Updated: CA & Federal Laws Supporting No Opt-out Fees and Complaint Info

The following federal and CA state laws that appear to support no opt-out fees are listed below. This is not a complete list and CEP does not provide guidance nor legal assistance to interpret them. We recommend that you study the laws and use this information to assist your efforts to work on smart meter issues, including fees. You may wish to obtain the assistance of a disability right clinic or disability rights attorney.

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How to File a Discrimination Complaint Associated with RF Radiation from Smart Meters

TO FILE A TITLE II ADA / 504 COMPLAINT AGAINST YOUR STATE PUBLIC UTILITIES COMMISSION (PUC) WITH THE US DEPT OF JUSTICE (US DOJ) RELATED TO YOUR DISABILITY AND/OR MEDICAL CONDITIONS AND DISCRIMINATORY STATE POLICIES THAT FORCE EXPOSURE TO RF RADIATION, DISCRIMINATORY OPT-OUT FEES, OR DISCRIMINATION DUE TO LACK OF EQUAL ACCESS TO MEETINGS (VIRTUAL OR IN-PERSON), CLICK HERE

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State of CA Disability Laws and Regulations webpage, includes state and federal discrimination laws

http://www.disabilityaccessinfo.ca.gov/lawsregs.htm

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A Guide to Disability Rights Laws. A 21-page booklet that provides a brief overview of ten Federal laws that protect the rights of people with disabilities and provides information about the federal agencies to contact for more information. (Spanish, Cambodian, Chinese, Hmong, Japanese, Korean, Laotian, Tagalog and Vietnamese editions available from the ADA Information Line.)

ADA.gov’s CGuide: Disability Rights Laws (HTML): (w/ selected sections, below): Americans with Disabilities Act (ADA)

Telecommunications Act Fair Housing Act Individuals with Disabilities Education Act Rehabilitation Act Architectural Barriers Act General Sources of Disability Rights Information Statute Citations

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Both California state and federal laws support nondiscrimination against disabled persons and/or those with medical conditions. This pertains to disabled persons and use of public services, applies to states and their agencies (CPUC) (which have no immunity if found to violate) and recipients of state or federal funding (the utilities in many states received  Recovery Act money by the billions to develop smart meters and the smart grid). To look up the individual grant recipients and grants, go to http://www.recovery.gov/Pages/default.aspx.

CEP asserts that all citizens and thus, all residential customers, are protected from paying opt-out fees by California Public Utilities Code 453.

It is the position of CEP that a broad segment of the population who may be considered as people with disabilities (on record or regarded as having physical or mental impairments), and/or medical conditions, and/or specific mental and physical characteristics are clearly protected by either or both the ADA and California Public Utilities Code 453(b) (Section 453), as well as a host of other, similar federal and state discrimination laws, including, but not limited to CA Government Codes Civil Code Section 51 (Unruh Civil Rights Act), Section  11135, CA Government Code Section 12926, Section 508 of the federal Rehabilitation Act of 1973, as amended (29 U.S.C. Sec. 794d), and regulations implementing that act as set forth in Part 1194 of Title 36 of the Federal Code of Regulations, and section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794), as amended, from being charged extra fees and costs to opt-out from wireless smart meters.

These are the federal assurances that utility companies agree to follow when getting the Smart Grid grants:

Civil Rights Act of 1964 (Public Law 88-352); Section 16 of the Federal Energy Admin Act of 1974 (Pub.L. 93-275); Section 401 of the Energy Reorganization Act of 1974 (Pub. L 93-438); Title IX of the Educational Amendments of 1972, as amended PL 92-318; PL 93-568; PL 94-482; Section 504 of the Rehabilitation Act of 1973 (PL 93-112), the Age Discrimination Act of 1975 (PL 94-135);Title VIII of the Civil Rights Act of 1968 (PL 90-284); the Dept of Energy Organization Act of 1977 (PL 95-91); and the Energy Conservation and Production Act of 1976, as amended (PL 94-385); and Title 10. Code of Federal Regulations Part 1040. In accordance with the above laws and regulations issued pursuant thereto, the Applicant agrees to assure taht no person in the United States shall, on the ground of race, color, national origin, sex, age, or disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity in which the Applicant receives Federal assistance from the Department of Energy.

