LAW
OFFICES OF THOMAS K. CROWE, P.C.
LEGAL ALERT
Clients and Interested
Parties:
On January 9, 2008, the
Federal Communications Commission (“FCC” or
“Commission”) released its Fourth Report and Order
(“Order”), which modifies its current “slamming” or
carrier change verification rules. Specifically, the
Order modifies the carrier change verification process
to require: 1) confirmation that the consumer
understands specifically that a carrier change is being
authorized; 2) disclosure that completion of the
verification will allow the carrier change to be
effectuated; 3) that the date of each verification is
obtained at the time of verification; and 4)
confirmation that the consumer understands that the
phrase “long distance service” includes state-to-state
and international long distance.
The requirements and
revisions outlined in the Order generally become
effective thirty (30) days after publication in the
Federal Register. To ensure compliance and minimize
potential federal and state slamming liability, carriers
offering 1+ services will want to consider revising
their verification scripts or, in the event that they
rely upon scripts used by verification companies,
requiring such companies to do so.
Confirmation of Intent to
Change Carriers
The revised rules address
the Commission’s concerns that some carriers are using
misleading language to deceive consumers into believing
that something other than a carrier change is being
authorized (e.g., upgrade to existing service, bill
consolidation service, etc.). Thus, the new rules will
require that verifiers confirm the consumer understands
the authorization is for a carrier change, and not just
simply an upgrade or change to an existing service.
Since the current rules already require confirmation
that a consumer “wants to make the carrier change,” the
new requirement is unlikely to necessitate a drastic
change to verification scripts that do not characterize
“carrier change” in a potentially misleading fashion.
Further, the required confirmation – like several of the
other rule changes adopted by the FCC’s Order – could
affirmatively benefit carriers in that it could aid in
refuting false slamming claims by showing that the
consumer had a clear understanding and intent to change
carriers (as opposed to just upgrading an existing
service).
Verification Completion
Disclosure
The current FCC verification
rules prohibit verifiers from providing any additional
information regarding a carrier’s services. Thus,
verifiers are not allowed to answer any additional
questions the consumer might have during the
verification process. Instead, if the consumer has
additional questions for the carrier’s sales
representative during the verification process, the
verifier has the option of immediately redirecting the
consumer to the sales representative (thereby
terminating the verification process), or having the
consumer defer the question until after the verification
process is completed.
Many consumers may complete
the verification process (deferring their questions for
the sales representative until later) thinking that they
still have an opportunity to revoke the authorization
(or even that final authorization had not been given)
until after further speaking to the carrier’s sales
representative. However, once the verification process
has been completed, regardless of whether the consumer
has additional questions, the carrier change
authorization is effective. Rather than forcing
verifiers to disclose this at the beginning or end of
the verification (which the Commission rejected as being
either confusing or likely to discourage additional
questions), the FCC adopted an approach that only
requires an affirmative disclosure if the consumer has
additional questions for the carrier’s sales
representative during the verification.
Thus, if a consumer has
additional questions during the verification, the
verifier must directly disclose to the consumer that a
carrier change nonetheless can be effectuated or
processed once the verification is completed.
Alternatively, if a carrier elects to allow consumers to
revoke a carrier change authorization within a certain
amount of time after the verification, this policy can
be disclosed to the consumer instead.
Obtaining Date of
Verification
The Commission’s new rules
require that the date (but not the time) of verification
be ascertained and recorded, at the time of the
verification, in a form that can be readily identified
by future reviewers (i.e., federal and state
regulators). However, the Commission did not prescribe
a specific means by which the date of verification
needed to be obtained. Therefore, verifiers have the
option of either verbally confirming the date with the
consumer, electronically date stamping the recorded
verification, or obtaining the date of verification by
some other means which satisfies the requirement. The
new date requirement is meant to address instances in
which carriers might use outdated verifications in an
attempt to legitimize an unauthorized switching of a
consumer back to the carrier after the consumer has
already completed a switch to another carrier. On the
other hand, it will be to a carrier’s advantage to have
a dated verification in order to defend against
consumers that may falsely allege that such a situation
(and a slam) occurred.
Long Distance Definition
Finally, the new rules
require that any description of “long distance service”
(or “interLATA” service) convey that the term includes
both state-to-state and international long distance.
Therefore, verifiers will be required to affirmatively
confirm that the consumer understands that “long
distance” encompasses both state-to-state and
international calling. (Note that this requirement will
not apply in Hawaii, where state-to-state and
international calling are distinctly separate
services.)
Effect of New Requirements
While these new rules aim in
part to further protect consumers from slamming,
carriers should also benefit from the changes. The new
requirements have the effect of eliminating confusing
and disputable components of the verification process,
thereby minimizing carrier exposure to potentially
significant federal and state slamming liability. Thus,
it may be prudent for carriers to revise their 1+
verification scripts even before the new rules
officially take effect.
Should you require
assistance in modifying a verification script to comply
with the new rules or have questions, please do not
hesitate to contact us.
Thomas K. Crowe, Principal "firm@tkcrowe.com"
Cheng Yi Liu, Staff Attorney
Law Offices of Thomas K. Crowe, P.C.
1250 24th Street, N.W.
Suite 300
Washington, D.C. 20037
(202) 263-3640 (voice)
(202) 263-3641 (fax)
www.tkcrowe.com
This
Legal Alert is provided for informational purposes only,
and is intended neither to provide nor to substitute for
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