COM/MP1/jt2 Mailed 8/1/2007

Decision 07-07-043 July 26, 2007

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Order Instituting Rulemaking to Address the Needs of Telecommunications Customers Who Have Limited English Proficiency.

Rulemaking 07-01-021
(Filed January 11, 2007)

DECISION ADDRESSING THE NEEDS OF TELECOMMUNICATIONS CONSUMERS WHO HAVE LIMITED ENGLISH PROFICIENCY

Table of Contents

Title Page

DECISION ADDRESSING THE NEEDS OF
TELECOMMUNICATIONS CONSUMERS
WHO HAVE LIMITED ENGLISH PROFICIENCY 1 1

1. Summary 2 2

2. Background 7 7

3. Current In-Language Efforts of Telecommunications Carriers 13 13

4. Discussion of the Staff Proposal and OIR Issues 17 17

4.1. Criteria for Evaluating Possible Options 17 17

4.2. Do LEP Customers Need Information or
Disclosures to Assist and Protect Them?
To What Extent Does Existing California
Law Already Protect Them? 21 21

4.3. Authority to Establish Rules 41 41

4.4. Which, If Any, of the Staff Proposals
Should the Commission Adopt?
How Should They be Modified, and Why? 47 47

4.4.1. Should In-Language Rules Apply to
Carriers' Wholesale and/or Business Customers? 48 48

4.4.2. Defining "In-Language" 51 51

4.4.3. Defining "Marketing In-Language" 65 65

4.4.4. Availability of Non-English Service
Information and Access to
Non-English Customer Service 69 69

4.4.5. Language Preference and Complaint
Tracking Requirements 88 88

4.4.6. In-Language Market Trials 100 100

4.5. Responsibility of Carriers for
Third-Party Vendors, Agents and Resellers 101 101

4.6. Should the Commission Adopt
Rules for Prepaid Calling Cards? 107 107

4.7. Penalties 110 110

5. Implementation Schedule 112 112

6. Comments on Proposed Decision 113 113

7. Assignment of Proceeding 113 113

Findings of Fact 113 113

Conclusions of Law 122 122

ORDER 133 133

APPENDIX A - Rules for In-Language Support to Limited English Proficient (LEP) Telecommunications Consumers

DECISION ADDRESSING THE NEEDS OF TELECOMMUNICATIONS CONSUMERS WHO HAVE LIMITED ENGLISH PROFICIENCY

1. Summary

This decision (Decision) adopts rules to improve services to California telecommunications consumers who do not speak English fluently. Our actions today are driven by the dynamics of the marketplace: if a carrier provides marketing in a language other than English then that carrier incurs an obligation to ensure that the customer understands what he or she has purchased and that the carrier will support service inquiries in the marketed language.

These rules will ensure customers with limited English proficiency (LEP) who are the target audience of corporate marketing in a language other than English have just, adequate and reasonable access to the information and assistance in the language in which they were marketed. As such, these rules will help LEP customers obtain and maintain telecommunications services, and help protect LEP customers from fraud or abuse. The rules establish minimum requirements, and carriers are encouraged to exceed them. The rules will not apply to carriers' services to wholesale or business customers, or to wireless services offered through prepaid or month-to-month contracts (exempt services).

The rules we establish recognize the diversity of carriers and the different ways they serve customers. They require carriers that market non-exempt services in a non-English language (i.e., "in-language") to provide live person-to-person customer service over the telephone, but provide a choice of ways to satisfy other in-language information obligations that accommodates their various marketing strategies and their different modes of operation while ensuring all telecommunications consumers of non-exempt services receive adequate information to make informed decisions about purchases of non-exempt telecommunications services. A carrier that provides contracts and/or confirmation letters, and Commission-mandated notices and disclosures, in the non-English language(s) in which the carrier markets its non-exempt services is not required to use any other options for providing access to in-language information to be in compliance with these rules.

