Federal Communications Commission DA 18-443 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Birch Communications Complaints Regarding Unauthorized Change of Subscribers’ Telecommunications Carrier ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Complaint Nos. 684301 815575 825550 835060 836363 857988 947903 977137 982478 1024439 1034644 1083103 1174884 1205782 1312985 1315995 1367768 ORDER Adopted: April 30, 2018 Released: May 1, 2018 By the Deputy Chief, Consumer Policy Division, Consumer & Governmental Affairs Bureau: 1. In this Order, we consider complaints 1 alleging that Birch Communications (Birch) changed Complainants’ telecommunications service providers without obtaining authorization and verification from Complainants in violation of the Commission’s rules. 2 We conclude that Birch has responded fully to the Complainants’ complaints and has taken action to resolve the complaints. 2. Section 258 of the Communications Act of 1934 (Act), as amended by the Telecommunications Act of 1996 (1996 Act), 3 prohibits 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 Commission’s implementing rules require, among other things, that a carrier receive individual subscriber consent before a carrier change may occur. 5 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 1 See Appendix. 2 See 47 CFR §§ 64.1100 – 64.1190. 3 47 U.S.C. § 258(a). 4 Id. 5 See 47 CFR § 64.1120. Federal Communications Commission DA 18-443 2 appropriately qualified independent third party to verify the subscriber's order. 6 The Commission also has adopted rules to limit the liability of subscribers when a carrier change occurs, and to require carriers involved in slamming practices to compensate subscribers whose carriers were changed without authorization. 7 3. We received Complainants’ complaints alleging that Complainants’ telecommunications service providers had been changed without Complainants’ authorization. 8 Pursuant to Sections 1.719 and 64.1150 of our rules, 9 we notified Birch of the complaints and Birch responded. 10 Birch has fully absolved Complainants of all charges assessed by Birch in a manner consistent with the Commission’s liability rules. 11 Based on the information before us, we find that the complaints referenced herein have been resolved. 12 4. 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 CFR §§ 0.141, 0.361, 1.719, the complaints against Birch Communications are RESOLVED. 5. IT IS FURTHER ORDERED that this Order is effective upon release. FEDERAL COMMUNICATIONS COMMISSION Nancy A. Stevenson Deputy Chief Consumer Policy Division 6 See 47 CFR § 64.1120(c). Section 64.1130 details the requirements for letter of agency form and content for written or electronically signed authorizations. 47 CFR § 64.1130. 7 These rules require the carrier to absolve the subscriber where the subscriber has not paid his or her bill. 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. See 47 CFR §§ 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. Where the subscriber has paid charges to the unauthorized carrier, the Commission’s rules require that the unauthorized carrier pay 150 percent of those charges to the authorized carrier, and the authorized carrier shall refund or credit to the subscriber 50 percent of all charges paid by the subscriber to the unauthorized carrier. See 47 CFR §§ 64.1140, 64.1170. 8 See Appendix. 9 47 CFR § 1.719 (Commission procedure for informal complaints filed pursuant to Section 258 of the Act); id. § 64.1150 (procedures for resolution of unauthorized changes in preferred carrier). 10 See Appendix. 11 See 47 CFR § 64.1160. In December 2016 the Commission’s Enforcement Bureau entered into a Consent Decree with Birch pursuant to which Birch absolved the complainants. See Birch Communications, Inc., Order, 31 FCC Rcd 13510 (EB 2016). This order is not intended to alter or contradict the consent decree’s terms, including with respect to liability. 12 If any Complainant is unsatisfied with the resolution of its complaint, such Complainant may file a formal complaint with the Commission pursuant to Section 1.721 of the Commission’s rules. Id. § 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 id. § 1.719. Federal Communications Commission DA 18-443 3 Consumer and Governmental Affairs Bureau APPENDIX COMPLAINT NUMBER DATE OF COMPLAINT DATE OF CARRIER RESPONSE 684301 815575 825550 835060 836363 857988 947903 977137 982478 1024439 1034644 1083103 1174884 1205782 1312985 1315995 1367768 December 1, 2015 February 17, 2016 February 22, 2016 February 26, 2016 February 27, 2016 March 10, 2016 May 3, 2016 May 13, 2016 May 17, 2016 June 7, 2016 June 14, 2016 August 15, 2016 September 2, 2016 September 19, 2016 November 13, 2016 November 15, 2016 December 27, 2016 January 7, 2016 March 19, 2016 March 28, 2016 March 31, 2016 March 31, 2016 April 11, 2016 June 8, 2016 May 17, 2016 June 8, 2016 June 30, 2016 July 20, 2016 December 7, 2016 November 22, 2016 October 19, 2016 December 6, 2016 December 7, 2016 January 30, 2017