Section 1220-04-02-.56 - VERIFICATION OF ORDERS FOR CHANGES FOR LOCAL AND LONG DISTANCE CARRIERS(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.Tenn. Comp. R. & Regs. 1220-04-02-.56
Original rule filed December 15, 1993; effective April 30, 1994. Amendment filed September 14, 1999; effective November 26, 1999. Amendment filed October 31, 2001; effective January 14, 2002. Amendment filed January 27, 2005; effective April 12, 2005.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.