Federal Communications Commission	DA 19-1059


Before the
Federal Communications Commission
Washington, D.C. 20554


In the Matter of

Telplex Communications

Complaint Regarding 
Unauthorized Change of
Subscriber’s Telecommunications Carrier
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Complaint No. 3457066
                  





ORDER

Adopted: October 22, 2019		Released: October 22, 2019

By the Deputy Chief, Consumer Policy Division, Consumer and Governmental Affairs Bureau:
1. In this Order, we consider a complaint alleging that Telplex Communications (Telplex) changed Complainant’s telecommunications service provider without obtaining authorization and verification from Complainant as required by the Commission’s rules. See Informal Complaint No. 3457066 (filed Aug. 11, 2019); see also 47 CFR §§ 64.1100 – 64.1190.
  We find that Telplex’s actions violated the Commission’s slamming rules, and we therefore grant Complainant’s complaint.
2. Section 258 of the Communications Act of 1934, as amended (the Act), 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. 47 U.S.C. § 258(a).
  The Commission’s implementing rules require, among other things, that a carrier receive individual subscriber consent before a carrier change may occur. See 47 CFR § 64.1120.
  Specifically, a carrier must: (1) obtain the subscriber's written or electronically signed authorization in a format that satisfies our rules; (2) obtain confirmation from the subscriber via a toll-free number provided exclusively for the purpose of confirming orders electronically; or (3) utilize an appropriately qualified independent third party to verify the order. Id. § 64.1120(c).  Section 64.1130 details the requirements for letter of agency form and content for written or electronically signed authorizations.  Id. § 64.1130.
  The Commission has also 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. These rules require the unauthorized 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 id. §§ 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 id. §§ 64.1140, 64.1170.  
 
3. In June 2018, the Commission codified a rule to prohibit misrepresentations on sales calls to further reduce the incidence of slamming. Id. § 64.1120(a)(1)(i)(A).  
  Under the revised rule, upon a finding of material misrepresentation during the sales call, the consumer’s authorization to change carriers will be deemed invalid even if the carrier has some evidence of consumer authorization of a carrier switch, e.g., a third-party verification (TPV) recording.  Sales misrepresentations may not be cured by a facially valid TPV. See Protecting Consumers from Unauthorized Carrier Changes and Related Unauthorized Charges, 33 FCC Rcd 5773, 5778-80, paras. 17-19 (2018) (2018 Slamming Order); 47 CFR § 64.1120(a)(1)(i)(A).  The revised rule became effective on August 16, 2018.  See Consumer and Governmental Affairs Bureau Announces August 16, 2018 Effective Date for Slamming and Cramming Rules, CG Docket No. 17-169, Public Notice, DA 18-747 (rel. July 19, 2018).  
  The rule provides that a consumer’s credible allegation of misrepresentation shifts the burden of proof to the carrier to provide evidence to rebut the consumer’s claim regarding misrepresentation.  The Commission made clear that an accurate and complete recording of the sales call may be the carrier’s best persuasive evidence to rebut the consumer’s claim that a misrepresentation was made on the sales call. See 2018 Slamming Order, 33 FCC Rcd at 5781, para. 23.  The Commission also stated that a carrier is uniquely positioned via its access to sales scripts, recordings, training, and other relevant materials relating to sales calls to proffer evidence to rebut a consumer’s claims.  Id.

