Federal Communications Commission DA 13-377 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of America Net, LLC Complaints Regarding Unauthorized Change of Subscriber’s Telecommunications Carrier ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) IC Nos. 11-S003103 11-S003115 11-S003133 11-S003163 11-S003170 11-S003227 11-S2959973 11-S2986315 11-S3100985 11-S3167118 11-S3192086 11-S3207400 11-S3267909 12-S3310036 ORDER Adopted: March 11, 2013 Released: March 12, 2013 By the Deputy Chief, Consumer Policy Division, Consumer & Governmental Affairs Bureau: 1. In this Order, we consider the complaints1 alleging that America Net, LLC (America Net) changed Complainants’ telecommunications service providers without obtaining authorization and verification from Complainants in violation of the Commission’s rules.2 We conclude that America Net’s actions did result in unauthorized changes in Complainants’ telecommunications service providers and we grant Complainants’ complaints. 2. In December 1998, the Commission released the Section 258 Order in which it adopted rules to implement Section 258 of the Communications Act of 1934 (Act), as amended by the Telecommunications Act of 1996 (1996 Act).3 Section 258 prohibits the practice of 1 See Appendix. 2 See 47 C.F.R. §§ 64.1100 – 64.1190. 3 47 U.S.C. § 258(a); Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996); Implementation of the Subscriber Carrier Selection Changes Provisions of the Telecommunications Act of 1996; Policies and Rules Concerning Unauthorized Changes of Consumers’ Long Distance Carriers, CC Docket No. 94- 129, Second Report and Order and Further Notice of Proposed Rule Making, 14 FCC Rcd 1508 (1998) (Section 258 Order), stayed in part, MCI WorldCom v. FCC, No. 99-1125 (D.C. Cir. May 18, 1999); First Order on Reconsideration, 15 FCC Rcd 8158 (2000); stay lifted, MCI WorldCom v. FCC, No. 99-1125 (D.C. Cir. June 27, 2000); Third Report and Order and Second Order on Reconsideration, 15 FCC Rcd 15996 (2000), Errata, DA No. 00-2163 (rel. Sept. 25, 2000), Erratum, DA No. 00-2192 (rel. Oct. 4, 2000), Order, FCC 01-67 (rel. Feb. 22, 2001); Third Order on Reconsideration and Second Further Notice of Proposed Rule Making, 18 FCC Rcd 5099 (2003); Order, 18 FCC Rcd 10997 (2003); Fourth Report and Order, 23 FCC Rcd 493 (2008). Prior to the adoption of Federal Communications Commission DA 13-377 2 “slamming,” the submission or execution of an unauthorized change in a subscriber’s selection of a provider of telephone exchange service or telephone toll service.4 In the Section 258 Order, the Commission adopted aggressive new rules designed to take the profit out of slamming, broadened the scope of the slamming rules to encompass all carriers, and modified its existing requirements for the authorization and verification of preferred carrier changes. The rules require, among other things, that a carrier receive individual subscriber consent before a carrier change may occur.5 Pursuant to Section 258, carriers are absolutely barred from changing a customer's preferred local or long distance carrier without first complying with one of the Commission's verification procedures.6 Specifically, a carrier must: (1) obtain the subscriber's written or electronically signed authorization in a format that meets the requirements of Section 64.1130; (2) obtain confirmation from the subscriber via a toll-free number provided exclusively for the purpose of confirming orders electronically; or (3) utilize an independent third party to verify the subscriber's order.7 3. The Commission also has adopted liability rules. These rules require the carrier to absolve the subscriber where the subscriber has not paid his or her bill. In that context, if the subscriber has not already paid charges to the unauthorized carrier, the subscriber is absolved of liability for charges imposed by the unauthorized carrier for service provided during the first 30 days after the unauthorized change.8 Where the subscriber has paid charges to the unauthorized carrier, the Commission’s rules require that the unauthorized carrier pay 150% of those charges to the authorized carrier, and the authorized carrier shall refund or credit to the subscriber 50% of all charges paid by the subscriber to the unauthorized carrier.9 Carriers should note that our actions in this order do not preclude the Commission from taking additional action, if warranted, pursuant to Section 503 of the Act.10 Section 258, the Commission had taken various steps to address the slamming problem. See, e.g., Policies and Rules Concerning Unauthorized Changes of Consumers' Long Distance Carriers, CC Docket No. 94-129, Report and Order, 10 FCC Rcd 9560 (1995), stayed in part, 11 FCC Rcd 856 (1995); Policies and Rules Concerning Changing Long Distance Carriers, CC Docket No. 91-64, 7 FCC Rcd 1038 (1992), reconsideration denied, 8 FCC Rcd 3215 (1993); Investigation of Access and Divestiture Related Tariffs, CC Docket No. 83-1145, Phase I, 101 F.C.C.2d 911, 101 F.C.C.2d 935, reconsideration denied, 102 F.C.C.2d 503 (1985). 4 47 U.S.C. § 258(a). 5 See 47 C.F.R. § 64.1120. 6 47 U.S.C. § 258(a). 7 See 47 C.F.R. § 64.1120(c). Section 64.1130 details the requirements for letter of agency form and content for written or electronically signed authorizations. 47 C.F.R. § 64.1130. 