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Released: July 29, 2011

Federal Communications Commission

DA 11-1286

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Long Distance America
)
IC No. 11-S3101368
)
Complaint Regarding
)
Unauthorized Change of
)
Subscriber's Telecommunications Carrier
)

ORDER

Adopted: July 28, 2011

Released: July 29, 2011

By the Deputy Chief, Consumer Policy Division, Consumer & Governmental Affairs Bureau:
1.
In this Order, we consider the complaint1 alleging that Long Distance America
(LDA) changed Complainant's telecommunications service provider without obtaining
authorization and verification from Complainant in violation of the Commission's rules.2 We
conclude that LDA's actions violated the Commission's carrier change rules and we grant
Complainant's complaint.
2.
In December 1998, the Commission released the Section 258 Order in which it
adopted rules to implement Section 258 of the Communications Act of 1934 (Act), as amended
by the Telecommunications Act of 1996 (1996 Act).3 Section 258 prohibits the practice of
"slamming," the submission or execution of an unauthorized change in a subscriber's selection


1
Informal Complaint No. IC 11-S3101368, filed April 13, 2011.
2
See 47 C.F.R. 64.1100 64.1190.
3
47 U.S.C. 258(a); Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996);
Implementation of the Subscriber Carrier Selection Changes Provisions of the Telecommunications Act of 1996;
Policies and Rules Concerning Unauthorized Changes of Consumers' Long Distance Carriers
, CC Docket No. 94-
129, Second Report and Order and Further Notice of Proposed Rule Making, 14 FCC Rcd 1508 (1998) (Section 258
Order), stayed in part, MCI WorldCom v. FCC
, No. 99-1125 (D.C. Cir. May 18, 1999); First Order on
Reconsideration, 15 FCC Rcd 8158 (2000); stay lifted, MCI WorldCom v. FCC, No. 99-1125 (D.C. Cir. June 27,
2000); Third Report and Order and Second Order on Reconsideration, 15 FCC Rcd 15996 (2000), Errata, DA No.
00-2163 (rel. Sept. 25, 2000), Erratum, DA No. 00-2192 (rel. Oct. 4, 2000), Order, FCC 01-67 (rel. Feb. 22, 2001);
Third Order on Reconsideration and Second Further Notice of Proposed Rule Making, 18 FCC Rcd 5099 (2003);
Order, 18 FCC Rcd 10997 (2003); Fourth Report and Order, 23 FCC Rcd 493 (2008). Prior to the adoption of
Section 258, the Commission had taken various steps to address the slamming problem. See, e.g., Policies and
Rules Concerning Unauthorized Changes of Consumers' Long Distance Carriers
, CC Docket No. 94-129, Report
and Order, 10 FCC Rcd 9560 (1995), stayed in part, 11 FCC Rcd 856 (1995); Policies and Rules Concerning
Changing Long Distance Carrier
s, CC Docket No. 91-64, 7 FCC Rcd 1038 (1992), reconsideration denied, 8 FCC
Rcd 3215 (1993); Investigation of Access and Divestiture Related Tariffs, CC Docket No. 83-1145, Phase I, 101
F.C.C.2d 911, 101 F.C.C.2d 935, reconsideration denied, 102 F.C.C.2d 503 (1985).

Federal Communications Commission

DA 11-1286

of a provider of telephone exchange service or telephone toll service.4 In the Section 258 Order,
the Commission adopted aggressive new rules designed to take the profit out of slamming,
broadened the scope of the slamming rules to encompass all carriers, and modified its existing
requirements for the authorization and verification of preferred carrier changes. The rules
require, among other things, that a carrier receive individual subscriber consent before a carrier
change may occur.5 Pursuant to Section 258, carriers are absolutely barred from changing a
customer's preferred local or long distance carrier without first complying with one of the
Commission's verification procedures.6 Specifically, a carrier must: (1) obtain the subscriber's
written or electronically signed authorization in a format that meets the requirements of
Section 64.1130; (2) obtain confirmation from the subscriber via a toll-free number provided
exclusively for the purpose of confirming orders electronically; or (3) utilize an independent
third party to verify the subscriber's order.7
3.
The Commission also has adopted liability rules. These rules require the carrier
to absolve the subscriber where the subscriber has not paid his or her bill. In that context, if the
subscriber has not already paid charges to the unauthorized carrier, the subscriber is absolved of
liability for charges imposed by the unauthorized carrier for service provided during the first 30
days after the unauthorized change.8 Where the subscriber has paid charges to the unauthorized
carrier, the Commission's rules require that the unauthorized carrier pay 150% of those charges
to the authorized carrier, and the authorized carrier shall refund or credit to the subscriber 50% of
all charges paid by the subscriber to the unauthorized carrier.9 Carriers should note that our
actions in this order do not preclude the Commission from taking additional action, if warranted,
pursuant to Section 503 of the Act.10
4.
We received Complainant's complaint on April 13, 2011, alleging that
Complainant's telecommunications service provider had been changed to LDA without
Complainant's authorization. Pursuant to Sections 1.719 and 64.1150 of the Commission's
rules11 we notified LDA of the complaint and LDA responded on May 19, 2011.12 LDA states


