Federal Communications Commission	DA 19-347


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


In the Matter of

America Net, LLC

Complaint Regarding 
Unauthorized Change of
Subscriber’s Telecommunications Carrier
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Complaint No.  2000369
                           

                                     
ORDER
	
Adopted:  April 26, 2019	Released:  April 29, 2019

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

1. In this Order, we consider the complaint See Informal Complaint No. 2000369, filed Oct. 23, 2017.
 alleging that America Net, LLC (America Net) changed Complainant’s telecommunications service provider without obtaining authorization and verification from Complainant in violation of the Commission’s rules. See 47 CFR §§ 64.1100 – 64.1190.
  We find that America Net’s actions violated the Commission’s carrier change rules, and we therefore grant Complainant’s complaint.
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 Complainant’s complaint alleging that Complainant’s telecommunications service provider had been changed without Complainant’s authorization.  Pursuant to Sections 1.719 and 64.1150 of our rules, we notified America Net of the complaint. Id. § 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).
  America Net responded to the complaint, stating that it obtained authorization from Complainant through third-party verification (TPV). See America Net’s Response to Informal Complaint No. 2000369, filed Mar. 16, 2018.
  
4. In the TPV, America Net’s verifier does not confirm that the person is authorized to make a carrier change.  Instead, the verifier asks the person on the call if she is authorized “to make changes to and incur charges on these telephone lines.”  An affirmative response to this question does not establish whether the person is authorized to make a carrier change.  A switch from one carrier to another carrier differs from merely being authorized to make changes on a telephone line. See Consumer Telcom, Inc., Order on Reconsideration, 27 FCC Rcd 5340 (CGB 2012) (the verifier's question—do you have authority to make changes to your long distance service?—did not confirm that the person was authorizing a change that would result in receiving service from a different carrier).
  In the Fourth Report and Order, the Commission required that “any description of the carrier change transaction . . . shall not be misleading” and emphasized that third-party verifiers must “convey explicitly that consumers will have authorized a carrier change,” and not, for instance, an upgrade in existing service or bill consolidation. See Implementation of the Subscriber Carrier Selection Changes Provisions of the Telecommunications Act of 1996; Policies and Rules Concerning Unauthorized Changes of Consumers’ Long Distance Carriers, Fourth Report and Order, 23 FCC Rcd 493, 501, para. 19 (2008) (Fourth Report and Order); see also 47 CFR § 64.1120(c)(3)(iii).
  The Commission explained that “[t]he record reflects that carriers using ambiguous language to describe the nature of the transaction may lead to consumer confusion concerning the true purpose of the solicitation call.” Fourth Report and Order, 23 FCC Rcd at 501, para. 19.
  The Commission further stated that “such practices are misleading and unreasonable, and warrant specific treatment in our rules.” Id.
  We therefore find that America Net’s actions were in violation of our carrier change rules, In addition, the verifier’s speech is so rapid as to be extremely difficult to understand and, in some places, completely indecipherable.  See Reduced Rate Long Distance, Complaint Regarding Unauthorized Change of Subscriber’s Telecommunications Carrier, Order, 23 FCC Rcd 11492, 11494, para. 4 (CGB 2008) (finding that the TPV was not intelligible and therefore the carrier had not provided clear and convincing evidence of a valid authorized carrier change).
 and we discuss America Net’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.

5. America Net 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 America Net may pursue any collection against Complainant for those charges. See id. § 64.1160(d).
  Any charges imposed by America Net 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 the authorized carrier at the time of the unauthorized change. See id. §§ 64.1140, 64.1160.

6. 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 America Net, LLC IS GRANTED.
7. 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 America Net, LLC may not pursue any collection against Complainant for those charges.
8.	IT IS FURTHER ORDERED that this Order is effective upon release.


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