,,ii #aaith ,,congress #ast ,session ,s4 #cchg ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,december #h 7legislative day1 ,december #d71 #bjbe,mr4 ,gallego introduced the following bill2 which was read twice and referred to the ,committee on ,commerce1 ,science1 and ,transportation ,a ,,bill ,to prohibit certain uses of automated decision systems to inform individualized prices1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,one ,fair ,price ,act of #bjbe4 #b4 ,prohibition on surveillance-based price setting 7a7 ,surveillance-,based price setting 7#a7 ,in general ,subject to paragraphs 7#b7 and 7#c71 it shall be unlawful for a person to offer or charge different prices to different consumers for the same1 or a substantially similar1 product or service using1 informed by1 or based on1 in whole or in part1 surveillance data4 7#b7 ,safe harbor 7,a7 ,in general ,the following shall not be considered surveillance-based price setting for purposes of paragraph 7#a7 if the conditions of subparagraph 7,b7 are met3 7i7 ,a difference in price that is based solely on reasonable costs associated with providing the product or service to different consumers4 7ii7 ,a bona fide discount that is offered to any member of a broadly defined group1 including teachers1 active duty personnel1 veterans1 senior citizens1 or students4 7iii7 ,a bona fide discount that is offered to any consumer who affirmatively and knowingly enrolls in a loyalty program4 7,b7 ,conditions for exception ,the conditions described in this subparagraph are the following3 7i7 ,any basis for a difference in reasonable costs associated with providing a product or service to different consumers is disclosed to the consumer prior to purchase4 7ii7 ,any eligibility condition or criteria for receiving or earning a bona fide discount is clearly and conspicuously disclosed4 7iii7 ,any bona fide discount is offered uniformly to any consumer who meets the disclosed eligibility conditions or criteria4 7iv7 ,any surveillance data used solely to offer or administer a bona fide discount is not used for any other purpose1 including profiling1 targeted advertising1 or individualized price setting4 7v7 ,any loyalty program that allows a user to accrue and exchange points1 credits1 or any similar nonmonetary system of value for a product or service does not charge a different price for those points1 credits1 or similar nonmonetary system of value to different consumers for the same or substantially similar product or service4 7#c7 ,inapplicability to insurance or credit products ,the prohibition under paragraph 7#a7 shall not apply to the business of insurance or any credit product4 7b7 ,enforcement by the ,commission 7#a7 ,unfair or deceptive acts or practices2 ,unfair methods of competition ,a violation of subsection 7a7 or a regulation promulgated under such subsection shall be treated as a violation of a rule defining an unfair or deceptive act or practice under section #ah7;a77#a77;,b7 of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #eg;a7a77#a77;,b77 and as a violation of section #e7;a7 of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #de7;a77 regarding unfair methods of competition4 7#b7 ,powers of the ,commission 7,a7 ,in general ,except as provided in subparagraph 7,c71 the ,commission shall enforce subsection 7a7 and any regulation promulgated under such subsection in the same manner1 by the same means1 and with the same jurisdiction1 powers1 and duties as though all applicable terms and provisions of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #da et seq47 were incorporated into and made a part of this ,act4 7,b7 ,privileges and immunities ,except as provided in subparagraph 7,c71 any person who violates such subsection or a regulation promulgated under such subsection shall be subject to the penalties and entitled to the privileges and immunities provided in the ,federal ,trade ,commission ,act4 7,c7 ,common carriers1 nonprofit organizations1 and air carriers ,notwithstanding section #d1 #e7;a77#b71 or #f of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #dd1 #de7;a77#b71 #df7 or any jurisdictional limitation of the ,commission1 the ,commission shall also enforce subsection 7a7 or a regulation promulgated under subsection 7a71 in the same manner provided in subparagraphs 7,a7 and 7,b71 with respect to-- 7i7 common carriers subject to the ,communications ,act of #aicd 7#dg ,u4,s4,c4 #aea et seq47 and all ,acts amendatory thereof and supplementary thereto2 7ii7 organizations not organized to carry on business for their own profit or that of their members2 and 7iii7 air carriers and foreign air carriers subject to the ,federal ,aviation ,act of #aieh4 7,d7 ,rulemaking 7i7 ,in general ,the ,commission may promulgate in accordance with section #eec of title #e1 ,united ,states ,code1 such rules as may be necessary to carry out this section1 including guidance regarding how to comply with subsection 7a74 7ii7 ,small business concerns ,the ,commission shall consider rules necessary to carry out this ,act as having a significant economic impact on a substantial number of small entities for purposes of chapter #f of title #e1 ,united ,states ,code 7commonly referred to as the ,regulatory ,flexibility ,act74 7,e7 ,authority preserved ,nothing in this ,act may be construed to limit the authority of the ,commission under any other provision of law4 7c7 ,actions by ,states 7#a7 ,in general ,in any case in which the attorney general of a ,state1 or an official or agency of a ,state1 has reason to believe that an interest of the residents of such ,state has been or is threatened or adversely affected by the engagement of any person in an act or practice in violation of subsection 7a7 or a regulation promulgated under such subsection1 the attorney general of the ,state1 may as parens patriae1 bring a civil action on behalf of the residents of the ,state in an appropriate ,state court or an appropriate district court of the ,united ,states to-- 7,a7 enjoin such act or practice2 7,b7 enforce compliance with such subsection or such regulation2 7,c7 obtain1 for each violation1 the greater of-- 7i7 the actual monetary damages incurred from the violation2 or 7ii7 #c1jjj2 or 7,d7 obtain1 for each violation1 any other restitution1 penalties1 and other legal or equitable relief as the court may deem appropriate4 7#b7 ,rule of construction ,for purposes of bringing a civil action under this subsection1 nothing in this ,act shall be construed to prevent an attorney general1 official1 or agency of a ,state from exercising the powers conferred on the attorney general1 official1 or agency by the laws of such ,state to conduct investigations1 administer oaths and affirmations1 or compel the attendance of witnesses or the production of documentary and other evidence4 7d7 ,private right of action 7#a7 ,in general ,an individual who has been injured by a person in violation of subsection 7a7 or a regulation promulgated under such subsection may bring a civil action against such person in an appropriate ,state court or an appropriate district court of the ,united ,states to-- 7,a7 enjoin the violation2 7,b7 obtain1 for each violation1 the greater of-- 7i7 the actual monetary damages incurred from the violation2 or 7ii7 #c1jjj2 or 7,c7 obtain1 for each violation1 any other restitution1 penalties1 and other legal or equitable relief as the court may deem appropriate4 7#b7 ,willful violations ,if the court finds that the defendant acted willfully in committing a violation described in paragraph 7#a71 the court may1 in its discretion1 increase the amount of the award to an amount equal to not more than #c times the amount available under paragraph 7#a77;,b74 7#c7 ,prima facie case2 rebuttal 7,a7 ,prima facie case ,in any proceeding commenced pursuant to paragraph 7#a71 the defendant shall be presumed to be in violation of subsection 7a7 if the plaintiff can demonstrate that-- 7i7 two or more individuals were offered different prices by the defendant for the same1 or a substantially similar1 product or service during the same1 or a substantially similar1 period of time2 or 7ii7 one individual was offered different prices by the defendant for the same1 or a substantially similar1 product or service during the same1 or a substantially similar1 period of time while using different means of viewing the price4 7,b7 ,burden of rebutting prima facie case ,the defendant may rebut the presumption described in subparagraph 7,a7 by demonstrating that the alleged difference in price was-- 7i7 not informed1 in whole or in part1 by surveillance data2 or 7ii7 fully explained by the safe harbors described in subsection 7a77#b74 7#d7 ,costs and attorney's fees ,the court shall award to a prevailing plaintiff in an action under this subsection the litigation costs of such action and reasonable attorney's fees1 as determined by the court4 7#e7 ,limitation ,an action may be commenced under this subsection not later than #e years after the date on which the individual first discovered or had a reasonable opportunity to discover the violation4 7#f7 ,nonexclusive remedy ,bringing a civil action under this subsection shall be in addition to any other remedy available to the individual bringing such civil action4 7#g7 ,invalidity of pre-dispute arbitration and joint action waivers ,notwithstanding chapter #a of title #i1 ,united ,states ,code 7commonly known as the ,federal ,arbitration ,act71 or any other provision of law1 a pre-dispute arbitration agreement or pre-dispute joint action waiver between a person in violation of subsection 7a7 and an individual