III. Discussion

Pursuant to Rule 47(h) of the Commission's Rules of Practice and Procedure, in response to a petition for modification, the Commission may modify the decision, set the matter for further hearing, summarily deny the petition on the ground that the Commission is not persuaded to modify the decision, or take other appropriate action. In response to the three petitions before us, we see four primary issues: the definition of interexchange service for purposes of local disconnect, the definition of unique name, refinements to the Subscriber Complaint Reporting Rules, and the applicability of Ordering Paragraph 7. We will take up each issue in turn below.

A. Clarification of Inter-Exchange and Local Services

Our objective in D.00-03-020 was to free customers from the fear of losing local telephone service so that they would no longer feel compelled to pay unauthorized charges. This objective is also consistent with our universal service goals (See § 871.5; Universal Service, 68 CPUC 2d 524 (D.96-10-066).) As several parties point out, our language in effecting this change was not free from ambiguity. The Commission's D.00-03-020, Ordering Paragraph 4, in part, states:

"Incumbent local exchange carriers shall file and serve advice letters that contain revised tariffs . . . that conform to the portions of this order eliminating incumbent local exchange carriers' authority to disconnect local service for nonpayment of inter-exchange service."

Ambiguity exists because the intraLATA inter-exchange services provided by local exchange carriers are typically referred to as Zone Usage Measurement (ZUM) and Message Toll Service (MTS). Regardless of the terms used to describe a particular inter-exchange service, by definition, a telecommunications transmission between telephone exchanges is an "inter-exchange service." It is in this regard that the Commission intended "inter-exchange services," as used in OP 4, to include all inter-exchange services, including intra-LATA, inter-LATA, interstate and international, regardless of carrier class.

In addition, ambiguity exists because the term "local service" can encompass more than "basic service." Basic service (or basic exchange service), as defined in D.96-10-066, Appendix B, page 5, is one of the many types of "local exchange services" provided by local exchange carriers. Local service consists of, among other service offerings, basic service, custom calling features, and toll (ZUM and MTS) services. The Commission's references to "local service" in D.00-03-020 inadvertently suggested that all local exchange services, e.g., toll, custom calling features, were included in the list of services for which a local service could be disconnected. Rather, our intent was to protect "basic service" as defined in D.96-10-066 from disconnection resulting from non-payment. The effect of this modification is to clarify that basic service cannot be denied for non-payment of other services.

Further, the Commission modifies the effect of its ruling to include Carriers Of Last Resort (COLRs) as defined in D.96-10-066. The Commission in D.00-03-020, page 37, states that the key to short-circuiting any dial tone leveraging is a readily available alternative local service provider. The possibility exists that a CLC could serve a market with no readily available alternative service provider. Therefore, the basic service protection rule should apply to all COLRs.

Therefore, we will modify D.00-03-020 as follows.

Page 33, first full paragraph is replaced with:

For these reasons, we intend to limit disconnection of basic residential and single line business service (i.e., Flat Rate and/or Measured Rate services) to nonpayment of non-recurring and recurring charges for basic residential and single line business services, including all mandated surcharges and taxes.

Page 57, Ordering Paragraph 4 is replaced with:

4. Carriers of Last Resort, as defined in D.96-10-066, shall file and serve advice letters that contain revised tariffs no later than 90 days after the effective date of this order that conform to the portions of this order eliminating such carriers' authority to disconnect basic residential and single line business, Flat Rate and/or Measured Rate service, as defined in D.96-10-066, Appendix B, page 5, for nonpayment of any charge other than nonpayment of non-recurring and recurring charges for basic residential and single line business, Flat Rate and Measured Rate service, including mandated surcharges and taxes calculated on same. Mandated charges do not include charges that are elective for the carrier to recover. Pending such advice letter filings, current tariffs shall remain in effect.

B. Subscriber Complaint Reporting Rules

In D.00-03-020, we adopted the complaint reporting rules required by § 2889.9(d):

The Commission shall establish rules that require each billing telephone company, billing agent, and company that provides products or services that are charged on subscribers' telephone bills, to provide the commission with reports of complaints made by subscribers regarding the billing for products or services that are charged on their telephone bills as a result of the billing and collection services that the billing telephone company provides to third parties, including affiliates of the billing telephone company.

Certain parties sought modifications to several components of the rules. We will address each rule in turn below.

1. Definition of "Billing Telephone Company" and Corporate Affiliates

The rules define "Billing Telephone Company" to include any telephone corporation that provides billing and collection services to a third party, including affiliates. MCI, AT&T, and Sprint contend that where a telephone corporation provides the billing and collection services only to affiliates, the Commission should only impose "relaxed record-keeping and reporting requirements."

We begin our analysis with the plain words of the statute. While we agree with the petitioners that the statute leaves us discretion in crafting the rules, the statute clearly contemplates a record-keeping and reporting requirement for telephone corporations that bill only for affiliates. Here, the petitioners advocate a "relaxed" requirement but give no hint as to the specifics of such a requirement. Therefore, at this late stage in the proceeding, we will decline the petitioners' invitation to "revisit" these requirements.

