20010129_dh.doc

DECISION MEMORANDUM

TO: COMMISSIONER HANSEN
COMMISSIONER SMITH
COMMISSIONER KJELLANDER
JEAN JEWELL
RON LAW
RANDY LOBB
JOE CUSICK
BEV BARKER
WORKING FILE
FROM:
DATE:
JANUARY 29, 2001 RE: THE COMMISSION’S EXAMINATION WHETHER IT SHOULD ADOPT THE FCC’S SLAMMING RULES, CASE NO. GNR-T-00-38

On December 4, 2000, the Commission issued a Notice of Modified Procedure requesting public comments concerning the Commission’s examination whether it should adopt and administer the FCC’s new slamming rules. In response to the Commission’s Notice, comments were filed by the Idaho Attorney General’s Office, the Commission Staff, Qwest Corporation, WorldCom, and AT&T Communications. All commenters, with one exception, supported the adoption of the FCC rules. AT&T neither supported nor opposed the adoption. (“The Commission must decide for itself whether to ‘opt-in’ to administering the FCC’s new slamming rules.”). However, if the Commission “opts-in” to the slamming rules, AT&T did offer some specific comments.
THE COMMISSION’S NOTICE
In its Notice, the Commission stated that if adopted, slamming complaints filed by Idaho customers and carriers would be submitted for resolution to the Commission. Order No. 28580 at 1. The Commission observed that the FCC recognized that having state commissions administer slamming rules will
provide consumers with a single point of contact for each state, thereby enabling slammed consumers to rectify their situations, receive refunds, and get appropriate relief with one phone call. State commissions will also be able to provide consumers and carriers with timely processing of slamming disputes. Finally, but of critical importance, states will provide a neutral forum for the resolution of slamming disputes.

Order No. 28580 at 2 citing 65 Fed. Reg. 47,682 at ¶ 22 (August 3, 2000). The Notice also observed that 31 state commissions have opted to administer the new slamming rules. Order No. 28580 at 2. The current tally is 34 state commissions.
Although the FCC rules were initially issued in May 2000, portions of the rules were suspended until the Office of Management and Budget (OMB) approved the collection of certain information. On October 3, 2000, OMB issued its approval. Consequently, the FCC issued a notice in the Federal Register on November 8, 2000, stating that its amended slamming rules will become effective on November 28, 2000. 65 Fed. Reg. 66,934 (Nov. 8, 2000).
In its Notice, the Commission sought specific comments regarding the procedures for resolving slamming complaints. In particular, the Commission contemplated that it would process slamming complaints in the same manner as it currently receives informal complaints regarding utility services: in person, by mail, by e-mail, or by telephone. The Commission anticipated that the Consumer Assistance Staff would investigate the informal slamming complaints by consumers or carriers and issue a written determination of its findings. Order No. 28580 at 3, 4.
In addition to a copy of the valid “proof of verification” of the change in carriers, the Commission also solicited comments whether other documents such as a copy of relevant telephone bill(s) should be submitted with slamming complaints. The Commission also asked whether such documents should be submitted not later than 10 business days after notification that a complaint had been filed against the alleged unauthorized carrier. Id. at 4.
The Commission also sought comments regarding challenges to the Staff’s factual determination. The Commission “envisions that appeals from the Consumer Assistance Staff determination of the slamming complaint [will] be filed as a formal complaint with the Commission,” similar to the procedures contained in the Commission’s procedural Rule 54, IDAPA 31.01.01.054. Order No. 28580 at 4. The Commission specifically invited comment whether such appeals from the Staff’s determination should be filed as formal complaints “within 10 business days or some other suitable time limit.” Id.

