16 TAC §26.130
The Public Utility Commission of Texas (commission) proposes
an amendment to §26.130 relating to Selection of Telecommunications Utilities.
The proposed amendment will include additional requirements adopted by the
Federal Communications Commission (FCC) after the current §26.130 was
adopted and will make administrative corrections. Project Number 24626 is
assigned to this proceeding.
This rulemaking is required by the commission's Order in Docket Number
23375,
Petition of Texas Statewide Telephone Cooperative,
Inc. to Amend Substantive Rule §26.130(f) Regarding Inconsistencies Between
Federal and State Rules
, issued on February 8, 2001. Texas Statewide
Telephone Cooperative, Inc. (TSTCI) filed a Petition on December 1, 2000 to
amend Substantive Rule §26.130(f) to make state rules consistent with
federal law. TSTCI stated that Substantive Rule §26.130(f) differs from
the federal rules in two respects: (1) under federal rules, the authorized
carrier is required to make refunds to customers while under the commission
rule the unauthorized carrier has this responsibility; and (2) the federal
and state rules calculate refunds differently. TSTCI stated that the current
two tiered approach unnecessarily complicates the reimbursement process by
requiring carriers to separate intrastate and interstate charges and calculate
refunds using applicable federal or state procedures.
The commission denied the Petition to amend Substantive Rule §26.130(f).
The commission found that the consistency provision in the Public Utility
Regulatory Act (PURA) §55.308 does not require that the commission rules
duplicate those of the FCC. The FCC allows flexibility to the states with
regard to remedies as indicated in CC Docket No. 94-129 FCC 00- 135, footnote
105. Also, in Paragraph 87 of CC Docket No. 94-129 FCC 00-255, the FCC states
that they will not interfere with the state's ability to adopt more stringent
regulations, that they must work hand-in-hand with the states to combat slamming,
and that states have valuable insight into slamming problems in their respective
locales.
Substantive Rule §26.130 requires the unauthorized carrier to make
a direct refund to the customer based on all charges for the first 30 days
after a slam and a re-rating of charges after the first 30 days. The unauthorized
carrier is also required to pay the authorized carrier any amount paid to
it by the customer that would have been paid to the authorized carrier if
the slam had not occurred. The FCC rules require the unauthorized carrier
to pay the authorized carrier 150% of the amount paid by the customer and
the authorized carrier to refund the customer 50% of the amount paid by the
customer. The commission indicated that while the commission's approach does
not duplicate the FCC's procedures, it is consistent with the FCC's objectives
and purpose.
The FCC requires the unauthorized carrier to pay the authorized carrier
and then the authorized carrier makes the refund to the customer. If, however,
the authorized carrier does not receive payment from the unauthorized carrier,
the authorized carrier must inform the customer of this and the customer's
right to pursue a claim against the unauthorized carrier. This refunding process
was based on the original FCC approach, which required the authorized carrier
to resolve slamming complaints. Under the new approach where either the FCC
or the states that opt-in will resolve the complaints, the commission indicated
that it is more efficient and effective to have the unauthorized carrier make
a direct refund to the customer.
The commission did not agree that the current reimbursement process is
a two-tiered approach, one for intrastate charges and another for interstate
charges. The reimbursement process in the current §26.130 applies equally
to intrastate and interstate charges, as well as local charges when there
is a local service slam.
The commission did require a rulemaking to amend §26.130 to include
electronic letters of agency (LOA) that meet FCC requirements as a verification
method for switching telecommunications service and to make any other appropriate
changes to the current rule.
To assist in this rulemaking, the commission held a workshop with interested
parties on November 26, 2001. Also, interested parties filed written comments
subsequent to the workshop. The commission considered all workshop and written
comments in developing this proposed amendment. The proposed amendment includes
several recommendations that enhanced consistency with FCC rules, improved
clarity, and minimized administrative burdens without diluting customer protections.
The proposed amendment:
(1) updates references to FCC regulations;
(2) adds electronically signed letter of agency (LOA) as a verification
method;
(3) requires that customers be provided the option of using another authorization
method in lieu of an electronically signed authorization;
(4) requires that a telecommunications utility submit a change order within
no more than 60 days after obtaining verification from the customer;
(5) adds FCC provisions to the minimum requirements for third party verification;
(6) adds FCC requirements related to the notification of an alleged unauthorized
change;
(7) adds FCC requirements related to customer notice involving transferring
customers; and
(8) adds a requirement to provide FCC slamming reports containing only
Texas-specific data.