2. Record of Billing Disputes

Subscriber Complaint Reporting Rule 3 sets out the specific items each record of a billing dispute must contain. Several of these items have drawn comments from the parties.

Subpart (b) requires the Billing Telephone Company to obtain the "subscriber telephone number and the unique subscriber identifier." Several parties are unclear as to the meaning of "unique subscriber identifier." The record reveals no apparent basis for this requirement, so we will delete it. Thus, Rule 3(b) shall be modified as follows: "b. the subscriber telephone number."

Subpart (j) requires the Billing Telephone Company and billing agent to report the total number of telephone lines billed. OAN requests that we add "working" before telephone lines because billing agents only have information on "working telephone numbers." This clarification will be adopted. We will also delete the "s" on billing agents as each billing agent is responsible for preparing and submitting its own report.

OAN also requests that we add "to the extent the Billing Agent possessed the requested information" to the end of the first full paragraph of Rule 3, and at the end of the first full paragraph of Rule 5. As noted by ASCENT, while the Billing Telephone Company may not possess the information, perhaps it should possess the information. We also add that notwithstanding the Billing Agent's inability or unwillingness to obtain the information, the Commission may require the information to adequately perform its consumer protection function. For this reason, we decline to modify the rules as requested by OAN.

OAN also requests that we modify Rule 5 (b) to reflect the fact that a billing agent would only have complaint information about the complaints it receives, and not about any "other entity receiving complaints." OAN's point is well taken. We will modify this rule to limit it to Billing Telephone Companies. Similarly, OAN states that it does not have the "subscriber" information required by Rule 5(c) but rather only working telephone numbers. We will therefore revise Rule 5(c) to require the number of working telephone numbers.

AT&T also pointed out an apparent typographical error in the due dates established for filing the reports required by Rule 5. Each quarterly report is due at the end of the month following the end of the quarter, with one exception. The rule currently requires the report for October, November, and December to be filed on January 1^st. The date should have been January 31^st.

As modified the rules are:

5(b): Billing Telephone Companies shall report the name, address, and telephone number of each entity receiving complaints;

5(c): the total number of working telephone lines billed for each entity for which complaints were received;

5(fourth "bullet"): Report for October, November, and December due no later than January 31^st of the following year.

C. Unique Name

Ordering Paragraph 5 requires that the Billing Telephone Companies submit a plan for requiring all entities that use their billing and collection services to provide a unique name for inclusion on the bills and for the Billing Telephone Companies to use in tabulating complaint rates on an entity-by-entity basis. Two issues have emerged: (1) what is the meaning of "unique name," and (2) who is responsible for ensuring that it is used?

We begin with the meaning of "unique name." Section 2890(e)(2)(B) requires that each billing contain the "name of the party responsible for generating the charge." As we noted in D.00-03-020, the identity of the service provider should be readily available to customers.

For certificated carriers, the decision requires the name on the bill be the name that appears on the carrier's Certificate of Public Convenience and Necessity (CPCN). AT&T, MCI, and Sprint request clarification that abbreviations or other references that make it "abundantly clear who the entity is" would be acceptable. Such a clarification is consistent with the text of the decision found on page 40. Our objective is to enable our staff and customers to link complaints to a specific carrier. The petitioners go further, however, and request that the decision be modified to allow for billing under registered fictitious business names. The proposed modification, however, fails to achieve our goal of allowing our staff and customers to link complaints to a specific carrier because a carrier could obtain its CPCN under one name and assume a totally unrelated fictitious business name to bill customers. Maintaining an up-to-date list of all CPCN holders and all their fictitious business names would be an administratively burdensome task to impose on our staff. We therefore reject the petitioners' request.

The meaning of "unique name" is more complicated in the context of service providers that are not certificated by the Commission. The decision requires that these entities bill using the name on their FCC certificate, if any, or its "legal name, disregarding any fictitious business names."

Several parties pointed to the recent FCC Truth-in-Billing decision,² which allowed carriers to use their trade names or name by which the carrier is known when billing customers, and requested that the Commission adopt a similar standard.

While considering the parties' request, we are mindful of the evidence we have received that some service providers do business under several names. In I.99-10-024, our staff has presented sworn declarations, with supporting documentation, showing that certain service providers billed under numerous names. These names were not corporate subsidiaries, registered fictitious business names, or geographically separated efforts, but rather appeared to be unauthorized aliases assumed for the purposes of particular advertising campaigns. Such a fact pattern fails to meet our standard, as articulated by MCI, AT&T, and Sprint, of making it "abundantly clear who the service provider is."

Accordingly, we will retain our requirement that each service provider bill under its name as it appears on the FCC registration, if any, or the entity's legal name as registered with California Secretary of State. We agree with ASCENT that the selection of the name is "highly subjective," and we have no desire to interject this Commission into the name selection process. Nevertheless, we must establish standards that allow customers to identify and distinguish amongst service providers. Therefore, we will maintain our requirement that the Billing Telephone Companies submit a plan for all service providers and certificated carriers to provide a unique identifier for use in customer billings and to tabulate customer complaint rates on a provider-by-provider basis. We will, however, extend the due date for the plans to 90 days from the effective date of this order.

