N.J. Admin. Code § 14:10-11.8

Current through Register Vol. 56, No. 12, June 17, 2024

Section 14:10-11.8 - Unauthorized service termination and transfer (slamming)

(a) In the event a customer notifies the Board that slamming, as defined in this subchapter, has allegedly occurred, that portion of the bill that relates to the alleged slamming shall be considered in dispute pursuant to 14:3-7.1 3. In addition, in the case of a residential customer, the basic residential local telephone service provider, as defined in 14:3-7.1 7, shall neither apply residual or partial payments to the customer's charges for the slammed service nor discontinue the customer's slammed service because of nonpayment. A customer is required to pay all interLATA and intraLATA toll and local exchange charges that are not affected by the unauthorized TSP change.

(b) Reimbursement procedures and TSP liability for slamming shall be in conformance with FCC rules at 47 CFR § 64.1140, and §§ 64.1160 and 1170 as amended or supplemented. As of September 17, 2007, the substance of those regulations is as follows:

1. Any submitting TSP that violates the procedures prescribed in this subsection shall be liable to the primary TSP in an amount equal to 150 percent of all charges paid to the submitting TSP by such customer after such violation, as well as for additional amounts as prescribed in (b)4 below. The remedies provided in this subsection are in addition to any other remedies available by law;

2. Any customer whose selection of a primary TSP is switched without authorization verified in accordance with the procedures set forth in this subchapter is absolved from liability for charges as follows:

i. If the customer has not already paid charges to the unauthorized TSP, the customer is absolved of liability for charges imposed by the unauthorized TSP for service provided during the first 30 days after the unauthorized switch. Upon being informed by a customer that an unauthorized switch has occurred, the recipient of the call, that is, the authorized carrier, the unauthorized TSP, or the executing TSP, shall inform the customer of this 30-day absolution period. Any charges imposed by the unauthorized TSP on the customer for service provided after this 30-day period shall be paid by the customer to the authorized TSP at the rates the customer was paying to the authorized carrier at the time of the unauthorized switch in accordance with (b)3v below;

ii. If the customer has already paid charges to the unauthorized carrier, and the authorized TSP receives payment from the unauthorized TSP as provided for in (b)1 above, the authorized carrier shall refund or credit to the customer any amounts determined in accordance with the provisions of (b)4vi below; and

iii. If the customer has been absolved of liability as prescribed by this subsection, the unauthorized TSP shall also be liable to the customer for any charge required to return the customer to his or her properly authorized carrier, if applicable;

3. Absolution procedures where the customer has not paid charges are as follows:

i. This paragraph shall only apply after a customer has alleged that an unauthorized switch has occurred and the customer has not paid charges to the allegedly unauthorized TSP for service for 30 days, or a portion thereof, after the unauthorized switch is alleged to have occurred;

ii. An allegedly unauthorized TSP shall remove all charges incurred for service provided during the first 30 days after the alleged unauthorized switch from a customer's bill upon notification that such unauthorized switch is alleged to have occurred;

iii. An allegedly unauthorized TSP may challenge a customer's allegation that an unauthorized switch has occurred. An allegedly unauthorized TSP choosing to challenge such allegation shall immediately notify the complaining customer that: the unauthorized TSP is required to file the challenge with the Board within 30 days of the date of removal of charges from the complaining customer's bill in accordance with (b)3ii above. The TSP, upon investigation, is required to provide the Board with the name, address, phone number of the customer, the date of the alleged slam, the name of the unauthorized TSP to which service was switched, the type of services that were switched, and any evidence to substantiate the TSP's position. The alleged unauthorized TSP may reinstate charges to a customer's bill which were removed pursuant to the provisions of (b)3ii above upon notice that an investigation was completed by the Division of Customer Assistance that determined the switch was authorized;

iv. If it is determined after reasonable investigation that an unauthorized switch, as defined by 14:10-11.1, has occurred, the Board or its designees will issue a notice indicating that the customer is entitled to absolution from the charges incurred during the first 30 days after the unauthorized TSP switch occurred, and neither the authorized nor unauthorized TSP may pursue any collection against the customer for those charges;

v. If the customer has incurred charges for services provided for more than 30 days after the unauthorized TSP switch, the unauthorized TSP shall forward the billing information for such services to the authorized TSP, which may bill the customer for such services using either of the following means:

(1) The amount of the charge may be determined by a re-rating of the services provided based on what the authorized TSP would have charged the customer for the same services had an unauthorized switch not occurred; or

(2) The amount of the charge may be determined using a 50 percent proxy rate as follows: Upon receipt of billing information from the unauthorized TSP, the authorized TSP may bill the customer for 50 percent of the rate the unauthorized TSP would have charged the customer for the services provided. However, the customer shall have the right to reject use of this 50 percent proxy method and require that the authorized carrier perform a re-rating of the services provided, as described in (b)3v(1) above;

vi. If the unauthorized TSP received payment from the customer for services provided after the first 30 days after the unauthorized switch occurred, the obligations for payments and refunds provided for in this subsection shall apply to those payments; and

vii. If the Board or its designee determines after reasonable investigation that the TSP switch was authorized, the TSP may re-bill the customer for charges incurred; and

