Conclusions of Law
1. Through AB 726, the Telecommunications Customer Service Act of 1993, the Legislature directed the Commission to ensure that carriers of all categories abide by certain basic standards of disclosure and customer service, and acknowledged the need for some of the consumer protection measures we implement in this proceeding.
2. The Consumer Protection and Consumer Information Rules for CLCs set forth in D.95-07-054, Appendix B, should be superseded by G.O. ___.
3. The Consumer Protection Rules for Detariffed Services set forth for non-tariffed non-dominant IECs in D.98-08-031, Appendix A, should be superseded by G.O. ___.
4. Any previously filed CMRS consumer protection tariff rules should be superseded and canceled, consistent with the intent stated in D.96-12-071.
5. Commission-regulated carriers of all classes, their agents, and other entities providing telecommunications-related products or services which the Public Utilities Code makes subject to the Commission's rules should be required to respect the consumer rights and comply with the new rules in G.O. ___, Part 2.
6. G.O. ___, Part 2, should be applied to protect both individuals and small businesses.
7. Section 532 prohibits utilities from charging rates that differ from those in their tariffs, but permits the Commission to establish such exceptions as it considers just and reasonable.
8. The Commission should establish an exception as permitted by Section 532, in cases where carriers have misrepresented their rates, terms or conditions for competitive services.
9. The California Constitution, Article I, Section 1, recognizes privacy as an inalienable right of all people. It applies to actions by businesses as well as by government. The privacy provisions of G.O. ___ are consistent with Californians' constitutional right to privacy.
10. State law reflects the high importance accorded privacy rights in California.
11. In enacting Public Utilities Code § 2891, which requires carriers to obtain a residential telephone subscriber's written consent before disclosing confidential subscriber information to any other person or corporation, the California Legislature adopted a written opt-in approval requirement for residential telephone subscribers.
12. The Part 3 privacy rules we adopt must be, and are, consistent with state law that requires carriers to obtain written, opt-in consent from residential subscribers.
13. California has a substantial interest in protecting telephone consumers' privacy rights. The Part 3 rules directly advance this state interest by requiring carriers to obtain express, written consent from their residential subscribers before disclosing their subscribers' confidential information for marketing purposes.
14. The FCC has acknowledged that states may, consistent with the First Amendment, develop opt-in CPNI sharing requirements that are more restrictive than those adopted by the FCC; and if they do so, it will decline to apply any presumption that such requirements would be vulnerable to preemption.
15. There is no reason to assume that our Part 3 privacy rules implementing state law will be preempted under federal law.
16. The Part 3 privacy rules do not violate carriers' First Amendment rights under the test set forth in Central Hudson Gas & Electric Co. v. Public Services Commission (1980), 477 U.S. 557.
17. By AB 994, the Legislature cited this rulemaking proceeding as a proper vehicle for the Commission to implement billing safeguards covering non-communications-related charges in telephone bills. After considering the comments and reply comments of the parties, the Commission by D.01-07-030 adopted the Rules Governing Billing for Non-Communications-Related Charges included as Part 4 of G.O. ___.
18. Through its orders in CC Docket No. 94-129, the FCC has given each state the option to act as the adjudicator of slamming complaints, both interstate and intrastate. California has opted to do so.
19. The FCC has given states which elect to handle slamming complaints great latitude in fashioning their own procedures, so long as those procedures are not inconsistent with Section 258 of the Communications Act of 1934 as amended by the Telecommunications Act of 1996.
20. The Rules Governing Slamming Complaints included as Part 5 of G.O. ___ conform to the FCC's requirements of states which opt to act as adjudicators of slamming complaints, and with the Federal Telecommunications Act.
21. Except as set forth in the ordering paragraphs below, this interim order and G.O. ___ do not relieve any carrier from compliance with any existing Commission decision, rule or general order, any state or federal statute, or any other requirement under the law.
22. The rights and rules in G.O. ___ are just and reasonable.
23. The Commission should adopt G.O. ___, Rules Governing Telecommunications Consumer Protection, Appendix A to this interim order.
24. Parties and respondents in this proceeding have implicitly waived their right to evidentiary hearing on any issue decided in this interim order.
25. No evidentiary hearings are needed.
26. Under Section 2896, the Commission may require carriers to inform and educate customers of their rights, these rules, and the procedures available to them for redress.
27. The Commission is not and should not be the only avenue available to enforce consumers' rights.
28. The Commission's adoption of G.O. ___ and its associated rights and rules should not preclude any civil action that may be available by law. The Commission intends to continue its policy of cooperating with law enforcement authorities to assist them in their efforts to enforce consumer protection laws against Commission regulated utilities.
29. This proceeding should remain open to consider whether the Commission should implement a telecommunications consumer education program, and if so, how it should be structured; whether to curtail the Commission-sanctioned limitation of liability; and whether earlier-proposed rules requiring that communications directed at consumers and subscribers be in languages other than English are needed.
30. The record of this proceeding is based on information gathered by the Commission and demonstrates that there is a need for the consumer protection rules set forth in G.O. ___.
