PART 4 - Rules Governing Slamming Complaints
The purpose of these rules is to establish carriers' and subscribers' rights and responsibilities, and the procedures both must follow, for addressing slamming complaints that involve California's regulated telecommunications carriers. Slamming is the unauthorized change of a subscriber's presubscribed carrier. These California-specific rules are designed to supplement and work in conjunction with corresponding rules issued by the Federal Communications Commission.
The California Public Utilities Commission is the primary adjudicator of both intrastate and interstate slamming complaints in California. A subscriber may request that the FCC rather than the Commission handle an interstate slamming complaint, in which case the FCC would apply its rules, and these rules would govern any related intrastate complaint. Where these rules differ from the FCC's slamming rules, the differences are in recognition of California-specific issues and are consistent with the FCC's mandate to the states.
Where the alleged slam is of a subscriber's local exchange carrier, Sections A through D, and H apply. Where the alleged slam is of a subscriber's intraLATA, interLATA or interstate toll carrier, all sections except D apply.
These rules promote the furnishing of adequate and satisfactory local, intrastate toll, and interstate and intrastate long distance service to the public. The liability standards and penalties they set forth are established to promote compliance.
These rules take precedence over any conflicting tariff provisions on file at the Commission. The remedies provided by these rules are in addition to any others available by law. Prosecution, whether civil or criminal, by any local or state law enforcement agency to enforce any consumer protection or privacy law does not interfere with any Commission policy, order or decision, or the performance of any duty of the Commission, related to the enactment or enforcement of these rules.
Commission
California Public Utilities Commission, unless otherwise noted.
FCC
Federal Communications Commission
LATA
Local Access and Transport Area
Submitting Carrier
Any telecommunications carrier that requests on the behalf of a subscriber that the subscriber's telecommunications carrier be changed and seeks to provide retail services to that subscriber. A carrier may be treated as a submitting carrier, however, if it is responsible for any unreasonable delays in the submission of carrier change requests, or for the submission of unauthorized carrier change requests, including fraudulent authorizations.
Executing Carrier
Any telecommunications carrier that effects a request that a subscriber's telecommunications carrier be changed. A carrier may be treated as an executing carrier, however, if it is responsible for any unreasonable delays in the execution of carrier changes, or for the execution of unauthorized carrier changes, including fraudulent authorizations.
Authorized Carrier
Any telecommunications carrier that submits a change on behalf of a subscriber in the subscriber's selection of a provider of telecommunications service with the subscriber's authorization verified in accordance with state and/or federal law.
Unauthorized Carrier
Any telecommunications carrier that has submitted, or is alleged to have submitted, a change on behalf of the subscriber in the subscriber's selection of a provider of telecommunications service but has failed, or is alleged to have failed, to obtain the subscriber's authorization verified in accordance with state and/or federal law.
Unauthorized Change
Any change in a subscriber's selection of a provider of telecommunications service that was made without authorization or without verification in accordance with the verification procedures described in state and/or federal law.
State Commission
As used in the FCC's slamming rules, shall include the California Public Utilities Commission, which, in accordance with the requirements of the FCC's slamming rules, 47 CFR 64.1110(a), has the authority to resolve the complaints of California residents arising out of an allegation that an unauthorized change of a telecommunications service provider has occurred.
Consumer Affairs Branch (CAB)
The Commission's office where California consumers may complain about utility or enhanced service provider (ESP) service or billing, or about any other charges on a utility or ESP bill that they have not been able to resolve directly with the company.
Billing Telephone Company
Any telephone corporation providing landline or wireless telephone service in California that also provides billing services to any third party, including its own affiliates, or that bills for non-communications-related goods and services on its own behalf.
Billing Agent
A company or business entity that aggregates billing for telephone service providers and/or vendors and submits that billing to a telephone company for inclusion on subscribers' telephone bills, either directly or indirectly through one or more billing aggregators.
[Comment: Sections 2889.9 and 2890 use the term "billing agent." Billing agents are sometimes referred to as " billing aggregators." The FCC uses the term "clearinghouse" (see FCC Anti-Cramming Best Practices Guidelines).]
