Tenn. Comp. R. & Regs. R. 1220-4-2-.56
1220-4-2-.56 VERIFICATION OF ORDERS FOR CHANGES FOR LOCAL AND LONG DISTANCE CARRIERS
(1)
Definitions
(a)
"Authority"
refers to the Tennessee Regulatory Authority
(b)
"Authorized individual"
means a person authorized to make billing and service decisions regarding a
telephone account. A person under the age of eighteen (18) does not qualify
as an "authorized individual" unless they are the person responsible
for the telephone bill.
(c)
"A qualified
and independent third party" means a person or corporation operating in
a location physically separate from the telemarketing representative with no
corporate affiliation with the telemarketing company that made the original
sale contact with the end user.
(d)
"LEC" refers
to the local exchange telephone company that renders a telephone bill to an
end user. This definition is inclusive of both incumbent and competitive local
providers.
(e)
"LOA" refers
to a letter of agency. An LOA is a document granting permission to change a
subscriber's local and/or PIC or LPIC carrier and requires the signature of
an authorized individual.
(f)
"LPIC" means
an end user's preferred intraLATA carrier.
(g)
"PIC" means
an end user's preferred interLATA carrier.
(h)
"Slamming"
refers to the changing of an end users local, PIC and/or LPIC service where
the submitting carrier has not complied with Tenn. Code Ann. § 65-4-125.
(i)
"Submitting carrier"
means a telecommunications service provider, including but not limited to a
LEC, ILEC, CLEC, CTSP, IXC, and reseller, that submits to an end-user's primary
local exchange carrier a change order requesting that the end user's preferred
local exchange carrier, PIC, and/or LPIC be switched.
(2)
No submitting carrier
shall submit to an end user's primary local exchange carrier a change order
requesting that the end user's PIC, LPIC, or primary local exchange service
provider be switched unless and until the order has first been confirmed in
accordance with one of the following procedures:
(a)
The submitting carrier
has obtained a written Letter of Agency from the end user that conforms with
this section.
1.
The letter of agency
shall be a separate document, or an easily separable document containing only
the authorizing language described in paragraph (d) below, whose sole purpose
is to authorize a submitting carrier to initiate a local and/or interLATA or
intraLATA long distance service change. The letter of agency must be signed
and dated by an authorized individual for the telephone line(s) requesting the
local and/or interLATA or intraLATA long distance service change.
2.
The letter of agency
shall not be combined with inducements of any kind involving elements of chance
on the same document.
3.
Notwithstanding paragraphs
(i)
and (ii) of this section, the letter of agency may be combined with checks
that contain only the required letter of agency language prescribed in paragraph
(iv) below and the necessary information to make the check a negotiable instrument.
The letter of agency check shall not contain any promotional language or material
and must comply, where appropriate, with Tenn. Code Ann. § 47-18-120 and
any other lottery and gambling statues. The letter of agency check shall contain,
in easily readable, bold-faced type on the front of the check, a notice that
the consumer is authorizing a local and/or interLATA or intraLATA long distance
service change by signing the check. The letter of agency language also shall
be placed near the signature line on the back of the check.
4.
At a minimum, the letter
of agency must be printed with a readable type of sufficient size to be clearly
legible and must contain clear and unambiguous language that confirms:
(i)
The end user's billing
name and address and each telephone number to be covered by the local and/or
interLATA or intraLATA long distance service change order;
(ii)
The decision to change
the local and/or interLATA or intraLATA long distance service carrier from the
current carrier to the prospective carrier;
(iii)
The end user designates
the telecommunications company to act as the end user's agent for the local
and/or interLATA or intraLATA long distance service change. By designating a
telecommunications company to act as the end user's agent, however, the end
user does not permit the designated telecommunication company to change the
end user's service to another telecommunications company;
(iv)
Any carrier designated
in a letter of agency as a preferred local exchange, preferred interLATA, or
preferred intraLATA carrier must be the carrier directly setting rates for the
end user; and
(v)
The end user understands
that any local exchange and/or interLATA or intraLATA carrier selection the
end user chooses may involve a charge to the end user for changing the end user's
local and/or interLATA or intraLATA long distance carrier.
