Federal Communications Commission	DA 19-321


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


In the Matter of

Birch Communications

Complaints Regarding 
Unauthorized Change of
Subscriber’s Telecommunications Carrier
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Complaint Nos.  1920495
                           2020730
                           2047725
                           2098925
                           2140451
                           2199917

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                            2252129
                            2296075
                            2324820
                            2353500
                            2537418




ORDER

Adopted: April 24, 2019		Released: April 24, 2019

By the Deputy Chief, Consumer Policy Division, Consumer and Governmental Affairs Bureau:

1. In this Order, we consider eleven 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’s actions did not result in unauthorized changes in Complainants’ telecommunications service providers as defined in the rules, and we deny Complainants’ 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 are 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 Complainants’ telecommunications service providers had been changed without Complainants’ authorization. See Appendix.
  Pursuant to Sections 1.719 and 64.1150 of our rules, we notified Birch of the complaints and Birch responded. 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).
   In each case, Birch states that authorization was received and confirmed through third party verifications (TPVs).  We have reviewed the TPVs and find that the TPVs comply with the verification procedures in the Commission’s rules.  We therefore find that Birch’s actions did not result in “unauthorized changes” in Complainants’ telecommunications service providers, as defined by the rules. See id. § 64.1100(e).  If either 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.
  
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 ARE DENIED.
5. IT IS FURTHER ORDERED that this Order is effective upon release.
				

APPENDIX

INFORMAL	DATE OF   		     DATE OF			
COMPLAINT	COMPLAINT	     RESPONSE	
NUMBER

		1920495                         September 13, 2017            November 7, 2017         	
2020730		November 1, 2017	     January 23, 2018
2047725		November 14, 2017	     February 13, 2018
2098925		December 11, 2017	     February 12, 2018
2140451		January 2, 2018	                  February 13, 2018
2199917		January 29, 2018	     March 4, 2018
2252129		February 21, 2018	     April 2, 2018
2296075		March 12, 2018	                  April 17, 2018
2324820		March 23, 2018	                  April 27, 2018
2353500		April 4, 2018		     May 15, 2018
2537418		June 1, 2018		     July 9, 2018	

		


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