Subscriber
Any individual or business that subscribes to any telecommunications service subject to Commission jurisdiction. Only the person or person(s) whose name(s) are on the account are subscribers for purposes of these Part 4 rules.
Written; In Writing:
Both "written" and "in-writing" describe materials intended to be read, either in hardcopy document form (including fax) or transmitted through electronic media. For purposes of these rules, however, whenever anything is required to be done "in writing," the requirement must be satisfied in the form of a tangible, hardcopy document unless both parties to the communication have agreed to having the required information (which may be, e.g., a disclosure, a notice, a confirmation, etc.) provided through electronic media.
[Comment: This definition of "written" and "in writing" will be interpreted consistent with the provisions of the Uniform Electronic Transactions Act, Cal. Civil Code §§ 1633 et seq., and with the Electronic Signatures Act, 15 USCA §§ 7001 et. seq., subject to the limitation that an oral communication or a recording of an oral communications shall not constitute an electronic signature.]
30-day Waiting Period
The 30 calendar days immediately following the date on which the unauthorized carrier sends the notification of intent to re-bill the subscriber, or the date on which the charges are credited/refunded, whichever is later. If the 30th day falls on an official state holiday or on a weekend, the next working day shall be treated as the 30th day.
30-day Absolution Period
The 30 calendar days immediately following the date on which an alleged unauthorized change of carrier occurred.
C. Authorization and Verification of Orders for Telecommunications Services
Authorization and verification of orders for telecommunications services shall be done in accordance with applicable state and federal laws.
D. Unauthorized Local Exchange Carrier Changes
A local exchange carrier or competitive local exchange carrier will be held liable for both the unauthorized termination of local exchange service with an existing carrier and the subsequent unauthorized transfer to its own local exchange service. Carriers are responsible for the actions of their agents who solicit unauthorized service terminations and transfers. A carrier which engages in such unauthorized activity shall restore the subscriber's service to the original carrier without charge to the subscriber. All billings during the unauthorized service period shall be refunded to the applicant or subscriber. Violations of this rule may be sanctioned by a fine pursuant to Public Utilities Code Section 2107. As prescribed under Section 2108, each day of a continuing violation shall constitute a separate and distinct offense. The carrier responsible for the unauthorized transfer shall reimburse the original carrier for reestablishing service at the tariffed rate of the original carrier.
E. Procedures for Unauthorized Carriers for the Resolution of an Alleged Unauthorized Change of Carrier
(1) Upon notification from the subscriber, the Commission staff, the executing carrier, or the authorized carrier of an alleged unauthorized change of carrier, and the subscriber has not paid the charges, the unauthorized carrier shall, within three days of such notification, credit the subscriber's account for all unpaid charges incurred during the 30-day absolution period. If notification of the alleged unauthorized change was received from the subscriber, the Commission staff, or the authorized carrier and the unauthorized carrier is billing the subscriber directly or indirectly through a billing telephone company, the unauthorized carrier shall process the subscriber's credit to the billing telephone company within three days of such notification. The Commission staff may grant an expansion or waiver of the 30-day absolution period where special circumstances warrant a longer period of absolution.
(2) Upon notification from the subscriber, the Commission staff, the authorized carrier or the executing carrier of an alleged unauthorized change in carrier, and the subscriber has paid the charges, the unauthorized carrier shall, within three days of such notification, refund or credit to the subscriber's account 50% of all charges paid by the subscriber, including taxes, surcharges, monthly fees, and any other fees. At the subscriber's option, the unauthorized carrier shall instead determine the refund or credit by re-rating the subscriber's bill based on what the authorized carrier would have charged the subscriber for the same services had an unauthorized change not occurred. When the notification comes from the subscriber, the Commission staff or the authorized carrier, the unauthorized carrier, if billing the subscriber directly or indirectly through a billing telephone company, shall process the subscriber's refund or credit to the billing telephone company within three days. The billing telephone company shall process a refund or credit to the subscriber within three days after receiving such a request.
