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STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor
PUBLIC UTILITIES COMMISSION
505 VAN NESS AVENUE
SAN FRANCISCO, CA 94102-3298
March 9, 2006
TO: ALL PARTIES OF RECORD IN R.00-02-004
Decision 06-03-013 is being mailed without the written dissent of Commissioner Grueneich. The dissent will be mailed separately.
Very truly yours,
/s/ Angela K. Minkin
Angela K. Minkin, Chief
Administrative Law Judge
DECISION 06-03-013 March 2, 2006
Before The Public Utilities Commission Of The State Of California
Order Instituting Rulemaking on the Commission's Own Motion to establish Consumer Rights and Protection Rules Applicable to All Telecommunications Utilities.
(Filed February 3, 2000)
DECISION ISSUING REVISED GENERAL ORDER 168,
MARKET RULES TO EMPOWER TELECOMMUNICATIONS CONSUMERS AND TO PREVENT FRAUD
TABLE OF CONTENTS
1. SUMMARY 2
2. PROCEDURAL HISTORY 7
3. REVIEW OF RECORD EVIDENCE 16
3.1 Evidence Presented in Support of New Rules 17
3.1.1 Consumer Complaint Records 17
3.1.2 Survey Data 25
3.1.3 Enforcement Actions 28
3.1.4. Anecdotal Evidence 29
3.2 Evidence Regarding Unintended Consequences of New Rules 33
4. STATE OF EXISTING CONSUMER PROTECTION LAWS AND RULES 36
4.1 Jurisdiction 37
4.2 Existing Laws and Regulations 39
5. BILL OF RIGHTS AND FREEDOM OF CHOICE PRINCIPLES 43
5.1 Language Introducing and Defining the Applicability of the Rights and Principles 44
5.2 Consumer Rights Regarding Disclosure; Privacy; Public Participation and Enforcement; Accurate Bills and Dispute Resolution; Non-Discrimination; and Public Safety 46
5.3 Freedom of Choice Principles 56
6. APPLICABILITY OF G.O. 168 RULES 59
7. PUBLIC SAFETY RULES 63
8. COMMISSION INFORMATION REQUESTS 69
8.1 Assessment of Statutory Authority 70
8.2 New Subsection 8.2: Expansion of Information Request Regulation 72
8.3 Creation of a Process to Resolve Disputes in the Informal Complaint Context 74
9. CRAMMING RULES 75
9.1 Review of Laws that Address Cramming 75
9.2 Repeal of the Interim Non-Communications Rules 78
9.3 Adoption of Cramming Rules 89
10. SLAMMING RULES 95
11. RESOLUTION OF CONSUMER COMPLAINTS 96
11.1 Coordination with Carriers on Individual Dispute Resolution 97
11.2 Renewal of the Regulatory Complaint Resolution Forum 99
11.3 Investigation of State Best Practices 100
11.4 Enhancement of Call Center staffing and Resources 101
11.5 Greater Utilization of Community-Based Organizations 103
11.6 Examination of Formal Complaint Procedures 104
12. ENHANCED ENFORCEMENT 105
12.1 Expansion of Our Toll-Free Hotline 105
12.2 Increased Cooperation with Local Law Enforcement Personnel 106
12.3 Further Collaboration with Federal Government Officials 108
12.4 Creation of a Special Telecommunications Consumer Fraud Unit 109
12.5 Initiative to Streamline Enforcement Proceedings 111
13. CONSUMER EDUCATION PROGRAM 113
13.1 Widespread Support for Consumer Education 113
13.2 Ability to Improve Consumer Welfare 118
13.3 New Consumer Education Initiative 120
13.3.1 Educational Content 122
13.3.2 Dissemination of Educational Materials 125
13.3.3 Monitoring and Evaluation 129
13.3.4 Program Funding 134
14. FURTHER REVIEW OF IN-LANGUAGE ISSUES 136
15. DUE PROCESS 141
16. OTHER PROCEDURAL MATTERS 146
16.1 MOTION OF TURN TO RECUSE COMMISSIONER KENNEDY 146
16.2 PETITIONS FOR MODIFICATION OF D. 04-05-057 146
16.3 PETITIONS FOR REHEARING OF D.05-01-058 147
16.4 OTHER MOTIONS 147
17. COMMENTS 147
18. ASSIGNMENT OF PROCEEDING 148
FINDINGS OF FACT 149
CONCLUSIONS OF LAW 154
APPENDIX A 1
APPENDIX B 1
APPENDIX C 1
APPENDIX D 1
APPENDIX E 1
APPENDIX F 1
DECISION ISSUING REVISED GENERAL ORDER 168,
MARKET RULES TO EMPOWER TELECOMMUNICATIONS CONSUMERS AND TO PREVENT FRAUD
This decision adopts revised General Order No. 168, Market Rules to Empower Consumers and to Prevent Fraud. The purpose of this revised General Order is to chart a new regulatory role for the Commission in the face of swift technological advances; the convergence of voice, data, and video; and increasing competition in the telecommunications marketplace.