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PART 1040—NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OR ACTIVITIES
is listed under required federal assurances above and is very important
as it requires the utilities to follow Section 504, which is found in Title 10: Energy, as follows:
(employment practices section exists but is eliminated below)

California Public Utilities Code 453 additionally protects every individual or corporation from prejudice or disadvantage, so it is protective of non-disabled as well as disabled persons.

It should be noted that state immunity, in terms of liability, is specifically unavailable for these types of violations. Further, CA Government Code Section 12948   states: ” It is an unlawful practice under this part for a person to deny or to aid, incite, or conspire in the denial of the rights created by Section 51 …. of the Civil Code.” CEP asserts that the CPUC may appear to be conspiring to deny and violate Section 51 by refusing to acknowledge and take into consideration health and medical conditions which may impact reasons to opt-out.

Section 51 states, ” All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

Persons with disabilities, medical conditions, or specific characteristics may choose to opt-out from RF/EMF-emitting meters (ie. smart meters or other meters emitting or causing exposure to RF or other EMF’s) for reasons related to the disability, medical condition, or characteristic.

CPUC orders and/or actions of utilities to force disabled persons or those with medical conditions or said characteristics to pay an opt-out fee and additional costs to avoid adverse exposures, would therefore violate either of or both the Americans With Disabilities Act and California Public Utilities code 453(b) (Section 453), as well as additional federal and state laws barring discrimination against such individuals or classes of individuals.

The CA Public Utilities Code Section 453 utilizes Section 11135  of the  Government Code for its definition of medical condition and other characteristics, which may be viewed as extremely broad, and are listed herein, below, for illustration.

Further, California Public Utilities Section 453 protects all customers from prejudice or disadvantage, forbidding any unreasonable difference as to rates, charges, services or in any other respect, as between classes of service. Therefore, CEP asserts that the opt-out fees and costs further violate California Public Utilities Section 453 (a) and (c).

CA Public Utilities Code Section 453 further states in subsections (a) and (c):

(a) No public utility shall, as to rates, charges, service, facilities, or
in any other respect, make or grant any preference or advantage to
any corporation or person or subject any corporation or person to
any prejudice or disadvantage.

… (c) No public utility shall establish or maintain any unreasonable
difference as to rates, charges, service, facilities, or in any other
respect, either as between localities or as between classes of
service.  (California Public Utilities Code Section 453)

Some of these laws also may apply to forced exposure of these populations to RF (radiofrequency) radiation, a known potential carcinogen, toxic substance, allergenic, immune system disrupting, and inflammatory agent which can also interfere with medical devices and metal implants, metal dental work, and metal eyeglasses, which can become secondary antennae, attracting the radiation.

Further, CA State Utility and Government Codes do not permit charging fees for safety or medically based conditions!

Code 328.2(b) states: “No customer should have to pay separate fees for utilizing services

that protect public or customer safety.”

328.  The Legislature finds and declares both of the following:
   (a) In order to ensure that all core customers of a gas
corporation continue to receive safebasic gas service in a
competitive market, each existing gas corporation should
continue to
provide this essential service.

(b) No customer should have to pay separate fees for 
utilizing services that protect public or customer safety.

(http://www.leginfo.ca.gov/cgi-bin/displaycode?section=puc&group=00001-01000&file=328-328.2)

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Code 453. (b)  states: “No public utility shall prejudice, disadvantage, or require

different rates or deposit amounts from a person because of medical condition”

(a) No public utility shall, as to rates, charges, service,
facilities, or in any other respect, make or grant any preference or
advantage to any corporation or person or subject any corporation or
person to any prejudice or disadvantage.
   (b) No public utility shall prejudice, disadvantage, or require
different rates or deposit amounts from a person because of ancestry,
medical condition, marital status or change in marital status,
occupation, or any characteristic listed or defined in 
Section 11135 of the Government Code. A person who has exhausted 
all administrative remedies with the commission may institute a suit 
for injunctive relief and reasonable attorney's fees in cases of an alleged
violation of this subdivision. If successful in litigation, the
prevailing party shall be awarded attorney's fees.
(c) No public utility shall establish or maintain any unreasonable difference 
as to rates, charges, service, facilities, or in any other respect, 
either as between localities or as between classes of service.
 ....
   (e) The commission may determine any question of fact arising
under this section.

