Slamming (Pub. Util. Code § 2889.5)

Section 2889.5 prohibits switching a consumer's long-distance carrier without their knowledge or authorization. Section 2889.5 sets forth specific steps that must occur prior to changing a consumer's telephone service provider.

Position of CSD

CSD presented three consumers⁷ who testified that their long-distance carrier had been switched to Accutel without their knowledge or authorization. Two CSD investigators⁸ also sponsored testimony that consisted of interviews of consumers who had complained to Pacific concerning changes to their long-distance carrier. CSD investigators found that many of the consumers who had complained to Pacific had not authorized changes to their long-distance carrier. Out of a total of 168 interviews conducted by CSD, 34 consumers reported being slammed by Accutel. ⁹

In its opening brief, CSD also responded to Accutel's assertion that Christian Communications, Inc. (CCI) sold Accutel five to ten thousand BTNs that lacked customer authorization, and that Telecommunications Service Center, Inc. (TSC), a billing agent, transmitted billings to OAN that had no customer authorizations. CSD asserts that even if these alleged events took place, none of them excuse Accutel from accountability and legal responsibility for the slamming violations. CSD argues that the "record proves that Accutel also slammed on a massive scale." CSD states that the record presents the Commission with a range of possible slamming violations, from 46 to 12,951.¹⁰

Position of Accutel

Accutel argues that it had relatively few slamming complaints for the calendar year 1997 and that the complaints that did occur were associated with Accutel's purchase of CCI's customer base. Additionally, in late 1997, Accutel states that it contracted with TSC to provide billing and rating services. However, Accutel asserts that TSC mixed the billings of Accutel's customers and other carriers for which it provided billing and rating services. Accutel believes that TSC's practice resulted in complaints to Accutel in late 1997 and early 1998.

Discussion

We find that Accutel was involved in at least 34 incidents of slamming. Again, Accutel raises an innocent third-party defense. As is the case for cramming, Accutel cannot exonerate itself for slamming offenses by pointing to the conduct of others. We agree with CSD that even if the purchase of CCI's customer base or TSC's mixed billings resulted in consumers' long distance carrier provider being changed, none of these events excuse Accutel from accountability and legal responsibility for the slamming violations.

However, CSD wants the Commission to infer that substantially all of Accutel's customers were slammed based on (1) CSD's confirmation of relatively few instances of slamming, and (2) Accutel's inability to produce customer authorizations for its alleged customers.

The record does not support a finding that all of Accutel's customers were slammed. Accutel's database at one time may have contained 12,951 customers; however, it does not automatically follow that all such consumers were all slammed. CSD's own interviews of consumers, who complained to CAB or their local exchange company, found that approximately 20% of the 168 interviewed claim to have been slammed. Moreover these consumers are not representative of all Accutel's customers since CSD interviewed only those persons who had complained.

CSD admits that it has not "confirmed the existence, number, and scope of Accutel's slamming" because Accutel has not produced customer authorizations. In its appeal, CSD contends that the Presiding Officer's Decision ignores a "glaring absence of proof, and consequently in effect `rewards' Accutel for withholding information from CSD."

We reject CSD's reasoning. CSD has the burden to show that slamming occurred. Procedures (such as discovery) and procedural tools (such as motions to compel) exist for acquiring information from a respondent. Discovery concerns should be addressed early in a proceeding with motions to compel production of documents. Despite an ALJ inquiry regarding the need for a postponement, CSD requested that the evidentiary hearing go forward as long as Accutel is prohibited from introducing any evidence not already produced to CSD. CSD asks us to make a finding based on the "absence of proof" but yet it has not availed itself of procedural tools to acquire such proof in advance of hearing and actually insists that respondent be prohibited from producing proof of authorization at hearing. Consequently, we will not infer that all of Accutel's customers were slammed. ¹¹