The Telecommunications Act of 1996 ("1996 Act") set the nation on a deregulatory path that encouraged competition at every level of the communications market. A central premise of that framework is the recognition that competitive markets provide the most effective consumer protection: the power of choice.
In the six years since this proceeding opened, the communications industry has undergone a profound transformation. The wireless telephone industry grew at such a rapid pace that by December of 2004, the year D.04-05-057 was adopted, the number of wireless subscriber lines in the United States surpassed the number of wireline subscriber lines.1 In that same period, the first Internet-based Voice over Internet Protocol (VoIP) telephone companies made their appearance;2 peer-to-peer software allowed free voice communications between any two computer users with broadband Internet access; major cable companies began offering cable-based voice telephony; and high speed advanced Internet service became accessible to ninety-five percent of U.S. households.3 Wireless telephones with service may be purchased at not only at carriers' retail outlets, but also at neighborhood electronics stores, kiosks, and on the World Wide Web via dealers, agents, resellers, and electronic retailers.
Our traditional regulatory approach - which limited carriers in a monopoly or duopoly position to specific services and marketing practices - is ill-suited for this modern telecommunications marketplace. One-size-fits-all rules often cannot effectively address the significant degree of variation among technologies and business models currently employed by modern telecommunications companies, and may stifle innovation. Our traditional regulatory approach may inadvertently cause delay for the introduction of innovative services, beneficial rate plans, and deployment of new technology. It, therefore, is imperative that the Commission, whose regulatory tools were initially designed to regulate monopolies, periodically calibrate its rules to adjust to this newly competitive environment.
Additionally overly rigorous state regulations may inadvertently hinder advances in communications by imposing "a patchwork quilt" of fifty different state regulatory regimes on carriers who provide service in more than one state. For example, if various states require different billing formats, different font requirements on consumer bills, and different variations on promotional offers, this increases costs on the carriers, and these costs may be passed on to consumers.
Consequently we believe that we must proceed cautiously when considering the imposition of new regulations in this modern milieu. The Commission must be sure that any new rules that we adopt, or any existing rules that we extend to new market participants, address clear problems and are narrowly crafted. The rules that we adopt today are consistent with this regulatory philosophy.
Today's action, moreover, places an important emphasis on new consumer education programs. Our education initiative will help consumers meet their needs by allowing them to choose wisely among providers and services. We will reach out to all consumers, and in particular will focus on exploring important issues relating to consumers for whom English is not their primary language.
We further enhance our ability to enforce existing laws and regulations to protect consumers from fraud and abuse. We will devote more internal resources to this effort, while also seeking to develop better relationships with external government officials who are similarly devoted to protecting our state's consumers.
Specifically this decision applies to all Commission-regulated telecommunications utilities and takes the following actions:
· Enumerates rights and freedom of choice principles that should be enjoyed by all telecommunications consumers in California;
· Extends the reach of rules addressing investigatory efforts of Commission staff, worker identification, and Emergency 911 access;
· Combines the newly-expanded rules with a set of updated slamming rules;
· Repeals the Commission's prescriptive interim rules that governed the placement of non-communications charges on telephone bills;
· Adopts cramming rules that protect consumers by defining a carrier's responsibility for unauthorized charges placed on its customers' phone bills and establishing related complaint resolution procedures;
· Initiates a proceeding designed to address in-language issues, on an as needed basis.
These regulations, rules, and new proceedings effectively align California's regulatory regime with the interests of California consumers.
This decision also formally directs staff to undertake a series of initiatives that will transform the organizational culture in ways that will heighten our ability to respond to consumers. These twenty-three internal initiatives are described in Table A below. Through these efforts we plan to make California a leader in empowering and protecting consumers in the modern telecommunications marketplace.
TABLE A: TWENTY-THREE COMISSION LED
1. Directs Commission staff to hold a workshop and draft a proposal regarding appropriate cramming-related reporting requirements.
2. Directs the CPSD Director to investigate the feasibility and effectiveness of a citation forfeiture program for violations of statutes that address slamming.
3. Directs the Commission staff to collaborate on consumer law enforcement with and refer cases to a DA, AG, or other governmental authority as appropriate.
4. Directs Commission staff to participate in cooperative meetings and periodic teleconferences with outside law enforcement officials to work on incidences of fraud and abuse of consumers relating to communications.
5. Directs Commission Staff to coordinate with federal government officials from the FCC and FTC via vehicles, such as a Memorandum of Understanding on resolving certain customer complaints.
