Part 2.
PUBLIC UTILITY COMMISSION OF TEXAS
Chapter 26.
SUBSTANTIVE RULES APPLICABLE TO TELECOMMUNICATIONS SERVICE PROVIDERS
Subchapter B. CUSTOMER SERVICE AND PROTECTION
The Public Utility Commission of Texas (commission) proposes the repeal
of old §26.32, relating to Protection Against Unauthorized Billing Charges
("Cramming"), and the adoption of new §26.32, relating to Protection
Against Unauthorized Billing Charges ("Cramming"). The proposed new §26.32
is intended to ensure that all customers in this state are protected from
unauthorized charges on their telecommunications utility bill. The proposed
new §26.32, compared to the existing §26.32, establishes and clarifies
the requirements necessary to obtain (1) customer authorization for charges
for any product or service, and (2) verification of that authorization. Project
Number 28324 is assigned to this proceeding. Proposed changes to §26.130
are also assigned to this project, but those changes were approved by the
commission for publication during a public hearing conducted on October 23,
2003, and, therefore, precede the changes proposed to §26.32.
This rulemaking was instituted by the commission to address the following:
1. Updates to rule references in both FCC and commission rule citations;
2. Clarification of the definition of "customer;"
3. Modification and clarification of the customer authorization and verification
of authorization requirements for telecommunications products or services;
4. Reorganization of the customer authorization and verification of authorization
requirements creating two separate sections for these requirements;
5. Establishment of specific requirement to obtain customer consent to
being recorded during all authorization and verification of authorization
conversations;
6. Establishment of certification requirements for telecommunications utilities
that are unable to have their sales agents disconnect from the verification
portion of a telemarketing call when the verification portion of the call
commences;
7. Requirement that any electronically signed authorization or verification
of authorization include the disclosures required by the
Electronic Signatures in Global and National Commerce Act
§101(c);
8. Requirement that a telecommunications utility obtain new customer authorization
and verification of authorization if the service or product ordered is not
provisioned within 60 days of the date of authorization;
9. Establishment of proscription of post-termination billing without obtaining
new customer authorization and verification of authorization;
10. Establishment of a specific time period for telecommunications utilities
to provide records of customer authorization and verification of authorization
after commission staff request;
11. Proscription against including incentives of any kind during the verification
of authorization portion of a sales call;
12. Establishment of requirements relating to complaints made to the commission;
13. Establishment of consequences for a telecommunications utility's failure
to respond to customer complaints made to the commission within the prescribed
time period;
14. Notice of the standard of proof imposed upon telecommunications utilities
in enforcement actions.
Mr. Jaime Slaughter, Enforcement Attorney, Legal and Enforcement 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. Slaughter 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 increased clarification of the rights and responsibilities
for telecommunication utilities and enhanced protection for Texas customers
from unauthorized billing. There will be no adverse economic effect on small
businesses or micro-businesses as a result of enforcing this section.
Mr. Slaughter 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 (APA), Texas Government Code §2001.022.
The commission staff will conduct a public hearing on this rulemaking under
the Administrative Procedure Act, Texas Government Code §2001.029 at
the commission's offices, located in the William B. Travis Building, 1701
North Congress Avenue, Austin, Texas 78701, on Tuesday, April 6, 2004, at
1:30 p.m.
Comments on the proposed new section (16 copies) may be submitted to the
Filing Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue,
PO Box 13326, Austin, Texas 78711-3326, within 30 days after publication.
Reply comments may be submitted within 45 days after publication. 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
section. The commission will consider the costs and benefits in deciding whether
to adopt the section. All comments should refer to Project Number 28324.
16 TAC §26.32
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Public Utility Commission of Texas or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
This repeal is proposed under the Public Utility
Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 1998,
Supplement 2004) (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, including Chapter 17, Customer Protection,
Subchapter D, Protection Against Unauthorized Charges, §§17.151,
Cross Reference to Statutes: Public Utility Regulatory Act §§14.002,
17.151-17.158; 52.001, 52.002, 64.001, and 64.151-64.158.