4. Reimbursement procedures where the customer has paid charges are as follows:

i. The procedures in this paragraph shall only apply after an unauthorized switch has occurred and the customer has paid charges to an allegedly unauthorized TSP;

ii. If the Board or its designee had determined after reasonable investigation that an unauthorized switch has occurred, it shall issue a notice directing the unauthorized carrier to forward to the authorized TSP the following:

(1) An amount equal to 150 percent of all charges paid by the customer to the unauthorized TSP; and

(2) Copies of any telephone bills from the unauthorized carrier to the customer;

iii. A copy of the notice under (b)4ii above shall be sent to the customer, the unauthorized TSP, and the authorized TSP;

iv. Compliance with (b)4ii and iii above does not preclude the Board from seeking additional administrative remedies where deemed appropriate;

v. Within 10 days of receipt of the amount provided for in (b)4ii(1) above, the authorized TSP shall provide a refund or credit to the customer in the amount of 50 percent of all charges paid by the customer to the unauthorized TSP. The customer has the option of asking the authorized TSP to re-rate the unauthorized carrier's charges based on the rates of the authorized TSP and, on behalf of the customer, seek an additional refund from the unauthorized TSP, to the extent that the re-rated amount exceeds the 50 percent of all charges paid by the customer to the unauthorized TSP. The authorized TSP shall also send notice to the Board Secretary and the Director of Customer Assistance that it has given a refund or credit to the customer;

vi. If an authorized TSP incurs billing and collection expenses in collecting charges from the unauthorized TSP, the unauthorized TSP shall reimburse the authorized TSP for reasonable expenses;

vii. If the authorized TSP has not received payment from the unauthorized TSP as required by (b)4v above, the authorized TSP is not required to provide any refund or credit to the customer. The authorized TSP shall, within 45 days of receiving the notice or decision as described in (b)4ii and iii above, inform the customer and the Director of Customer Assistance if the unauthorized TSP has failed to forward to it the appropriate charges, and also inform the customer of his or her right to pursue a claim against the unauthorized TSP for a refund of all charges paid to the unauthorized TSP; and

viii. Where possible, the properly authorized TSP shall reinstate the customer in any premium program in which that customer was enrolled prior to the unauthorized switch, if the customer's participation in that program was terminated because of the unauthorized switch. If the customer has paid charges to the unauthorized TSP, the properly authorized TSP shall also provide or restore to the customer any premiums to which the customer would have been entitled had the unauthorized switch not occurred. The authorized TSP must comply with the requirements of this paragraph regardless of whether it is able to recover from the unauthorized TSP any charges that were paid by the customer.

(c) All investigation procedures are as follows:

1. When an executing or primary TSP is informed of an unauthorized TSP switch by a customer, it shall immediately notify both the authorized and allegedly unauthorized TSP of the incident. This notification shall include the identity of both TSPs;

2. Any TSP, executing, authorized, or allegedly unauthorized, that is informed by a customer or an executing TSP of an unauthorized TSP switch can attempt to resolve the complaint to the satisfaction of the customer. If the TSP is unable to resolve the complaint, the TSP must send the complaint to the Board. The complaint must include the name, address and telephone number of the customer; the date the alleged unauthorized switch occurred; and the name of the alleged unauthorized TSP to which the customer was switched; the type of service switched; and any evidence to substantiate the TSP's position. Nothing in this subsection shall prevent an allegedly unauthorized TSP from resolving the complaint by providing the customer with all relief to which the customer is entitled under this subchapter;

3. Upon receipt of an unauthorized TSP switch complaint, the Board or its designee will notify the allegedly unauthorized TSP of the complaint and require the TSP to remove all unpaid charges for the first 30 days after the slam from the customer's bill pending a determination of whether an unauthorized switch, as defined by 14:10-11.1, has occurred, if it has not already done so; and

4. Not more than 30 days after notification of the complaint, the alleged unauthorized TSP shall provide to the Board or its designee a copy of any valid proof of verification of the TSP switch. This proof of verification shall contain clear and convincing evidence of a valid authorized TSP switch. The Board or its designee will determine whether an unauthorized switch has occurred using such proof and any evidence supplied by the customer. Failure by the submitting TSP to respond or provide proof of verification will be presumed to be clear and convincing evidence of a violation.

(d) Each TSP shall, upon request, submit to the Board and the Division within 15 days, three copies of a report of all slamming complaints received, and the resolution thereof indicating the customers' name, address, telephone number, the type of service that was slammed, and the submitting TSP or agent that requested the alleged unauthorized switch of the customer's primary TSP.

N.J. Admin. Code § 14:10-11.8

Amended by R.2003 d.355, effective 9/2/2003.
See: 34 N.J.R. 3200(a), 35 N.J.R. 4126(a).
Rewrote (e) through (g).
Recodified from N.J.A.C. 14:10-11.5 and amended by R.2007 d.276, effective 9/17/2007.
See: 38 N.J.R. 3250(a), 39 N.J.R. 3953(a).
Rewrote the section.
Former N.J.A.C. 14:10-11.8, Penalties for violations, recodified to N.J.A.C. 14:10-11.10.
Amended by R.2008 d.304, effective 10/20/2008.
See: 39 N.J.R. 3880(a), 39 N.J.R. 5058(a), 40 N.J.R. 6211(a).
Deleted former (d); recodified former (e) as (d); and in (d), inserted "within 15 days,".