5.
Letters of agency shall
not suggest or require that an end user take some action in order to retain
the end user's current local and/or interLATA or intraLATA long distance carrier.
6.
If any portion of a
Letter of Agency is translated into another language, then all portions of the
Letter of Agency must be translated into that language. Every letter of agency
must be translated into the same language as any promotional materials, oral
descriptions or instructions provided with the "Letter of Agency,"
or
(b)
The end user, without
being prompted to do so by a third party, initiates a call to his or her primary
local exchange carrier, or the end user initiates a call to an automated toll-free
number. Submitting carriers electing to confirm sales electronically shall establish
one or more toll-free telephone numbers exclusively for that purpose. Calls
to such automated toll-free telephone numbers must connect an end user to a
voice response unit, or similar mechanism that records the required information
regarding the preferred local exchange service provider, PIC, or LPIC changes;
or
(c)
The submitting carrier
has obtained the end user's verbal approval to change their preferred local
exchange service provider, PIC, or LPIC during a telemarketing sales contact.
Verbal approval must be given by an authorized individual and must be confirmed
by the procedure listed below:
1.
An appropriately qualified
and independent third party verifier has obtained the end user's verbal authorization
to submit the change order. The change order shall include appropriate verification
data described below. The independent verifier must confirm the carrier change
with the end user who was originally solicited and must include the following
disclosures during the confirmation call:
(i)
The company name of
the independent third party verifier, the name of the individual verifying the
change and the name of the carrier on whose behalf it is calling;
(ii)
Request whether the
end user would like to verify his/her decision to switch service at the present
time or wait until a later time;
(iii)
A verification that
the end user is an authorized individual for the numbers to be changed by stating
the customer's birthday or other appropriate information;
(iv)
The telephone number(s)
of the service being switched;
(v)
The following specific
question must be asked to the end users by the third party verifier: "Do
you approve to change your service (i.e. local, intraLATA, and/or interLATA)
to (company name)?" The end user must respond "yes" to the above
question. If the end user responds "no" to the question, the third
party verifier must end the confirmation call.
(vi)
An explanation of
what services (i.e. local, intraLATA, and/or interLATA) are about to be changed
and the approximate time frame in which the change will occur;
(vii)
A statement whether
the end user authorizes the change of carrier for the particular service to
the telecommunications service provider; and
(viii)
A statement at
the end of the conversation confirming that a request will or will not be submitted
to the end user's LEC to change his or her preferred local exchange service
provider, PIC, or LPIC.
2.
The compensation paid
to the qualified and independent third party verifier cannot be based upon a
commission for successful conversions.
3.
A clear distinction
is required between the telemarketing solicitation and the independent third
party verification process. In order to ensure this division of labor, the following
condition is required:
(i)
No telemarketer shall
participate in, or listen to an independent third party verification call to
an end user to confirm the end user's authorization to switch service.
4.
A copy of the third
party verification script shall be provided to the Authority upon request of
the Consumer Services Division.
(d)
In the case of a transfer
of a customer base between two or more telecommunications service providers,
the Authority, upon petition by the acquiring telecommunications service provider,
may deem that sufficient notice has been given and approval received from the
affected customers when the following criteria are met:
1.
The acquiring telecommunications
service provider shall provide the Authority a copy of the self-certification
letter it shall file with the Federal Communications Commission ("FCC"),
as required in CC Docket No. 00-257, certifying that the customer transfer is
in compliance with all FCC regulations governing such transactions.
2.
A notification letter,
pre-approved by the Authority, shall be mailed by U.S. First Class Postage by
the telecommunications service provider being acquired to its customers describing
the customer transfer and explaining that the customers' local or long distance
service will be transferred to the acquiring telecommunications service provider
by a certain date unless the customer selects another telecommunications service
provider. This customer notification shall be mailed to the customers no less
than thirty (30) days prior to the actual customer transfer. The notification
letter required by the FCC may be used for the notification purposes of this
part. The Authority may waive the thirty (30) day notice requirement of this
part for good cause shown.