§26.32.Protection Against Unauthorized Billing Charges ("Cramming").
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 12, 2004.
TRD-200400972
Adriana Gonzales
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: March 28, 2004
For further information, please call: (512) 936-7223
16 TAC §26.32
This new section is proposed under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 (Vernon 1998, Supplement
2004) (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, including Chapter 17, Customer Protection, Subchapter D,
Protection Against Unauthorized Charges, §§17.151,
et seq.
; Chapter 64, Customer Protection, Subchapter A, Customer Protection
Policy, §64.001 which confers on the commission authority to adopt and
enforce rules to protect customers from fraudulent, unfair, misleading, deceptive,
or anticompetitive practices, and Subchapter D, Protection Against Unauthorized
Charges, §§64.151,
et seq.
Further,
PURA §52.002, grants the commission "exclusive original jurisdiction
over the business and property of a telecommunications utility in this state
subject to the limitations imposed by this title."
Cross Reference to Statutes: Public Utility Regulatory Act §§14.002,
17.151-17.158; 52.001, 52.002, 64.001, and 64.151-64.158.
§26.32.Protection Against Unauthorized Billing Charges ("Cramming").
(a)
Purpose. The provisions of this section are intended to
ensure that all customers in this state are protected from unauthorized charges
on a customer's telecommunications utility bill. This section establishes
the requirements necessary to obtain:
(1)
customer authorization for charges for any product or service;
and
(2)
verification of that authorization.
(b)
Application. This section applies to all "billing agents,"
"billing telecommunications utilities," and "service providers" as those terms
are defined in §26.5 of this title (relating to Definitions) or the Public
Utility Regulatory Act (PURA). This section does not apply to:
(1)
an unauthorized change in a customer's local or long distance
service provider, which is addressed in §26.130 of this title (relating
to Selection of Telecommunications Utilities); and,
(2)
message telecommunications charges that are initiated by
dialing 1+, 0+, 0-, 1010XXX, or collect calls and charges for video services,
if the service provider has the necessary call record detail to establish
the billing for the call or service.
(c)
Definition. The term "customer," when used in this section,
shall mean the account holder, including the account holder's spouse, in whose
name telephone service is billed, including individuals, governmental units
at all levels of government, corporate entities, and any other entity or person
with legal capacity to request to be billed for telephone service.
(d)
Requirements for billing authorized charges. No service
provider or billing agent shall submit charges for any product or service
for billing on a customer's telephone bill before complying with all of the
following requirements:
(1)
Inform the customer. The service provider offering the
product or service shall thoroughly inform the customer of the product or
service being offered, including all associated charges for the product or
service, and shall inform the customer that the associated charges for the
product or service will appear on the customer's telephone bill.
(2)
Obtain customer authorization. The service provider shall
obtain clear and explicit authorization, pursuant to subsection (f) of this
section, from the customer to obtain the product or service being offered
and to have the associated charges appear on the customer's telephone bill.
A record of the authorization shall be maintained by the service provider
offering the product or service for at least 24 months immediately after the
authorization was obtained.
(3)
Obtain customer verification. The customer's authorization
shall be verified by the service provider in accordance with subsection (g)
of this section. Customer-initiated calls must comply with each of the authorization
requirements of subsection (f) of this section but are exempt from the verification
requirements of subsection (g) of this section.
(4)
Combining customer authorization and verification of authorization.
Customer authorization and verification of that authorization may be obtained
in a single transaction provided the service provider complies with each requirement
specified in subsections (f) and (g) of this section.
(5)
Provide contact information. The service provider offering
the product or service, and any billing agent for the service, shall provide
the customer with a toll-free telephone number that the customer may call,
and an address to which the customer may write, to resolve any billing dispute
and to obtain answers to any questions.
(6)
Provide business information. The service provider (other
than the billing telecommunications utility) and its billing agent shall provide
the billing telecommunications utility with its name, business address, and
business telephone number.
(7)
Obtain billing telecommunications utility authorization.
