5. Position of Telmatch
Telmatch makes two major arguments. First, Telmatch contends that CSD's case lacks a statutory basis. Telmatch believes that neither § 2890 nor § 451 apply to this case. Second, even if § 451 does apply, Telmatch asserts that CSD has failed to demonstrate that Telmatch crammed consumers.
Telmatch believes that § 2890 does not apply because the statute became effective on January 1, 1999, and the acts charged in the OII occurred prior to that date. As to § 451, Telmatch contends that the Commission has "limited its powers ... to investigating rates that are too high." Telmatch concludes that "§ 451 is narrowly circumscribed to the regulation of rates, and therefore cannot serve as the basis for an investigation of alleged cramming." Assuming that § 451 is applicable, Telmatch argues that the record does not support a finding that cramming occurred since its marketing materials are clear and unambiguous.
Telmatch also argues that its rates are reasonable, relying upon the filed rate doctrine6 and rates charged by other carriers. Telmatch also believes that CSD is impermissibly seeking class treatment for its claims. Telmatch believes that it is inappropriate to treat as a class the consumers it charged for a calling card.
At the evidentiary hearing, Telmatch presented several witnesses. Nina Burslem, manager of consumer relations for Consumer Access,7 testified that her responsibilities included the investigation and resolution of consumer complaints. Burslem described how consumer complaints were handled on Telmatch's behalf. Burslem also reviewed the consumer complaints investigated by CSD and she repeatedly testified that:
"Telmatch received a completed application from [the consumer] ... In this form [the consumer] certified, inter alia, that he/she was responsible for the listed home phone number, and that he/she had read, understood, and agreed to all terms, conditions and charges for the calling card, including the minimum charges."
Attached to Burslem's testimony were many of the forms filled out by consumers. Burslem also testified that a "welcome package" was mailed to consumers, that Telmatch has no consumer service representatives, and that the service representative a consumer would reach is a Consumer Access employee.
Also testifying for Telmatch, Raymond Sheen, Telmatch's attorney, related conversations with four consumers that were allegedly satisfied with Telmatch's calling card.8 Ingrid Dahl, also an employee of Consumer Access, testified that she was responsible for organizing, verifying, and processing the applications that are received. The procedures included "reviewing each application to ensure that the name on the application matched the signature on the application, to check the age of the applicant, and to review the application for completeness." Also received into evidence was a sample of approximately 85,000 sweepstakes entry cards from consumers nationwide.
6 Telmatch contends that its rates are on file with both the Commission and the Federal Communications Commission. Telmatch argues that under the filed rate doctrine, tariffs exclusively control the rights and liabilities between parties. Hence, Telmatch believes that the filed rate doctrine precludes the Commission from finding that Telmatch's rates are unreasonable. 7 Consumer Access has overseen consumer relations and customer support for Telmatch pursuant to a contract since February 1997. 8 Upon direct examination and cross-examination, witness Sheen testified that some of the consumers he interviewed did not recall signing up for a calling card.
