5. Bill of Rights and Freedom of Choice Principles
This Part describes the "Consumer Bill of Rights and Freedom of Choice Principles" proposed in the May 2 ACR and reviews subsequent comments of consumer groups and industry representatives on whether the enumerated rights and principles should be revised. After considering various parties' arguments, this decision concurs with some of the parties' comments and adopts a modified version of the rights and principles proposed in the May 2 ACR.
5.1 Language Introducing and Defining the Applicability of the Rights and Principles
The May 2 ACR provided language introducing and defining the applicability of the rights and principles included within Part 1 of the General Order. Carriers, government officials, and consumer organizations alike, however, agreed that further clarification was needed regarding the intent and scope of the Order. We describe various comments and modifications we made in response to them below.
First, both the Wireline Group and TURN support removal of introductory language preceding the rights. The industry group and the consumer organization concurred that broad statements regarding the Commission's role and status of the telecommunications market were not appropriate for a general order.105 Also both disputed various portions of the proposed Order's introductory language.106 In response to these comments and in an effort to align this decision with prior Commission practice, today's Order removes all but one sentence of the introductory section.
Second, industry representatives argue that we needed to clarify our intentions related to enforcement of the rights and principles.107 They caution that we should avoid creating any implied private right of action, because they maintain that market forces and existing laws provide ample protection for wireless customers.108 We agree with the carriers' contention that this statement of rights and principles should not impose by itself any new legal obligations. Thus this decision modifies various portions of Part 1 language that could form the basis for a finding of liability by a court or the Commission.109 These revisions make it clear that this statement of rights and principles should not be construed as a set of independently enforceable rights.
We find that these revisions sufficiently address any concerns regarding intent and scope of the General Order. Thus we reject any further suggestions for revision and adopt the new Part 1 introduction and applicability language as modified in response to parties' comments described above.
We reiterate that the foregoing principles contained in this Consumer Bill of Rights and Freedom of Choice shall serve the same purpose as a statement of legislative intent that will help guide governmental action to promote consumer protection and freedom of choice in a competitive telecommunications market. These rights and principles serve as a foundation for the design and implementation of our education campaign, and the enhancement of our enforcement efforts. These principles, however, shall not be interpreted to create a private right of action, to form the predicate for a right of action under any other state or federal law, or to create liability for that would not exist absent the foregoing principles.
5.2 Consumer Rights Regarding Disclosure; Privacy; Public Participation and Enforcement; Accurate Bills and Dispute Resolution; Non-Discrimination; and Public Safety
The May 2 ACR endorsed a wide range of consumer rights including rights to adequate disclosure by carriers; protection of consumer privacy; public participation in Commission proceedings; effective enforcement of consumer protection statutes and regulations; accurate bills and redress; non-discrimination; and public safety. The complete text of the bill of rights from the May 2 ACR is set out in Appendix C.
We received comments on all of the rights proposed in the May 2 ACR. Many of the consumer organizations advocate wholesale abandonment of the rights and principles proposed in the May 2 ACR, as they continue to urge the Commission to adopt the rights included in the original G.O. 168.110 In the alternative, consumer organizations, along with carriers, proposed a number of piecemeal revisions to the May 2 ACR rights. These latter revisions guided our review, and the version of the bill of rights we adopt today is modified in response to the various parties' comments. We describe proposed revisions to individual rights and explain our responses to parties' suggestions below.
Disclosure
The May 2 ACR listed two rights that addressed disclosure of information regarding telecommunications products and services plans. The specific rights enumerated in the May 2 ACR are as follows:
· Consumers have a right to receive clear and complete information about rates, terms and conditions for products and service plans they select, and to be charged only according to the rates, terms and conditions they have agreed to.
· Consumers have a right to receive clear and complete information about any limitations affecting the services they select, including limitations on bandwidth, applications or devices that may be used in connection with their service.
These rights were some of the most controversial rights proposed.