4
47 U.S.C. 258(a).
5
See 47 C.F.R. 64.1120.
6
47 U.S.C. 258(a).
7
See 47 C.F.R. 64.1120(c). Section 64.1130 details the requirements for letter of agency form
and content for written or electronically signed authorizations. 47 C.F.R. 64.1130.
8
See 47 C.F.R. 64.1140, 64.1160. Any charges imposed by the unauthorized carrier on the
subscriber for service provided after this 30-day period shall be paid by the subscriber to the authorized carrier at
the rates the subscriber was paying to the authorized carrier at the time of the unauthorized change. Id.
9
See 47 C.F.R. 64.1140, 64.1170.
10
See 47 U.S.C. 503.
11
47 C.F.R. 1.719 (Commission procedure for informal complaints filed pursuant to Section 258
of the Act); 47 C.F.R. 64.1150 (procedures for resolution of unauthorized changes in preferred carrier).
12
LDA's Response to Informal Complaint No. IC 11-S3101368, received May 19, 2011.
2

Federal Communications Commission

DA 11-1286

that authorization was received and confirmed through third party verification (TPV). The
Commission's rules require that the verification elicit, amongst other things, confirmation that
the person on the call is "authorized to make the carrier change." 13 In the TPV at issue in this
case, the verifier instead asks whether the person on the call is "the authorized person to make
changes on the account." A switch from one carrier to another carrier differs from merely
making changes to the customer's phone account. As we emphasized in the Fourth Report and
Order,
"any description of the carrier change transaction...shall not be misleading "and verifiers
should convey explicitly that "the consumers will have authorized a carrier change, and not, for
instance, an upgrade in existing service (emphasis added)."14 We find that LDA's actions were
in violation of our carrier change rules, and we discuss LDA's liability below.15
5.
LDA must remove all charges incurred for service provided to Complainant for
the first thirty days after the alleged unauthorized change in accordance with the Commission's
liability rules.16 We have determined that Complainant is entitled to absolution for the charges
incurred during the first thirty days after the unauthorized change occurred and neither their
authorized carrier nor LDA may pursue any collection against Complainant for those charges.17
Any charges imposed by LDA on the subscriber for service provided after this 30-day period
shall be paid by the subscriber at the rates the subscriber was paying to their authorized carrier at
the time of the unauthorized change.18
6.
Accordingly, IT IS ORDERED that, pursuant to Section 258 of the
Communications Act of 1934, as amended, 47 U.S.C. 258, and Sections 0.141, 0.361 and
1.719 of the Commission's rules, 47 C.F.R. 0.141, 0.361, 1.719, the complaint filed against
LDA IS GRANTED.
7.
IT IS FURTHER ORDERED that, pursuant to Section 64.1170(d) of the
Commission's rules, 47 C.F.R. 64.1170(d), Complainant is entitled to absolution for the
charges incurred during the first thirty days after the unauthorized change occurred and neither
LDA nor their authorized carrier may pursue any collection against Complainant for those
charges.


13
See 47 C.F. R. 64.1120(c)(3)(iii).
14
See 47 C.F.R. 64.1120(c)(3)(iii), Fourth Report and Order at 23 FCC Rcd 501, para.19.
15
If Complainant is unsatisfied with the resolution of this complaint, Complainant may file a
formal complaint with the Commission pursuant to Section 1.721 of the Commission's rules, 47 C.F.R. 1.721.
Such filing will be deemed to relate back to the filing date of Complainant's informal complaint so long as the
formal complaint is filed within 45 days from the date this order is mailed or delivered electronically to
Complainant. See 47 C.F.R. 1.719.
16
See 47 C.F.R. 64.1160(b).
17
See 47 C.F.R. 64.1160(d).
18
See 47 C.F.R. 64.1140, 64.1160.
3

Federal Communications Commission

DA 11-1286

8.
IT IS FURTHER ORDERED that this Order is effective upon release.
FEDERAL COMMUNICATIONS COMMISSION
Nancy A. Stevenson, Deputy Chief
Consumer Policy Division
Consumer & Governmental Affairs Bureau
4

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