is not valid or enforceable for purposes of the individual bringing a civil action against such person under this subsection4 7e7 ,joint study and report 7#a7 ,study ,not later than #a year after the date of enactment of this section1 the ,office of ,advocacy of the ,small ,business ,administration 7in this subsection referred to as the ,office of ,advocacy71 in consultation with the ,commission1 shall conduct a joint study to evaluate the impact of this ,act on-- 7,a7 small business concerns2 and 7,b7 promoting competition between large and small business enterprises4 7#b7 ,report ,not later than #ahj days after the ,office of ,advocacy completes the study under paragraph 7#a71 the ,commission and the ,office of ,advocacy shall submit to ,congress a report on such study1 including any relevant findings and recommendations resulting from such study4 7f7 ,definitions ,in this section3 7#a7 ,bona fide discount ,the term bona fide discount means an offered price that is lower than the genuine price at which a product or service is widely offered to the public on a regular basis for a reasonably substantial period of time and not for the purpose of establishing a fictitious price to enable the subsequent offer of a reduction4 7#b7 ,business of insurance2 credit ,the terms business of insurance and credit have the meaning given such terms in section #ajjb of the ,consumer ,financial ,protection ,act of #bjaj 7#ab ,u4,s4,c4 #edha74 7#c7 ,commission ,the term ,commission means the ,federal ,trade ,commission4 7#d7 ,genetic information ,the term genetic information has the meaning given such term in section #bgia7;d7 of the ,public ,health ,service ,act 7#db ,u4,s4,c4 #cjj;gg-#ia7;d774 7#e7 ,personal information ,the term personal information means any quality1 feature1 attribute1 or trait of an individual1 including any immutable characteristic 7such as race and eye color71 mutable characteristic 7such as address1 weight1 citizenship1 family1 or parenthood status71 genetic information1 and any other information that could reasonably be linked1 directly or indirectly1 with a particular individual or household4 7#f7 ,pre-dispute arbitration agreement ,the term pre-dispute arbitration agreement means any agreement to arbitrate a dispute that has not arisen at the time of making the agreement4 7#g7 ,pre-dispute joint action waiver ,the term pre-dispute joint action waiver means an agreement1 including as part of a pre-dispute arbitration agreement1 that would prohibit1 or waive the right of1 one of the parties to the agreement to participate in a joint1 class1 or collective action in a judicial1 arbitral1 administrative1 or other forum1 concerning a dispute that has not arisen at the time of making the agreement4 7#h7 ,price ,the term price means the amount charged or offered to a consumer in relation to a transaction1 including any related cost and fee and any other material term of the transaction that has direct bearing on the amount paid by the consumer or the value of the product or service offered or provided to the consumer4 7#i7 ,small business concern ,the term small business concern-- 7,a7 has the meaning given such term in section #c of the ,small ,business ,act 7#ae ,u4,s4,c4 #fcb72 and 7,b7 shall not include a small business concern involved in developing1 training1 or selling a product or service for the primary purpose of aiding a business to determine a price4 7#aj7 ,surveillance data ,the term surveillance data-- 7,a7 means data that is related to the personal information1 behavior1 or biometrics of an individual2 and 7,b7 includes data gathered1 purchased1 or otherwise acquired4 #c4 ,application of prohibition on surveillance-based price setting to air carriers and ticket agents 7a7 ,in general ,section #dagab of title #di1 ,united ,states ,code1 is amended by adding at the end the following3 7d7 ,prohibition on surveillance-,based price setting ,it shall be an unfair or deceptive practice under subsection 7a7 for an air carrier1 foreign air carrier1 or ticket agent to engage in surveillance-based price setting1 as described in section #b7;a7 of the ,one ,fair ,price ,act of #bjbe4 4 7b7 ,no preemption of consumer protection claims ,section #dagac7;b77#d7 of title #di1 ,united ,states ,code1 is amended by adding at the end the following3 7,d7 ,no preemption of surveillance-based price setting claims ,nothing in subparagraphs 7,a7 through 7,c7 may be construed-- 7i7 to preempt1 displace1 or supplant any action for civil damages or injunctive relief based on a violation of section #b7;a7 of the ,one ,fair ,price ,act of #bjbe2 or 7ii7 to restrict the authority of any government entity1 including an attorney general of a ,state1 from bringing a legal claim on behalf of the citizens of the ,state with respect to any such violation4 4