The first disclosure right is the subject of criticism by many of the commenting parties. Disability Rights Advocates, TURN, DRA, and the AG argue that the right should be expanded to encompass all services, not just the services that customers "select."111 They explain that additional information is necessary for consumers to comparison shop effectively,112 and for consumers with disabilities to learn about accessibility features that exist in various devices.113
The Wireline Group recommends that we add a clause to the end of the first right too. This clause would clarify that the "terms and conditions" that customers "have agreed" to are those "set forth in service agreements" or "in carrier tariffs governing services ordered."114
Both the Wireline Group and the Wireless Carriers contend that the second disclosure right should be eliminated altogether.115 The Wireline Group argues it was improper to reference "bandwidth applications and devices," given constraints on the Commission's jurisdiction.116 The Wireline Group and the Wireless Carriers also maintain that the right to receive "complete" information about "any limitations" affecting services was confusing and overly broad.117 Without further clarification, the Wireline Group contends that the second disclosure right could be construed as placing "an impossible burden on carriers," as the word "disclosure" could be read so broadly that it "encompass hundreds of aspects of a service," such as the "possibility that service may be interrupted by national security's invocation of priority wireless access."118
The Order adopted today reflects several changes made in response to comments regarding the disclosure rights. First, we agree with the carriers that it makes sense to merge the statement regarding disclosure of rates, terms and conditions, with the statement regarding disclosure of limitations. We effect this combination, and for clarity, we make the first right's statement regarding consumer charges into a new, standalone second disclosure right. Second, in response to the concern that "any limitations" is not a precise enough statement, we clarify that the first right only applies to "material terms and conditions, such as material limitations." Third, we acknowledge that it is important for consumers (and, in particular, disabled consumers) to have adequate knowledge of product and service features when purchasing a telecommunications product or service, so we extend application of the first disclosure right to "available products and services" for which consumers "request information." Fourth, we believe that it is useful to clarify that tariffs and agreements continue to control, so this decision modifies the second disclosure right accordingly.
Privacy
The May 2 ACR stated that a consumer's privacy right includes the right to "have protection from unauthorized use of their financial records and personal information." Consumer representatives ask that we delete the word "financial." They argue the revision is necessary to ensure consistency with P.U. Code § 2891, which states that a telephone company may not make numerous types of records available to other persons or corporations if the company has not first attained its residential subscriber's written consent .119
Upon further review, we agree that we should not limit the scope of the privacy right to "financial records." Consequently we revise the right so that it encompasses all "personal information and records."
Public Participation and Enforcement
The right to public participation and enforcement, as proposed by the May 2 ACR, stated that consumers had the right to participate in public policy proceedings "affecting their rights." Consumer representatives express the concern that the "affecting their rights" qualification may be construed as "an attempt to severely limit the public ability to participate in open, administrative proceedings before this Commission."120 While we have no such intention, we decline to make any revisions to the right. The public participation right, as stated in the May 2 ACR, appropriately recognizes that participation in some proceedings is restricted to interested parties or persons.121 In no way does the statement of this right negate standing to participate in Commission proceedings, as conferred by statute and the Commission's Rules of Practice and Procedure.122 Appropriate statutes and rules will continue to guide us in our determination as to whether an individual or entity has standing to participate in a specific Commission proceeding.
