Current through September 24, 2024
(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 (1) and (2) of this section, the Letter of Agency may be combined
with checks that contain only the required letter of agency language prescribed
in subpart (iii) 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 (2) 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 the current provider of telecommunications
service to its customers describing the customer transfer and explaining that
unless the customer selects another telecommunications service provider, the
customers' local or long distance service will be transferred to the acquiring
telecommunications service provider by a date specified in the notification
letter. The notification letter shall be mailed by U.S. First Class Postage,
with the logo or name of the current provider displayed on both the letterhead
and the exterior envelope, no less than thirty (30) days prior to the actual
customer transfer. For good cause shown, the Authority may waive any
requirement of this part or order any requirement thereof to be fulfilled by
the acquiring provider. Good cause includes, but is not limited to, evidence
that the current provider is no longer providing service in
Tennessee.
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 ("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 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 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 an 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 (2) 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 ninety (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 which
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 one hundred eighty (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 one hundred eighty (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 thirty (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.
Authority: T.C.A. §§
4-5-201 et. seq., 65-2-102,
65-2-106, 65-4-101, 65-4-104, 65-4-123, 65-4-125 and 47 U.S.C. §
258.
