Comments on Draft Decision

The draft decision of the Assigned Commissioner was mailed to the parties on the service list for public review and comment in accordance with Public Utilities Code Section 311(g)(1). After revising the draft to reflect comments received, the Assigned Commissioner sought additional input on those changes, and particularly invited anything additional the parties might have on the draft decision's treatment of the economic effects of the proposed new general order.

In response to comments, we have made substantive changes in the decision and the general order. We provide an overview of those changes here, and we describe them more fully in the decision text.

The July 2003 draft general order added a comment in Part 1 that the Bill of Rights is to serve the same purpose as a statement of legislative intent. Some service providers have asked us to clarify further whether the Part 1 Bill of Rights, in and of itself, creates a private right of action. It does not, and we have added wording to the Part 1 comment to that effect.¹¹⁰ Part 1 simply identifies the fundamental consumer interests the rules are designed to protect. That said, these rules do not in any way displace, preempt, or limit any statutorily created private right of action.¹¹¹ Moreover, as we have explained elsewhere in this decision, conduct that violates the rules may be separately actionable under various laws, such as the Unfair Competition Act. Thus, we have clarified several principles in the introductory sections of Parts 2, 4 and 5. Compliance with these rules does not relieve carriers of other obligations they may have under their tariffs, other Commission general orders and decisions, FCC orders, or state and federal statutes. Any remedies the Commission may impose for violations of these rules are not intended to displace other remedies that may be imposed by the courts for violation of consumer protection laws. These rules do not preclude any civil action that may be available by law, nor do they limit any rights a consumer may have. We intend to continue our policy of cooperating with law enforcement authorities to enforce consumer protection laws. 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 the rules. These are not new provisions, but not all of them were explicit in each of the Part 2, 4 and 5 drafts as they are now.

Some service providers have requested that we clarify the purpose of the comments that appear throughout the general order. The comments serve the same purposes as official comments that accompany many statutes and rules (e.g., the California version of the Uniform Commercial Code, or the Federal Rules of Civil Procedure). They are included to aid in interpreting these consumer protection rules, primarily by explaining the purpose and intent of specific provisions. Some of our comments include illustrative examples of how a rule is to be applied. Those examples are intended to be helpful to service providers, customers, and decision makers who may be called upon to interpret the rules. Some comments include cross-references, for a variety of reasons. Some cross-references highlight the fact that a rule implements or incorporates certain statutes. Others clarify the relationship of these rules to other laws. Thus, the comments and any examples they may contain are not rules. They are simply intended to elucidate the purpose of the rules and to aid in interpretation. Should there be any inconsistency between the rules and the comments in a given situation, the rule governs.

The Parts 2 and 4 definition of "solicitation" has been revised to match that used in the Business and Professions Code.

In response to comments, several changes have been made in Part 2, Rule 1 that will make it easier and more economic for carriers to comply while still providing the disclosure subscribers and the public need. For example, carriers may continue what some indicated is their current practice of referencing supplementary material (marketing brochures, rate sheets, etc.) as a binding part of their service agreements and contracts, provided that copies are provided with the service agreements and contracts and the material remains available to the subscriber thereafter.

Some parts of draft Rule 2 have been relocated to Rule 3 because they relate more to service initiation and changes than to marketing practices; and Rule 2 is now less prescriptive with respect to marketing and more closely reflects the statutory wording on which it is based. Rule 3 has been modified in other ways to make compliance easier and more economic. Rule 3(c) has been narrowed to apply only to carriers offering basic service rather than to all carriers as in the draft. Carriers that considered the draft decision's 30 and 45 day no-penalty service cancellation provisions burdensome will find relief in Rule 3(f): subscribers with new tariffed service or any new contract for non-tariffed service now have 30 days to cancel without penalty, and the penalty-free period begins when service is initiated rather than when their written contracts and confirmation materials are provided. Under Rule 3(k), subscribers who are concerned about identity theft may still withhold their social security numbers when requesting service, but carriers may request other identification sufficient to verify their identities and run a credit check.

Rules 4, 5, 6, 9, 11, 13, 14 and 15 remain substantially unchanged from their draft decision versions. Rule 7 has only one change: Rule 7(a) no longer prohibits late payment penalties on overdue balances of less than $20.

Rule 8(b) no longer binds carriers to their term contracts with customers. Carriers wishing to make a material change in a term contract that may result in higher rates or charges or more restrictive terms or conditions may do so provided the change is communicated to the subscriber in a written notice 14 days in advance, and the subscriber is informed that he or she may terminate the contract at any time without penalty.

Former Rule 12 from the staff report and Assigned Commissioner's drafts has been revised to become Part 3, Rules Governing Privacy, of the new general order. Former Parts 3 and 4 have been renumbered as Parts 4 and 5. Our new Part 3 privacy rules are explained fully in the corresponding section of this order above.

The only substantive revisions to Part 4, Rules Governing Billing for Non-Communications-Related Charges, are those to the introductory and definition sections explained in the preceding paragraphs.

The most significant revision to Part 5, Rules Governing Slamming Complaints, is deletion of former Section D, Unauthorized Local Exchange Carrier Changes. Where the Assigned Commissioner's draft decision proposed retaining the current local exchange carrier slamming provisions established in D.95-07-054, Appendix B (Consumer Protection and Consumer Information Rules for CLCs), local exchange carrier slamming allegations will instead be subject to the same requirements as those involving intraLATA, interLATA and interstate toll service.

We have dropped the potentially time-consuming step proposed in the draft of having carriers prepare and submit for Telecommunications Division's review a plan for implementing new G.O ___. Carriers will now have 120 days after the date this decision is mailed to bring their operations into compliance with G.O. ___ and this interim order, and to certify that they have done so.

We have made other, lesser editing changes in various parts of this order and the new general order to update them, to correct minor errors, and in some cases, to better express or explain what the draft intended. We have also added a section confirming our preliminary scoping memo. This is consistent with our practice for proceedings in which the order is issued without hearings and where no changes to our preliminary scoping memo's determinations are needed. Lastly, we have added a section addressing pending motions, one of which was filed early in the proceeding and the others after the Assigned Commissioner's draft decision was issued.