(3) Upon notification from the subscriber of an alleged unauthorized change of carrier, the unauthorized carrier shall notify the subscriber where to file a complaint by providing the subscriber the Commission's address, as outlined in Section H of these rules. This notification shall not begin the 30-day waiting period that the subscriber has to file an informal complaint at the Commission.
(4) The unauthorized carrier shall immediately notify the executing carrier of the alleged unauthorized change.
(5) The unauthorized carrier shall provide the authorized carrier the subscriber's billing records for charges incurred by the subscriber beyond the 30-day absolution period and a statement of any refunded amount.
(6) Upon demand from the authorized carrier, the unauthorized carrier shall pay the authorized carrier for reasonable billing and collection expenses incurred by the authorized carrier in collecting charges from the unauthorized carrier.
(7) Upon demand from the executing carrier, the unauthorized carrier shall pay the executing carrier for the charges required to return the subscriber to his or her authorized carrier pursuant to the terms of the executing carrier's tariff.
(8) If the unauthorized carrier challenges the subscriber's allegation of an unauthorized change of carriers, whether or not the subscriber has paid the charges, the following provisions shall apply:
(a) The unauthorized carrier shall notify the subscriber in writing, in a separate date-stamped envelope that is not part of any bill, that the unauthorized carrier challenges the subscriber's allegation of an unauthorized change in carrier, and that the unauthorized carrier intends to re-bill the subscriber for the charges. The written notification of intent to re-bill shall inform the subscriber that failure to file an informal complaint with the Commission within the 30-day waiting period, as defined in these rules, may result in the unauthorized carrier re-billing the charges in question.
(b) In the notification of intent to re-bill, the unauthorized carrier must specify to the subscriber the clear and convincing evidence that supports its position that the carrier change is valid. If the authorization and verification of the subscriber's requested carrier change are written documents, a legible copy of these written documents shall be sent to the subscriber as part of this notification. If the authorization and verification are oral, an audible copy of the oral communication shall be sent to the subscriber as part of this notification. If the authorization and verification are a combination of written and oral evidence, the written documents and the audible copy of the oral communication shall both be sent to the subscriber as part of this notification.
(c) The notification shall include a copy of Section H of these rules. The unauthorized carrier shall also send a copy of the notification of intent to re-bill the subscriber to the Commission at the address in Section H of these rules.
(d) The unauthorized carrier may not re-bill the subscriber until the end of a 30-day waiting period during which the subscriber may file an informal complaint with the Commission. If the subscriber does file an informal complaint before the end of the 30-day waiting period, the unauthorized carrier may not re-bill the subscriber unless and until the CAB staff makes a determination that the subscriber authorized the carrier change.
(e) The unauthorized carrier may re-bill the subscriber if the subscriber has failed to file an informal complaint within the 30-day waiting period and the unauthorized carrier has confirmed that fact with the CAB staff.
(9) If the CAB staff determines that an unauthorized change has occurred, the unauthorized carrier shall be liable to the subscriber's authorized carrier for 100% of all charges the subscriber paid the unauthorized carrier. The unauthorized
carrier shall forward the subscriber's billing information for such services to the authorized carrier immediately after the CAB staff issues its determination.
(10) If the CAB staff determines that the subscriber authorized the carrier change, the submitting carrier may re-bill the subscriber for charges incurred.
(11) The alleged unauthorized carrier shall not pursue collections against the subscriber until the subscriber has been re-billed.
(12) The failure of a subscriber to file an informal complaint in the 30-day waiting period will not preclude the subscriber from subsequently filing an informal complaint with CAB. The subscriber also has the option of filing a formal complaint under the Commission's Rules of Practice and Procedure.
(13) An unauthorized carrier that does not comply with these rules may be subject to enforcement action and/or the imposition of such additional remedies and penalties as are authorized under state and federal law.
F. Procedures for Executing Carriers for the Resolution of an Alleged Unauthorized Change of Carrier
(1) Upon notification from the subscriber alleging an unauthorized change of carrier, and the subscriber has not paid charges to the unauthorized carrier, the executing carrier shall inform the subscriber of the 30-day absolution period. The executing carrier, if billing directly or indirectly for the alleged unauthorized carrier, shall credit the subscriber within three days of notification for charges incurred during the 30-day absolution period. If the executing carrier is not billing directly or indirectly for the alleged unauthorized carrier, the executing carrier shall refer the subscriber to the unauthorized carrier.