3.
The acquiring telecommunications
service provider agrees to pay any fees charged to the customer associated with
changing service to the acquiring telecommunications service provider. The notification
letter required in 1220-4-2-.56(2)(d)(2) shall inform the customer of this provision.
4.
The acquiring telecommunications
service provider agrees to provide to the affected customers a thirty (30) day
written notice of any rate increase that may affect their service up to ninety
(90) days from the date of the transfer of customers. The notification letter
mentioned in 1220-4-2-.56(2)(d)(2) shall inform the customer of this provision.
(e)
To provide evidence
of a valid change order, telecommunications providers may elect to audio record
the verbal authorization obtained by the independent third party verifier under
Rule 1220-4-2-.56(2)(c)(1). Failure to audio record or to produce such audio
recording upon request of the Consumer Services Division of the Authority shall
create a rebuttable presumption that the verbal authorization from the end user
was not obtained.
(f)
All LOAs, recordings
or any other evidence of change orders shall be maintained by the submitting
carrier and the local exchange carrier for one year for dispute resolution and
shall be provided to the Authority upon request.
(3)
Any telecommunications
service provider, or its agent, conducting telemarketing solicitations with
the purpose of seeking to change an end user's local, intraLATA, or interLATA
carrier must include the following disclosures:
(a)
Identification of
the name of the specific soliciting carrier the telemarketer is representing;
(b)
A statement that the
purpose of the call is to solicit verbal approval to change the end user's local,
and/or intraLATA, or interLATA carrier along with the specific question to the
end user, "do you want to change your service?" (i.e., local, PIC
or LPIC);
(c)
A statement that the
end user's local, intraLATA, or interLATA carrier may not be changed unless
and until the telemarketing sale is confirmed by at least one of the methods
outlined in 2(a-c);
(d)
A description of any
charge(s) for processing the carrier change that may be imposed by the customer's
local exchange carrier;
(e)
An explanation of
the type and amount of any monthly recurring fee or minimum usage fee that may
be charged to the end user for the new service as well as the rate difference,
if there is one, between intrastate and interstate toll charges;
(f)
An explanation of
what services (i.e. local, intraLATA, and/or interLATA) are about to be changed
and the time frame when the change will occur; and
(g)
A verification that
the end user is an authorized individual;
(4)
Copies of all telemarketing
scripts used by telecommunications service providers, or their agents, for the
purpose of soliciting end users to change their service (i.e., local, PIC and
LPIC) shall be provided to the Authority upon the request of the Consumer Services
Division.
(5)
The Authority upon
request of the Consumer Services Division may require telecommunications service
providers, or their agent, engaging in telemarketing to record on tape all telemarketing
solicitations and/or the verbal authorization obtained by the independent third
party verifier for the purpose of switching an end user's local, LPIC or PIC.
These taping requirements may be invoked if it is determined that there is probable
cause that the Authority's Rule 1220-4-2-.56 is not being followed. Copies of
tapes between the telemarketer and end users shall be provided to the Authority
upon request. Taping of telemarketing solicitations shall continue hereunder
at the discretion of the Authority.
(6)
Telecommunications
service providers, or their agents, engaging in telemarketing shall fully comply
with all state and federal laws and rules and regulations including, but not
limited to the following:
(a)
Tenn. Code Ann. §
47-18-1526, 47 C.F.R. 64 and 16 C.F.R. 310 regarding maintaining lists of persons
who do not wish to receive telephone solicitations by or on behalf of persons
or entities which are commonly referred to as "don't call lists."
It shall be a separate violation of this rule chapter for the purpose of a fine
to fail to place an end user on a "don't call list" or to call a customer
that is on such a list in full conformity with appropriate state and federal
laws, regulations or rules.