The Decision defines "in-language marketing" as a carrier-initiated and carrier-approved communication in a non-English language intended to induce a customer to purchase non-exempt telecommunications service(s), feature(s) or plan(s) that are in writing or publicly broadcast or made available through print media, television, radio or the Internet, or conveyed orally through a carrier-initiated and carrier-approved contact, such as outbound telemarketing or door-to-door sales¹, and it establishes rules for carriers that market non-exempt services in-language to ensure LEP customers have access to notices, disclosures and other important transaction or service-related information already required for carriers serving customers in English. The rules are driven by carrier-initiated action and are not intended to impose gag orders on multi-lingual employees or agents. The only prohibition is on employees and agents that engage in marketing, as it is defined in this decision, in a language that is not carrier-approved.

The Decision establishes conditions to protect LEP consumers who may enter into English language contracts to obtain non-exempt telecommunications services, but does not require carriers to provide contracts in-language. Carriers must make available in-language instructions for how to obtain the information contained in Commission-mandated notices and disclosures or to obtain assistance with billing questions in the language(s) in which the carrier markets its non-exempt services. However, it does not require carriers that market non-exempt services in-language to provide Commission-mandated notices and disclosures, or billing in-language.

The Decision requires carriers that market non-exempt services in-language to report to the Commission annually on problems with fraud, and actions taken to combat it, and to require these carriers to inform their LEP customers upon initiation of service and annually thereafter about ways to protect against fraud. However, before implementing this requirement we seek comment on the content, format and timing of notification to LEP consumers and reports to the Commission. We also seek comment on defining reportable telecommunications complaints, and issues concerning in-language market trials.

The Decision directs Staff to design a program that integrates community based organizations (CBOs) in our outreach, education and complaint resolution processes, including documents and procedures needed for CBOs to represent LEP consumers in dealings with carriers and a mechanism for compensating CBOs for their efforts while ensuring financial accountability, and to present its recommendation as a resolution for Commission consideration before the end of calendar year 2007.

Finally, the Decision clarifies carriers' responsibilities for the actions of their agents, our authority with respect to the enforcement of in-language requirements for prepaid calling cards, and penalties associated with our in-language requirements.

The Decision represents the first step toward comprehensively addressing for all telecommunications carriers the needs of California telecommunications consumers who do not speak English fluently. The following table summarizes the rules we adopt today:

Rule I. When In-Language Rules Apply

I.A. Applicability. Telecommunications carriers ("Carriers") that market telecommunications services, features or rate plans ("Services") in a non-English language shall be subject to these In-Language Support Rules ("Language Rules").
I.B. Exemptions from Language Rules. These Language Rules do not apply to: (1) carriers' services to wholesale or business customers; or (2) to wireless services provided through either prepaid/pay-in-advance methods or month-to-month contracts ("exempt services").

Rule II. Marketing In-Language Definition

I II.A. Marketing In-Language Definition. Marketing In-Language is defined as "a carrier-initiated and carrier-approved communication in a non-English language that are: (1) intended to induce a customer to purchase non-exempt telecommunications service(s); and (2) that are either (a) in writing; (b) publicly broadcast (e.g. television, radio or Internet) or made available through print media, (c) or conveyed orally through a carrier-initiated and carrier-approved contact, such as outbound telemarketing or door-to-door sales."
II.B. Exclusions. This Marketing In-Language definition shall exclude: (1) in-language communications that are incidental to English language telemarketing or door-to-door marketing; (2) individual conversations between sales representatives and customers or potential customers; (3) conversations between customer service representatives and consumers during consumer-initiated calls and follow up calls related thereto; (4) "image" or "brand" advertising, which may name the carrier and the non-exempt service(s), but does not include terms, prices or specific information about non-exempt services; and (5) communications in a non-English language that involve only the sale of telecommunications equipment (e.g. handsets) with no service component.
II.C. Geographic Scope. The geographic scope of a carrier's in-language obligation is limited to the in-language advertising area. If an individual reseller, dealer or agent conducts in-language marketing at a particular location, in-language obligations are triggered only for the location (e.g. store, kiosk) that does so.
II.D. Unauthorized In-Language Marketing. Unauthorized In-Language Marketing occurs when a carrier's dealer, agent or employee engages in the activities described above as "Marketing In-Language" without the approval or authorization of the carrier. A carrier that becomes aware of unauthorized in-language marketing by their dealers, agents or employees shall take corrective action within 30 days with such dealers, agents or employees, and shall document the corrective action taken to prevent further unauthorized in-language marketing.