The proposed amendment includes additional requirements based on additional
provisions adopted by the FCC (CC Docket No. 94-129, Third Report and Order
on Second Reconsideration, FCC 00-255) after adoption of the current §26.130.
The reporting requirement in proposed §26.130(m) is based on an FCC reporting
requirement and establishes the same reporting format and period used by the
FCC.
Mr. John S. Capitano, Jr., Senior Investigator, Customer Protection Division,
has determined that for each year of the first five-year period the proposed
section is in effect there will be no fiscal implications for state or local
government as a result of enforcing or administering the section.
Mr. Capitano has determined that for each year of the first five years
the proposed section is in effect the public benefit anticipated as a result
of enforcing the section will be the establishment of rights and responsibilities
for both telecommunications utilities and customers regarding customer choice
in the selection of local and long distance telecommunications providers.
There will be no effect on small businesses or micro-businesses as a result
of enforcing this section. There may be anticipated economic cost to persons
who are required to comply with the section as proposed.
Mr. Capitano has also determined that for each year of the first five years
the proposed section is in effect there should be no effect on a local economy,
and therefore no local employment impact statement is required under Administrative
Procedure Act §2001.022.
The commission staff will conduct a public hearing on this rulemaking under
Government Code §2001.029 at the commission's offices, located in the
William B. Travis Building, 1701 North Congress Avenue, Austin, Texas 78701,
on Wednesday, April 17, 2002, at 9:30 a.m. in the Commissioners' Hearing Room.
Comments on the proposed amendment (16 copies) may be submitted to the
Filing Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue,
P. O. Box 13326, Austin, Texas 78711-3326, within 30 days after publication.
Reply comments may be submitted within 45 days after publication. Commission
Staff also requests that electronic copies of the comments and reply comments
be e-mailed to john.capitano@puc.state.tx.us. Comments should be organized
in a manner consistent with the organization of the proposed rule. The commission
invites specific comments regarding the costs associated with, and benefits
that will be gained by, implementation of the proposed amendment. The commission
will consider the costs and benefits in deciding whether to adopt the proposed
amendment. All comments should refer to Project Number 24626.
This amendment is proposed under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 (Vernon 1998, Supplement
2002) (PURA), which provides the Public Utility Commission with the authority
to make and enforce rules reasonably required in the exercise of its powers
and jurisdiction; and specifically PURA §55.302 which grants the commission
authority to adopt and enforce rules to implement the provisions of PURA Chapter
55, Subchapter K, Selection of Telecommunications Utilities.
Cross Index to Statutes: Public Utility Regulatory Act §§14.002
and 55.301 - 55.308.
§26.130.Selection of Telecommunications Utilities.
(a)
Purpose
and Application
.
(1)
Purpose.
The provisions of this section
are intended to ensure that all customers in this state are protected from
an unauthorized change in a customer's local or long-distance telecommunications
utility.
(2)
[
(b)
] Application. This section,
including any references in this section to requirements in 47 Code of Federal
Regulations
(C.F.R.) §64.1120
[
§64.1100
] and
§64.1130
[
§64.1150
] (changing
long distance
service
[
interexchange carriers
]), applies to all "telecommunications
utilities," as that term is defined in §26.5 of this title (relating
to Definitions). This section does not apply to an unauthorized charge unrelated
to a change in preferred telecommunications utility which is addressed in §26.32
of this title (relating to Protection Against Unauthorized Billing Charges
("Cramming")).
(b)
[
(c)
]
Definitions
[
Definition
].
The following words and terms when used in this section
shall have the following meanings unless the context indicates otherwise:
(1)
Authorized telecommunications utility
- Any telecommunications utility that submits a change request that is in
accordance with the requirements of this section.
(2)
Customer - Any
[
The term "customer"
when used in this section, shall mean any
] person, and that person's
spouse, in whose name telephone service is billed, including individuals,
governmental units at all levels of government, corporate entities, and any
other entity with legal capacity to be billed for telephone service.
(3)
Executing telecommunications utility -
Any telecommunications utility that effects a request that a customer's preferred
telecommunications utility be changed.
(4)
Submitting telecommunications utility
- Any telecommunications utility that requests on behalf of a customer that
the customer's preferred telecommunications utility be changed.
(5)
Unauthorized telecommunications utility
- Any telecommunications utility that submits a change request that is not
in accordance with the requirements of this section.
(c)
[
(d)
] Changes in preferred telecommunications
utility.
