*Pages 1--3 from Microsoft Word - 60369.doc* Federal Communications Commission DA 06- 2067 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Comcast Phone, LLC Complaint Regarding Unauthorized Change of Subscriber’s Telecommunications Carrier ) ) ) ) ) ) ) IC No. 02- S81361 ORDER ON RECONSIDERATION Adopted: October 18, 2006 Released: October 19, 2006 By the Chief, Consumer & Governmental Affairs Bureau: 1. In this Order, we deny a Petition for Reconsideration filed by Comcast Phone, LLC 1 (Comcast) asking us to reverse a finding that Comcast changed the Complainant’s telecommunications service provider in violation of the Commission’s rules by failing to obtain proper authorization and verification. 2 On reconsideration, we affirm that Comcast’s actions violated the Commission’s carrier change rules. 3 I. BACKGROUND 2. In December 1998, the Commission adopted rules prohibiting the practice of “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 The rules were designed to take the profit out of slamming. 5 The Commission applied the rules to all wireline carriers, 6 and modified its existing requirements for the authorization and verification of preferred carrier changes. 7 3. The rules require that a submitting carrier receive individual subscriber consent before a 1 See Petition for Reconsideration of Comcast Phone, LLC, f/ k/ a AT& T Broadband Phone, LLC. (filed June 16, 2003) (Petition) seeking reconsideration of Comcast Phone, LLC, 18 FCC Rcd 9766 (2003) (Division Order), issued by the Consumer Policy Division (Division), Consumer & Governmental Affairs Bureau (CGB). 2 See Division Order, 18 FCC Rcd 9766 (2003). 3 See 47 C. F. R. §§ 64. 1100 – 64. 1190. 4 See id.; see also 47 U. S. C. § 258( a). 5 See 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 Rulemaking, 14 FCC Rcd 1508, 1512, para. 4 (1998) (Section 258 Order). See also id. at 1518- 19, para. 13. 6 See id. at 1560, para. 85. CMRS providers were exempted from the verification requirements. See Section 258 Order at 1560- 61, para. 85. 7 See Section 258 Order, 14 FCC Rcd at 1549, para. 66. 1 Federal Communications Commission DA 06- 2067 2 carrier change may occur. 8 Specifically, a carrier must: (1) obtain the subscriber's written or electronically signed authorization; (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. 9 4. The Commission also adopted liability rules for carriers that engage in slamming. 10 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. 11 Where the subscriber has paid charges to the unauthorized carrier, the unauthorized carrier must pay 150% of those charges to the authorized carrier, and the authorized carrier must refund or credit the subscriber 50% of all charges paid by the subscriber to the unauthorized carrier. 12 5. The Commission received a complaint on October 23, 2002, alleging that Complainant’s telecommunications service provider had been changed from its authorized carrier to Comcast without Complainant’s authorization. 13 Pursuant to Sections 1.719 and 64.1150 of the Commission’s rules, 14 CGB notified Comcast of the complaint. 15 In response, Comcast stated that it verified Complainant’s order through a letter of agency (LOA). 16 The LOA provided by Comcast, however, was illegible. The Division found, therefore, that Comcast had not provided clear and convincing evidence of a valid authorized change, and was thus in violation of the Commission’s carrier change rules. 17 On June 16, 2003, Comcast filed a petition for reconsideration and submitted a “clean copy” of the LOA. 18 II. DISCUSSION 6. Based on the record before us, we affirm the Division Order and deny Comcast’s 8 See 47 C. F. R. § 64. 1120. See also 47 U. S. C. § 258( a) (barring carriers from changing a customer’s preferred local or long distance carrier without first complying with one of the Commission’s verification procedures). 9 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. 10 See 47 C. F. R. §§ 64. 1140, 64.1160- 70. 11 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). 12 See 47 C. F. R. §§ 64. 1140, 64.1170. 13 Informal Complaint No. 02- S81361, filed October 23, 2002. 14 47 C. F. R. § 1.719 (procedures 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). 15 See Notice of Informal Complaint No. 02- S81361 to AT& T Broadband from the Deputy Chief, CGB, dated November 22, 2002. We note that Comcast responded to the Notice that was sent to AT& T Broadband. See n. 16, infra. 16 Comcast’s Response to Informal Complaint No. 02- S81361, received December 20, 2002. 17 See 47 C. F. R. § 64. 1150( d). 18 Petition at 2. 2 Federal Communications Commission DA 06- 2067 3 Petition. The Commission’s rules require the alleged unauthorized carrier to provide clear and convincing evidence of a valid authorized carrier change not more than 30 days after notification of the complaint. 19 We find that Comcast did not provide “clear and convincing” evidence within 30 days. 7. In order to introduce new facts on reconsideration, a petitioner must show either that: (1) the petition relies on facts which relate to events which have occurred or circumstances which have changed since the last opportunity to present such matters; or (2) the petition relies on facts unknown to petitioner until after his last opportunity to present such matters which could not, through ordinary diligence, have been learned prior to such opportunity. 20 New facts may be introduced on reconsideration if the Commission determines that consideration of such facts is in the public interest. 21 Nowhere in its Petition, however, does Comcast explain why a “clean copy” of the LOA was not provided with the original response to the complaint. 22 In addition, Comcast does not provide any evidence to support its contention that the public interest would be served if the Commission were to continue to accept evidence in slamming cases after the expiration of the 30- day time limit. To allow new facts to be submitted on reconsideration without good cause would hamper the public’s interest in the quick resolution of complaints. While we realize that there may be some circumstances under which it is appropriate for a carrier to be given more than 30 days to respond fully to a slamming complaint (and we would consider all such requests), we do not believe it is appropriate to allow the submission of new facts when a carrier has been given ample time to respond in the first instance, and without any showing of good cause, after an order has been issued against the carrier. Accordingly, we deny Comcast’s Petition. III. ORDERING CLAUSES 8. 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, 1.106 and 1. 719 of the Commission’s rules, 47 C. F. R. §§ 0.141, 0.361, 1.106, 1.719, the Petition for Reconsideration filed by Comcast on June 16, 2003, IS DENIED. 9. IT IS FURTHER ORDERED that this Order is effective UPON RELEASE. FEDERAL COMMUNICATIONS COMMISSION Monica S. Desai, Chief Consumer & Governmental Affairs Bureau 19 See id. 20 See 47 C. F. R. §1. 106( c). 21 See id. 22 While Comcast argues that the Division did not identify what portion( s) of the original LOA are illegible, Comcast does not dispute the Division’s finding that the LOA was illegible or argue that the LOA was legible. See Petition at 2. 3