The service provider and its billing agent shall execute a written agreement
with the billing telecommunications utility to bill for products or services
on the billing telecommunications utility's telephone bill. Record of this
agreement shall be maintained by:
(A)
the service provider;
(B)
any billing agent for the service provider; and
(C)
the billing telecommunications utility for as long as the
billing for the product or service continues and for the 24 months immediately
following the permanent discontinuation of the billing.
(e)
Post-termination billing. A service provider shall not
continue to bill for a product or service beyond the termination date for
that product or service unless the service provider subsequently obtains customer
authorization and verification of authorization pursuant to this section.
(f)
Authorization requirements.
(1)
All of the following information shall be provided in a
clear and conspicuous manner in any communication with a customer to obtain
authorization from that customer for an order of a product or service:
(A)
the date of customer authorization;
(B)
the name and telephone number of the customer;
(C)
the exact name of the service provider as it will appear
on the customer's bill;
(D)
an explanation of each product or service offered;
(E)
an explanation of all applicable charges;
(F)
an explanation of how a product or service can be cancelled,
including any charges associated with terminating the product or service;
(G)
a description of how the charge will appear on the customer's
telephone bill; and
(H)
information on whom to call and a working, toll-free telephone
number for customer disputes and inquiries.
(2)
During any communication with a customer to obtain that
customer's authorization for a product or service, after a sufficient inquiry
to ensure that the customer is qualified to order the product or service and
to authorize the billing, the service provider shall obtain the explicit customer
acknowledgment that the charges will be assessed on the customer's telephone
bill.
(3)
Authorization from a customer, including that obtained
from any customer-initiated conversation, for an order for a product or service
shall be obtained by one or more of the following methods:
(A)
Written or electronically signed documentation.
(i)
Written or electronically signed authorization shall be
a separate document containing only the information required by paragraph
(1) and (2) of this subsection for the sole purpose of authorizing the charges
for a product or service on the customer's telephone bill. A customer shall
be provided the option of using another form of authorization in lieu of an
electronically signed authorization.
(ii)
The document shall be signed and dated by the customer.
If the person who signs the document is an employee or agent with legal capacity
to sign the document on behalf of the customer, the document shall include
that person's printed name, and job title or other description of their relationship
to the customer. Any electronically signed authorization shall include the
customer disclosures required by the
Electronic Signatures
in Global and National Commerce Act
§101(c).
(iii)
The document shall not be combined with inducements of
any kind on the same document, screen or webpage.
(iv)
If any portion of the document, screen or webpage is translated
into another language, then all portions of the document shall be translated
into that language. Every document shall be translated into the same language
as any promotional materials, oral descriptions, or instructions provided
with the document, screen or webpage.
(B)
Toll-free electronic authorization placed from the telephone
number that is the subject of the order for the product or service, except
in exchanges where automatic number identification (ANI) from the local switching
system is not technically possible. The service provider must:
(i)
ensure that the electronic authorization confirms the information
required by paragraphs (1) and (2) of this subsection for the sole purpose
of authorizing the charges for a product or service on the customer's telephone
bill; and
(ii)
Automated systems shall provide customers the option of
speaking with a live person at any time during the call.
(C)
Voice recording by service provider.
(i)
The recorded conversation with a customer shall be in a
clear, easy-to-understand, slow, and deliberate manner and shall contain the
information required by paragraphs (1) and (2) of this subsection.
(ii)
The recording shall be clearly audible.
(iii)
The recording shall include the entire and actual conversation
with the customer on audio tape, a wave sound file, or other recording device
that is compatible with the commission's equipment.
(iv)
The recording shall be dated and include clear and conspicuous
confirmation that the customer consented to recording the conversation and
authorized the charges for a product or service on the customer's telephone
bill.
(D)
Any other method of authorization approved by the FCC.
(g)
Verification requirements.
(1)
Verification of a customer's authorization for an order
of a product or service must include:
(A)
the date of customer authorization;
(B)
the date of customer verification of authorization;
(C)
the name and telephone number of the customer; and
(D)
the exact name of the service provider as it will appear
on the customer's bill.
