Policies and Rules Concerning Unauthorized Changes of Consumers' Long Distance Carriers

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

A Petition for Declaratory Ruling regarding the Commission's carrier change verification rules was filed by a coalition of rural local exchange carriers (LEC Petitioners). Specifically, the LEC Petitioners asked the Commission to declare that certain carrier change verification actions do not violate the Commission's rules, which prohibits executing carriers from verifying the submission of a change request by a submitting carrier or causing an unreasonable delay in the execution of a change. In this document, the Commission denies the LEC Petitioners' request.

DATES:

Effective January 18, 2006.

ADDRESSES:

Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

David Marks, Consumer & Governmental Affairs Bureau, (202) 418-2512 (voice), David.Marks@fcc.gov.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Declaratory Ruling (Order) DA 05-1618, CC Docket No. 94-129, adopted June 8, 2005 and released June 9, 2005. The Order denies a Petition for Declaratory Ruling regarding the Commission's carrier change verification rules filed by a coalition of rural local exchange carriers (LEC Petitioners) on February 1, 2005.

This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, it does not contain new or modified “information collection burdens for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Copies of any subsequently filed documents in this matter will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, Room CY-A257, 445 12th Street, SW., Washington, DC 20054. The complete text of this decision may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact the Commission's contractor at their Web site: http://www.bcpiweb.com or call 1-800-378-3160. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). The Order can also be downloaded in Word and Portable Document Format (PDF) at http://www.fcc.gov/cgb/policy .

Synopsis

On February 1, 2005, a coalition of rural local exchange carriers (LEC Petitioners) filed a Petition for Declaratory Ruling regarding the Commission's carrier change verification rules. In their Petition, LEC Petitioners set forth three main arguments that their practices do not violate the Commission's rules. First, they argue that there is no basis in law, including agency law, for the proposition that a third party (such as an executing LEC) should rely on a claim of authority of a person who the executing carrier believes to be without authorization. See Petition for Declaratory Ruling, CC Docket No. 94-129, filed February 1, 2005 (Petition), by 3 Rivers Telephone Cooperative, Inc., Armstrong Telephone Company Maryland, Armstrong Telephone Company New York, Armstrong, Telephone Company North, Armstrong Telephone Company Northern Division, Armstrong Telephone Company Pennsylvania, Armstrong Telephone Company West Virginia, Calaveras Telephone Company, Inc., Chester Telephone Company, Chibardun Telephone Cooperative, Inc., Chickasaw Telephone Company, Citizens Telephone Company of Higginsville, Concord Telephone Company, CTC Telcom, Inc., Darien Telephone Company, DTC Communications, Egyptian Telephone Cooperative, Five Area Telephone, Hardy Telephone Company, Horry Telephone Cooperative, Inc., HTC Communications, Lackawaxen Telecommunications Services, Inc., Lockhart Telephone Co., Margaratville Telephone Company, Mid-Century Telephone Company, Mid-Rivers Telephone Cooperative, Nicholville Telephone Company, Inc., North Central Telephone Cooperative, Inc., North-Eastern Pennsylvania Telephone Company, Peoples Telephone Company, Poka Lambro Telephone Cooperative, Public Service Telephone Company, Ridgeway Telephone Co., Siskiyou Telephone Company, Smart City Telecom, Smithville Telephone Company, Stayton Cooperative Telephone Company, TEC Services, Inc., Trumansburg Telephone Company, Inc., United Telephone Company, Washington County Rural Telephone Cooperative, West Plains Telephone. Second, LEC Petitioners contend that their actions do not constitute reverification in violation of § 64.1120(a)(2) of the Commission's rules. Third, the LEC Petitioners argue that carrier change rejections under these circumstances do not cause “unreasonable delay” in violation of § 64.1120(a)(2) of the Commission's rules. The LEC Petitioners filed the Petition to clarify issues related to those complaints.

Section 64.1120(a)(2) of the Commission's rules provides that “[a]n executing carrier shall not verify the submission of a change in the subscriber's selection of a telecommunications service received from a submitting carrier.” See 47 CFR 64.1120(a)(2) of the Commission's rules. Based on this rule, the Commission concluded that an executing carrier's rejection of carrier change submissions by a submitting carrier, based on the executing carrier's own conclusion that the customer contacted by the submitting carrier was not authorized to make a long distance carrier change, violates § 64.1120(a)(2) of the Commission's rules.