Last modified: February 13, 2012

(http://law.onecle.com/california/utilities/453.html)

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CALIFORNIA CODES
GOVERNMENT CODE
SECTION 11135-11139.8
11135. (a) No person in the State of California shall, on the basis
of race, national origin, ethnic group identification, religion,
age, sex, color, or disability, be unlawfully denied full and equal
access to the benefits of, or be unlawfully subjected to
discrimination under, any program or activity that is conducted,
operated, or administered by the state or by any state agency, is
funded directly by the state, or receives any financial assistance
from the state.
(b) With respect to discrimination on the basis of disability,
programs and activities subject to subdivision (a) shall meet the
protections and prohibitions contained in Section 202 of the
Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and
the federal rules and regulations adopted in implementation thereof,
except that if the laws of this state prescribe stronger protections
and prohibitions, the programs and activities subject to subdivision

(a) shall be subject to the stronger protections and prohibitions.
(c) (1) As used in this section, “disability” means any mental or
physical disability as defined in Section 12926.
….
(3) Any entity that contracts with a state or local entity subject
to this section for the provision of electronic or information
technology or for the provision of related services shall agree to
respond to, and resolve any complaint regarding accessibility of its
products or services that is brought to the attention of the entity.
11136. Whenever a state agency that administers a program or
activity that is funded directly by the state or receives any
financial assistance from the state, has reasonable cause to believe
that a contractor, grantee, or local agency has violated the
provisions of Section 11135, or any regulation adopted to implement
such section, the head of the state agency shall notify the
contractor, grantee, or local agency of such violation and shall,
after considering all relevant evidence, determine whether there is
probable cause to believe that a violation of the provisions of
Section 11135, or any regulation adopted to implement such section,
has occurred. In the event that it is determined that there is
probable cause to believe that the provisions of Section 11135, or
any regulation adopted to implement such section, have been violated,
the head of the state agency shall cause to be instituted a hearing
conducted pursuant to the provisions of Chapter 5 (commencing with
Section 11500) of this part to determine whether a violation has
occurred.
11137. If it is determined that a contractor, grantee, or local
agency has violated the provisions of this article, the state agency
that administers the program or activity involved shall take action
to curtail state funding in whole or in part to such contractor,
grantee, or local agency.
11138. Each state agency that administers a program or activity
that is funded directly by the state or receives any financial
assistance from the state and that enters into contracts for the
performance of services to be provided to the public in an aggregate
amount in excess of one hundred thousand dollars ($100,000) per year
shall, in accordance with the provisions of Chapter 4.5 (commencing
with Section 11371) of this part, adopt such rules and regulations as
are necessary to carry out the purpose and provisions of this
article.
11139. The prohibitions and sanctions imposed by this article are
in addition to any other prohibitions and sanctions imposed by law.
This article shall not be interpreted in a manner that would
frustrate its purpose.
This article shall not be interpreted in a manner that would
adversely affect lawful programs which benefit the disabled, the
aged, minorities, and women.
This article and regulations adopted pursuant to this article may
be enforced by a civil action for equitable relief, which shall be
independent of any other rights and remedies.
11139.5. The Secretary of the Health and Welfare Agency, with the
advice and concurrence of the Fair Employment and Housing Commission,
shall establish standards for determining which persons are
protected by this article and standards for determining what
practices are discriminatory. The secretary, with the cooperation of
the Fair Employment and Housing Commission, shall assist state
agencies in coordinating their programs and activities and shall
consult with such agencies, as necessary, so that consistent
policies, practices, and procedures are adopted with respect to the
enforcement of the provisions of the article.

