16 TAC § 26.32
§ 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.
(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 detail record to establish the billing for the call or service.
(c)
Definition. The term
"customer," when used in this section, shall mean any person 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.
(d)
Requirements for billing authorized
charges. A service provider or billing agent shall meet all of the following
requirements before submitting charges for any product or service to be billed
on any customer's telephone bill:
(1)
Inform the customer. The service
provider offering the product or service has thoroughly informed the customer
of the product or service being offered, including all associated charges, and
has explicitly informed the customer that the associated charges for the
product or service will appear on the customer's telephone bill.
(2)
Obtain customer consent. The
customer has clearly and explicitly consented to obtaining the product or
service offered and to have the associated charges appear on the customer's
telephone bill. The consent must be verified by the service provider in
accordance with subsection (e) of this section. A record of the consent,
including verification, must be maintained by the service provider offering the
product or service for at least 24 months immediately after the consent and
verification were obtained.
(3)
Provide contact information. The
service provider offering the product or service and any billing agent for the
service has provided the customer with a toll-free telephone number the
customer may call and an address to which the customer may write to resolve any
billing dispute and to answer questions.
(4)
Provide business information. The
service provider (other than the billing telecommunications utility) and its
billing agent have provided the billing telecommunications utility with its
name, business address, and business telephone number.
(5)
Obtain billing telecommunications
utility consent. The service provider and its billing agent have executed 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)
Verification requirements.
(1)
All of the following information
shall be provided in a clear and conspicuous manner and contained in any
communication with a customer for consent and verification of authorization
from that customer for an order for a product or service:
(A)
date of
consent and verification of authorization;
(B)
name and
telephone number of the customer;
(C)
question
and answer to ensure that the customer is qualified to order the product or service
and to authorize the billing;
(D)
explanation
of each product or service offered;
(E)
explanation
of all applicable charges;
(F)
explicit
customer acknowledgment that the charges will be assessed on the customer's
telephone bill;
(G)
explanation
of how a product or service can be cancelled;
(H)
description
of how the charge will appear on the customer's telephone bill; and
(I)
information on
whom to call and a working, toll-free telephone number for customer inquiries.
(2)
Except in customer-initiated
transactions with a certificated telecommunications utility for which the
service provider has the appropriate documentation, the consent and
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 documentation.
(i)
Written
consent and verification of authorization shall be a separate document
containing only the information required by paragraph (1) of this subsection
for the sole purpose of authorizing the charges for a product or service on the
customer's telephone bill.
(ii)
The document shall be signed and
dated only by the customer.
(iii)
The document shall not be
combined with inducements of any kind on the same document.
(iv)
If any portion of the document 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.
(B)
Toll-free electronic authorization
as prescribed by the Federal Communications Commission (FCC) in 47 C.F.R.
§ 64.1100(b).
(C)
Voice recording.
(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
paragraph (1) of this subsection.
(ii)
The recording shall be clearly
audible.
(iii)
The recording shall include the
entire and actual conversation with the customer.
(D)
Independent third party
verification recording.
(i)
Verification
shall be given to an independent third party with minimal participation by a
service provider only to respond to specific questions from the customer.
(ii)
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 paragraph (1) of this subsection
for the sole purpose of authorizing the charges for a product or service on the
customer's telephone bill.
(iii)
The recording shall be clearly
audible.
(E)
Any other verification method
approved by the FCC.
(f)
Unauthorized charges.
(1)
Responsibilities of the billing
telecommunications utility for unauthorized charges.
(A)
If a customer's telephone bill is
charged for any product or service without proper customer consent 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
days after the date of the knowledge or notification of an unauthorized charge:
(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(d)(3)
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 unauthorized charge:
(I)
the name of the service provider
that offered the product or service;
(II)
any
affected telephone number(s) or 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 may 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 that a charge for a 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)
any affected telephone number(s) or 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.
(g)
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:
[See table, form or illustration in printed
version]
(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 days after the
effective date of this section, or by inclusion in the next publication of the
utility's telephone directory following 60 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 days following the effective date
of this section; thereafter, the notice must appear in the white pages of each
telephone directory published 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
(relating to Selection of Telecommunications Utilities) 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.
(h)
Compliance and enforcement.
(1)
Records of customer authorizations.
A billing telecommunications utility or a service provider shall provide a copy
of records maintained under the requirements of subsections (d) and (e) of this
section to the commission staff upon request.
(2)
Records of unauthorized charges. A
billing telecommunications utility or a service provider shall provide a copy
of records maintained under the requirements of subsection (f) of this section
to the commission staff upon request.
(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.
(4)
If the commission finds that any
other service provider or billing agent subject to PURA, Chapter 17, 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, 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, against the service provider or billing agent
as if the service provider or billing agent were regulated by the commission.
(5)
Certificate 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.
(6)
The commission shall coordinate its
enforcement efforts regarding the prosecution of fraudulent, misleading,
deceptive, and anticompetitive business practices with the Office of the
Attorney General in order to ensure consistent treatment of specific alleged
violations.
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