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 The Consumer Protection and Consumer Information Rules for CLCs set forth in D.95-07-054, Appendix B, should be superseded by G.O. 168.
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Rules for Detariffed Services set forth for non-tariffed non-dominant IECs in D.98-08-031, Appendix A, should be superseded by G.O. 168.
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 Any previously filed CMRS consumer protection tariff rules should be superseded and canceled, consistent with the intent stated in D.96-12-071.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. 168, Part 2.
6. G.O. 168, 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. 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. 168.
10. 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.
11. 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.
12. The Rules Governing Slamming Complaints included as Part 5 of G.O. 168 conform to the FCC's requirements of states which opt to act as adjudicators of slamming complaints, and with the Federal Telecommunications Act.
13. Except as set forth in the ordering paragraphs below, this interim order and G.O. 168 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.
14. The rights and rules in G.O. 168 are just and reasonable.
15. The Commission should adopt G.O. 168, Rules Governing Telecommunications Consumer Protection, Appendix A to this interim order.
16. Parties and respondents in this proceeding have implicitly waived their right to evidentiary hearing on any issue decided in this interim order.
17. No evidentiary hearings are needed.
18. 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.
19. The Commission is not and should not be the only avenue available to enforce consumers' rights.
20. The Commission's adoption of G.O. 168 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.
21. This proceeding should remain open to consider whether the Commission should establish a privacy rule in addition to existing P.U. Code Section 2891, 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.
22. 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. 168.
23. 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. 168.
24. 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.
25. In fashioning new G.O. 168, the Commission has considered relevant law and the cost and economic effects of its new rules.
26. 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.
27. This interim order should be made effective today to afford consumers greater protection as soon as possible.
IT IS ORDERED that:
1. General Order 168 (G.O. 168), 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. 168 and this interim order not later than 180 days after the date this decision was mailed, with the exception of Part 2, Rules 3(m), 5(c), 5(d), 6(j), and 7(d), which shall be no later than July 31st, 2005. Not later than 180 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, and the above exceptions certified by July 31st, 2005. Each such certification letter 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. 168. 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. 168 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. 168. 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. 168 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. 168 and the ordering paragraphs of this interim order. Each carrier having tariff provision(s) inconsistent with G.O. 168, 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 180th 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. 168 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 demonstrating how its tariffs will be in compliance with G.O. 168. 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 60 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 demonstrating how its tariffs already comply with G.O. 168.
8. Every carrier required under G.O. 168, 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. 168 rights and rules on the Commission's web site. Each such link shall be associated with a clear and conspicuous explanatory caption.
9. The provisions of G.O. 168 are severable. If any provision of G.O. 168 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 establish a privacy rule in addition to existing P.U. Code Section 2891, 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 May 27, 2004, at San Francisco, California.
GEOFFREY F. BROWN
Commissioner
LORETTA M. LYNCH
Commissioner
CARL W. WOOD
Commissioner
I will file a dissent.
/s/ MICHAEL R. PEEVEY
President
I reserve the right to file a concurrence.
/s/ LORETTA M. LYNCH
Commissioner
I reserve the right to file a concurrence.
/s/ CARL W. WOOD
Commissioner
I reserve the right to file a dissent.
/s/ SUSAN P. KENNEDY
Commissioner
President Michael R. Peevey, dissenting:
While I support the goals stated in the bill of rights section, I cannot support the related consumer protection rules as they are drafted in the decision. The consumer protection rules cover a wide scope of issues and fine tuning could have resolved many of my minor concerns. However, there are three major concerns that are not susceptible to fine tuning; they are fatally flawed.
First, the decision allows a private right of action. With over 1000 telecommunication companies and tens of millions of customers, the exposure to a private right of action is tremendous. This provision does not add any new consumer protection yet it increases the cost of doing business. Companies will have to defend themselves from individual and class action lawsuits whether or not those companies have complied with the rules.
Second, the decision suffers from a self-inflicted wound. Rule 2 originally dealt with "advertising". This was changed to "solicitations". Finally, the decision settled upon the word "offer". Because the change to the word "offer" was done at the last minute, it is unclear exactly what this change entails. I am not convinced that a creative attorney could not use all three words interchangeably. The changes suggest that the author recognizes that we should not try to regulate advertising. However, the rule in place seems to place the California Public Utilities Commission as a decisionmaker on whether an "offer", which can include advertising, is misleading or deceptive. At the very least, this rule suffers from being vague as to whether advertising is included.
Third, the implementation schedule is unrealistic. The proposed decision had originally set a 270-day implementation period. The decision sets two deadlines: a 180-day period for most items and a 14-month period for rules that rely upon billing system changes. Although the decision is wise to use a two-tier implementation period, both timelines are too short. A more reasonable set of deadlines would have been 270 days for most items and an 18-month period for rules that need billing system changes.
Given these three fundamental weaknesses, I could not support the majority decision even though I am sympathetic to the principle of a telecom bill of rights for California consumers.
/s/ MICHAEL R. PEEVEY
