VIII. Conclusions Regarding Cramming
Pacific reported 6,553 cramming complaints attributable to Qwest in 1999 and 2000. In the BOR report, as required by § 2890 and D.00-03-020 (Ordering Paragraph 2), Pacific tracks complaints from subscribers regarding unauthorized third-party billing charges for products and services. Pacific provides the Commission, as well as Qwest, with the BOR report. Pacific's General Manager of Consumer Protection, McGreevy, believes this report's tabulation of complaints is reliable. Although we make some adjustment to the BOR report for classification errors, the BOR report constitutes the most accurate and up-to-date record the Commission has of such customer complaints. (See D.00-03-020, Attachment B, page 2, requiring the billing telephone company to "maintain accurate and up-to-date records of all customer complaints made to or received by it for charges for products or services provided by a third party, including a corporate affiliate.")
Pacific's 1999 records show that the most common complaints against Qwest involved billings for Q. Home Plan and Q. World Plan. For 1999, Pacific reported that Qwest had the largest number of cramming complaints compared to all other entities billing through Pacific that year.33
Qwest attacks the credibility of the BOR report and CSD's investigator, and presents a detailed analysis of the BOR report entries, in order to establish that only five crams occurred. In fact, we make some Qwest's suggested adjustments to the BOR report data, but even as adjusted, we find that about 70% of the cramming complaint entries are correct.
Qwest argues that when the BOR report contains a complaint regarding a PICC charge34, or a charge for the Universal Service Fund, standing alone, this is not a cram because these are federally approved charges. We agree and adjust the numbers on the BOR report accordingly (762 line items for a PICC charge; 322 line items for the Universal Service Fund.) We also adjust the numbers for duplicate monthly entries (139).
Qwest believes that when the customer denies making the call, or has a complaint regarding a calling card billing, these are not crams but rather billing disputes. However, § 2890 provides that a customer may only be billed for authorized charges for products and services. If a customer denies making the call, this is a complaint for an unauthorized charge.35
Qwest also believes that 28.6 % of the remaining cramming complaints should not have been included in the report because they were already listed as PIC disputes. According to Qwest, the complaint was either (a) coded as both a PIC dispute and a cram, which is improper; or (b) initially coded as a PIC dispute and if that matter was not resolved and the customer complained again, subsequently coded as a cram. Qwest believes if the customer receives a subsequent bill, it is either for charges incurred before being switched away from Qwest or because the customer never called the LEC to be switched back to the carrier of choice.36
We disagree. Section 2889.5 prohibits telephone corporations from switching a subscriber's telephone service without authorization. Section 2890 addresses unauthorized charges on the telephone bill. These are two separate statutes. Many customers reported Qwest continued to bill them after they requested to be disconnected from Qwest. The continued billing is a violation of § 2890.
Qwest also attacks the credibility of CSD's investigator Northrup, who completed 54 interviews of 84 customers selected at random from Pacific Bell's October 1999 BOR report. However, for many of these interviews, there is evidence of cramming. Of the complaints Qwest challenges, for example, Ms. St. James claimed she ordered Qwest's services based on promotional free airline tickets and hotel accommodations, but waited five weeks and the service was not initiated. She then returned to AT&T because she had no long distance service while waiting for Qwest to begin service. After switching back to AT&T, she was notified by Qwest that it had begun providing services. Thus, Qwest charged her for services after she switched back to AT&T.
Similarly, Ms. Sullivan complained that Qwest billed her $5.95 a month for a year without providing her with long distance service. There is no evidence that that this constitutes a "billing error" rather than a violation of § 2890, because Ms. Sullivan authorized Qwest to bill her a monthly fee only if she was to receive the long distance service as promised. This did not occur.
In another matter, Ms. Wareham complained that her business, Nalbandian Sales, Inc., was billed for a telephone number it did not have, and that no one authorized Qwest to provide another telephone line to her company. Qwest also argues that four customers, Rea, Sanchez, Doyer and Mack, are "billing errors." However, the allegations by these witnesses are sufficient evidence to demonstrate they were charged for a service they did not authorize.
For four people whom Northrup interviewed, Qwest had no record of their being a customer, and the customer was either unable to provide billing records, or was unclear on the carrier complained against. We therefore adjust the BOR report to account for this factor.37
Qwest's arguments as to the cramming charges also rely on burden of proof and credibility theories it used in responding to the slamming charges. For the reasons stated above, we find that CSD has credibly and adequately demonstrated cramming by Qwest substantially as charged in the OII.
In summary, we find a total of 4,871 violations of § 2890, after adjusting the BOR report as discussed above.38
33 The only other companies registering a comparable number of complaints were billing aggregators who billed on behalf of several other companies combined. 34 A PICC charge is a charge that the FCC imposes for long-distance companies for access to Pacific's local loop. 35 According to Qwest, CSD has not met its burden of proof because § 2890(e)(D) provides, with regard to direct dialed telecommunications services, evidence that a call was dialed is prima facie evidence of authorization. However, here, we have a complaint from the subscriber rebutting that presumption. Moreover, this same statute provides that in the case of a dispute, there is a rebuttable presumption that an unverified charge for a product or service was not authorized by the subscriber and that the subscriber was not responsible for that charge. This presumption applies to other charges listed in the BOR report, such as Q. Home Plan, Q. World Plan, etc. 36 Qwest also did not offer persuasive evidence that resellers, as opposed to Qwest, are largely responsible for the crams listed in the BOR report. 37 We adjust the total number of cramming complaints listed in the BOR report (6,553) by 7%, because these four complaints were about 7% of the total 54 interviews Northrup completed. 38 6553 entries, adjusted by 7% for a total of 6094, and further adjusted by 1223, representing the PICC charge, Universal Service Fund, and duplicate entries discussed above.