Accurate Bills and Dispute Resolution
As described in the May 2 ACR, the right to "accurate bills and redress" includes the right to "fair, prompt, and courteous redress for resolving disputes and correcting errors." Multiple parties dispute the scope of the right. On the one hand, some parties advocate broadening the right: TURN argues the right should be expanded to address all problems consumers encounter,123 and Disability Rights Advocates states that, "at minimum, the word `accessible' should be added, clarifying that consumers have a right to a process that they can access as well as one that is `fair, efficient and reasonable.'"124 On the other hand, the Wireline Group contends that the right should be narrowed to convey only a right to "dispute resolution," not "redress."125
We opt to make two modifications to this right based on parties' comments. First, we restrict the scope of this right to "dispute resolution." While consumers certainly have a right to have improper carrier conduct redressed, our intent is not to imply that consumers should have a right to have every perceived problem with their service satisfied by their carrier. Instead our intent is only to state that consumers have a right to "fair, efficient and reasonable mechanisms for resolving disputes and correcting errors." For this reason we clarify the description of the right, and change the title of the right to "Accurate Bills and Dispute Resolution." Second, in response to DRA's request, we add that consumers should have a right to dispute resolution mechanisms that are "accessible, if readily achievable." This statement is consistent with the language of the 1996 Act, which provides a national framework that specifically addresses telecommunications access to individuals with disabilities.126
Non-Discrimination
The May 2 ACR proposed that we confer a right upon consumers to "be treated equally to all other similarly-situated customers, free of prejudice or discrimination." As with other rights discussed above, parties disagree as to what the appropriate scope of this right should be. TURN would like to broaden this right, so that it addresses not only "discrimination," but also any other type of "disadvantage."127 In contrast the Wireless Carriers and the Wireline Group would like to narrow the scope of this right.128 They request that we insert a qualification that the non-discrimination right only provides a protection against "unreasonable" prejudice and discrimination.129
After reviewing arguments for these opposing positions, we modify the right so that it only applies to "unreasonable prejudice and discrimination." As recognized by the Wireless Carriers, this revision recognizes that there are many instances where the public interest benefits when a company discriminates on a reasonable basis - such as in the cases of deposit requirements for customers with bad credit, or decreased rates for higher volume purchases.130 Also this modification brings the non-discrimination right more in line with P.U. Code § 453, which recognizes a modicum of discrimination may be an appropriate way to account for differences in consumers' circumstances.131 Here, like P.U. Code § 453, we recognize that the public interest may be served by reasonable discrimination.
Public Safety
The May 2 ACR listed two public safety rights:
· Consumers have a right to maintain the safety and security of their person, property, and personal financial data.
· Consumers have a right to expect that providers of voice services utilizing numbers from the North American Numbering Plan and connecting to the Public Switched Telephone Network will offer reliable connections to E911 emergency services and Public Safety Answering Points, and to clear and complete disclosure of any limitations on access to 911 emergency services through the use of those services.
These two proposed rights were the subject of significant criticism: Consumer groups ask that we modify the first right; the Wireline Group recommends revisions to the second right; and Wireless Carriers request that we eliminate both rights, or in the alternative at least revise the second right.
The Wireless Carriers state that we should eliminate both public safety rights, because they held that any public safety right is "misplaced in a telecommunications Consumer Bill of Rights[,] which is aimed at `allowing consumers to make informed choices regardless of who the provider is or what technology they choose.'"132 We disagree with this contention. While we acknowledge that a central aim of the Bill of Rights is consumer empowerment, we stated in the May 2 ACR - and reaffirm in this decision - that the Bill of Rights additionally provides "a framework for consumer protection." Public safety is critical to consumer protection, and as such, we hold that public safety rights are properly included in the Consumer Bill of Rights. We, however, will consider parties' proposals for modifications to the two rights.
With respect to the first public safety right, consumer representatives urge us to delete the word "financial," which qualifies the type of personal data giving rise to a public safety right.133 They maintain that public safety concerns dictated that we widen the scope of this protection. In response to their concerns, we replace "personal financial data" with "financial records and personal information."