(1)
Changes by a telecommunications utility. Before a change
order is processed, the
submitting
telecommunications utility [
initiating the change (the prospective telecommunications utility)
]must
obtain verification from the customer that such change is desired for each
affected telephone line(s) and ensure that such verification is obtained in
accordance with 47
C.F.R. §64.1120
[
Code of Federal Regulations §64.1100
]. In the case of a change by written solicitation, the
submitting
[
prospective
] telecommunications utility must obtain verification
as specified in 47
C.F.R. §64.1130
[
Code of Federal Regulations §64.1150
], and subsection
(d)
[
(e)
] of this section, relating
to Letters of Agency.
The submitting telecommunications utility shall
submit a change order within 60 days after obtaining verification from the
customer.
The
submitting
[
prospective
] telecommunications
utility must maintain records of all changes, including verifications, for
a period of 24 months and shall provide such records to the customer, if the
customer challenges the change, and to the
Public Utility Commission
(commission)
[
commission
] staff
upon request
[
if it so requests
]. A change order must be verified by one of the following
methods:
(A)
Written
or electronically signed
authorization
from the customer in a form that meets the requirements of subsection
(d)
[
(e)
] of this section.
A customer shall be provided
the option of using another authorization method in lieu of an electronically
signed authorization.
(B)
Electronic authorization placed from the telephone number
which is the subject of the change order except in exchanges where automatic
recording of the automatic number identification (ANI) from the local switching
system is not technically possible. The
submitting
[
prospective
]telecommunications utility must:
(i)
ensure that the electronic authorization confirms the information
described in subsection
(d)(3)
[
(e)(3)
] of this section;
and
(ii)
establish one or more toll-free telephone numbers exclusively
for the purpose of verifying the change so that a customer calling toll-free
number(s) will reach a voice response unit or similar mechanism that records
the required information regarding the change and automatically records the
ANI from the local switching system.
(C)
Oral authorization by the customer for the change
that meets the following requirements:
[
,
]
(i)
The customer's authorization shall be
given to an appropriately qualified and independent third party that
confirms appropriate verification data such as the customer's date of birth
or mother's maiden name.
(ii)
The verification must be electronically recorded
in its entirety
on audio tape
or a wave sound file
.
(iii)
The recording shall include clear and conspicuous
confirmation that the customer authorized the change in telephone service
provider.
(iv)
The third party verification shall elicit,
at minimum, the identity of the customer, confirmation that the person on
the call is authorized to make the change in service, the names of the telecommunications
utilities affected by the change, the telephone number(s) to be switched,
and the type of service involved.
(v)
The third party verification shall be
conducted in the same language used in the sales transaction.
(vi)
Automated systems shall provide customers
the option of speaking with a live person at any time during the call.
(vii)
A telecommunications utility or its
sales representative initiating a three-way call or a call through an automated
verification system shall drop off the call once a three-way connection has
been established.
(viii)
The independent third party shall:
(I)
[
(i)
] not be owned, managed, or directly
controlled by the telecommunications utility or the telecommunications utility's
marketing agent;
(II)
[
(ii)
] not have financial incentive
to confirm change orders; and
(III)
[
(iii)
]operate in a location physically
separate from the telecommunications utility or the telecommunications utility's
marketing agent.
(2)
Changes by customer request directly to the local exchange
company. If a customer requests a change in preferred telecommunications utility
by contacting the local exchange company directly and the local exchange company
is not the chosen carrier or affiliate of the chosen carrier, the verification
requirements in paragraph (1) of this subsection do not apply. The local exchange
company shall maintain a record of the customer's request for 24 months.
(d)
[
(e)
] Letters of Agency (LOA). A
written
or electronically signed
authorization from a customer
for a change of telecommunications utility shall use a letter of agency (LOA)
as specified in this subsection:
(1)
The LOA shall be a separate or easily separable document
or located on a separate screen or webpage
containing only the authorizing
language described in paragraph (3) of this subsection for the sole purpose
of authorizing the telecommunications utility to initiate a telecommunications
utility change. The LOA must be signed and dated by the customer requesting
the telecommunications utility change.
An LOA submitted with an electronically
signed authorization shall include the consumer disclosures required by the Electronic Signatures in Global and National Commerce Act §101(c).
(2)
The LOA shall not be combined with inducements of any kind
on the same document,
screen, or webpage
except that the LOA may
be combined with a check as specified in subparagraphs (A) and (B) of this
paragraph:
(A)
An LOA combined with a check may contain only the language
set out in paragraph (3) of this subsection, and the necessary information
to make the check a negotiable instrument.