(2)
Verification of a customer's authorization for an order
of a product or service shall not include:
(A)
an explanation of each offered product or service;
(B)
an explanation of applicable charges;
(C)
an explanation of how a product or service can be cancelled,
including any charges associated with terminating the product or service;
(D)
a description of how the charge will appear on the customer's
telephone bill; or
(E)
any discussion by the third party verifier of any incentives
that were or may have been offered by the service provider.
(3)
During any communication with a customer to verify that
customer's authorization for a product or service, the independent third party
verifier, or, as appropriate pursuant to subsection (d)(4) of this section,
the sales representative, shall, after sufficient inquiry to ensure that the
customer is authorized to order the product or service, obtain the explicit
customer acknowledgment that charges for the product or service ordered by
the customer will be assessed on the customer's telephone bill.
(4)
Verification of authorization from a customer for an order
for a product or service shall be obtained by one or more of the following
methods:
(A)
Written or electronically signed documentation.
(i)
Written or electronically signed verification of authorization
shall be a separate document containing only the information required by paragraphs
(1) and (2) of this subsection for the sole purpose of verifying the authorization
for a product or service on the customer's telephone bill. A customer shall
be provided the option of using another form of verification in lieu of an
electronically signed verification.
(ii)
The document shall be signed and dated by the customer.
Any electronically signed verification shall include the customer disclosures
required by the
Electronic Signatures in Global and
National Commerce Act
§101(c).
(iii)
The document shall not be combined with inducements of
any kind on the same document, screen or webpage.
(iv)
If any portion of the document, screen or webpage is translated
into another language, then all portions of the document shall be translated
into that language. Every document shall be translated into the same language
as any promotional materials, oral descriptions, or instructions provided
with the document, screen or webpage.
(B)
Toll-free electronic verification placed from the telephone
number that is the subject of the product or service, except in exchanges
where automatic number identification (ANI) from the local switching system
is not technically possible. The service provider must:
(i)
ensure that the electronic verification confirms the information
required by paragraphs (1) and (2) of this subsection for the sole purpose
of verifying the customer's authorization for a product or service on the
customer's telephone bill; and
(ii)
establish one or more toll-free telephone numbers exclusively
for the purpose of verifying the customer authorization of charges for the
product(s) or service(s) so that the customer calling the toll-free number(s)
will reach a voice response unit or similar mechanism regarding the customer
authorization for the product(s) or service(s) and automatically records the
ANI from the local switching system.
(iii)
Automated systems shall provide customers the option
of speaking with a live person at any time during the call.
(C)
Voice recording by service provider.
(i)
The recorded conversation with a customer shall be in a
clear, easy-to-understand, slow, and deliberate manner and shall contain the
information required by paragraphs (1) and (2) of this subsection.
(ii)
The recording shall be clearly audible.
(iii)
The recording shall include the entire and actual conversation
with the customer on audio tape, a wave sound file, or other recording device
that is compatible with the commission's equipment.
(iv)
The recording shall be dated and include clear and conspicuous
confirmation that the customer consented to recording the conversation and
authorized the charges for a product or service on the customer's telephone
bill.
(D)
Independent Third Party Verification. Unless the customer's
authorization was obtained in a customer-initiated transaction with a certificated
telecommunications utility for which the service provider has the appropriate
documentation obtained pursuant to subsection (f) of this section:
(i)
Verification shall be given to an independent and appropriately
qualified third party with no participation by a service provider, except
as provided in clause (vii) of this subparagraph.
(ii)
Verification shall be recorded.
(iii)
The recorded conversation with a customer shall contain
explicit customer consent to record the conversation, be in a clear, easy-to-understand,
slow, and deliberate manner and shall comply with each of the requirements
of paragraphs (1) and (2) of this subsection for the sole purpose of verifying
the customer's authorization of the charges for a product or service on the
customer's telephone bill.
(iv)
The recording shall be clearly audible.
