VII. Comments on Draft Decision
The alternate proposed decision of Commissioner Grueneich in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(e) and Rule 77.3 of the Rules of Practice and Procedure.
On _____________________filed Initial Comments and on _____________ filed Reply Comments.
1. Despite increased competition in the wireless industry, the number of consumer wireless complaints has risen.
2. The Commission is obligated to act on consumer complaints.
3. There is no record evidence of telecommunications carriers leaving the California market as a result of the implementation of the prior General Order 168 rules.
4. There is no evidence in the record that the prior G.O 168 Rules harmed the carriers or consumers, or measurably increased rates.
5. The Commission has the authority to develop consumer protection rules by which all telecommunications providers operating in California must abide.
6. The Commission's traditional mechanism of consumer protection, tariff regulation, is ineffectual in a competitive market.
7. The deregulation of the telecommunications industry has been accompanied by an increase in consumer fraud.
8. Taken together, the evidence on the record provides compelling support for stronger consumer protections.
9. According to 2000 U.S. census data, 39.5% of Californians speak a language other than English at home.
10. The lack of language appropriate materials often makes the limited English proficiency consumers vulnerable to fraud and abuse. And, when technology is rapidly changing there is a threat of increased confusion and potential market abuse of non-English speakers.
11. Telecommunications consumers with disabilities have unique consumer protection needs that the Commission has not addressed.
12. Previous enforcement of these abuses has been expensive, and the results were less than acceptable to consumers.
13. Competitive market forces alone are not sufficient to protect consumers.
14. There are gaps in existing California consumer protections laws, rules and regulations.
15. Consumers and carriers are benefited by the ability to find all consumer protection rules in a single document.
16. A Consumer Bill of Rights only provides a policy directive and is not enforceable by itself. Standing alone, it may also confuse consumers since rights cannot be enforced absent rules.
17. Consolidation of the consumer protection rules reduces regulatory uncertainty.
18. Seventy-five percent of California telecommunications carriers certified by December 6, 2004 that they fully complied with the prior G.O. 168.
19. Cramming has become a serious and widespread problem in California.
20. The non-communications rules adopted in G.O. 168 do not bar technological development.
21. Consumer's phone numbers are readily available to be used by non-communications charges without a consumer's authorization.
22. Carriers currently track when their customers add or delete any of the telecommunications services the carrier provides.
23. The Commission's Consumer Safety and Information Division and Consumer Protection and Safety Division share the responsibility for consumer protection.
24. Increased education campaigns lead to a need for additional Commission staffing requirements.
25. The implementation schedule in D.04-05-058 was not realistic for all carriers and for all of the rules.
26. Public Utilities Codes §2896 and 2897 direct the Commission to require telephone corporations to furnish customers with sufficient information that allows them to make informed choices, understand how to participate in the regulatory process, and resolve complaints.
1. Public Utilities Codes §2896 and 2897 direct the Commission to require telephone corporations to furnish customers with sufficient information that allows them to make informed choices, understand how to participate in the regulatory process, and resolve complaints.
2. Congress expressly conferred on states authority to regulate "other terms and conditions of wireless service."
3. The FCC has made clear that Congress' preference for market forces to shape the development of the industry is not "absolute" and Congress specifically chose not to "foreclose ... state regulation."
4. The rules adopted herein fall well within the state's authority, and are not preempted. More specifically, to run afoul of § 332, a state consumer protection rule must directly affect rates. Rate regulation does not occur when state consumer protection rules merely produce an "increased obligation" on the wireless carrier that "could theoretically increase rates."
5. There are gaps in existing California consumer protections laws, rules and regulations.
6. California's unfair business practices laws, standing alone, are inefficient and ineffective for protecting California telecommunications consumers.
7. Limiting the right of privacy to financial records and personal information contradicts P.U. Code § 2891.
8. The Consumer Protection and Consumer Information Rules for CLCs set forth in D.95-07-054, Appendix B, are superseded by the revised G.O. 168.
9. The Consumer Protection Rules for Detariffed Services set forth for non-tariffed non-dominant IECs in D.98-08-031, Appendix A, are superseded by the revised G.O. 168.
10. Any previously filed CMRS consumer protection tariff rules are superseded and canceled, consistent with the intent stated in D.96-12-071.
11. 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 are required to respect the consumer rights and comply with the new rules in G.O. 168, Part 2.
12. The rights and rules in G.O. 168 are just and reasonable.
13. The Commission hereby adopts revised G.O. 168, Rules Governing Telecommunications Consumer Protection, Appendix A to this order.
IT IS ORDERED that:
1. General Order 168 is hereby adopted. A copy of the General Order is attached to this decision as Appendix A. The General Order adopted today supercedes the stayed General Order 168 adopted by this Commission in D.04-06-057.
2. Commission-regulated telecommunications carriers of all classes shall bring their operations into full compliance with G.O. 168 not later than January 1, 2007. Not later than January 1, 2007, each carrier shall serve on the Commission's Telecommunications Division a letter certifying that it is in compliance with this ordering paragraph. 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.0. 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 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.0. 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 order.
5. Any previously filed commercial mobile radio service consumer protection tariff rules are superseded and shall be cancelled.
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 is mailed and make effective on January 1, 2007 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. 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.
9. The various motions described in the Pending Motions section of this order are granted and denied as set forth in that section.
10. Consistent with this Decision, the Directors of the Consumer Services and Information, Consumer Protection and Safety, and Telecommunications Divisions are ordered to:
(a) Develop two consumer protection pamphlets - as described above - within 60 days of the effective date of this Decision;
(b) Create a web page describing the Program adopted in this Decision on the Commission website within 15 days of this Decision;
(c) Develop a detailed database to track and analyze all consumer complaints as described above within 180 days of this Decision; and
(d) Translate this Decision and revised General Order 168 into Spanish and Chinese within 30 days of this Decision and post the translation on the Commission's website.
11. The Commission's General Counsel and Director of the Telecommunications Division shall, within 45 days of this decision, create a Federal Consumer Protection team to advocate at the FCC on matters related to consumer protection and develop an advocacy plan for the team.
12. The Telecommunications Division shall research the unique needs of telecommunications consumers with disabilities and provide a report to the Commission regarding those needs within one year from the mailing of this Decision. The reports shall include recommended next steps and potential solutions.
13. All carriers shall include a prominent link on their web sites to the Commission web page within 15 days of the launch of the Commission webpage. In addition, all California carriers shall send current customers a one-page bill insert announcing the program and how to obtain more information.
14. This proceeding is closed.
This order is effective today.
Dated , at San Francisco, California.
Grueneich Alternate PD on Consumer Bill of Rights -- General Order 168
