218,33 Section 33 . 196.219 (4m) of the statutes is renumbered 196.219 (4m) (a) and amended to read:

196.219 (4m) (a) Upon a finding of a violation of this section by the commission, any person injured because of a violation of this section by a telecommunications utility or provider may commence a civil action to recover damages or to obtain injunctive relief.

218,34 Section 34 . 196.219 (4m) (b) of the statutes is created to read:

196.219 (4m) (b) Upon request of the commission, the attorney general may bring an action to require a telecommunications utility or provider to compensate any person for any pecuniary loss caused by the failure of the utility or provider to comply with this section.

218,35 Section 35 . 196.219 (5) of the statutes is amended to read:

196.219 (5) Alternate dispute resolution. The commission shall establish by rule a procedure for alternative dispute resolution to be available for complaints filed against a telecommunications utility or provider.

218,36 Section 36 . 196.26 (1) of the statutes is renumbered 196.26 (1) (intro.) and amended to read:

196.26 (1) Complaint. (intro.) In this section, “complaint";

(a) “Complaint" means a any of the following:

1. A complaint filed with the commission that any rate, toll, charge or schedule, joint rate, regulation, measurement, act or practice relating to the provision of heat, light, water, power or telecommunications service is unreasonable, inadequate, unjustly discriminatory or cannot be obtained.

218,37 Section 37 . 196.26 (1) (a) 2. and 3. of the statutes are created to read:

196.26 (1) (a) 2. A complaint specified in s. 196.199 (3) (a) 1m. b.

3. A complaint by a party to an interconnection agreement, approved by the commission, that another party to the agreement has failed to comply with the agreement and that does not allege that the failure to comply has a significant adverse effect on the ability of the complaining party to provide telecommunications service to its customers or potential customers.

218,39 Section 39 . 196.26 (1m) of the statutes is amended to read:

196.26 (1m) Complaint and investigation. If any mercantile, agricultural or manufacturing society, body politic, municipal organization or 25 persons file a complaint specified in sub. (1) (a) 1. against a public utility, or if the commission terminates a proceeding on a complaint under s. 196.199 (3) (a) 1m. b., or if a person files a complaint specified in sub. (1) (a) 3., the commission, with or without notice, may investigate the complaint under this section as it deems necessary. The commission may not issue an order based on the investigation without a public hearing.

218,40 Section 40 . 196.26 (2) (a) of the statutes is amended to read:

196.26 (2) (a) Prior to a hearing under this section, the commission shall notify the public utility or party to an interconnection agreement complained of that a complaint has been made, and 10 days after the notice has been given the commission may proceed to set a time and place for a hearing and an investigation. This paragraph does not apply to a complaint specified in sub. (1) (a) 2.

218,41 Section 41 . 196.26 (2) (b) of the statutes is amended to read:

196.26 (2) (b) The commission shall give the complainant and either the public utility or party to an interconnection agreement which is the subject of a complaint filed under and the complainant specified in sub. (1) (a) 1. or 3. or, for a complaint specified in sub. (1) (a) 2., a party to an interconnection agreement who is identified in a notice under s. 196.199 (3) (b) 1. b., 10 days' notice of the time and place of the hearing and the matter to be considered and determined at the hearing. The complainant and either the public utility or the party to the interconnection agreement may be heard. The commission may subpoena any witness at the request of the public utility, party to the interconnection agreement or complainant.

218,42 Section 42 . 196.26 (4) (c) of the statutes is created to read:

196.26 (4) (c) Paragraphs (a) and (b) do not apply to a complaint specified in sub. (1) (a) 2. or 3.

218,43 Section 43 . 196.28 (3) of the statutes is amended to read:

196.28 (3) Notice of the time and place for a hearing under sub. (2) shall be given to the public utility, and to such other interested persons as the commission deems necessary. After the notice has been given, proceedings shall be had and conducted in reference to the matter investigated as if a complaint specified in s. 196.26 (1) (a) 1, had been filed with the commission under s. 196.26 (1) relative to the matter investigated. The same order or orders may be made in reference to the matter as if the investigation had been made on complaint under s. 196.26.