(b)
Telecommunications
service providers shall comply with Tenn. Code Ann. §§ 47-18-1526(c)(1),
(2)
(A)
and (B) as amended in Public Acts 1998, Chapter 734, which prohibit such
providers from placing telephone calls to consumers from a telephone number
if the telephone number of the caller is unlisted or if the telephone solicitor
or verifier is using telephone equipment which blocks the caller ID function
on telephone equipment.
(7)
Any reseller of local,
intraLATA, and/or interLATA services shall not disclose or otherwise identify
which facilities-based resold services are being used unless the customer without
being prompted by the telemarketer specifically requests that information.
(8)
In the event that
a telecommunications service provider is notified by an end user that he or
she has been reassigned a local, interLATA, or intraLATA service provider without
authorization, the telecommunications service provider shall suspend collection
of all change charges from the end user until the dispute is resolved and shall
initiate, within one business day, the switching of the end user back to the
carrier identified by the end user as the end user's preferred carrier prior
to the unauthorized switch.
(9)
Telecommunications
service providers are required to inform end users of their right to report
slamming complaints to the Authority for investigation.
(10)
Any subscriber to
telecommunications services in the State of Tennessee who wishes to file a complaint
involving an allegation of slamming against a telecommunications service provider,
or a person acting on behalf of a telecommunications service provider pursuant
to Tenn. Code Ann. § 65-4-125 and the provisions of this rule chapter,
may do so in the manner set forth below:
(a)
The following procedures
shall be followed with respect to subscriber complaints:
1.
A complaint must follow
substantially the form of complaint provided by the Authority and must include
such information, as required by that form, as necessary for the processing
of the complaint, including, without limitation, whether the telecommunications
service provider has been contacted and the results of any such contact.
2.
On the receipt by the
Authority of any complaint, or inquiry, which appears to involve slamming, the
complaint or inquiry shall be referred to the Consumer Services Division.
3.
If the complaint is
filed on, or substantially in compliance with, the approved form, the Consumer
Services Division will contact the person filing the complaint (the "Complainant")
to verify the facts alleged, and to obtain any further information deemed necessary
for the processing of the complaint.
4.
If the complaint or
inquiry is not filed on the approved form, the Consumer Services Division will
contact the Complainant, to determine if that person wishes to proceed with
a complaint, and, if so, to determine and verify such information as may be
necessary for the processing of the complaint, which information shall be included
in the complaint.
5.
If the Consumer Services
Division determines that the complaint is without merit on its face, the Consumer
Services Division will so advise the person making the complaint, and will further
advise such person that he or she has the right to file a formal complaint with
the Authority under the general procedures for the filing of complaints.
6.
If the Consumer Services
Division determines that the complaint is in proper form for processing, and
is not without merit on its face, the Consumer Services Division will serve
a copy thereof, by e-mail, by facsimile, by personal delivery, or by regular
mail, on the telecommunications service provider, or other person, who is alleged
to have violated Tenn. Code Ann. § 65-4-125(a).
7.
Within ten (10) days
after service of the complaint (three (3) additional days from the date of mailing,
if service is by mail) or within such further time as may be allowed by the
Consumer Services Division on the request of the Respondent, the telecommunications
service provider, or other person served, shall file a written response with
the Consumer Services Division admitting or denying the factual allegations
of the complaint, and including defenses based on any issues of law, and providing
such other information, justification or argument as the Respondent may deem
appropriate. A copy of that response will be served on the Complainant.
8.
Promptly after the
receipt of that response, the Consumer Services Division will determine if further
information is necessary, and, if so, shall endeavor to obtain it; and will
attempt to mediate the complaint to the satisfaction of both parties.
9.
If the parties agree
to a resolution of the matter, written evidence of that resolution shall be
placed in the file of the Consumer Services Division and the matter will be
closed.
10.
If the Respondent
fails to file a timely response to the complaint, the factual allegations thereof
shall be deemed to have been admitted.
11.