(2) Upon notification from the subscriber or the authorized carrier of an alleged unauthorized change of carrier, and the subscriber has paid the bill, the executing carrier, if billing directly or indirectly for the alleged unauthorized carrier, shall provide the subscriber with a refund/credit of 50% of what he/she paid the unauthorized carrier, including taxes and surcharges, monthly fees, and any other fees, within three days after notification. At the subscriber's option, the amount of the refund/credit shall be determined by re-rating the services provided by the unauthorized carrier based on what the authorized carrier would have charged the subscriber for the same services had an unauthorized change not occurred.
(3) Upon notification from the subscriber of an alleged unauthorized change in carrier, the executing carrier shall advise the subscriber that the alleged unauthorized carrier may challenge the subscriber's allegation. The executing carrier shall inform the subscriber that the alleged unauthorized carrier must notify the subscriber in writing if it plans to re-bill the subscriber and must inform the subscriber that he or she has a 30-day waiting period, as defined in these rules, to file an informal complaint with the Commission's CAB staff against the unauthorized carrier. The executing carrier shall explain to the subscriber where to file an informal complaint by providing the Commission's address as outlined in Section H of these rules. This notification shall not begin the 30-day waiting period that the subscriber has to file an informal complaint at the Commission.
(4) The executing carrier shall return the subscriber to the authorized carrier and shall advise the subscriber that he/she must contact the authorized carrier to be returned to the subscriber's previous calling and premium plans.
(5) The executing carrier shall not bill the subscriber to return the subscriber to his/her authorized carrier and shall refund/credit all switching charges if it billed the subscriber for the unauthorized change. The executing carrier may bill the unauthorized carrier for the charges required to return the subscriber to his/her authorized carrier pursuant to the terms of the executing carrier's tariff.
(6) The executing carrier shall promptly notify the unauthorized carrier and the authorized carrier that the subscriber has alleged an unauthorized change. This notification shall identify the authorized and the unauthorized carriers and shall include any information the executing carrier has regarding the transaction.
(7) The executing carrier shall not use any subscriber contact resulting from an alleged unauthorized change for purposes of promoting or selling its own products or services.
(8) The executing carrier shall not pursue collections against the subscriber until the subscriber has been re-billed.
G. Procedures for Authorized Carriers for the Resolution of an Alleged Unauthorized Change of Carrier
(1) If the subscriber contacts the authorized carrier about the alleged unauthorized change and the subscriber has not paid charges to the alleged unauthorized carrier, the authorized carrier shall inform the subscriber of the 30-day absolution period and shall refer the subscriber to the alleged unauthorized carrier or its billing agent for a credit for charges incurred during the 30-day absolution period.
(2) If the subscriber contacts the authorized carrier about the alleged unauthorized change and the subscriber has paid charges to the alleged unauthorized carrier, the authorized carrier shall inform the subscriber of the availability of a refund/credit of 50% of what the subscriber paid the unauthorized carrier, including taxes and surcharges, monthly fees, and any other fees. The authorized carrier shall also inform the subscriber that the subscriber has the option of having the refund/credit determined by re-rating the services provided by the alleged unauthorized carrier based on what the authorized carrier would have
charged the subscriber for the same services had an alleged unauthorized change not occurred. The authorized carrier shall refer the subscriber to the alleged unauthorized carrier to obtain the refund/credit or re-rate.
(3) If the subscriber contacts the authorized carrier about an alleged unauthorized change, the authorized carrier shall inform the subscriber that the alleged unauthorized carrier must notify the subscriber in writing if it challenges the allegation and intends to re-bill the subscriber and must inform the subscriber that he/she has 30 days, as defined in these rules, to file an informal complaint with the CAB staff against the unauthorized carrier. The authorized carrier shall explain to the subscriber where to file an informal complaint by providing the Commission's address as outlined in Section H of these rules. This notification shall not begin the 30-day period that the subscriber has to file an informal complaint at the Commission.