THE COMMENTS
As previously mentioned, the Commission received two types of comments: general comments supporting adoption of the FCC’s slamming rules and specific comments addressing proposed slamming procedures. Each type of comment is addressed separately below.
A. General Comments
1. Attorney General. In his comments, the Attorney General stated that it is appropriate for the Commission to administer the new slamming rules. He noted that slamming constitutes a violation of the Idaho Consumer Protection Act and the Attorney General’s office may prosecute violations of the Act. He also stated that “there are efficiencies to be gained at the state level by having the Commission enforce the FCC rules.… Allowing the Commission to enforce the FCC’s slamming rules will provide consumers with a single point of contact for Idaho. Moreover, utilizing the Commission will also provide an effective forum for the resolution of slamming disputes.” Attorney General Comments at 3.
The Attorney General also noted that his Consumer Protection Unit and the Commission Staff have met to discuss procedures for implementing the new slamming rules. In those instances where the Commission Staff identifies a particular pattern of slamming on the part of a long-distance carrier, the Staff will notify the Attorney General’s Consumer Protection Unit. In appropriate cases, the Attorney General may exercise his enforcement authority under the Consumer Protection Act. He concluded that adoption of the FCC’s rules “will benefit Idaho consumers and hopefully reduce slamming complaints.” Id.
2. Commission Staff. The Staff strongly encouraged the Commission to administer the FCC slamming rules. In its comments, the Staff noted from 1997 to 1999, the Commission received 1,453 informal complaints regarding slamming. The Staff opined that Idaho consumers prefer to seek assistance from resources closer to home than the FCC in Washington, D.C. Staff Comments at 2.
3. Qwest. In its comments, Qwest supported the Commission’s “adoption and administration of rules recently promulgated by the Federal Communications Commission regarding the practice of ‘slamming’.” Qwest Comments at 1.
4. WorldCom. In their comments, WorldCom and MCI WorldCom Communications supported the Commission’s proposal to take primary responsibility for resolution of slamming complaints. WorldCom Comments at 1. They noted that consistency across the various states will reduce errors, unnecessary expenses, and customer confusion. Idaho consumers will benefit by “having one point of contact to resolve slamming problems.” Id. at 3.
Commission Decision: Does the Commission wish to generally adopt and administer the new FCC slamming rules?
B. The Specific Comments
Processing Slamming Complaints. The Commission’s Notice proposed that slamming complaints be initially processed as “informal complaints.” After investigating the complaint, the Consumer Assistance Staff would issue a written determination of its findings. Order No. 28580 at 4. AT&T agreed that at the conclusion of its investigation, the Consumer Assistance Staff should issue a written determination of its findings. AT&T Comments at 5. AT&T agreed that the proposed procedures for receiving informal complaints (i.e., in person, by mail, by e-mail, or by telephone) is an appropriate process for receiving slamming complaints. If possible, AT&T requested that the Commission forward slamming complaints via e-mail or other electronic means.
AT&T also suggested that the Staff’s written determination be issued electronically. AT&T recommended that the Staff issue its determination within 45 to 90 days after receipt of the evidence provided by the alleged unauthorized carrier. Although AT&T recognizes that the Commission intends to use the informal complaint process as the “initial step” to resolve the slamming complaint, AT&T suggests that parties be permitted to file formal complaints upon the issuance of the Consumer Staff’s determination. AT&T requests that the Commission clarify the completion of the informal complaint process is mandatory.
The Staff also supported the use of informal complaint process to investigate slamming complaints. Staff Comments at 3. Staff suggested that the investigation resolution of slamming complaints follow the “Best Practices Guide to Administering the New FCC Slamming Rules” issued in November 2000. A copy of the Guide is attached.
Commission Decision: Should slamming complaints be initially processed as informal complaints? May the Staff determinations be issued electronically, where possible? Should slamming complaints be served electronically where possible? Should completion of the informal complaint process be mandatory?
Submitting Information or Documents Regarding the Complaint. The Commission’s Notice requested comments regarding what customer information should be submitted regarding slamming complaints. In addition to the alleged slammer providing a copy of the valid “proof of verification” of the customer’s change in carrier, the Commission asked what other documents or information should be provided.
AT&T suggested that the slamming complaint also include: the name, address, and telephone number of the person filing the complaint; the name/identity of the alleged slamming carrier; the name of the previous carrier; the billing entity (LEC or direct-billed by carrier); the date the alleged slam occurred; whether the customer has been restored to his or her preferred carrier; the customer’s experience in attempting to resolve the problem; a copy of the bill(s) which should show the charges billed by the alleged slammer; and whether the customer was charged a PIC change charge. AT&T recommended that if possible, the Commission should require the complainant mail or fax a copy of the complete bill to the Commission so that it may forward the bill with the complaint to the alleged unauthorized carrier. AT&T believes that providing this information comports with the “State Commission Best Practices Guide” and will expedite resolution of slamming complaints. AT&T Comments at 2-3.
WorldCom also suggested that customers submitting a slamming complaint provide a copy of the relevant telephone bill(s). This will allow the carriers to determine the amount of reimbursement (if necessary). In addition, WorldCom noted that some long-distance carriers (such as WorldCom) may designate other carriers or companies to act as their billing agents. Qwest explained that because the “long distance carrier bills the local exchange carrier rather than the end-users, the long distance carrier would not have a ‘bill’ in the form received by the complainant.” Qwest Comments at 2. Thus, such carriers may not have access to billing records.
Commission Decision: Should slamming complainants and carriers be required to furnish the documents or information suggested by AT&T?