(B)
A check combined with an LOA shall not contain any promotional
language or material but shall contain on the front and back of the check
in easily readable, bold-faced type near the signature line,
a notice
similar in content to
the following[
notice
]: "By signing
this check, I am authorizing (name of the telecommunications utility) to be
my new telephone service provider for (the type of service that will be provided)."
(3)
LOA language.
(A)
At a minimum, the LOA shall be printed with sufficient
size and readable type to be clearly legible and shall contain clear and unambiguous
language that confirms:
(i)
the customer's billing name and address and each telephone
number to be covered by the preferred telecommunications utility change order;
(ii)
the decision to change preferred carrier from the current
telecommunications utility to the new telecommunications utility
and
identifies each
;
(iii)
that the customer designates (name of the new telecommunications
utility) to act as the customer's agent for the preferred carrier change;
(iv)
that the customer understands that only one preferred
telecommunications utility may be designated for each type of service (local,
intraLATA, and interLATA) for each telephone number. The LOA shall contain
separate statements regarding those choices, although a separate LOA for each
service is not required; and
(v)
that the customer understands that any preferred carrier
selection the customer chooses may involve a one-time charge to the customer
for changing the customer's preferred telecommunications utility
and
that the customer may consult with the carrier as to whether a fee applies
to the change
.
(B)
The following LOA form meets the rquirements of this subsection.
Other versions may be used, but shall comply with all of the requirements
of this subsection.
Figure: 16 TAC §26.130(d)(3)(B)
(4)
The LOA shall not require that a customer take some action
in order to retain the customer's current telecommunications utility.
(5)
If any portion of an LOA is translated into another language,
then all portions must be translated. The LOA must be translated into the
same language as promotional materials, oral descriptions or instructions
provided with the LOA.
(e)
Notification of alleged unauthorized change.
(1)
When a customer informs an executing telecommunications
utility of an alleged unauthorized telecommunications utility change, the
executing telecommunications utility shall immediately notify both the authorized
and alleged unauthorized telecommunications utility of the incident.
(2)
Any telecommunications utility, executing, authorized,
or alleged unauthorized, that is informed of an alleged unauthorized telecommunications
utility change shall direct the customer to contact the Public Utility Commission
of Texas.
(3)
The alleged unauthorized telecommunications utility shall
remove all unpaid charges pending a determination of whether an unauthorized
change occurred.
(4)
The alleged unauthorized telecommunications utility may
challenge a complainant's allegation of an unauthorized change by notifying
the complainant to file a complaint with the Public Utility Commission of
Texas within 30 days. If the complainant does not file a complaint within
30 days, the unpaid charges may be reinstated.
(5)
The alleged unauthorized telecommunications utility shall
take all actions within its control to facilitate the customer's prompt return
to the original telecommunication utility within three business days of the
customer's request.
(f)
Unauthorized changes.
(1)
Responsibilities of the telecommunications utility that
initiated the change. If a customer's telecommunications utility is changed
without verification consistent with this section, the telecommunications
utility that initiated the unauthorized change shall:
(A)
take all actions within its control to facilitate the customer's
prompt return to the original telecommunication utility within three
business
days of the customer's request;
(B) - (F)
(No change.)
(2)
Responsibilities of the original telecommunications utility.
The original telecommunications utility shall:
(A)
(No change.)
(B)
where possible,
provide to the customer all
benefits associated with the service, such as frequent flyer miles that would
have been awarded had the unauthorized change not occurred, on receiving payment
for service provided during the unauthorized change;
(C) - (D)
(No change.)
(g)
(No change.)
(h)
Compliance and enforcement.
(1)
Records of customer verifications and unauthorized changes.
A telecommunications utility shall provide a copy of records maintained under
the requirements of subsections
(c),
(d),[
(e),
] and
(f)(2)(C) of this section to the commission staff upon request.
(2) - (4)
(No change.)
(i)
Notice of identity of a customer's telecommunications utility.
Any bill for telecommunications services must contain the following information
in easily-read, bold type in each bill sent to a customer. Where charges for
multiple lines are included in a single bill, this information must appear
on the first page of the bill if possible or displayed prominently elsewhere
in the bill:
(1) - (3)
(No change.)