(4) The authorized carrier shall promptly notify the executing and alleged unauthorized carrier of the alleged unauthorized change.
(5) Upon notification from the subscriber, the executing carrier, or the alleged unauthorized carrier that an alleged unauthorized change has occurred, the authorized carrier shall reinstate the subscriber to the calling plan and the premium plans the subscriber was on immediately prior to the alleged unauthorized change.
(6) The authorized carrier may bill the subscriber for unpaid charges that the subscriber is liable for under these rules, at the authorized carrier's rates in effect for the subscriber before the unauthorized change occurred.
(7) The authorized carrier may bill the unauthorized carrier for reasonable billing and collection expenses incurred by the authorized carrier in collecting charges from the unauthorized carrier.
The following procedures shall apply to informal complaints to the Commission alleging an unauthorized change of a subscriber's preferred carrier, as defined by Public Utilities Code § 2889.5 or the FCC's slamming rules.
(1) Address: Complaints shall be mailed to:
Slamming Complaints
Consumer Affairs Branch
California Public Utilities Commission
505 Van Ness Avenue
San Francisco, CA 94102
(2) Form: The complaint shall be in writing, and should contain: (1) the complainant's name, address, telephone number, and e-mail address (if the complainant has one); (2) the names of the alleged unauthorized carrier, the authorized carrier, and the executing carrier, if known' (3) the date of the alleged unauthorized change (if known); (4) a complete statement of the facts (including any documentation) showing that the carrier changed the subscriber's preferred carrier without authorization; (5) a copy of the subscriber's bill which contains the unauthorized changes; (6) a statement of whether the complainant has paid any disputed charges to the alleged unauthorized carrier; and (7) a statement of the specific relief sought.
(3) Procedure:
(a) The CAB staff will acknowledge receipt of subscriber's complaint and inform the subscriber of the procedures for resolving it.
(b) The CAB will notify the executing carrier, the authorized carrier, and the alleged unauthorized carrier of the alleged unauthorized change.
(c) The CAB staff will require the alleged unauthorized carrier to produce evidence of authorization and verification, and any other information or documentation the CAB staff may need to resolve the subscriber's complaint. The alleged unauthorized carrier shall provide evidence of subscriber authorization and verification within ten business days of CAB's request. If evidence of authorization and verification is not provided within ten business days, a presumption exists that an unauthorized change occurred, and CAB staff will find that an unauthorized change did occur.
(d) Upon request by the CAB staff for information other than the subscriber authorization and verification, the alleged unauthorized carrier shall provide such information within ten business days of CAB's request or provide a written explanation as to why the information cannot be provided within the required ten business days and an estimate of when it will provide the information.
(e) The CAB staff will conduct an investigation to determine whether an unauthorized change has occurred. The investigation may include review of the alleged subscriber authorization, verification, solicitation methods and materials, and any other information CAB staff determines is relevant to the investigation.
(f) Upon concluding its investigation, the CAB staff will inform the subscriber, the executing carrier, the alleged unauthorized carrier, and the authorized carrier of its decision.
(4) Appeals:
(a) If the subscriber is not satisfied with the CAB staff decision, the subscriber may appeal the decision to a Consumer Affairs Manager within 45 calendar days. The subscriber shall present new information or explain any factual or legal errors made in the CAB staff decision.
(b) If the subscriber is not satisfied with the resolution of the complaint by the Consumer Affairs Manager, the subscriber may file a formal complaint with the Commission according to the Commission's Rules of Practice and Procedure, Article 3.
(c) If the CAB staff finds that an unauthorized change has occurred but the unauthorized carrier disagrees and pursues billing or collection against the subscriber, CAB staff will forward this information to Commission's enforcement staff and advise the subscriber to file a formal complaint.
Carriers shall provide to the Director of the Consumer Services Division of the Commission the reports carriers submit to the FCC in compliance with the FCC Slamming Rules. Carriers shall provide these reports to Consumer Services Division at the same time the reports are provided to the FCC.
PUBLIC UTILITIES COMMISSION
STATE OF CALIFORNIA
By Wesley M. Franklin
Executive Director