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Federal Laws related to disabilities and discrimination

Americans with Disabilities Act of 1990, Title II Subpart A

SEC. 201. DEFINITION. 42 USC 12115. As used in this title:
(1) Public entity. The term public entity means
(A) any State or local government;
(B) any department, agency, special purpose district, or other
instrumentality of a State or States or local government; and
(C) the National Railroad Passenger Corporation, and any commuter authority
(as defined in section 103(8) of the Rail Passenger Service Act).
(2) Qualified individual with a disability. The term qualified individual
with a disability means an individual with a disability who,
with or without reasonable modifications to rules, policies, or practices,
the removal of architectural, communication, or transportation barriers,
or the provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.

SEC. 202. DISCRIMINATION. 42 USC 12132. Subject to the provisions
of this title, no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any such entity.

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 Americans With Disabilities Act As Amended 2008

http://www.ada.gov/pubs/ada.htm

Current text of the Americans with Disabilities Act of 1990 incorporating the changes made by the ADA Amendments Act of 2008. (HTML) | (PDF)

SUBCHAPTER II – PUBLIC SERVICES

Part A – Prohibition Against Discrimination and Other Generally Applicable Provisions

Sec. 12131. Definitions

As used in this subchapter:

(1) Public entity

The term “public entity” means

(A) any State or local government;

(B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and

(C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 24102(4) of title 49).

(2) Qualified individual with a disability

The term “qualified individual with a disability” means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

Sec. 12132. Discrimination

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

Sec. 12133. Enforcement

The remedies, procedures, and rights set forth in section 794a of title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.

Sec. 12134. Regulations

(a) In general

Not later than 1 year after July 26, 1990, the Attorney General shall promulgate regulations in an accessible format that implement this part. Such regulations shall not include any matter within the scope of the authority of the Secretary of Transportation under section 12143, 12149, or 12164 of this title.

(b) Relationship to other regulations

Except for “program accessibility, existing facilities”, and “communications”, regulations under subsection (a) of this section shall be consistent with this chapter and with the coordination regulations under part 41 of title 28, Code of Federal Regulations (as promulgated by the Department of Health, Education, and Welfare on January 13, 1978), applicable to recipients of Federal financial assistance under section 794 of title 29. With respect to “program accessibility, existing facilities”, and “communications”, such regulations shall be consistent with regulations and analysis as in part 39 of title 28 of the Code of Federal Regulations, applicable to federally conducted activities under section 794 of title 29.

(c) Standards

Regulations under subsection (a) of this section shall include standards applicable to facilities and vehicles covered by this part, other than facilities, stations, rail passenger cars, and vehicles covered by part B of this subchapter. Such standards shall be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board in accordance with section 12204(a) of this title.

…….

Sec. 12188. Enforcement

(a) In general

(1) Availability of remedies and procedures

The remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 12183 of this title. Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions.

(2) Injunctive relief

In the case of violations of sections 12182(b)(2)(A)(iv) and Section 12183(a) of this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by this subchapter. Where appropriate, injunctive relief shall also include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods, to the extent required by this subchapter.

(b) Enforcement by Attorney General

(1) Denial of rights

(A) Duty to investigate

(i) In general

The Attorney General shall investigate alleged violations of this subchapter, and shall undertake periodic reviews of compliance of covered entities under this subchapter.

(ii) Attorney General certification

On the application of a State or local government, the Attorney General may, in consultation with the Architectural and Transportation Barriers Compliance Board, and after prior notice and a public hearing at which persons, including individuals with disabilities, are provided an opportunity to testify against such certification, certify that a State law or local building code or similar ordinance that establishes accessibility requirements meets or exceeds the minimum requirements of this chapter for the accessibility and usability of covered facilities under this subchapter. At any enforcement proceeding under this section, such certification by the Attorney General shall be rebuttable evidence that such State law or local ordinance does meet or exceed the minimum requirements of this chapter.

