Federal Communications Commission DA 13-1292
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Birch Communications
Complaint Regarding 
Unauthorized Change of
Subscriber’s Telecommunications Carrier
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IC No.  11-S2956074 
 
ORDER
Adopted: May 30, 2013 Released: May 31, 2013
By the Deputy Chief, Consumer Policy Division, Consumer & Governmental Affairs Bureau:
1. In this Order, we consider the complaint1 alleging that Birch Communications 
(Birch) changed Complainant’s telecommunications service provider without obtaining 
authorization and verification from Complainant in violation of the Commission’s rules.2 We 
conclude that Birch’s actions did result in an unauthorized change in Complainant’s 
telecommunications service provider and we grant Complainant’s complaint.
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 Informal Complaint No. IC 11-S2956074, filed January 31, 2011.
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 
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).
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“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) obtains 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
4. We received Complainant’s complaint on January 31, 2011, alleging that 
Complainant’s telecommunications service provider had been changed from CenturyLink to 
Birch Communications (Birch).  Pursuant to Sections 1.719 and 64.1150 of our rules,11 we 
notified Birch of the complaint, and Birch responded on March 3, 2011.12  Birch stated that it 
  
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.
11 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).
12 Birch’s Response to Informal Complaint No. IC 11-S2956074, received March 3, 2011.  
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purchased a portion of Close Call America (CCA) customer base and CCA serviced 
Complainant’s telephone number, therefore billing was set up for this account and the balance 
carried forward to Birch.  Birch denies Complainant’s slamming allegation.
5. The Commission’s carrier change rules allow a telecommunications provider to 
acquire all or part of another carrier’s subscriber base without obtaining each subscriber’s 
authorization and verification provided that the acquiring carrier comply with our streamlined 
procedures.13  To comply with these procedures, the acquiring carrier must file with the 
Commission’s Office of the Secretary, no later than 30 days before the planned transfer, a letter 
notification in CC Docket 00-257 that meets the requirements listed in Section 64.1120 (e)(1) of 
our rules, including proper customer notice.14 On September 28, 2010, Birch filed a letter 
notification with the Commission regarding acquisition of the subscriber base of various carriers, 
including CCA.15
  
6. We find that the subscriber notification letter filed by Birch is deficient because 
the letter notification did not contain “the rates, terms, and conditions of the service(s) to be 
provided by the acquiring carrier upon the subscriber’s transfer to the acquiring carrier, and the 
means by which the acquiring carrier will notify the subscriber of any change(s) to these rates, 
terms, and conditions.”16 The Commission, in the Streamlining Order, explained that the letter 
notification must contain “detailed information” as to the rates, terms and conditions of the 
services the acquiring carrier will provide.17  Subsequently, the Commission explained that 
providing such detail in the advance notice “will enable transferred subscribers to make a timely, 
informed decision regarding their ultimate choice of service providers.”18  
7. Moreover, the provision of detailed information ensures that subscribers can be 
certain of the rates, terms, and conditions the acquiring carrier will impose.  For subscribers who 
do not retain bills or copies of their current service provider's terms and conditions, it might be 
  