(v)
The independent 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 service provider or its sales representative initiating
a three-way call or a call through an automated verification system shall
disconnect from the call once a three-way connection with the third party
verifier has been established unless the service provider meets the following
requirements:
(I)
the service provider files sworn written certification
with the commission that the sales representative is unable to disconnect
from the sales call after initiating a third party verification. Such certification
should provide sufficient information describing the reason(s) for the inability
of the sales agent to disconnect from the line after the third party verification
is initiated. The service provider shall be exempt from this requirement for
a period of two years from the date the certification was filed with the commission;
(II)
the service provider seeking to extend its exemption from
this clause must, before the end of the two-year period, and every two years
thereafter, recertify to the commission its continued inability to comply
with this clause.
(III)
The independent third party verification shall immediately
terminate if the sales agent of an exempt service provider, pursuant to subclause
(I) of this clause, responds to a customer inquiry, speaks after third party
verification has begun, or in any manner prompts one or more of the customer's
responses.
(viii)
The independent third party shall:
(I)
not be owned, managed, directed or directly controlled
by the service provider or the service provider's marketing agent;
(II)
not have financial incentive to verify the authorization
of charges; and
(III)
operate in a location physically separate from the service
provider or the service provider's marketing agent.
(ix)
The recording shall include the entire and actual conversation
with the customer on audio tape, a wave sound file, or other recording device
that is compatible with the commission's equipment.
(x)
The recording shall be dated and include clear and conspicuous
confirmation that the customer authorized the charges for a product or service
on the customer's telephone bill.
(5)
Any other verification method approved by the FCC.
(6)
A record of the verification required by subsection (d)
of this section shall be maintained by the service provider offering the product
or service for at least 24 months immediately after the verification was obtained
from the customer.
(h)
Expiration of authorization and verification of authorization.
If a product or service is authorized and verified, but that product or service
is not provisioned within 60 calendar days from the date of authorization,
then both the authorization and verification of authorization are null and
void. Accordingly, before the change may appear on the customer's bill, the
service provider must obtain new authorization and verification of that new
authorization in accordance with this section.
(i)
Unauthorized charges.
(1)
Responsibilities of the billing telecommunications utility
for unauthorized charges. If a customer's telephone bill is charged for any
product or service without both proper customer authorization and verification
of authorization in compliance with this section, the telecommunications utility
that billed the customer, on its knowledge or notification of any unauthorized
charge, shall promptly, but not later than 45 calendar days after the date
of the knowledge or notification of an unauthorized charge meet the following
requirements:
(A)
A billing utility shall:
(i)
notify the service provider to immediately cease charging
the customer for the unauthorized product or service;
(ii)
remove the unauthorized charge from the customer's bill;
(iii)
refund or credit to the customer all money that has been
paid by the customer for any unauthorized charge, and if any unauthorized
charge that has been paid is not refunded or credited within three billing
cycles, shall pay interest at an annual rate established by the commission
pursuant to §26.27 of this title (relating to Bill Payment and Adjustments)
on the amount of any unauthorized charge until it is refunded or credited;
(iv)
on the customer's request, provide the customer with all
billing records under its control related to any unauthorized charge within
15 business days after the date of the removal from the customer's telephone
bill;
(v)
provide the service provider with the date the customer
requested that the unauthorized charge be removed from the customer's bill
and the dates of the actions required by clauses (ii) and (iii) of this subparagraph,
and
(vi)
maintain for at least 24 months a record of every customer
who has experienced any unauthorized charge for a product or service on the
customer's telephone bill and has notified the billing telecommunications
utility of the unauthorized charge. The record shall contain for each alleged
unauthorized charge and unauthorized charge:
(I)
the name of the service provider that offered the product
or service;
(II)
the affected telephone number(s) and addresses;
(III)
the date each customer requested that the billing telecommunications
utility remove the unauthorized charge from the customer's telephone bill;
(IV)
the date the unauthorized charge was removed from the
customer's telephone bill; and
(V)
the date the customer was refunded or credited any money
that the customer paid for the unauthorized charges.