Rule III. Language(s) Required

Language(s) Required. Any non-English language in which a carrier markets its non-exempt services in accordance with the Marketing In-Language Definition set forth above.

Rule IV. In-Language Customer Services Required

IV.A. Customer Service Requirement. During its normal business hours, carriers marketing non-exempt services in a non-English language shall provide access to live, person-to-person customer service over the telephone in the language(s) in which the carrier markets its non-exempt services. A carrier may provide in-person customer service, in addition to telephonic customer service, if a carrier chooses to do so.
IV.B. Telephonic Customer Service Option. Carriers shall provide telephonic in-language customer service using either: (1) a customer service representative fluent in the language(s) in which the carrier markets its non-exempt service; or (2) through a third-party interpreter service, such as Language Line.

Rule V. In-Language Information Required

V.A. Information Required. In addition to the In-language Customer Services requirement in Rule IV, carriers, dealers or agents marketing a carrier's non-exempt services in a non-English language shall make available one or more of the following:
1. A translation of the contract in the language in which the carrier markets its non-exempt services; or
2. A summary of the customer's transaction in the language(s) in which the carrier markets its non-exempt services (In-Language Confirmation Summary); or,
3. A summary of the customer's transaction in English (English Confirmation Summary) so long as the carrier, dealer, or its agent provides the customer with instructions on how to access the translation or interpretation of that English Confirmation Summary into the language(s) in which the carrier markets its non-exempt services. Carriers shall provide access to required information using at least one of the following methods:
(a) Carriers may provide oral translation/interpretation through in-person or telephone customer service.
(b) Carriers may use an interactive voice response (IVR) system to make required information available to LEP consumers orally over the telephone in the language(s) in which the carrier markets its non-exempt services. Carriers shall make a toll free phone number for the IVR system available at retail outlets, including those of dealers and agents, where non-exempt Services are marketed in-language.

(c) Carriers may make required information available to LEP consumers in writing in the language(s) in which the carrier markets its non-exempt service, with the option to provide this information at the point-of-sale, by U.S. Mail, text messages or email if the customer is able to receive text messages or email.
(d) Carriers may make the required information available through a website in the language(s) in which the carrier markets its non-exempt service. This website option may only be used if access to the website is available and offered to the LEP consumer at point of sale at the location of the carrier, dealer or agent.
(e) Carriers may make required information available through use of "guides" in the language(s) in which the carrier markets its service. This in-ianguage guide shall provide guidance to the LEP consumer to understand the English language version of the document(s) (e.g. "Line 1 is the name of the rate plan, the monthly price, and how many peak and non peak minutes of use are provided under the plan. Line 2 is the term of the rate plan, if any. Line 3 shows any early termination fee if you terminate your plan earlier than the term show in Line 2. Line 4 is the ULTS monthly surcharge." etc.). This In-Language guide shall be provided concurrently with the English-language document(s).
V.B. Confirmation Summary Definition. A "Confirmation Summary" is defined as a summary of the transaction entered into by the carrier and the customer, showing the name of the service carrier, its contact information, and a brief description of the telecommunications services or wireless carrier calling plan(s) purchased by the customer, including pricing, term, and any early termination fee. This information may be conveyed in more than one document.
V.C. Access to Commission-mandated Notices and Disclosures. Carriers are required to provide access to Commission-mandated notices and disclosures relating to regulated telecommunications services in the language(s) in which the carrier markets its non-exempt services. This access may be provided by website, IVR or other written document(s) sent to the customer via U.S. mail, email, or text message, if the customer has the latter two methods of contact information on file with the carrier in the normal course of business. If the required Commission notice is unrelated to the transaction initiating service, the notice shall be given in the same general time frame to in-language customers as notices in English are given to customers.
V.D. Online Exception. If the customer interacts with a carrier marketing in language solely by ordering service on a website and manages the account online where communications are primarily by email, the carrier may satisfy the in-language obligations by providing required in-language information on a publicly available website. Any carrier doing business in this manner as to services must still comply with Rule IV as to In-Language Customer Service obligations.