Having established that a unique name is necessary, the next question raised by OAN and the LEC petitioners is who is responsible for ensuring that it is used?

OAN, a billing aggregator, makes the improbable assertion that it cannot be expected to know the name of the service providers for which it is billing. OAN asserts that it should be allowed to rely on the service provider's representations as to the applicable name. Allowing such reliance would not further the public interest.

OAN's proposal would protect the currently existing shield of anonymity that allows unscrupulous service providers to place unauthorized charges on customers' local telephone bills. Customers deserve to know the identity of the entity that claims to be owed money. The statute requires that customers be provided this information.

Billing agents, such as OAN, contract directly with service providers. They are thus in the best position to ascertain the correct legal name of the entity with which they are contracting.

As a billing aggregator, OAN, however, does not necessarily do business with all service providers. The LECs, assemble all the billings from all the service providers. The LECs are therefore in the best position to ensure that each service provider has a unique name for billing; that is, a name that is not confusingly similar to another name. For example, several service providers could have names that result in the same acronym. The LECs are best able to coordinate the use of the acronym. These are the types of details we expect to be addressed in the plan to be filed by the LECs.

D. Ordering Paragraph 7

Questions have arisen as to whether Ordering Paragraph 7 applies only to CLCs, or to IXCs as well. We see no reason to distinguish between the two, so we will modify the ordering paragraph as follows:

7. Carriers shall not submit and local exchange carriers shall not honor service provider change requests submitted more than 90 days after the customer authorized the transfer, unless a written contract between a facilities-based carrier and the customer clearly states that the actual transfer will occur more than 90 days in the future.

E. New Issues

The CSBA, with support from certain other parties, advocates that we take up the FCC's recent order allowing states to assume responsibility for resolving slamming complaints. We decline to do so at this stage in this proceeding.

Similarly, MCI, AT&T, and Sprint argue for consideration of full toll denial or other means by which carriers may attempt to control customer fraud. Given the advanced stage of this proceeding, we will not.

Comments on Draft Decision

The draft decision of the ALJ Bushey in this matter was mailed to the parties in accordance with Pub. Util. Code Section 311(g)(1) and Rule 77.7 of the Rules and Practice and Procedure. Comments were filed on _______________, and reply comments were filed on ___________________.

Findings of Fact

1. The Commission issued D.00-03-020 on March 6, 2000.

2. Several parties filed petitions to modify D.00-03-020.

Conclusions of Law

1. The Commission is persuaded to modify D.00-03-020 as set out in the Ordering Paragraphs.

2. Other than as set out in the Ordering Paragraphs, all petitions for modification should be denied.

ORDER

IT IS ORDERED that:

1. Decision 00-03-020 is modified by adopting the following replacement portions of the decision:

Page 33, first full paragraph:

"For these reasons, we intend to limit disconnection of basic residential and single line business service (i.e., Flat Rate and/or Measured Rate services) to nonpayment of non-recurring and recurring charges for basic residential and single line business services, including all mandated surcharges and taxes.

Page 57, Ordering Paragraph 4:

"4. Carriers of Last Resort, as defined in D.96-10-066, shall file and serve advice letters that contain revised tariffs no later than 90 days after the effective date of this order that conform to the portions of this order eliminating such carriers' authority to disconnect basic residential and single line business, Flat Rate and/or Measured Rate service, as defined in D.96-10-066, Appendix B, page 5, for nonpayment of any charge other than nonpayment of non-recurring and recurring charges for basic residential and single line business, Flat Rate and Measured Rate service, including mandated surcharges and taxes calculated on same. Mandated charges do not include charges that are elective for the carrier to recover. Pending such advice letter filings, current tariffs shall remain in effect."

Subscriber Complaint Reporting Rules:

Rule 3(b): "b. the subscriber telephone number."

Rule 3(j): "the total number of working telephone lines billed by the billing telephone company or billing agent for each service provider."

Rule 5(b): "Billing Telephone Companies shall report the name, address, and telephone number of each entity receiving complaints;"

Rule 5(c): "the total number of working telephone lines billed for each entity for which complaints were received;"

Rule 5(fourth "bullet"): "Report for October, November, and December due no later than January 31^st of the following year."

Ordering Paragraph 5:

"No later than 90 days after the effective date of decision addressing the petitions for modification, Billing Telephone Companies shall submit an advice letter containing a plan for requiring all entities which use their billing and collection services to provide the unique name of the carrier or service provider as specified in this decision for inclusion in the bill and for the Billing Telephone Companies to tabulate consumer complaint rates on an entity-by-entity basis."

Ordering Paragraph 7:

"7. Carriers shall not submit and local exchange carriers shall not honor service provider change requests submitted more than 90 days after the customer authorized the transfer, unless a written contract between a facilities-based carrier and the customer clearly states that the actual transfer will take more than 90 days in the future."

2. In all other respects, the petitions to modify are denied.

3. Rulemaking 97-08-001 and Investigation 97-08-002 are closed.

This order is effective today.

Dated , at San Francisco, California.