6. Directs CSID staff to hold a workshop to investigate the "best practices" of other states, community-based organizations, the carriers, other state agencies, the FCC, and FTC.
7. Directs Commission staff to work with the telecommunications carriers to develop specific protocols and processes to ensure prompt attention to and timely conclusions of informal complaints filed with the Commission.
8. Directs CSID staff to continue to reduce the backlog of informal complaints pending at the Commission and analyze specific suggestions for more effective complaint processing.
9. Directs the CSID Director to reinstitute the Regulatory Complaint Resolution Forum.
10. Directs the Executive Director to make efforts to augment the Commission budget to improve our CAB call center's ability to respond to consumer complaints, by requesting funds for updating our antiquated complaints database system and hiring new CAB call center personnel.
11. Directs the Executive Director to work with the Department of Personnel Administration to obtain bilingual CAB and CPSD personnel.
12. Directs the CSID Director and Telecommunications Division Director to develop a CBO Action Plan within 180 days of this decision to facilitate partnership with CBOs address consumer complaints.
13. Directs the ALJ Division and CSID to review the formal complaint process and identify any areas for streamlining and to make it more "consumer friendly.staff
14. Directs Commission staff to expand the scope of our existing toll free hotline and to give high priority to addressing matters relating to fraud in the telecommunications industry.
15. Directs the CPSD Director to create a special Telecommunications Consumer Fraud Unit to investigate and resolve allegations of telecommunications consumer fraud.
16. Directs the CPSD Director to investigate whether it is feasible to have a deputy AG or DA join the Telecommunications Consumer Fraud Unit.
17. Directs the Executive Director to recommend to the Commission how to streamline and increase the effectiveness of fraud enforcement processes.
18. Directs the CSID Director to develop and implement an interim consumer education campaign using existing personnel and resources in 120 days, including a website and media campaign in the seven most common languages spoken in California: English, Spanish, Chinese, Vietnamese, Korean, Tagalog and Hmong.
19. Directs Commission staff, after holding workshops and securing Legislative funding to launch a second wave Commission-led consumer education program that (1) broadly provides information in "plain English" to residential and business customers, particularly small businesses; (2) informs consumers of their rights and how to file complaints, and (3) orients customers who are non-English or low English proficiency speaking, senior citizens, disabled, or low income individuals to telecommunications markets.
20. Directs Commission staff to disseminate consumer education material through our website, public service announcements, and via brochures distributed by CBOs and consumer groups, including in the seven primary languages spoken in California, and to low income, senior, and the disabled communities.
21. Directs Commission staff to develop a program to monitor and evaluate our consumer education programs for effectiveness.
22. Directs the CSID Director to recommend whether creating a Small Business Ombudsman at the Commission would effectively encourage communication between the Commission and the small business community.
23. Directs Commission staff to report on special problems faced by consumers with limited English proficiency.
1 Total Universal Service Fund (USF) loops (subscriber or common lines that are jointly used for local exchange service and exchange access for state and interstate interexchange services) for California as of December 2003 was 21,519,678 for the Bell Companies. FCC Statistics of Communications Common Carriers, 2004/2005 Edition, Table 5.7 - Total USF Loops for All Local Exchange Companies (as of December 31, 2003). Wireless subscribers as of December 2003 in California numbered 20,360,454. FCC's 9th Annual Commercial Mobile Radio Services (CMRS) Competition Report, FCC 04-216, Table 2: FCC's Semi Annual Local Telephone Competition Survey. Wireless subscribers in California as of December 2004 numbered 23,457,761. FCC 10th Annual CMRS Competition Report, FCC 05-173, Table 2, FCC's Semi-Annual Local Telephone Competition Survey (September 30, 2005). In December 1999, wireless subscribers in California numbered 8,544,941. Id.
2 Voice over Internet Protocol began in 1995 as a hobby of Israeli computer enthusiasts who could only communicate by computer. That year marked the first year Internet phone software was sold. In 1998, entrepreneurs began offering VOIP service for free if users listened to an ad at the beginning of the call. Only 1% of phone calls were made by VOIP in 1998. By the year 2000, 3% of calls were made via VOIP. By late 2006, it is expected that 24-40% of international traffic may be completed by VOIP. The History of Voice Over the Internet, by Van Theodorou, http://ezinearticles.com/?The-History-of-Voice-over-Internet-Protocol&id=143336.
3 At the end of 2004, the FCC reported that there was one high speed service subscriber in 95% of the nation's zip codes. The FCC's analysis indicates that 99% of the country's population lives in these zip codes. A "high-speed line" is defined as connections that deliver services at speeds exceeding 200 kilobits per second (kbps) in at least one direction. See FCC News Release, "FCC Releases Data on High-Speed Services for Internet Access," p. 2 (July 7, 2005).