With respect to the second public safety right, the Wireless Carriers and Wireline Group recommend several modifications. First, the Wireline Group and the Wireless Carriers recommend that we state that E911 is a right only to the extent that it is "technically feasible," given that E911 depends on a number of factors, some of which are outside a carrier's control.134 These limitations are recognized in federal E911 rules.135 Second, the Wireless Carriers argue that disclosure of "any limitation" is both "overbroad and impractical;" and their argument here parallels their criticism of the disclosure right proposed in the May 2 ACR.136 Third, the Wireline Group asks that we state that the second public safety right only applies to "carriers" and only "to the extent that this is technically-feasible and to the extent required by law." It reasons that these revisions will "make the right more general to account for future developments regarding E911 obligations for various providers."137
TURN objects to two of the carriers' proposed revisions. First, it argues that limiting the right to disclosure of "material" limitations gives "companies too much discretion over disclosures relating to a vital public service."138 Second, TURN states that applying the right only to "carriers" may leave out a number of other entities who are important providers of E911 access.139
Upon consideration of these arguments, we revise the second public safety right in response to the issues raised by the Wireless Carriers, Wireline Group, and TURN. First, we modify the public safety right so that it parallels federal law in recognizing limits of technical feasibility. Second, we revise the right to state that consumer should only be entitled to disclosure of "material" limitations. This statement provides that sufficient information will be supplied to consumers, while not placing an undue burden on carriers. Finally, we agree with the Wireline Carriers that we should modify the second right so that it will account for future federal developments regarding E911 requirements. We do not, however, believe we need to take all of the Wireline Group's edits to accomplish this objective. Accordingly we apply this right to "voice providers . . . to the extent this is technically feasible and required by law." Thus while we modify the public safety rights, we decline to remove this or any other category of right recognized in the May 2 ACR.
The May 2 ACR contained four freedom of choice principles. These four principles are as follows:
· Consumers have a right to select their services and vendors, and to have those choices respected by the industry.
· Consumers have a right to access the lawful content of their choice, including voice services, over their broadband Internet connection without interference from the broadband provider.
· Consumers have a right to select any voice service provider of their choice, including no voice services, separate from their broadband service provider.
· Consumers have the right to change voice service providers within the same local area and keep the same phone number.
Of particular significance, the second and third freedom of choice principles address potential anti-competitive behavior by those who provide Internet access or handle Internet-based voice communications originating from non-traditional sources. We discuss these two principles' endorsement of stand-alone DSL and content neutrality below.
First, the stand-alone DSL principle recognizes that customers should not be required to purchase traditional voice service in order to purchase Internet access from a regulated phone company that offers it. This principle does not limit phone companies who offer Internet access from bundling voice services with Internet access. To the contrary, we encourage phone companies to innovate in consumer-friendly ways that include bundling popular services into all-in-one packages.
We endorsed this principle, because we believe that consumers should have the right to find the best deal or the one that best suits their needs from a variety of potential sources, including bundled offerings from their incumbent telephone service providers. However, by tying Internet access to the purchase of traditional voice service, the telephone service providers effectively preclude customers from purchasing their voice service from an Internet-based service provider. Tying shields the incumbent telephone company from competition from Internet-based service providers and denies those service providers access to the tied customers. The result is reduced consumer choice and higher prices.
Second, the content neutrality principle states that consumers should have the right to access lawful content of their choice, including voice services, over their broadband Internet connection without interference from the broadband provider. If those incumbents who control broadband access or Internet transport are in a position to discriminate between voice traffic for which they are compensated and voice traffic for which they receive no compensation, they can effectively hamper or eliminate competitors through their manipulation of access and transport.
In articulating the freedom of choice principles, we were mindful that there are limits to our jurisdiction and that, in particular, the FCC has preempted state action in certain areas that are of concern to us. Nonetheless we held that it was important to articulate these principles because of their importance to the future of telephony.
California is a leader in advocating for stand-alone DSL and content neutrality policies. We have worked with our state colleagues, both individually and through the National Association of Regulatory Utility Commissioners ("NARUC"), to endorse freedom of choice policy measures at the federal level. Also we have applied these principles in our state regulatory activities. For example, we made stand-alone DSL a key condition of our recent approval of the Verizon-MCI and SBC-AT&T mergers. Together these efforts have promoted consumer protection by encouraging competition among telecommunications providers.
Additionally we observe that these principles now are receiving substantial recognition at the federal level. We recognize, in particular, that the stand-alone DSL principle also was adopted by the FCC in its recent decisions approving the Verizon-MCI and SBC-AT&T mergers. In those decisions, the FCC required the merged companies to "provide, within 12 months of the Merger Closing Date[], DSL service to in-region customers without requiring them to also purchase circuit-switched voice telephone service."140 The FCC's merger order consequently will make stand-alone DSL available to California consumers and effectively provides the relief we cannot order in this proceeding. We salute the FCC for enforcing the stand-alone DSL principle.