4. We received Complainant’s complaint alleging that Complainant’s telecommunications service provider had been changed to Telplex without Complainant’s authorization. See Informal Complaint No. 3457066.
  In the complaint, Complainant also alleges that Telplex’s telemarketer contacted his office, “representing himself from AT&T.  He said I had to switch to a new carrier on their order.” Id.
  Complainant claims that the telemarketer “then explained that they would be less expensive and gave me charge information . . . a few weeks later they replaced my AT&T service.” Id.
  Complainant further states, “I am sure this [telemarketer] was paid a commission to misrepresent AT&T and switch my service by lying to me.” Id.
  With the complaint, Complainant provided copies of the invoices his office received from Telplex, a “one time settlement offer” from Telplex, and copies of checks Complainant paid to Telplex.    
5. Pursuant to our rules, we notified Telplex of the complaint. 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).
  Telplex responded to the complaint, stating that authorization was received and confirmed through a TPV. Telplex Response to Informal Complaint No. 3457066 (filed Sept. 18, 2019) (Telplex Response).
  Telplex also states that Complainant’s allegations “are directly contradicted by the TPV recording and transcript unambiguously establishing that he clearly understood at the time of the call in question that the representative called him on behalf of Telplex, a separate carrier competing with AT&T, and that he was authorizing a carrier change . . .” Telplex Response at 5.
  Telplex also asserts that “the true crux of this complaint is billing” and that Complainant “grossly underestimated the amount of long distance calls made by his business when he expressly switched from an unlimited plan to a metered plan.” Id. at 1.  
  Telplex says that Complainant also did not remember or understand that his first month’s bill was prorated to cover the remainder of the first month’s service and the next month’s service. Id. at 4.
  In addition to the TPV, Telplex provided a “quality control” checklist that Telplex says its telemarketers follow when marketing its services, along with the transcripts of the TPV and quality control calls that followed the initial sales call.  Telplex did not, however, provide a sales call recording or other evidence related to the sales call, such as the script used by the telemarketer who spoke to Complainant, to rebut Complainant’s claim of misrepresentation. The only information Telplex provided that related directly to the sales call was the name of the call center that contacted Complainant on behalf of Telplex and the individual telemarketer’s name, Mercedes.  The TPV recording showed that the telemarketer who contacted Complainant was “Mr. Reynolds.”  See TPV provided with Telplex Response.  
  
6. The Division carefully reviewed all the evidence in the record provided by both the Complainant and Telplex.  Based on the evidence in the record, we find Complainant’s allegation of a sales call misrepresentation to be credible due to its specificity and consistency with other complaints we have reviewed.  Complainant does not dispute that he agreed to the switch during the verification process, but that he did so as a result of the misrepresentations made by Telplex’s telemarketer during the sales call.  As the Commission stated in the 2018 Slamming Order, “[w]hen a consumer’s decision to switch carriers is predicated on false information provided in a sales call, that consumer’s authorization to switch carriers can no longer be considered binding.” 2018 Slamming Order, 33 FCC Rcd at 5779, para. 18 (citing Advantage Forfeiture Order, 32 FCC Rcd 3723, 3725-30, paras. 7-13 (2017) (finding that the carrier’s TPV recordings did not disprove that unlawful misrepresentations were made during the telemarketing calls and further, that questions posed during the separate TPV calls did not cure those misrepresentations)).  
  We further find that Telplex has failed to provide persuasive evidence to rebut Complainant’s claim and therefore that Complainant’s authorization to change carriers is invalid.  We therefore find that Telplex’s actions resulted in an unauthorized change in Complainant’s telecommunications service provider, as defined by the rules, and we discuss Telplex’s liability below. If Complainant is unsatisfied with the resolution of the complaint, the Complainant may file a formal complaint with the Commission pursuant to Section 1.721 of the Commission’s rules, 47 CFR § 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 id. § 1.719.
 
7. Telplex 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. See id. § 64.1160(b).
  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 the Complainant’s authorized carrier nor Telplex may pursue any collection against Complainant for those charges. See id. § 64.1160(d).
  Any charges imposed by Telplex on the subscriber for service provided after this 30-day period shall be paid by the subscriber at the rates the subscriber was paying to his/her authorized carrier at the time of the unauthorized change. See id. §§ 64.1140, 64.1160.

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 and 1.719 of the Commission’s rules, 47 CFR §§ 0.141, 0.361, 1.719, the complaint filed against Telplex Communications IS GRANTED.
9. IT IS FURTHER ORDERED that, pursuant to section 64.1170(d) of the Commission’s rules, 47 CFR § 64.1170(d), the Complainant is entitled to absolution for the charges incurred during the first thirty days after the unauthorized change occurred and that Telplex Communications may not pursue any collection against Complainant for those charges.
10. IT IS FURTHER ORDERED that this Order is effective upon release.
FEDERAL COMMUNICATIONS COMMISSION
					



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