6. Comments on Draft Decision

The draft decision in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 77.7 of the Rules of Practice and Procedure. Comments on the draft decision were filed on March 3, 2003, by TURN and UCAN, by AT&T and WorldCom, and by the Department of Consumer Affairs.

Consumer Affairs urges the Commission to consider whether a 3% error rate will permit so many abandoned calls as to constitute violation of Californians' constitutional right of privacy, citing Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1. Our Telecommunications Division workshop produced little or no evidence to support this position. The Commission is required by AB 870 to establish an acceptable error rate. Article 3, § 3.5 of the State Constitution prohibits us from declaring that a particular error rate is constitutionally unenforceable unless such a finding has been made by an appellate court. No such finding has been made by any court in this state.

AT&T and WorldCom recommend minor corrections in the text of our decision, and these changes have been made where appropriate. These parties also urge that record-keeping requirements begin on January 1, 2004, rather than on July 1, 2003, to give telemarketers time to reprogram their equipment. As TURN notes, parties have had ample time to prepare for the record-keeping that we require, and we decline to postpone the date of this requirement. AT&T and WorldCom also object to Public Advisor approval of carriers' consumer education messages because of the additional time such approval will require. We believe that the Public Advisor is uniquely qualified to contribute to these consumer messages, and we do not believe that the time for obtaining such approval is burdensome.

TURN and UCAN object that our unwillingness to require a 1% error rate and order more stringent enforcement requirements means that the Commission "is sliding down a slope to substantially weaken what was initially strong consumer protection legislation." (TURN/UCAN comments, at 2.) We disagree. As our Telecommunications Division concluded, there is little more than speculation that a further reduction in the error rate at this time will significantly reduce abandoned calls, and there is substantial agreement that such a reduction would send telemarketing firms to other states where they would be subject only to the FTC's 3% standard in their calls to California. In their comments, TURN and UCAN for the first time suggest that the Commission should follow the lead of the FTC in requiring a recorded message in the event of an abandoned call. Apart from a potential conflict with state prohibitions on recorded telephone messages (see Pub. Util. Code §§ 2872, 2874), the proposal was not raised by any party in Telecommunications Division investigation and cannot now be considered without reopening the record, a time-consuming process that has not been justified. Finally, TURN and UCAN urge more stringent monitoring of predictive dialer compliance with Pub. Util. Code § 2875.5. As discussed more fully in the decision, we expect our Telecommunications Division to report to us promptly if it determines that further enforcement efforts are required, or if it determines that the Commission should revisit the error rate standard that we adopt today. Other minor corrections urged by TURN and UCAN have been considered and adopted where appropriate.