Comments to this proceeding, however, have convinced us that it is inappropriate for us to include the stand-alone DSL and content neutrality principles within the General Order we adopt today. While we acknowledge that a number of parties support these principles,141 we also observe that the principles generated confusion among the commenters. Some parties, contrary to our intent, assumed that these principles imposed enforceable mandates,142 or opened the door to new state requirements for DSL.143
In sum, our objective in adopting the principles was to empower consumers by clarifying their rights, which set appropriate consumer and industry expectations; the stand-alone DSL and content neutrality principles, however, seem to have accomplished just the opposite. Consequently we decline to adopt the second and third freedom of choice principles, but continue to include the first and fourth principles in the General Order below.
105 Consolidated Opening Brief of the Wireline Group (Oct. 24, 2005) ("Wireline Group Opening Brief"), p. 12; Comments of The Utility Reform Network on the May 2, 2005 Assigned Commissioner's Ruling (May 31, 2005) ("TURN ACR Comments"), pp. 5-6.
106 Wireline Group Opening Brief, p. 12; TURN ACR Comments, p. 5.
107 Verizon Wireless's Opening Brief (Oct. 24, 2005) ("Verizon Wireless Opening Brief"), pp. 41-42; Opening Brief of Wireless Carriers (Oct. 24, 2005) ("Wireless Carriers Opening Brief"), pp. 35-36; Wireline Group Opening Brief, p. 11.
108 Verizon Wireless Opening Brief, pp. 20-29; Wireless Carriers Opening Brief, pp. 5-13; Wireline Group Opening Brief, pp. 7-10.
109 In the process of making these changes, we address additional critiques of TURN and the Wireline Group by removing language that describes how we may condition use of numbering resources on adherence to the Part 1 rights and principles. For the parties' arguments, see TURN ACR Comments, p. 10, and Wireline Group Opening Brief, p. 11.
110 Disability Rights Advocates Opening Brief, p. 1; Opening Brief of the Office of Ratepayer Advocates, Oct. 24, 2005 ("ORA Opening Brief"), p. 1; Opening Brief of The Utility Reform Network, Oct. 24, 2005 ("TURN Opening Brief"), p. 2. Consumer groups also argued that the preferred and perhaps only path to securing these rights for California consumers is through the imposition of additional prescriptive rules. TURN Opening Brief, p. 1; ORA Opening Brief, p. 2. For reasons described in Parts 1, 2 and 5 of this decision, however, we decline to readopt the original G.O. 186.
111 Disability Rights Advocates Opening Brief, pp. 3-4; TURN ACR Comments, p. 6; Comments of the Office of Ratepayer Advocates and the California Attorney General to the Assigned Commissioner's May 2, 2005 Ruling (May 31, 2005) ("ORA/AG ACR Comments"), p. 3.
112 ORA/AG ACR Comments, p. 3; TURN ACR Comments, p. 6.
113 Disability Rights Advocates Opening Brief, pp. 3-4.
114 Wireline Group Opening Brief, p. 15. See also The Wireline Group's Consolidated Opening Comments on May 2, 2005 Assigned Commissioner's Ruling (May 31, 2005) ("Wireline Group ACR Comments"), pp. 20-21 (providing a more detailed description of the justification for this recommendation).
115 Wireless Carriers Opening Brief, p. 38; Wireline Group Opening Brief, p. 15.
116 Wireline Group Opening Brief, p. 15.
117 Wireless Carriers Opening Brief, p. 38; Wireline Group ACR Comments, p. 19.
118 Comments of Wireless Carriers on Assigned Commissioner's Ruling (May 31, 2005) ("Wireless Carriers ACR Comments"), pp. 8-9.
