In 1993, the Legislature passed and the governor signed AB 726, the Telecommunications Customer Service Act of 1993, adding Sections 2896 and 2897 to the Public Utilities Code. Under Section 2896(a), the Commission must require telephone corporations to furnish their customers with sufficient information to make informed service and provider choices, including, e.g., providers' identities, service options, pricing, and terms and conditions of service. Under Section 2896(c), customers are to receive information concerning the regulatory process and how they can participate in that process and resolve complaints.3 Further, through Section 2897, the Legislature directed the Commission to apply its Section 2896 policies to all providers of telecommunications services in California and invited the Commission to supplement them as necessary. The Legislature thus acknowledged the need for some of the consumer protection measures we implement in this proceeding and directed the Commission to ensure that carriers of all classes abide by certain basic standards of disclosure and customer service.4
We are not the first to recognize the potential in a telecommunications bill of rights:
Whether or not a commission wishes to pursue establishment of a bill of rights in a legal venue, the concept provides one perspective on the evolution of regulatory regimes beyond ratebase, rate-of-return regulation. We are in a period of dynamic change in the relationship of the institutional arrangements for production and delivery of telecommunications services to individuals as consumers and citizens. The pendulum is shifting away from a high degree of government control that worked well throughout the 20th century but would be over-regulation in the new era. Yet we continue to seek a good society and individual autonomy.
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State regulatory commissions have frequently used a bill of rights as a way of informing consumers about service they should expect from utilities including telephone companies .... With the birth of local competition in telecommunications, several commissioners and consumer advocates realized that the idea of rights is a powerful tool for identifying and filling gaps in protections traditionally provided through ratebase, rate-of-return regulation. Their proposals for a telecommunications bill of rights typically include claims for individuals as both consumers and citizens.5
This 1999 NRRI research report identified five other states whose commissions had entertained such proposals between 1995 and 1999. If the specific rights the rulemaking order proposed for comment were unique, the concept was not.
At its July 2002 Summer Meeting, the Board of Directors of the National Association of Regulatory Utility Commissioners passed a resolution urging that a consumer bill of rights be developed for the protection of all residential and small business telecommunications consumers, regardless of their provider of such services. That resolution included an almost-verbatim recitation of the same seven rights we adopt today, and went on to urge both the FCC and the individual state commissions to consider adopting comprehensive and effective rules to implement them.6
In their initial comments on the staff's proposed rules, many carrier representatives questioned whether this consumer protection proceeding and these rights and rules, indeed, any rights and rules, are needed. They made one argument time and again with respect to individual rules and the set of rules overall: Left to itself, the competitive marketplace will oust the least consumer-responsive carriers and bring out the best in service quality and marketing behavior. This comment, however, best reflects our view:
In a perfect world, all telecommunications carriers would operate honorably and never seek unfair advantage at the expense of their residential and business customers. Unfortunately, perfection in competition and conduct remains only an ideal. In the meantime, it is the Commission's responsibility to enact clear and concise rules to guide industry conduct. In the long run, such rules will benefit consumers, carriers and the general public alike.
Our proposed rules generated considerable difference of opinion among those who responded. The proposed rights, in contrast, did not. Some parties proposed additional rights; a few proposed rewording these. Notwithstanding carrier resistance to the proceeding overall, the parties generally embraced both the rights concept and staff's proposed implementation of it. With that in mind, our discussion here will be limited.
The first two rights, Disclosure and Choice, have only minor wording changes. These rights were nearly universally accepted and we need not dwell on them.
The Right of Privacy was also accepted in principle even as parties differed as to how it should be translated to rule. Here perhaps as much as anywhere could be seen the schism between consumer advocates and carriers. The former treated privacy as a true right of the individual, as indeed it is.7 Carrier advocates, on the other hand, were far more likely to view privacy in terms of the negative impacts it might have on their access to subscriber information as a commercial and marketing tool. Most subscribers, they maintain, want to be marketed to and value the convenience unfettered access to their records allows. Those who do not should bear the responsibility for opting out. Following that reasoning, carriers' comments went largely to marshaling legal arguments against proposed Commission restrictions. We will address the privacy issue in a later phase of this proceeding.
The next two proposed rights, Public Participation, and Oversight and Enforcement, are related in that both address consumers' interaction with the agencies that establish telecommunications policies, rights and rules and ensure carrier compliance. As many commenters pointed out, what is perhaps the most important aspect from the consumer's perspective was inadvertently lost in the wording: Consumers' rights need to be enforced.
Thus, these two proposed rights have now been combined to address consumers' relationship with regulators:
Public Participation and Enforcement: Consumers have a right to participate in public policy proceedings, to be informed of their rights and what agencies enforce those rights, and to have effective recourse if their rights are violated.