(4)
A statement that customers who believe they have been slammed
may contact the Public Utility Commission of Texas, [
Office of
]Customer
Protection
Division
, P.O. Box 13326, Austin, Texas 78711-3326,
(512) 936-7120 or in Texas (toll-free) 1 (888) 782-8477, fax: (512) 936-7003,
e-mail address: customer@puc.state.tx.us. Hearing and speech-impaired individuals
with text telephones (TTY) may contact the commission at (512) 936-7136. This
statement may be combined with the statement requirements of §26.32(g)(4)
of this title if all of the information required by each is in the combined
statement. [
This statement shall appear on the first telephone bill issued
60 days after the effective date of this section.
]
(j)
Preferred telecommunications utility freezes.
(1) - (4)
(No change.)
(5)
Freeze verification. A local exchange company shall not
implement a freeze unless the customer's request is verified using one of
the following procedures:
(A)
A written and signed
or electronically signed
authorization
that meets the requirements of paragraph (6) of this subsection.
(B) - (D)
(No changes.)
(6)
(No change.)
(7)
Lifting freezes. A local exchange company that executes
a freeze request shall allow customers to lift a freeze by:
(A)
written and signed
or electronically signed
authorization
stating the customer's intent to lift a freeze;
(B) - (D)
(No change.)
(8) - (14)
(No change)
(k)
Transferring customers from one telecommunications utility
to another.
(1)
Any telecommunications utility that will acquire customers
from another telecommunications utility that will no longer provide service
due to acquisition, merger, bankruptcy or any other reason, shall provide
notice to every affected customer. The notice shall be in a billing insert
or separate mailing at least 30 days prior to the transfer of any customer.
If legal or regulatory constraints prevent sending the notice at least 30
days prior to the transfer, the notice shall be sent promptly after all legal
and regulatory conditions are met. The notice shall:
(A) - (F)
(No change.)
(G)
provide the rates and conditions of service of the acquiring
telecommunications utility
and how the customer will be notified of any
changes
;[
and
]
(H)
explain that the customer will not incur
any charges associated with the transfer;
(I)
explain whether the acquiring carrier
will be responsible for handling complaints against the transferring carrier;
and
(J)
[
(H)
] provide a toll-free telephone
number for a customer to call for additional information.
(2)
The acquiring telecommunications utility shall provide
the [
Office of
]Customer Protection
Division (CPD)
with
a copy of the notice when it is sent to customers.
(l)
Complaints to the commission. A customer may file a complaint
with the
commission's Customer Protection Division
[
commission
] against a telecommunications utility for any reasons related to the
provisions of this section.
(1)
Customer complaint information. The complainant should
include
appropriate
[
the following
]information
regarding the complaint.
[
:
]
[(A)
the customer's name, address, and telephone
number;]
[(B)
a brief description of the facts of the
complaint;]
[(C)
a copy of the customer's and spouse's
legal signature; and]
[(D)
a copy of the most recent phone bill
and any prior phone bill that shows the switch in carrier.]
(2)
Telecommunications utility's response to complaint. After
review of a customer's complaint,
CPD
[
the commission's Office
of Customer Protection (OCP)
] shall forward the complaint to the telecommunications
utility. The telecommunications utility shall respond to
CPD
[
OCP
] within 21 calendar days after
CPD
[
OCP
] forwards
the complaint. The telecommunications utility's response shall include the
following:
(A)
(No change.)
(B)
all corrective actions taken as required by subsection
(f) of this section, if the switch in service was not verified in accordance
with subsections
(c) and
(d) [
and (e)
]of this section.
(3)
CPD
[
OCP
] investigation.
CPD
[
OCP
] shall review all of the information related to the
complaint and make a determination on whether or not the telecommunications
utility complied with the requirements of this section.
CPD
[
OCP
] shall inform the complainant and the
alleged unauthorized
telecommunications utility of the results of the investigation and identify
any additional corrective actions that may be required.
CPD shall also
inform the authorized telecommunications utility if there was an unauthorized
change in service.
(m)
Reporting requirement. Each telecommunications
utility shall file a semiannual slamming report with the commission's Central
Records in the assigned project number as required by paragraphs (1) and (2)
of this subsection. A project number will be assigned each calendar year for
this report.
(1)
The report shall use the format and information required
by 47 C.F.R. §64.1180 containing only Texas-specific data.
(2)
Reports shall be submitted on August 31 (covering January
1 through June 30) and February 28 (covering July 1 through December 31).
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on February 1, 2002.
TRD-200200653
Rhonda G. Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: March 17, 2002
For further information, please call: (512) 936-7308