If the Respondent
fails to file a timely response, or if the parties fail to agree to a resolution
of the matter, the Consumer Services Division shall certify the matter to the
Authority, with recommendations in the premises. Any such certification shall
identify the issues raised by the parties and shall include a computation of
the amounts which may be due to the Complainant.
12.
The Authority shall
consider the matter as certified by the Consumer Services Division in an open
meeting; and shall determine whether the matter involves only legal issues or
involves contested issues of fact. If the matter involves only legal issues
the Authority shall set a briefing schedule and may set the matter for oral
argument. If the matter involves contested issues of fact, the Authority may
either convene a contested case and follow contested case procedures for its
determination; or the Authority, on the basis of the investigation made by the
Consumer Services Division, may issue a show cause order pursuant to Tenn. Code
Ann. § 65-2-106.
13.
The Authority may,
however, in its discretion entertain and decide any subscriber complaints itself,
without referring the matter to the Consumer Services Division, under the general
procedures provided for the disposition of complaints, including, without limitation,
the issuance of a show cause order pursuant to Tenn. Code Ann. § 65-2-106.
(b)
A telecommunications
service provider, or person acting on behalf of a telecommunications service
provider, who is found by the Authority to have violated Tenn. Code Ann. §
65-4-125(a), or any provision of this rule 1220-4-2-.56 shall:
1.
Be subject to the imposition
of the civil penalty provided in Tenn. Code Ann. § 65-4-125(f), as the
Authority may determine;
2.
Provide upon request
of the end user's previous carrier, all billing records to the original telecommunications
service provider that are related to the unauthorized provision of service to
the customer within forty-five (45) days of the end user's request to return
the customer to the original telecommunications service provider.
3.
Pay the original telecommunications
service provider any amount paid to it by the end user that would have been
paid to the original telecommunications service provider if the unauthorized
switch had not occurred, within thirty (30) days of the end user's request to
return the end user to the original telecommunications service provider. If
the unauthorized carrier has already made payments to the end user's original
carrier pursuant to any federal laws or regulations, the payment under this
rule shall be reduced by the amount already paid pursuant to such federal laws
and regulations.
4.
Be required to pay
to the subscriber wronged by such violation any amount which the Authority is
authorized by law to require to be paid.
(c)
In addition to the
remedies provided by this rule to subscribers, the Authority may, on its own
motion, or on the recommendation of the Consumer Services Division, or on the
motion of the Consumer Advocate Division or any other interested person, order
the investigation of the practices of any telecommunications service provider,
or persons acting on behalf of a telecommunications service provider, to determine
if such telecommunications service provider, or person acting on behalf of any
telecommunications service provider, has followed a pattern of continued violation
of Tenn. Code Ann. § 65-4-125(a), or of this rule 1220-4-2-.56; and if
such investigation discloses such a pattern of continued violation, the Authority
shall issue a show cause order with respect to such acts pursuant to Tenn. Code
Ann. § 65-2-106.
(11)
Any instance in which
an employee, representative or agent of a submitting carrier forges an end user's
signature on a LOA or otherwise falsifies evidence of an end user's authorization
of a change order shall constitute a separate violation of this rule. Enforcement
of this provision shall not foreclose private actions in tort or any criminal
or civil liability of the employee, representative or agent of submitting carrier.
(12)
Telecommunications
service providers are required to maintain a detailed record of all slamming
complaints filed against them in Tennessee for two years. A telecommunications
service provider shall, upon request by the Authority, file a report with the
Authority stating the number of such slamming complaints they have received
in Tennessee. This report shall identify the name, address and telephone number
of the end user slammed along with the method used to switch the end user. The
report shall also describe the action taken by the telecommunications service
provider to remedy the complaint including the amount of adjustment given, as
well as any other information requested. This report is to be submitted to the
Consumer Services Division within twenty (20) business days of the request for
the report unless additional time is granted.