119 ORA/AG ACR Comments, p. 3; TURN ACR Comments, p. 7.
120 ORA/AG ACR Comments, p. 3; TURN ACR Comments, pp. 7-8.
121 See CPUC Rules of Practice and Procedure, Rules 53 and 54 (providing that individuals participating in complaint, investigation, or application proceedings are required to have an interest in the proceeding).
122 See, e.g., CPUC Rules of Practice and Procedure, Rule 77.7 (stating that "any person" may file comments on a draft resolution).
123 TURN ACR Comments, p. 8;
124 Comments of Disability Rights Advocates, p. 5 (Jan. 17, 2006) ("Disability Rights Advocates Opening Comments").
125 Wireline Group Opening Brief, pp. 15-16. But see California Attorney General's Opening Comments in Opposition to the [Draft] Decision Issuing Revised General Order 168, p. 9 (Jan. 19, 2006) ("AG Opening Comments") (worrying that this revision suggests that consumers have no right to redress for legitimate complaints).
126 See 47 U.S.C. § 255 ("A provider of telecommunications service shall ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable.").
127 TURN ACR Comments, pp. 8-9.
128 Wireless Carriers Opening Brief, p. 39; Wireline Group Opening Brief, p. 16. But see AG Opening Comments, pp. 7-8 (opposing this revision); Disability Rights Advocates Opening Comments, p. 5 (same); Opening Comments of The Utility Reform Network, Consumer Federation of California, National Consumer Law Center, Consumers Union and CALPIRG, on the Proposed Decision of Commissioners Peevey and Kennedy, pp. 3-4 (Feb. 3, 2006) ("Consumer Groups Opening Comments") (same).
129 Wireless Carriers Opening Brief, p. 39; Wireline Group Opening Brief, p. 16.
130 Wireless Carriers Opening Brief, p. 39.
131 See P.U. Code § 453(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." (emphasis added)).
132 Wireless Carriers Opening Brief, p. 38.
133 ORA/AG ACR Comments, p. 3; TURN ACR Comments, p. 7 n.4.
134 Wireless Carriers Opening Brief, p. 39; Wireline Group Opening Brief, pp. 16-17.
135 See 47 C.F.R. § 20.18.
136 Wireless Carriers ACR Comments, p. 10.
137 Wireline Group Opening Brief, p. 17.
138 TURN Opening Comments, p. 5.
139 Id. at 4-5.
140 Press Release, Federal Communications Commission, FCC Approves SBC/ATT and Verizon/MCI Mergers (Oct. 31, 2005), http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-261936A1.doc.
141 These parties include California Association of Competitive Telecommunications Companies, the California ISP Association, DRA, Time-Warner Telecom, and the U.S. Department of Defense and other Federal Executive Agencies. Reply Comments of the California Association of Competitive Telecommunications Companies and the California ISP Association on the [Draft] Decision Issuing Revised General Order 168, p. 5 (Jan. 23, 2006) ("CALTEL/CISPA Reply Comments"); Comments of the Division of Ratepayer Advocates on Commissioners Peevey and Kennedy's Proposed Decision on Telecommunications Consumer Bill of Rights, pp. 4-5 (Jan. 17, 2006) ("DRA Opening Comments"); Opening Brief of Time-Warner Telecom of California, LP (U-5358-C), Navigator Telecommunications, LLC (U-6167-C) and Tri-M Communications, Inc. d/b/a TMC Communications (U-5928-C) (Oct. 24, 2005), p. 3; Opening Comments of the United States Department of Defense and All Other Federal Executive Agencies, pp. 4-6 (Jan. 17, 2006) ("DOD/FEA Opening Comments").
142 See DOD/FEA Opening Comments, p. 6 (stating that under the decision "a regulated telephone company that offers DSL Internet access cannot tie the lease of DSL service to the lease of traditional voice service" (emphasis added)).
143 See DRA Opening Comments, pp. 4-5 (recommending that the Commission further "require that stand-alone DSL service be offered at a price that is comparable to, if not the same as, the DSL piece of the bundled local service and broadband product").