8 See 47 C.F.R. §§ 64.1140, 64.1160. Any charges imposed by the unauthorized carrier on the subscriber for service provided after this 30-day period shall be paid by the subscriber to the authorized carrier at the rates the subscriber was paying to the authorized carrier at the time of the unauthorized change. Id. 9 See 47 C.F.R. §§ 64.1140, 64.1170. 10 See 47 U.S.C. § 503. Federal Communications Commission DA 13-377 3 4. We received Complainants’ complaints alleging that Complainants’ telecommunications service providers had been changed without Complainants’ authorization.11 Pursuant to Sections 1.719 and 64.1150 of our rules,12 we notified America Net of the complaints and America Net responded.13 America Net states that authorization was received and confirmed through Third Party Verifications (TPV) in each case. The Commission’s rules require that the verification elicit, amongst other things, confirmation that the person on the call is “authorized to make the carrier change.” 14 We have reviewed the TPVs that America Net submitted with its responses and, in each case, the verifier instead asks whether the person on the call is “authorized by the telephone account owner to make changes to and incur charges on this telephone account.” A switch from one carrier to another carrier differs from merely making changes to the customer’s service.15 As we emphasized in the Fourth Report and Order, “any description of the carrier change transaction…shall not be misleading” and verifiers should convey explicitly that “the consumers will have authorized a carrier change, and not for instance an upgrade in existing service (emphasis added).”16 We find that America Net’s actions were in violation of our carrier change rules, and we discuss America Net’s liability below.17 5. America Net must remove all charges incurred for service provided to Complainants for the first thirty days after the alleged unauthorized change in accordance with the Commission’s liability rules.18 We have determined that Complainants are entitled to absolution for the charges incurred during the first thirty days after the unauthorized change occurred and that neither the Complainants authorized carrier nor America Net may pursue any collection against Complainants for those charges.19 Any charges imposed by America Net on the subscribers for service provided after this 30-day period shall be paid by the subscribers to the authorized carrier at the rates the subscribers were paying to the authorized carriers at the time of unauthorized change of telecommunications service provider.20 11 See Appendix. 12 47 C.F.R. § 1.719 (Commission procedure for informal complaints filed pursuant to Section 258 of the Act); 47 C.F.R. § 64.1150 (procedures for resolution of unauthorized changes in preferred carrier). 13 See Appendix. 14 See 47 C.F. R. § 64.1120(c)(3)(iii). 15 Cf. Consumer Telcom, Inc., Order on Reconsideration, 27 FCC Rcd 5340 (CGB 2012) (“the verifier’s question, ‘Do you have authority to make changes to your long distance service?’ did not confirm that the person was authorizing a change that would result in receiving service from a different carrier”). 16 See 47 C.F.R. § 64.1120(c)(3)(iii) and Fourth Report and Order, 23 FCC Rcd 493 (2008). 17 If any Complainant is unsatisfied with the resolution of this complaint, such Complainant may file a formal complaint with the Commission pursuant to Section 1.721 of the Commission’s rules, 47 C.F.R. § 1.721. Such filing will be deemed to relate back to the filing date of such Complainant’s informal complaint so long as the formal complaint is filed within 45 days from the date this order is mailed or delivered electronically to such Complainant. See 47 C.F.R. § 1.719. 18 See 47 C.F.R. § 64.1160(b). 19 See 47 C.F.R. § 64.1160(d). 20 See 47 C.F.R. §§ 64.1140, 64.1160. Federal Communications Commission DA 13-377 4 6. Accordingly, IT IS ORDERED that, pursuant to Section 258 of the Communications Act of 1934, as amended, 47 U.S.C. § 258, and Sections 0.141, 0.361 and 1.719 of the Commission’s rules, 47 C.F.R. §§ 0.141, 0.361, 1.719, the complaints filed against America Net LLC ARE GRANTED. 7. IT IS FURTHER ORDERED that, pursuant to section 64.1170(d) of the Commission’s rules, 47 C.F.R. § 64.1170(d), Complainants are entitled to absolution for the charges incurred during the first thirty days after the unauthorized change occurred and neither the America Net nor the authorized carriers may pursue any collection against Complainants for those charges. 8. IT IS FURTHER ORDERED that this Order is effective upon release. FEDERAL COMMUNICATIONS COMMISSION Nancy A. Stevenson, Deputy Chief Consumer Policy Division Consumer & Governmental Affairs Bureau Federal Communications Commission DA 13-377 5 APPENDIX INFORMAL DATE OF DATE OF COMPLAINT COMPLAINT RESPONSE NUMBER 11-S003103 February 16, 2011 March 30, 2011 11-S003115 March 9, 2011 April 14, 2011 11-S003133 March 9, 2011 May 12, 2011 11-S003163 June 14, 2011 July 15, 2011 11-S003170 June 22, 2011 August 5, 2011 11-S003227 September 30, 2011 November 14, 2011 11-S2959973 February 7, 2011 March 4, 2011 11-S2986315 February 16, 2011 March 30, 2011 11-S3100985 April 20, 2011 May 13, 2011 11-S3167118 July 19, 2011 August 31, 2011 11-S3192086 August 8, 2011 January 26, 2012 11-S3207400 August 22, 2011 September 22, 2011 11-S3267909 November 7, 2011 December 5, 2011 12-S3310036 January 10, 2012 February 15, 2012