Rule VI. Schedule for Providing Required Information

VI.A. Non-exempt Services sold under contract.
Required information shall be presented (made available or postmarked) at either point of sale, or no later than ten (10) calendar days after the customer's transaction, but not less than ten (10) calendar days prior to the expiration of any applicable carrier grace period to allow sufficient time for the customer to cancel the carrier's service agreement without incurring an early termination fee or penalty.
VI.B. Non-exempt Services not sold under contract.
Required information shall be presented (made available or postmarked) within ten (10) days after the transaction.

¹ This definition excludes in-language communications that are incidental to English language telemarketing or door-to-door marketing, individual conversations between sales representatives and customers or potential customers, and conversations between customer service representatives and consumers during consumer initiated calls. The definition shall also exclude "image" advertising, which may name the service(s), but does not include terms or prices of services, offered by the carrier.

Rule I. When In-Language Rules Apply	I.A. Applicability. Telecommunications carriers ("Carriers") that market telecommunications services, features or rate plans ("Services") in a non-English language shall be subject to these In-Language Support Rules ("Language Rules"). I.B. Exemptions from Language Rules. These Language Rules do not apply to: (1) carriers' services to wholesale or business customers; or (2) to wireless services provided through either prepaid/pay-in-advance methods or month-to-month contracts ("exempt services").
Rule II. Marketing In-Language Definition	I II.A. Marketing In-Language Definition. Marketing In-Language is defined as "a carrier-initiated and carrier-approved communication in a non-English language that are: (1) intended to induce a customer to purchase non-exempt telecommunications service(s); and (2) that are either (a) in writing; (b) publicly broadcast (e.g. television, radio or Internet) or made available through print media, (c) or conveyed orally through a carrier-initiated and carrier-approved contact, such as outbound telemarketing or door-to-door sales." II.B. Exclusions. This Marketing In-Language definition shall exclude: (1) in-language communications that are incidental to English language telemarketing or door-to-door marketing; (2) individual conversations between sales representatives and customers or potential customers; (3) conversations between customer service representatives and consumers during consumer-initiated calls and follow up calls related thereto; (4) "image" or "brand" advertising, which may name the carrier and the non-exempt service(s), but does not include terms, prices or specific information about non-exempt services; and (5) communications in a non-English language that involve only the sale of telecommunications equipment (e.g. handsets) with no service component. II.C. Geographic Scope. The geographic scope of a carrier's in-language obligation is limited to the in-language advertising area. If an individual reseller, dealer or agent conducts in-language marketing at a particular location, in-language obligations are triggered only for the location (e.g. store, kiosk) that does so. II.D. Unauthorized In-Language Marketing. Unauthorized In-Language Marketing occurs when a carrier's dealer, agent or employee engages in the activities described above as "Marketing In-Language" without the approval or authorization of the carrier. A carrier that becomes aware of unauthorized in-language marketing by their dealers, agents or employees shall take corrective action within 30 days with such dealers, agents or employees, and shall document the corrective action taken to prevent further unauthorized in-language marketing.
Rule III. Language(s) Required	Language(s) Required. Any non-English language in which a carrier markets its non-exempt services in accordance with the Marketing In-Language Definition set forth above.
Rule IV. In-Language Customer Services Required	IV.A. Customer Service Requirement. During its normal business hours, carriers marketing non-exempt services in a non-English language shall provide access to live, person-to-person customer service over the telephone in the language(s) in which the carrier markets its non-exempt services. A carrier may provide in-person customer service, in addition to telephonic customer service, if a carrier chooses to do so. IV.B. Telephonic Customer Service Option. Carriers shall provide telephonic in-language customer service using either: (1) a customer service representative fluent in the language(s) in which the carrier markets its non-exempt service; or (2) through a third-party interpreter service, such as Language Line.