(B) Potential violation

If the Attorney General has reasonable cause to believe that

(i) any person or group of persons is engaged in a pattern or practice of discrimination under this subchapter; or

(ii) any person or group of persons has been discriminated against under this subchapter and such discrimination raises an issue of general public importance, the Attorney General may commence a civil action in any appropriate United States district court.

(2) Authority of court

In a civil action under paragraph (1) (B), the court

(A) may grant any equitable relief that such court considers to be appropriate, including, to the extent required by this subchapter

(i) granting temporary, preliminary, or permanent relief;

(ii) providing an auxiliary aid or service, modification of policy, practice, or procedure, or alternative method; and

(iii) making facilities readily accessible to and usable by individuals with disabilities;

(B) may award such other relief as the court considers to be appropriate, including monetary damages to persons aggrieved when requested by the Attorney General; and

(C) may, to vindicate the public interest, assess a civil penalty against the entity in an amount

(i) not exceeding $50,000 for a first violation; and

(ii) not exceeding $100,000 for any subsequent violation.

(3) Single violation

For purposes of paragraph (2) (C), in determining whether a first or subsequent violation has occurred, a determination in a single action, by judgment or settlement, that the covered entity has engaged in more than one discriminatory act shall be counted as a single violation.

(4) Punitive damages

For purposes of subsection (b) (2) (B) of this section, the term “monetary damages” and “such other relief” does not include punitive damages.

(5) Judicial consideration

In a civil action under paragraph (1)(B), the court, when considering what amount of civil penalty, if any, is appropriate, shall give consideration to any good faith effort or attempt to comply with this chapter by the entity. In evaluating good faith, the court shall consider, among other factors it deems relevant, whether the entity could have reasonably anticipated the need for an appropriate type of auxiliary aid needed to accommodate the unique needs of a particular individual with a disability.

 

….

Sec. 12202. State immunity

A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter. In any action against a State for a violation of the requirements of this chapter, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State.

Sec. 12203. Prohibition against retaliation and coercion

(a) Retaliation

No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

(b) Interference, coercion, or intimidation

It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.

(c) Remedies and procedures

The remedies and procedures available under sections 12117, 12133, and 12188 of this title shall be available to aggrieved persons for violations of subsections (a) and (b) of this section, with respect to subchapter I, subchapter II and subchapter III of this chapter, respectively.

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 US Code Title 29 › Chapter 16 › Subchapter V › § 794

http://www.law.cornell.edu/uscode/text/29/794

29 USC § 794 – Nondiscrimination under Federal grants and programs

This preliminary release may be subject to further revision before it is released again as a final version. As with other online versions of the Code, the U.S. Code Classification Tables should be consulted for the latest laws affecting the Code. Those using the USCPrelim should verify the text against the printed slip laws available from GPO (Government Printing Office), the laws as shown on THOMAS (a legislative service of the Library of Congress), and the final version of the Code when it becomes available.

Current through Pub. L. 112-123. (See Public Laws for the current Congress.)

(a) Promulgation of rules and regulations
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.

(b) “Program or activity” defined
For the purposes of this section, the term “program or activity” means all of the operations of—

(1)
(A)a department, agency, special purpose district, or other instrumentality of a State or of a local government; or

(B)the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;

(2)
(A)a college, university, or other postsecondary institution, or a public system of higher education; or

(B)a local educational agency (as defined in section 7801 of title 20), system of vocational education, or other school system;

(3)
(A)an entire corporation, partnership, or other private organization, or an entire sole proprietorship—
(i)if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or

(ii)which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or

(B)the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or

(4)any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3);

any part of which is extended Federal financial assistance.

(c) Significant structural alterations by small providers
Small providers are not required by subsection (a) of this section to make significant structural alterations to their existing facilities for the purpose of assuring program accessibility, if alternative means of providing the services are available. The terms used in this subsection shall be construed with reference to the regulations existing on March 22, 1988.

(d) Standards used in determining violation of section
The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510,[1] of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201–12204 and 12210), as such sections relate to employment.

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[1] See References in Text note below.

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