(B)
A billing telecommunications utility shall not:
(i)
suspend or disconnect telecommunications service to any
customer for nonpayment of an unauthorized charge; or
(ii)
file an unfavorable credit report against a customer who
has not paid charges that the customer has alleged were unauthorized unless
the dispute regarding the unauthorized charges is ultimately resolved against
the customer. The customer shall remain obligated to pay any charges that
are not in dispute, and this paragraph does not apply to those undisputed
charges.
(2)
Responsibilities of the service provider for unauthorized
charges. The service provider responsible for placing any unauthorized charge
on a customer's telephone bill shall:
(A)
immediately cease billing upon notice from the customer
or the billing telecommunications utility for a product or service that a
charge for such product or service has not been authorized by the customer;
(B)
for at least 24 months following the completion of all
of the steps required by paragraph (1)(A) of this subsection, maintain a record
for every disputed charge for a product or service on the customer's telephone
bill. Each record shall contain:
(i)
the affected telephone number(s) and addresses;
(ii)
the date the customer requested that the billing telecommunications
utility remove the unauthorized charge from the customer's telephone bill;
(iii)
the date the unauthorized charge was removed from the
customer's telephone bill; and
(iv)
the date that action was taken to refund or credit to
the customer any money that the customer paid for the unauthorized charges;
and
(C)
not resubmit any unauthorized charge to the billing telecommunications
utility for any past or future period.
(j)
Notice of customer rights.
(1)
Each notice provided as set out in paragraph (2) of this
subsection shall also contain the billing telecommunications utility's name,
address, and a working, toll-free telephone number for customer contacts.
(2)
Every billing telecommunications utility shall provide
the following notice, verbatim, to each of the utility's customers:
Figure: 16 TAC §26.32(j)(2) (.pdf)
(3)
Distribution and timing of notice.
(A)
Each billing telecommunications utility shall mail the
notice as set out in paragraph (2) of this subsection to each of its residential
and business customers within 60 calendar days after the effective date of
this section, or by inclusion in the next publication of the utility's telephone
directory following 60 calendar days after the effective date of this section.
In addition, each billing telecommunications utility shall send the notice
to new customers at the time service is initiated and on any customer's request.
(B)
Every telecommunications utility that prints its own telephone
directories shall print the notice in the white pages of such directories,
in nine point print or larger, beginning with the first publication of the
directories after 60 calendar days following the effective date of this section;
thereafter, the notice must appear in the white pages of each telephone directory
published by or for the telecommunications utility.
(4)
Any bill sent to a customer from a telecommunications utility
must include a statement, prominently located in the bill, that if the customer
believes the bill includes unauthorized charges, the customer may contact:
Public Utility Commission of Texas, PO Box 13326, Austin, Texas 78711-3326,
(512) 936-7120 or toll-free in Texas at (888) 782-8477. Hearing and speech-
impaired individuals with text telephones (TTY) may contact the commission
at (512) 936-7136.
(5)
Each billing telecommunications utility shall make available
to its customers the notice as set out in paragraph (2) of this subsection
in both English and Spanish as necessary to adequately inform the customer;
however, the commission may exempt a billing telecommunications utility from
the requirement that the information be provided in Spanish upon application
and a showing that 10% or fewer of its customers are exclusively Spanish-speaking,
and that the billing telecommunications utility will notify all customers
through a statement in both English and Spanish, as an addendum to the notice,
that the information is available in Spanish from the telecommunications utility,
both by mail and at the utility's offices.
(6)
The customer notice requirements in paragraphs (1) and
(2) of this subsection may be combined with the notice requirements of §26.130(g)(3)
of this title if all of the information required by each is in the combined
notice.
(7)
The customer notice requirements in paragraph (4) of this
subsection may be combined with the notice requirements of §26.130(i)(4)
of this title if all of the information required by each is in the combined
notice.
(k)
Complaints to the commission. A customer may file a complaint
with the commission's Customer Protection Division (CPD) against a telecommunications
utility for any reasons related to the provisions of this section.
(1)
Customer complaint information. CPD may request, at a minimum,
the following information:
(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 alleged unauthorized product or service.
