15. Comments on Second Draft Decision
The second draft decision of the ALJ in this matter was mailed to the parties in accordance with § 311(g) and Rule 77.1 of the Rules of Practice and Procedure. Comments and reply comments to the proposed decision were timely filed by Pacific Bell, TURN, ORA, CSBA, the Small LECs,18 Greenlining, Roseville Telephone Company, Citizens Telecommunications Companies, CALTEL/TRA, Nextlink/ICG, GTE, Sprint, MCI, AT&T and the Smaller Independent LECs.19
Rule 77.3 of the Commission's Rules of Practice and Procedure specifically requires § 311 comments to focus on factual, legal, or technical errors in the proposed decision and in citing such errors requires the party to make specific references to the record. Comments that merely reargue positions taken in briefs are accorded no weigh and should not be filed. Rule 77.4 further requires that comments proposing specific changes to the proposed decision include supporting findings of fact and conclusions of law.
The comments filed by the parties to this proceeding have been carefully reviewed and considered. To the extent that such comments required discussion or changes to the proposed decision, the discussion or changes have been incorporated into the body of this order. Comments, which have not complied with Rule 77.3, were not considered.
1. Consumers abhor being removed from their carrier of choice and being forced to take service from another carrier.
2. Consumer protection requires consideration of more than just the financial losses associated with unauthorized transfer.
3. Consumers are deeply frustrated and annoyed by the time and aggravation necessary to correct unauthorized charges.
4. Consumers may contact their local exchange carrier and dispute a charge from another service provider that appeared on their bill and if all attempts to resolve the cramming dispute with the service provider have failed, the LEC will remove the charge.
5. The LEC process provides consumers a relatively quick and inexpensive means of resolving third party billing disputes. Unfortunately, too few consumers are aware of and use this process.
6. Greenlining presented sworn statements from consumers stating that they lost or feared of disconnection of local service for nonpayment of long distance charges.
7. The policy of allowing disconnection of local service for nonpayment of interexchange charges helps create consumers' perception that all charges, even unauthorized charges, must be paid to avoid disconnection. This perception furthers the interests of unscrupulous carriers.
8. The Commission's explicit purpose of allowing local exchange carriers to terminate local service for nonpayment of third party long distance was to use the incremental revenue to lower local service charges to local customers.
9. The purpose of local service disconnect is no longer being served because regulatory changes have resulted in the additional revenue from billing and collection contracts being credited to shareholders rather than local customers.
10. Allowing incumbent local exchange carriers to enhance the value of their billing and collection services hinders competition with competitive local exchange carriers because the competitive carriers cannot offer such services.
11. MCI and Sprint presented mathematical quantification of the increased amounts of unpaid charges or "bad debt" or uncollectibles which would result from removing the local disconnect policy.
12. TURN presented expert testimony that challenged the reliability of MCI's and Sprint's information.
13. No party presented testimony that uncollectible accounts are not a generally accepted cost of doing business.
14. No party presented evidence that any type of service provider, other than long distance telecommunications carriers, is allowed to use the threat of disconnection of local service to secure payment for its services.
15. CALTEL requested a hearing but when offered an opportunity to submit additional evidence failed to present any evidence whatsoever much less evidence of material disputed facts.
16. Where one carrier, other than an incumbent local exchange carrier, is providing both local and interexchange service, it is commercially reasonable to allow the carrier to disconnect both services for nonpayment of undisputed charges for either service.
17. Identifying the carrier that is wrongfully billing or serving a customer is essential to evaluating claims of unauthorized billing or customer transfer.
18. Requiring interexchange carrier's and service provider's names, as defined herein, on local exchange carriers' bills and service transfer documents (letters of authorization) will allow Commission consumer services staff to accurately identify the carrier or service provider and assist the consumer in resolving the dispute.
19. Where a reselling carrier does not have a unique Carrier Identification Code (CIC), the local exchange carrier cannot maintain accurate records about that particular carrier's customer dispute rate.
20. A competent carrier should be able to process LOA and request a service transfer from the local exchange carrier within 90 days and if not, the carrier should obtain the customer's authorization again.
21. In D.98-02-009, the Commission ordered an audit of all California telephone corporations to ensure industry-wide compliance with the statutory requirement that all residential customer transfers from one long distance carrier to another be verified by an independent third party, and over one third of the Commission-certificated carriers did not respond to the Commission's order.
22. Customer notice of rate increases and the availability of information on services has been or is being considered in other proceedings.
1. Section 2889.9 gives the Commission limited jurisdiction over billing agents and companies that provide products or services charged on subscribers telephone bills and requires that the Commission establish rules for each billing entity to provide to the Commission reports of consumer complaints. Those rules are set out in Attachment B.
