Federal Communications Commission DA 19-751 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Telplex Communications Complaint Regarding Unauthorized Change of Subscriber’s Telecommunications Carrier ) ) ) ) ) ) ) Complaint No. 3215127 ORDER Adopted: August 8,, 2019 Released: August 8, 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. 3215127 (filed Apr. 25, 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. In the complaint, Complainant also alleges that Telplex’s telemarketer “called our office while we were waiting for a call back from AT&T about our bill. Under the [g]uise of a[n] AT&T [e]mployee (…employee number 8977), [the telemarketer] claimed that the FCC had mandated we [be] given better pricing options with AT&T affiliated Telplex. [T]urns out they weren’t an AT&T employee and lied about the FCC mandate.” See Informal Complaint No. 3215127. 5. Pursuant to our rules, we notified Telplex of the complaint, and Telplex 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). Telplex stated that authorization was received and confirmed through a TPV. It also stated that Complainant’s “unverified hearsay allegations are directly contradicted by the TPV recording and [TPV] transcript unequivocally confirms his understanding that the telemarketer called him on behalf of Telplex…” See Telplex Response to Informal Complaint No. 3215127 (filed May 28, 2019). Telplex did not, however, provide the sales call recording or other persuasive evidence to rebut Complainant’s claim of misrepresentation. 6. Based on all 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. 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. 7. 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. 8. 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. 9. IT IS FURTHER ORDERED that this Order is effective upon release. FEDERAL COMMUNICATIONS COMMISSION 3