Federal Communications Commission DA 19-288 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. 1783212 1814253 1831324 1858731 1994982 2252231 2265852 2288891 2340098 2373601 2415426 2429846 2436968 2440040 2448643 2547669 2594345 ORDER Adopted: April 15, 2019 Released: April 15, 2019 By the Deputy Chief, Consumer Policy Division, Consumer and Governmental Affairs Bureau: 1. In this Order, we consider the complaints See Appendix. alleging that Birch Communications (Birch) changed Complainants’ telecommunications service providers without obtaining authorization and verification from Complainants in violation of the Commission’s rules. See 47 CFR §§ 64.1100 – 64.1190. 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 (the Act), as amended, 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 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 appropriately qualified independent third party to verify the subscriber's order. See 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 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. 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 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. We received Complainants’ complaints alleging that Birch had changed Complainants’ telecommunications service providers without Complainants’ authorization. See Appendix. Pursuant to Sections 1.719 and 64.1150 of our rules, we notified Birch of the complaints. 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). Based on the information provided by Birch, it appears that Birch has fully absolved Complainants of all charges assessed by Birch in a manner consistent with the Commission’s liability rules. Id. § 64.1160. We note that many of the Complainants allege that Birch’s telemarketer misrepresented the nature of the transaction during the sales call. Under the Commission’s rules, 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 switch, e.g., a third-party verification recording. Id. § 64.1120(a)(1)(i)(A); see also 47 U.S.C. § 201(b). While we find that Birch has resolved the complaints here, we nevertheless will forward a copy of the record in these proceedings to the Enforcement Bureau for further review. We therefore find that the complaints referenced herein have been resolved. 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 filed against Birch Communications, ARE RESOLVED. 5. IT IS FURTHER ORDERED that this Order is effective upon release. APPENDIX COMPLAINT NUMBER DATE OF COMPLAINT DATE OF RESPONSE 1783212 1814253 1831324 1858731 1994982 2252231 2265852 2288891 2340098 2373601 2415426 2429846 2436968 2440040 2448643 2547669 2594345 July 17, 2017 July 31, 2017 August 7, 2017 August 17, 2017 October 19, 2017 February 21, 2018 February 26, 2018 March 8, 2018 March 30, 2018 April 12, 2018 April 30, 2018 May 7, 2018 May 9, 2018 May 10, 2018 May 14, 2018 June 6, 2018 June 26, 2018 September 4, 2017 September 4, 2017 September 7, 2017 September 20, 2017 November 29, 2017 April 1, 2018 April 1, 2018 April 16, 2018 May 14, 2018 May 22, 2018 June 4, 2018 June 17, 2018 June 17, 2018 June 16, 2018 June 19, 2018 July 24, 2018 July 30, 2018 3