2. In A.83-01-022, I.83-04-02 and C.83-11-07, the Commission authorized the rates that local exchange companies could charge interexchange carriers billing and collection services and allowed local exchange companies to terminate local service for nonpayment of interexchange carrier charges. The revenue generated by the value-added billing service would be used to lower local service charges to local customers.
3. Parties to a proceeding which resulted in a decision the Commission is considering rescinding, altering or amending must be afforded an opportunity to be heard as in the case of complaints.
4. Complainants do not have an absolute right to an evidentiary hearing.
5. Parties to a proceeding which resulted in a decision that the Commission is considering changing do not have an absolute right to an evidentiary hearing pursuant to § 1708.
6. Complainants must justify the expense of holding hearings by making some showing of facts, law and jurisdiction which support their requested relief.
7. No party made a showing of material disputed facts to justify the expense of additional hearing procedures.
8. Where the Commission has invited parties to submit written evidence and a party subsequently files a request for a prehearing conference and hearing, but the party submits no written evidence, nor an explanation for its absence, the Commission may decline to offer further procedural opportunities.
9. The FCC's rule which prohibited carriers eligible to receive federal universal service support from disconnecting Lifeline service for non-payment of toll charges has been vacated by the Court of Appeals.
10. The public interest no longer supports allowing local exchange carriers to disconnect local service for nonpayment of interexchange carrier charges.
11. Where the same carrier, that is not an incumbent local exchange carrier, is supplying both local and interexchange service, the policy reasons which render the current disconnection rules unreasonable do not apply because the local exchange carrier is not providing billing services to a third party.
12. Section 2890(d) recognizes the Commission's discretion to allow local service disconnect, but only for enumerated charges.
13. The public interest requires that reselling interexchange carriers have a unique identifier when making carrier-initiated customer transfers, either a Carrier Identification Code (CIC) or some other means which allows the local exchange carrier to maintain accurate records about that particular carrier's customer transfer dispute rate.
14. The public interest and § 2890 require that service providers, both Commission-certificated or those which are not required to obtain an operating certificate, include their name when billing through incumbent local exchange carriers. The name used on the bill shall be the name on the carrier's Certificate of Public Convenience and Necessity or, in the case of uncertificated service providers, the name on any FCC certificate or business license.
15. Section 2889.5 does not explicitly include a temporal requirement - that is, the duration of the validity of the signed document.
16. Section 2889.5 necessarily implies that the customer's intention to transfer to another telephone corporation coexist with the signing and submission of the LOA. Such intention can also be assumed to apply during an administratively direct route from the signing to the actual switch.
17. Interpreting § 2889.5, any document which is dated more than 90 days prior to presentation to the local exchange company is too removed in time to represent accurately the customer's intention to transfer to another carrier.
IT IS ORDERED that:
1. Within 90 days of the effective date of this order, all Billing Telephone Companies shall submit an advice letter which sets out the Company's compliance implementation plan indicating on a topic-by-topic basis how the Company addresses the consumer protection levels recommended in the Anti-Cramming Best Practices Guidelines (see Attachment A). The compliance filing shall also include drafts of all needed tariff filings. The compliance filing advice letter shall be processed through the usual advice letter process and served on all parties of record.
2. The Subscriber Complaint Reporting Rules set out in Attachment B are adopted.
3. All Billing Telephone Companies shall, within 90 days from the effective date of this order, file and serve an advice letter with a proposed consumer education plan which conforms to the requirements set out in Attachment C.
4. Incumbent local exchange carriers shall file and serve advice letters that contain revised tariffs within 180 days after the effective date of this order that conform to the portions of this order eliminating incumbent local exchange carriers' authority to disconnect local service for nonpayment of interexchange service. Pending such advice letter filings, current tariffs shall remain effective.
5. No later than 180 days after the effective date of this order, Billing Telephone Companies shall submit an advice letter containing a plan for requiring all entities which use their billing and collections 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 Company to tabulate consumer complaint rates on an entity-by-entity basis.
6. Incumbent local exchange carriers shall file and serve a compliance filing advice letter no later than 180 days after the effective date of this order that requires all interexchange carriers that do not have a unique Carrier Identification Code (CIC) and that submit carrier-initiated customer transfers to provide their Utility Number for each customer transfer and for the incumbent local exchange carrier to tabulate consumer dispute rates on a carrier-by-carrier basis.
7. Competitive local exchange carriers shall not submit and incumbent 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.
8. This order shall be served on all incumbent local exchange carriers, all competitive local carriers, and all interexchange carriers.
9. This proceeding is closed.
This order is effective today.
Dated March 2, 2000, at San Francisco, California.
RICHARD A. BILAS
President
HENRY M. DUQUE
JOSIAH L. NEEPER
CARL W. WOOD
LORETTA M. LYNCH
Commissioners