13 See 47 C.F.R. § 64.1120(e).
14 See 47 C.F.R. § 64.1120(e)(1). 
15 Birch’s notification to the FCC in CC Docket 00-257 was filed with the Commission on 
September 28, 2010. 
16 47 C.F.R. § 64.1120(e)(3)(ii).  See also Metropolitan Telecommunications, 24 FCC Rcd 2504  
(2009) (Metropolitan).    
17  See Streamlining Order, 16 FCC Rcd 11218, 11227 at para. 22.   The Commission has also 
reiterated that acquiring carriers are required to provide affected subscribers with “detailed information concerning 
the rates, terms and conditions of the service(s) to be provided to transferred customers.” See 2000 Biennial 
Review - Review of Policies and Rules Concerning Unauthorized Changes of Consumers’ Long Distance Carriers; 
Implementation of the Subscriber Carrier Selection Changes Provisions of the Telecommunications Act of 1996, 
First Order on Reconsideration in CC Docket No. 00-257 and Fourth Order on Reconsideration in CC Docket No. 
94-129, 19 FCC Rcd 13432, 13439 at para. 18 (2004) (Commission Reconsideration Order).
18 See Commission Reconsideration Order, 19 FCC Rcd 13432, 13439 at para.18.  (requiring at 
least some level of detail as to the rates, terms and conditions of the services the acquiring carrier will provide).  
The Commission also stated that it is difficult to imagine how a subscriber could make this sort of [carrier 
selection] decision without knowing, for example, the rates the acquiring carrier will charge.  See id.
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difficult for them to confirm their rates, terms, and conditions after the transfer takes place —
particularly if the carrier transferring the subscribers is no longer in business.  In the Commission 
Reconsideration Order, the Commission stated that, “[b]ecause the acquiring carrier is no longer 
required to obtain each individual subscriber’s consent [in the context of the streamlined 
procedures for transfer], it is critical that the advance written notice contain at least some level of 
detail as to the rates, terms and conditions of the services the acquiring carrier will provide.”19  
Birch’s letter notification to the subscribers stated that, “You will retain all other service rates, 
features, terms, and conditions of service and your telephone number.”20  The Bureau previously 
found that a carrier’s statement that Complainants’ rates will “stay the same” does not satisfy the 
“detailed information” requirement concerning the acquiring carrier’s rates, terms and 
conditions.21 Thus, Birch’s letter notification did not contain the detailed information required 
by the Commission.22 We find, therefore, that Birch’s streamlined procedure filing was 
deficient, and we discuss Birch’s liability below.23
8. Birch must remove all charges incurred for service provided to Complainant for 
the first thirty days after the alleged unauthorized change in accordance with the Commission’s 
liability rules.24 We have determined that Complainant is entitled to absolution for the charges 
incurred during the first thirty days after the unauthorized change occurred and that neither 
Complainant’s authorized carrier nor Birch may pursue any collection against Complainant for 
those charges.25 Any charges imposed by Birch on the subscriber for service provided after this 
30-day period shall be paid by the subscriber to their authorized carrier at the rates the subscriber 
was paying to their authorized carrier at the time of the unauthorized change.26
  
19  See id.
20 See the subscriber letter notifications attached to Birch’s September 12, 2011 filing.  The two 
sentences immediately preceding the above quoted sentence stated, “There may, however, be other changes to 
your serci3e plan based on Birch’s unique billing systems (e.g., customers currently utilizing a message or 
measured local service plan may be switched to a flat rate plan). In those cases, Birch will transition you in a 
neutral manner and with no increase to your regular monthly recurring charges.”  
21 See United Systems Access Telecom, Inc., Order on Reconsideration, 19 FCC Rcd 4528, 4530 at 
para 5. (2004) (finding that a “customer notice letter” which states that a subscriber’s rates, terms and conditions 
will stay the same did not satisfy the Commission’s “detailed information” requirement).
22 See Commission Reconsideration Order, 19 FCC Rcd 13432, 13439 at para. 18; see 
Metropolitan, supra.
23 If Complainant is unsatisfied with the resolution of this complaint, 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 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 
Complainant.  See 47 C.F.R. § 1.719.
24 See 47 C.F.R. § 64.1160(b).
25 See 47 C.F.R. § 64.1160(d).
26 See 47 C.F.R. §§ 64.1140, 64.1160.
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9. 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 complaint filed by 
Complainant against Birch Communications IS GRANTED.
10. IT IS FURTHER ORDERED that, pursuant to Section 64.1170(d) of the 
Commission’s rules, 47 C.F.R. § 64.1170(d), Complainant is entitled to absolution for the 
charges incurred during the first thirty days after the unauthorized change occurred and 
CenturyLink nor Birch may pursue any collection against Complainant for those charges.
11. 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