Responding to the Complaint. In its Notice, the Commission requested comments on whether documents submitted in response to a slamming complaint be forwarded to the Consumer Assistance Staff no later than 10 business days after notification that a complaint has been filed against the alleged unauthorized carrier. Order No. 28580 at 4. Telephone Customer Rule 404 provides that telecommunication companies respond within 10 business days of receiving an informal complaint. IDAPA 31.41.01.404. This rule further provides that a responding company “will be granted an extension of time to prepare its response if it represents that it is making a good faith effort to resolve the matter in dispute. A full and complete response should be submitted to the Commission no later than thirty (30) days after receipt of notification from the Commission.” Id.
AT&T recommended that the Commission find that submission of either a letter of authorization or an audio recording of a third-party verification be sufficient evidence to constitute the defense of an unauthorized change of carrier. AT&T requested that the Commission accept an electronic WAV file of the audio recorded third-party verification. AT&T Comments at 2. The Commission and its Consumer Staff can receive WAV files.
In response to the proposed 10 business day period, AT&T suggested that the alleged unauthorized carrier be required to supply documentation supporting its claim of an authorized change of carrier within 30 days after receipt of the complaint. AT&T maintained that the 30-day period is necessary to provide alleged unauthorized carriers sufficient time to fully investigate the allegation and retrieve supporting documents. AT&T Comments at 4.
WorldCom agreed that 10 business days is sufficient to produce documents. WorldCom at 2. Qwest stated “if documentation is required from the long distance carrier, 10 days from the notice of a complaint is not a sufficient time for production. Qwest proposed that if this requirement applies to the long distance carrier, it be given 20 days to produce the bill and other relevant documents.” Qwest Comments at 2.
Commission Decision: When should carriers respond to slamming complaints? Ten business days, 20 days, 30 days or some other time period?
Administrative Appeal of the Slamming Determination. In Order No. 28580, the Commission stated that it envisions an appeal from the Staff’s written determination of a slamming complaint be filed as a formal complaint similar to the procedures outlined in the Commission’s Rule 54. The Notice also sought specific comment whether such “appeals” from the Staff’s determination “should be filed as formal complaints within 10 business days or some other suitable time limit.” Order No. 28580 at 4.
AT&T requested that the Commission clarify that the filing of a formal complaint is not an appeal but rather the next available course of action if a party is dissatisfied with the findings of the Commission Staff. AT&T Comments at 5. AT&T requests that the Commission establish a 45-day time period in which a person may file a formal complaint. If no formal complaint is filed within the 45 days, then the complainant will have deemed to have abandoned its right to bring a formal complaint regarding the slamming complaint.
The Staff believes that appeals of slamming complaints should be processed as “formal de novo” complaints pursuant to Commission Rule 54. Staff suggested that 14 days to file a formal complaint is reasonable. Staff also suggested that if no formal complaint is filed within 14 days, then “the aggrieved party’s right to appeal should be considered waived or abandoned.” Staff Comments at 3. WorldCom did not object to the Commission’s suggested time limit that appeals from the written determination be filed as formal complaints within 10 business days pursuant to Rule 54. WorldCom Comments at 3.
Commission Decision: What time period is appropriate to require that appeals from the Staff’s written determination be filed as formal complaints pursuant to Rule 54? Ten business days, 45 days, or some other time period? Should failure to file a formal complaint constitute a waiver or abandonment of the complaint?
Formal Reconsideration and Judicial Review. If the Commission “opts-in to enforce the FCC’s slamming rules,” AT&T maintained that the Commission then acts upon delegated authority from the FCC. Consequently, AT&T asserted that the Commission must adopt the FCC’s procedures for reconsideration and judicial review. AT&T Comments at 6. AT&T also believed that any judicial appeal from a final Commission order would be a matter that must “be taken to the appropriate federal court as required by 7 U.S.C. §§ 701-706.” Id.
Staff recommended that the Commission’s statutes and rules regarding reconsideration and judicial review be utilized for appeals of the Commission’s determination on the formal complaint. Id. at 3. This suggestion conflicts with AT&T’s suggestion that judicial review of the Commission’s slamming appeals be conducted in federal court
Upon further review, Staff believes that the FCC did not intend that appeals from state decisions follow either the FCC reconsideration procedures or that judicial review take place in federal court. In the Federal Register announcing the new slamming rules, the FCC outlined the review procedure that “apply when a state commission has resolved a slamming complaint.” 65 Fed. Reg. at 47,683 ¶ 33. The FCC stated that an appeal from the factual determinations made by a state commission “shall be made in accordance with relevant review provisions that are applicable to each state commission.” Id. (emphasis added). Consequently, Staff believes that the appropriate reconsideration and judicial review procedures are Idaho Code §§ 61-626 (Reconsideration) and 61-627 (Appeal to Supreme Court).
Commission Decision: What procedures should be followed upon petitions for administrative reconsideration or for judicial review?
Rule 606. Finally, if the Commission decides to opt-in to enforcing the FCC’s slamming rules, AT&T suggested that the Commission delete its Telephone Customer Rule 606 concerning the removal of charges for improperly changing a customer’s carrier (PIC change charge). The Company maintained this matter is fully addressed in the FCC’s slamming rule and does not need to be retained by the Commission in its Rule 606 (IDAPA 31.41.01.606).
Although the Staff did not submit specific comments regarding Rule 606, the Staff does agree with AT&T that the FCC’s Slamming Order, FCC 00-255 ¶ 85, requires unauthorized carriers to pay both PIC charges (one when slammed and again to return the customer to the preferred carrier) where applicable.
Commission Decision: What does the Commission want to do with Rule 606?

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