(2)
Telecommunications utility's response to complaint. After
review of a customer's complaint, CPD shall forward the complaint to the telecommunications
utility. The telecommunications utility shall respond to CPD within 21 calendar
days after CPD forwards the complaint. The telecommunications utility's response
shall include the following:
(A)
all documentation related to the authorization and verification
of authorization used to charge the customer for the product or service; and
(B)
all corrective actions taken as required by subsection
(i) of this section, if the switch in service was not authorized and verified
in accordance with subsections (f) and (g) of this section.
(3)
Failure to provide thorough response. The proof of authorization
and verification of authorization as required from the alleged unauthorized
telecommunications utility pursuant to paragraph (2)(A) of this subsection
must establish a valid authorized telecommunication utility charge as defined
by subsections (f) and (g) of this section. Failure by the alleged unauthorized
telecommunication utility to timely submit a response that addresses the complainant's
assertions within the time specified in subsections (l)(1) and (2) and (k)(2)
of this section establishes a violation of this rule.
(4)
CPD investigation. CPD 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 shall inform the
complainant and the telecommunications utility of the results of the investigation
and identify any additional corrective actions that may be required.
(l)
Compliance and enforcement.
(1)
Records of customer authorizations and verifications. A
billing telecommunications utility or a service provider shall provide a copy
of records maintained under the requirements of subsections (d),(f) and (g)
of this section to the commission staff within 21 calendar days of a request
for such records.
(2)
Records of disputed charges. A billing telecommunications
utility or a service provider shall provide a copy of records maintained under
the requirements of subsection (i) of this section to the commission staff
within 21 calendar days of a request for such records.
(3)
Administrative penalties. If the commission finds that
a billing telecommunications utility has violated any provision of this section,
the commission shall order the utility to take corrective action, as necessary,
and the utility may be subject to administrative penalties and other enforcement
actions pursuant to PURA, Chapter 15 and § 22.246 of this title (relating
to Administrative Penalties).
(4)
Evidence. The rules of evidence as applied in a non-jury
civil case in district court govern contested case hearings, including enforcement
proceedings to enforce the provisions of this section, conducted by the State
Office of Administrative Hearings, except that evidence inadmissible under
those rules may be admitted if it meets the standards set out in Texas Government
Code §2001.081. Such evidence may include, but is not limited to, one
or more affidavits from a customer challenging the charge.
(5)
If the commission finds that any other service provider
or billing agent subject to PURA, Chapter 17, Subchapter D, or Chapter 64,
Subchapter D, has violated any provision of this section or has knowingly
provided false information to the commission on matters subject to PURA, Chapter
17, Subchapter D, or Chapter 64, Subchapter D, the commission shall order
the service provider or billing agent to take corrective action, as appropriate,
and the commission may enforce the provisions of PURA, Chapter 15 and §22.246
of this title, against the service provider or billing agent as if the service
provider or billing agent were regulated by the commission.
(6)
Certificate suspension, restriction or revocation. If the
commission finds that a billing telecommunications utility or a service provider
has repeatedly violated this section, and if consistent with the public interest,
the commission may suspend, restrict, or revoke the registration or certificate
of the telecommunications service provider, thereby denying the service provider
the right to provide service in this state. The commission may not revoke
a certificate of convenience and necessity of a telecommunications utility
except as provided by PURA §54.008.
(7)
Termination of billing and collection services. If the
commission finds that a service provider or billing agent has repeatedly violated
any provision of PURA, Chapter 17, Subchapter D, or Chapter 64, Subchapter
D, the commission may order the billing utility to terminate billing and collection
services for that service provider or billing agent.
(8)
Coordination with Office of Attorney General. The commission
shall coordinate its enforcement efforts regarding the prosecution of fraudulent,
unfair, misleading, deceptive, and anticompetitive business practices with
the Office of the Attorney General in order to ensure consistent treatment
of specific alleged violations.
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 12, 2004.
TRD-200400973
Adriana Gonzales
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: March 28, 2004
For further information, please call: (512) 936-7223