Federal Communications Commission	DA 19-1172


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. 3120621
                  





ORDER

Adopted: November 13, 2019	Released: November 14, 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. 3120621 (filed Mar. 15, 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. 3120621.
  In the complaint, Complainant also alleges that Telplex’s telemarketer “said they were subcontracted to AT&T and nothing would change on our phone service.  Then they transferred our phone service to them at twice the cost.” Id.
  With the complaint, Complainant provided copies of the invoices her business received from Telplex. On September 11, 2019, Division staff contacted Complainant to discuss the status of her complaint.  Complainant reiterated that Telplex’s telemarketer told her they were contracted with AT&T and that her bill would still come from AT&T.  Complainant stated, “[s]he also told me they couldn’t proceed on my go-ahead because I’m in a different state from the office, so I instructed [the office manager] to agree on the basis of the representations made to me.  The misrepresentations were made to me, and there’s no recording of that conversation.”  Complainant further stated that she repeatedly asked the telemarketer if she was with AT&T and told the telemarketer they were not switching away from AT&T.  Division staff provided an additional opportunity for Telplex to respond to Complainant’s allegations.  See Telplex Supplemental Response to Informal Complaint No. 3120621 (filed Oct. 9, 2019) (Telplex Supplemental Response).  

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. 3120621 (filed Apr. 16, 2019) (Telplex Response).
  Telplex also states that Complainant’s allegations “are directly contradicted by the TPV recording and transcript.  The TPV clearly and unequivocally reflects that [Complainant’s employee] agreed at the outset . . . to stop the verifier if anything stated was different than what the independent telemarketing contractor discussed with her.” Telplex Response at 2-3.
  Telplex also asserts that Complainant’s employee confirmed her understanding that the telemarketer called her on behalf of Telplex and not AT&T, and that she authorized Telplex to become the business’ new local and long distance carrier. Id. at 3.
  Telplex further states that its Compliance Officer contacted Complainant, and that Complainant informed him that when she spoke to Telplex’s sales agent, “she was confused because she thought that Telplex was a subcontractor for AT&T and she would still be on the AT&T network.” Id. at 5.
 
6. In its supplemental response, Telplex submitted a telemarketing script, and argued that Complainant’s allegations “are remarkably close to the content of the script Telplex’s telemarketers follow.” See Telplex Supplemental Response.
  The script includes the following language: “Telplex has a wholesale contract with AT&T . . . [t]he billing and customer service now come from Telplex.  But the service stays the same because you are using the same network you use today, same technicians and same operator services.”  The script then states, “[w]e find that our customers enjoy the benefits of working with a reseller because now you keep the same service . . . .” Id.
  In addition to the TPV and telemarketing script, Telplex provided a transcript of the TPV recording and a “quality control” checklist that Telplex says it used in a follow-up call to the employee to confirm the order.  Telplex did not, however, provide the sales call recording or other evidence related to the sales call, to rebut Complainant’s claim of misrepresentation. Telplex provided the name of the call center that contacted Complainant’s employee and the individual telemarketer’s name, Jerry.  Telplex Response at 2. 
 
7. The Division thoroughly reviewed all the evidence in the record provided by both the Complainant and Telplex, including the TPV recording.  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 her employee was recorded agreeing to a change in service (or that a Telplex sales agent spoke to her employee prior to the TPV).  She alleges, however, that she directed her employee to agree to the switch as a result of the misrepresentations made by Telplex’s telemarketer.  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.
 
8. 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.

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 CFR §§ 0.141, 0.361, 1.719, the complaint filed against Telplex Communications IS GRANTED.
10. 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.
11. IT IS FURTHER ORDERED that this Order is effective upon release.
FEDERAL COMMUNICATIONS COMMISSION
					



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