31. Over the course of this proceeding the parties have had sufficient opportunity to present on the record information on the cost and economic effects of the new rules. The cost and economic effects considerations raised by the wireless representatives have been taken into account in crafting new G.O.___.
32. Public Utilities Code § 311(h) specifically exempts the Commission's general orders from the requirements of Government Code § 11346.3. The Commission has complied with Public Utilities Code § 321.1, which directs the Commission to assess the economic effects or consequences of its decisions as part of its normal consideration in a rulemaking proceeding.
33. In fashioning new G.O. ___, the Commission has considered relevant law and the cost and economic effects of its new rules.
34. In a rulemaking proceeding such as this one, the Commission may consider relevant, publicly available reports and decisions and reports issued by this Commission and by other state and federal agencies without taking official notice of them.
35. This interim order should be made effective today to afford consumers greater protection as soon as possible.
IT IS ORDERED that:
1. General Order ___ (G.O. ___), Rules Governing Telecommunications Consumer Protection, Appendix A to this interim order is adopted and shall become effective as of the effective date of this interim order.
2. Commission-regulated telecommunications carriers of all classes shall bring their operations into full compliance with G.O. ___ and this interim order not later than 120 days after the date this decision was mailed. Not later than 120 days after the date this decision was mailed, each carrier shall serve on the Commission's Telecommunications Division a letter certifying that it is in compliance with this ordering paragraph. Each such certification letter shall be in a format provided by the Telecommunications Division, and shall be verified following the procedure set forth in the Commission's Rules of Practice and Procedure, Rule 2.4, Verification.
3. The Consumer Protection and Consumer Information Rules for CLCs set forth in D.95-07-054, Appendix B, are superseded by G.O. ___. Each affected carrier is relieved of its obligation to comply with those D.95-07-054, Appendix B, rules as of the date that carrier achieves full compliance with G.O. ___ as directed in Ordering Paragraph 2 of this interim order.
4. The Consumer Protection Rules for Detariffed Services set forth for non-tariffed non-dominant interexchange carriers in D.98-08-031, Appendix A, are superseded by G.O. ___. Each affected carrier is relieved of its obligation to comply with those D.98-08-031, Appendix A, rules as of the date that carrier achieves full compliance with G.O. ___ as directed in Ordering Paragraph 2 of this interim order.
5. Any previously filed commercial mobile radio service consumer protection tariff rules are superseded and shall be canceled.
6. Each Commission-regulated telecommunications carrier having California intrastate tariffs in effect shall evaluate those tariffs for compliance with the requirements of G.O. ___ and the ordering paragraphs of this interim order. Each carrier having tariff provision(s) inconsistent with G.O. ___, or required to be revised or canceled to conform to the ordering paragraphs of this interim order, shall file not later than 60 days after this decision was mailed and make effective on the 120th day after this decision was mailed an advice letter in accordance with G.O. 96 Series making only such revisions or cancellations as are necessary to bring its tariffs into compliance with G.O. ___ and this interim order; provided, however, that no carrier shall use the advice letter filed in accordance with this interim order to make any tariff revision reducing the level of any current consumer protection. Each carrier shall also submit with its advice letter a tariff-tracking inventory prepared following guidance to be issued to carriers by the Telecommunications Division and demonstrating how its tariffs will be in compliance with G.O.___. Advice letters which do not comply with the requirements of this interim order are subject to suspension as provided in Commission Resolution M-4801.
7. Each carrier having tariffs on file and having determined that none of its tariffs need revision under Ordering Paragraph 6 shall not later than 30 days after this decision was mailed serve an information-only compliance letter on the Telecommunications Division notifying the Commission that it has evaluated its tariffs as ordered herein and found none needing revision. Each such information-only compliance letter shall be verified following the procedure set forth in the Commission's Rules of Practice and Procedure, Rule 2.4, Verification. Each such carrier shall also submit with its information-only compliance letter a tariff-tracking inventory prepared following guidance to be issued to carriers by the Telecommunications Division and demonstrating how its tariffs already comply with G.O.___.
8. Every carrier required under G.O. ___, Part 2, Rule 1(a) or 1(b) to have a World Wide Web site on the Internet shall include on that site one or more active links to the G.O. ___ rights and rules on the Commission's web site, and when it is available, to the Commission's summary of those rights and rules. Each such link shall be associated with a clear and conspicuous explanatory caption.
9. The provisions of G.O. ___ are severable. If any provision of G.O. ___ or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
10. The various motions described in the Pending Motions section of this order are granted and denied as set forth in that section. The two LECG studies and the Hazlett paper tendered in those motions are accepted into the proceeding record. The Navarro paper is part of Utility Consumers' Action Network's timely filed comments and already in the record.
11. Rulemaking 00-02-004 shall remain open to consider whether the Commission should implement a telecommunications consumer education program, and if so, how it should be structured; whether to curtail the Commission-sanctioned limitation of liability; and whether additional rules requiring that communications directed at consumers and subscribers be in languages other than English are needed.
This interim order is effective today.
Dated , at San Francisco, California.