(13)
Local exchange carriers
are required upon request by an end user to provide a freeze on an end user's
local exchange service, PIC or LPIC without charge, unless the Authority otherwise
approves such a charge. This freeze is designed to afford the end user added
protection against slamming. ILECs and CLECs providing local exchange service
in Tennessee are required to file tariffs with the Authority describing their
freeze service within 90 days of the effective date of this rule chapter. Specific
guidelines regarding a local and/or PIC or LPIC freeze are described below.
(a)
A local, PIC or LPIC
freeze shall be implemented or removed by one of the following methods:
1.
In written form by
the use of a LOA. The LOA shall state how the freeze may be lifted by the end
user;
2.
Verbally, with the
end user's ILEC or CLEC;
3.
By a three-way call
with ILEC/CLEC and the long distance carrier.
(b)
Carriers or resellers
seeking to switch an end user's local, PIC or LPIC which has been frozen are
required to advise the end user to remove the freeze status by one of the methods
listed in 13(a)(i-iii) on the service being changed. This provision in no way
nullifies the carrier or reseller's responsibility to verify the service provider
change as outlined in paragraph (2) of this rule.
(c)
No ILEC shall provide
to any end user an intraLATA carrier freeze option until intraLATA pre-subscription
has been in effect for 180 days.
(d)
No ILEC shall provide
to any end user a local carrier freeze option until the ILEC's local market
has been open to competition for 180 days, as determined by the Federal Communications
Commission pursuant to Section 271 of the Telecommunications Act of 1996 for
Regional Bell Operating Companies and as determined by the Authority for all
other carriers.
(e)
Carrier selection
freezes shall be administered at the jurisdictional/service level (i.e. local,
PIC, LPIC).
(f)
ILECs/CLECs must send
a confirmation letter to their end users who have elected to freeze their carrier
selection. The confirmation letter shall contain a statement that a carrier
freeze has been applied to what jurisdiction/service/telephone number account,
the name of the carrier to which the freeze applies, and instructions regarding
how the end user may remove the freeze from his or her service. This process
should be performed regardless of the method used to obtain a carrier freeze.
(g)
The ILEC/CLEC must
make available an entire listing of all its end users who have elected to freeze
their carrier's to any Authority certified telecommunications service provider,
upon request. The identification of the specific carrier selected by each end
user account shall be excluded.
(14)
Local exchange carriers
that bill on behalf of long distance carriers are required to place a conspicuous
notice on the first page of the end user's telephone bill indicating that the
end user's preferred interLATA and/or intraLATA carrier has been switched. This
notice is only required on the first telephone bill after the switch is made.
(15)
If an end user alleges
that he/she has been a victim of slamming, the end user's local exchange carrier
is prohibited from disconnecting the end user's local exchange service for nonpayment
of intraLATA or interLATA toll charges without the prior approval of the Authority,
unless the local exchange carrier has advised the end user to report the alleged
slamming to the Authority and the end user has failed to do so within 30 days
of being so advised by the local exchange carrier and that failure to do so
may result in the disconnection of the end user's service.
(16)
Telecommunications
service providers are prohibited from using misleading, deceptive, or unfair
marketing acts or practices for the purpose of soliciting, verifying, or obtaining
in any way the end user's permission to switch his or her local, PIC and/or
LPIC.
(17)
Nothing in this rule
chapter shall be construed to permit a telecommunications service provider or
its agents to violate any state or federal law, regulation or rule.
(18)
This rule chapter
is to be liberally construed for the protection of consumers of the State of
Tennessee and is remedial in nature.
(19)
Any telecommunications
service provider that may have a civil penalty assessed against it by the Authority
for failure to comply with Tenn. Code Ann. § 65-4-125 or any provisions
of this rule, may still be subject to other civil or criminal remedies or penalties
available under state or federal law including, but not limited to, the Tennessee
Consumer Protection Act.
(20)
The provisions of
this chapter shall not be construed to exceed the jurisdiction accorded to the
Tennessee Regulatory Authority under state and federal law.
(21)
If one or more of
the term(s) or provision(s) of this Rule or the application thereof, to any
extent, are held to be invalid or unenforceable, then the remainder of this
Rule, shall not be affected thereby.
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