Slamming (Pub. Util. Code § 2889.5)

Position of Staff

Staff presented three consumers⁵ who testified that their long-distance carrier had been switched to Accutel without their knowledge or authorization. Two Staff investigators⁶ also sponsored testimony that consisted of interviews of consumers who had complained to Pacific concerning changes to their long-distance carrier. Staff investigators found that many of the consumers who had complained to Pacific had not authorized changes to their long-distance carrier.

In its opening brief, Staff also responded to Accutel's assertion that (1) Christian Communications, Inc. (CCI) sold Accutel five to ten thousand BTNs that lacked customer authorization, and that (2) Telecommunications Service Center, Inc. (TSC), a billing agent, transmitted billings to OAN that had no customer authorizations. Staff asserts that even if these alleged events took place, none of them excuse Accutel from accountability and legal responsibility for the slamming violations. Staff argues that the "record proves that Accutel also slammed on a massive scale." Staff states that the record presents the Commission with a range of possible slamming violations from 46 to 12,951.

Position of Accutel

Accutel argues that it had relatively few slamming complaints for the calendar year 1997 and that the complaints that did occur were associated with the purchase by Accutel of the customer base of Christian Communications. Additionally, in late 1997, Accutel states that it contracted with TSC to provide billing and rating services. However, Accutel asserts that TSC mixed the billings of Accutel's customers and other carriers for which it provided billing and rating services. Accutel believes that TSC's practice resulted in complaints to Accutel in late 1997 and early 1998.

Discussion

The record supports a finding that Accutel was involved in several slamming incidents. The record does not support a finding that slamming was extensive. For example, the record Staff cites may support a finding that Accutel's database at one time contained 12,951 consumers as customers. However, it does not follow that all such consumers were slammed. Staff's own interviews of consumers found that only a partial number reported being slammed. Based on such a record, we can not find that all of Accutel's customers were slammed.

Staff states that it has not "confirmed the existence, number, and scope of Accutel's slamming." Such lack of preparation does not establish slamming. In its defense, Staff blames Accutel for its inability to determine the scope of slamming because Accutel has not provided Staff certain data.

Staff's inability to acquire information from a respondent should be addressed early in a proceeding with motions to compel production of documents. Further, Staff should have considered requesting a postponement of the evidentiary hearing if not adequately prepared. Instead, despite an inquiry by the ALJ, Staff requested that the evidentiary hearing go forward as long as Accutel is prohibited from introducing any evidence not already produced to Staff.