Rule V. In-Language Information Required	V.A. Information Required. In addition to the In-language Customer Services requirement in Rule IV, carriers, dealers or agents marketing a carrier's non-exempt services in a non-English language shall make available one or more of the following: 1. A translation of the contract in the language in which the carrier markets its non-exempt services; or 2. A summary of the customer's transaction in the language(s) in which the carrier markets its non-exempt services (In-Language Confirmation Summary); or, 3. A summary of the customer's transaction in English (English Confirmation Summary) so long as the carrier, dealer, or its agent provides the customer with instructions on how to access the translation or interpretation of that English Confirmation Summary into the language(s) in which the carrier markets its non-exempt services. Carriers shall provide access to required information using at least one of the following methods: (a) Carriers may provide oral translation/interpretation through in-person or telephone customer service. (b) Carriers may use an interactive voice response (IVR) system to make required information available to LEP consumers orally over the telephone in the language(s) in which the carrier markets its non-exempt services. Carriers shall make a toll free phone number for the IVR system available at retail outlets, including those of dealers and agents, where non-exempt Services are marketed in-language. (c) Carriers may make required information available to LEP consumers in writing in the language(s) in which the carrier markets its non-exempt service, with the option to provide this information at the point-of-sale, by U.S. Mail, text messages or email if the customer is able to receive text messages or email. (d) Carriers may make the required information available through a website in the language(s) in which the carrier markets its non-exempt service. This website option may only be used if access to the website is available and offered to the LEP consumer at point of sale at the location of the carrier, dealer or agent. (e) Carriers may make required information available through use of "guides" in the language(s) in which the carrier markets its service. This in-ianguage guide shall provide guidance to the LEP consumer to understand the English language version of the document(s) (e.g. "Line 1 is the name of the rate plan, the monthly price, and how many peak and non peak minutes of use are provided under the plan. Line 2 is the term of the rate plan, if any. Line 3 shows any early termination fee if you terminate your plan earlier than the term show in Line 2. Line 4 is the ULTS monthly surcharge." etc.). This In-Language guide shall be provided concurrently with the English-language document(s). V.B. Confirmation Summary Definition. A "Confirmation Summary" is defined as a summary of the transaction entered into by the carrier and the customer, showing the name of the service carrier, its contact information, and a brief description of the telecommunications services or wireless carrier calling plan(s) purchased by the customer, including pricing, term, and any early termination fee. This information may be conveyed in more than one document. V.C. Access to Commission-mandated Notices and Disclosures. Carriers are required to provide access to Commission-mandated notices and disclosures relating to regulated telecommunications services in the language(s) in which the carrier markets its non-exempt services. This access may be provided by website, IVR or other written document(s) sent to the customer via U.S. mail, email, or text message, if the customer has the latter two methods of contact information on file with the carrier in the normal course of business. If the required Commission notice is unrelated to the transaction initiating service, the notice shall be given in the same general time frame to in-language customers as notices in English are given to customers. V.D. Online Exception. If the customer interacts with a carrier marketing in language solely by ordering service on a website and manages the account online where communications are primarily by email, the carrier may satisfy the in-language obligations by providing required in-language information on a publicly available website. Any carrier doing business in this manner as to services must still comply with Rule IV as to In-Language Customer Service obligations.
Rule VI. Schedule for Providing Required Information	VI.A. Non-exempt Services sold under contract. Required information shall be presented (made available or postmarked) at either point of sale, or no later than ten (10) calendar days after the customer's transaction, but not less than ten (10) calendar days prior to the expiration of any applicable carrier grace period to allow sufficient time for the customer to cancel the carrier's service agreement without incurring an early termination fee or penalty. VI.B. Non-exempt Services not sold under contract. Required information shall be presented (made available or postmarked) within ten (10) days after the transaction.