The LEC Petitioners argue that there is no basis in law, including agency law, to hold that the executing LEC “has any right to rely on the claim of authority of a person without authorization from the subscriber and thus no obligation to its subscriber to make changes to the subscriber's account.” This argument fails. The executing carrier may not make an independent determination regarding whether the person authorizing the switch was an authorized agent of the party identified on the executing carrier's account. The Commission has already defined the role of both the submitting and executing carrier in a carrier change request. The submitting carrier, in the course of verifying the intention to change long distance service, is already required to elicit confirmation that the person contacted was authorized to make the change (that is, an agent of the party identified on the account). That the name(s) contained in the executing carrier's local account information differs from that of the contact person listed on the submitting carrier's change is not necessarily indicative of a lack of authority or agency on the part of the person requesting the long distance change. The Commission's rules require that executing carries engage in “prompt execution of changes verified by a submitting carrier.” Moreover, executing carriers are only allowed to use submitted carrier change information to effectuate the provision of service by the submitting carrier to its customer. An independent determination by an executing carrier of whether the person initiating a switch is an agent of the party listed on the account goes beyond this limited role. LEC Petitioners also state that the Commission, in its Third Report and Order, noted without disapproval that carriers maintain lists of customers authorized to make changes. See Petition at 15-16, citing the Third Report and Order, 15 FCC Record at 16021, paragraph 50 note 148. In this vein, the LEC Petitioners cite several other situations that can result in their return of a carrier change request to the submitting carrier, such as when a customer is already presubscribed to the submitting carrier, when a customer has a PIC freeze in place, or when PIC changes are not permitted. The Commission recognizes that carriers may access account information in the course of effectuating carrier changes, and does not believe that an executing carrier's return of a carrier change to the submitting carrier, under the limited circumstances described above, constitutes reverification in violation of our rules. The Commission's objection to the LEC actions at issue is not related to their consulting account information per se during the course of executing a carrier change. Rather, executing carriers may not make an independent determination with respect to the ability of a person to authorize a carrier change.

It is noted that the Commission's preferred carrier change provisions give consumers the option to “freeze” their choice of telecommunications carrier such that they must then contact their LEC to lift the freeze before any carrier changes can be effectuated. The LEC Petitioners argue that it is unreasonable to ask subscribers that wish additional carrier change protections to utilize a preferred carrier freeze. LEC Petitioners state that their method of simply rejecting submitting carrier changes that contain name(s) that differ from what is in the LEC's account information “poses less of an impediment to consumers own desire to change carriers.” The Commission disagrees. The Commission's preferred carrier freeze procedures are not “complex” for subscribers. Unlike the “de facto” freeze actions of the LEC Petitioners, the Commission's preferred carrier change provisions give consumers extra protections without raising anti-competitive concerns. In addition, because the Commission finds that LEC Petitioners' actions violate the prohibition on verification by executing carriers established in § 64.1120(a)(2) of the Commission's rules, the Commission finds it unnecessary to reach a conclusion as to whether these actions also result in unreasonable delay by an executing carrier in violation of its rules.

Finally, the LEC Petitioners requested that the Commission consider their petition in conjunction with a petition filed by MCI (MCI Petition) regarding preemption of a state rule. See Petition for Declaratory Ruling filed by MCI on March 12, 2004. See also Motion to Hold Proceeding in Abeyance filed by the Public Service Commission of West Virginia on June 17, 2004. The MCI Petition concerned the question of permissible actions by a state regulatory agency. This Petition, in contrast, concerned the actions of private companies. The Commission, therefore, declines the LEC Petitioner's request to combine consideration of their Petition with the MCI Petition.

The Commission will not send a copy of this Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(a), because the adopted rules are rules of particular applicability.

Ordering Clauses

Pursuant to the authority contained in section 258 of the Communications Act, of 1934, as amended, 47 U.S.C. 258, and §§ 0.141, 0.361, 1.3, 64.1120(a)(2) of the Commission's rules, 47 CFR 0.141, 0.361, 1.2, 64.1120(a)(2), the Rural LECs' Petition for Declaratory Ruling is denied.

Pursuant to the authority contained in section 258 of the Communications Act of 1934, as amended, 47 U.S.C. 258, and §§ 0.141, 0.361, 1.3, 64.1120(a)(2) of the Commission's rules, 47 CFR 0.141, 0.361, 1.2, 64.1120(a)(2), this Declaratory Ruling is adopted.