218,44 Section 44 . 196.43 (3) of the statutes is created to read:

196.43 (3) No injunction may be issued in any proceeding for review under ch. 227 of an order of the commission under s. 196.199 (3) (a) 2., suspending or staying the order, unless the court finds that the person seeking review of the order is likely to succeed on the merits and suffer irreparable harm without the suspension or stay and that the suspension or stay is in the public interest.

218,45 Section 45 . 196.44 (2) (a) of the statutes is amended to read:

196.44 (2) (a) Upon request of the commission, the attorney general or the district attorney of the proper county shall aid in any investigation, hearing or trial had under this chapter, and shall institute and prosecute all necessary actions or proceedings for the enforcement of all laws relating to public utilities or telecommunications providers, and for the punishment of all violations.

218,46 Section 46 . 196.499 (1) of the statutes, as affected by 1997 Wisconsin Act 27, is renumbered 196.499 (1) (intro.) and amended to read:

196.499 (1) Scope. (intro.) Notwithstanding any other provisions of this chapter, a telecommunications carrier is not subject to regulation under this chapter, except that a under each of the following provisions:

(a) A telecommunications carrier shall comply with the requirements of this section,.

(b) A telecommunications carrier shall be treated under ss. 196.209, 196.218 (8) and 196.219 (4d) as a telecommunications provider,.

(c) A telecommunications carrier shall be treated under s. 196.85 as a telecommunications utility and .

(d) A telecommunications carrier shall be treated under s. 196.858 as an interexchange telecommunications utility,.

(e) A telecommunications carrier may be assessed under s. 196.218 (3) as a telecommunications provider and shall respond, subject to the protection of the telecommunications carrier's competitive information, to all reasonable requests for information about its operations in this state from the commission necessary to administer the universal service fund. A telecommunications carrier may not be assessed in a manner that is inconsistent with this section paragraph.

218,47 Section 47 . 196.499 (1) (f) of the statutes is created to read:

196.499 (1) (f) For purposes of enforcing s. 196.209, 196.218 (3) or (8), 196.219, 196.85 or 196.858, or for purposes of approving or enforcing an interconnection agreement to which a telecommunications carrier is a party, a telecommunications carrier shall be subject to ss. 196.02 (3), 196.32, 196.33, 196.39, 196.395, 196.40, 196.41, 196.43, 196.44 (3) and 196.48 and be treated as a party to the agreement under ss. 196.199 and 196.26, as a public utility under ss. 196.02 (5) and (6), 196.14, 196.24, 196.44 (2) (a), 196.66 and 196.85 (1) and as a telecommunications provider under ss. 196.25 (3) and 196.65 (3).

218,47g Section 47g. 943.455 (title) of the statutes is amended to read:

943.455 (title) Theft of cellular telephone commercial mobile service.

218,47r Section 47r. 943.455 (1) (a) of the statutes is amended to read:

943.455 (1) (a) “Cellular telephone Commercial mobile service" means any telecommunications service commercial mobile service, as defined in s. 196.01 (2i), that is provided by a company over a cellular telephone system for payment.

218,48 Section 48 . 943.455 (1) (b) of the statutes is amended to read:

943.455 (1) (b) “Company" means a cellular commercial mobile radio telecommunications utility service provider, as defined in s. 196.202 (1) 196.01 (2g).

218,48g Section 48g. 943.455 (2) (a), (b), (c) and (f) of the statutes are amended to read:

943.455 (2) (a) Obtain or attempt to obtain cellular telephone commercial mobile service from a company by trick, artifice, deception, use of an illegal device or other fraudulent means with the intent to deprive that company of any or all lawful compensation for rendering each type of service obtained. The intent required for a violation of this paragraph may be inferred from the presence on the property and in the actual possession of the defendant of a device not authorized by the company, the major purpose of which is to permit reception of cellular telephone commercial mobile services without payment. This inference is rebutted if the defendant demonstrates that he or she purchased that device for a legitimate use.