Two statements have been moved to the rules from the proposed Right of Accurate Bills and Redress, and additional qualifications have been added. We agree that both statements in the original draft of this right are important requirements of carriers: "Vendors of telecommunications services shall provide clear information explaining how and where consumers can complain"; and, "Consumers shall have their complaints addressed without harassment." The first is explicit in Rules 1, 6 and 9, and the second is subsumed within this right as rewritten and implicit in Rule 11. Other parties point out that redress should be fair, prompt and courteous, and we concur. This right then becomes:
Accurate Bills and Redress: Consumers have a right to accurate and understandable bills for products and services they authorize, and to fair, prompt and courteous redress for problems they encounter.
In addition to their comments on the rights proposed in the staff report, parties initially suggested several more which could be summarized as rights to: safety; non-discrimination (also labeled equal access); service guarantees; immediate access to impartial dispute resolution; and adequate representation in public policy proceedings. Among those, we address here a Right to Safety, and a Right to Non-Discrimination. Service quality is a real issue of concern that we will have more to say about later. Access to dispute resolution is part of Accurate Bills and Redress and Public Participation and Enforcement; consumer representation in public policy proceedings is part of the Right to Public Participation and Enforcement.
At least six parties, including the state's two largest incumbent local exchange carriers, endorsed adding a Right to Non-Discrimination. As with the Right to Safety, although it was not explicit in the first iteration, neither was it ignored in the draft rules. A carrier expressed it best: "Many of the rules promulgated by staff are already directed to the implementation of such a right, but its express enumeration will ensure that consumer protection is implemented in a non-discriminatory fashion."
Commenters advocating adding a Right to Non-Discrimination introduced it from three distinct but overlapping approaches. First, two commenters mentioned non-discrimination only in the narrow context of freedom from redlining.8 Others suggested a Right to Non-Discrimination more broadly in the context of (in various combinations) race, color, creed, ethnicity, disability, gender, age, economic status, or language. Lastly, one commenter described it as an obligation under the law to treat all similarly situated customers the same, as required by Section 453.9 We are often called on to interpret and apply Section 453 in our role as regulators, and it is in this most broad sense expressed by Section 453 that we will interpret the Right to Non-Discrimination. In their opening and reply comments on the June 2002 draft decision, the wireless carriers took issue with the proposed wording of our Right to Non-Discrimination, arguing, "The law does not provide... that all customers be treated equally." They would restate the right as, "Every customer has the right to be free of unreasonable discrimination, prejudice or disadvantage with respect to similarly situated customers," ostensibly to conform it more closely with Section 453. Other commenters expressed no such concerns. After re-examining Section 453, we note that nowhere does it state or imply that there could exist a reasonable level of discrimination, a reasonable level of prejudice, or a reasonable level of disadvantage that could be acceptable as between similarly situated customers. We have retained the draft wording.
The suggestion to add the Right to Safety first appearing in the June 2002 draft came from two participants. One wrote,
Although perhaps less acute than in electric and gas service, consumers have a basic right to practices that will promote (or at least not endanger) their physical safety. Rule 14 (Employee Identification) and Rule 15 (Access to 911 Emergency Services) are two examples of rules that promote consumer safety.
Our intent to promote telecommunications consumers' safety was indeed an unwritten foundation for both of those rules. We agree that Safety should be added as a basic right. Most commenters accepted adding Safety as it was described in the June 2002 draft, the wireless carriers again being the exception. Wireless carriers would have us limit this right by relating it solely to employee identification and 911 service, but we have not done so. While it is true that the Right to Safety finds expression only in Part 2, Rules 14 and 15, consumers have that right in more than just those two areas even though we have not attempted to define additional rules today to address every other possible area.
Industry commenters urged the Commission close the Part 1 Bill of Rights with a disclaimer that the rights are not themselves enforceable, but rather serve as a policy statement or preamble to the consumer protection rules that follow. Consumer groups were split on the topic, the consumer arm of the collaborative working group arguing that such a statement would unreasonably foreclose what might otherwise be perfectly reasonable enforcement actions, while some other prominent consumer representatives (including one who was also a working group participant) would add a comment stating, "This Bill of Rights shall serve the same purpose as a statement of legislative intent." We accept the carriers' suggestion and have added a comment.3 § 2896. The commission shall require telephone corporations to provide customer service to telecommunication customers that includes, but is not limited to, all the following: (a) Sufficient information upon which to make informed choices among telecommunications services and providers. This includes, but is not limited to, information regarding the provider's identity, service options, pricing, and terms and conditions of service. A provider need only provide information to its customers on the services which it offers.