Before the

Federal Communications Commission

**Washington, D.C. 20554**

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| In the Matter of                 | * | IC No. 01-S55585             |
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| RCN/21^st^ Century Telecom       | ) |                              |
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| Complaint Regarding              | * |                              |
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| Unauthorized Change of           | * |                              |
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**ORDER**

**Adopted: May 13, 2002 Released: May 17, 2002**

By the Deputy Chief, Consumer & Governmental Affairs Bureau:

1.  In this Order, we consider the complaint[^1] alleging that
    RCN/21^st^ CenturyTelecom (RCN) changed Complainant's
    telecommunications service provider without obtaining authorization
    and verification from Complainant in violation of the Commission's
    rules.[^2] We conclude that RCN actions did result in an
    unauthorized change in Complainant's telecommunications service
    provider 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 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 authorization; (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]

4.  We received Complainant's complaint on June 6, 2001 alleging that
    Complainant's local and intraLATA toll service provider had been
    changed from Ameritech-Illinois (Ameritech) to RCN without
    Complainant's authorization. Pursuant to Sections 1.719 and 64.1150
    of our rules,[^10] we notified RCN of the complaint and RCN
    responded on July 26, 2001. [^11] RCN indicates that authorization
    was received and confirmed through third party verification. RCN's
    third party verifier, however, failed to obtain separate
    authorizations for each service sold as required by our rules.[^12]
    RCN has failed to produce clear and convincing evidence that
    complainant authorized a carrier change.[^13] We find that RCN's
    actions resulted in an unauthorized change in Complainant's local
    and intraLATA toll service provider and we discuss RCN liability
    below.[^14]

5.  Pursuant to Section 64.1170(b) our rules, RCN must forward to
    Ameritech an amount equal to 150% of all charges paid by the
    subscriber to RCN.[^15] According to the complaint, the amount paid
    by Complainant to RCN is \$19.96. This amount multiplied by 150%
    equals \$29.94. Therefore, RCN must forward to Ameritech the amount
    of \$29.94, along with copies of any telephone bills issued from the
    company to the Complainant.[^16] Within ten days of receipt of this
    amount, Ameritech shall provide a refund or credit to Complainant in
    the amount of 50% of all charges paid by Complainant to RCN.
    Complainant has the option of asking Ameritech to re-rate RCN's
    charges based on Ameritech's rates and, on behalf of Complainant,
    seek from RCN, any re-rated amount exceeding 50% of all charges paid
    by Complainant to RCN. Ameritech must also send a notice to the
    Commission, referencing this Order, stating that is has given a
    refund or credit to Complainant. [^17] If Ameritech has not received
    the reimbursement required from RCN within 45 days of the release of
    this Order, Ameritech must notify the Commission and Complainant
    accordingly. Ameritech also must notify the Complainant of his or
    her right to pursue a claim against RCN for a refund of all charges
    paid to RCN.[^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 RCN IS GRANTED.

7.  IT IS FURTHER ORDERED THAT, PURSUANT TO Section 64.1170(b) of the
    Commission's rules, 47 C.F.R. § 64.1170(b), that RCN must forward to
    Ameritech an amount equal to \$29.94 (150% of all charges paid by
    the subscriber) along with copies of any telephone bills issued from
    the company to the Complainant within ten (10) days of the release
    of this order.

8.  IT IS FURTHER ORDER 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 Ameritech nor RCN
    may pursue any collection against Complainant for those charges.

9.  IT IS FURTHER ORDERED that this Order is effective upon release.

> FEDERAL COMMUNICATIONS COMMISSION

Margaret M. Egler, Deputy Chief

Consumer & Governmental Affairs Bureau

[^1]: ^?^ Informal Complaint No. 01-S55585, June 12, 2001.

[^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);
    *reconsideration pending*. 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).

[^4]: 47 U.S.C. § 258(a).

[^5]: *See* 47 C.F.R. § 64.1120(b).

[^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]: ^?^ 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.

[^11]: ^?^ RCN Response to Informal Complaint No. IC-01-S55585, July 26,
    2001.

[^12]: ^?^ *See* 47 C.F.R. § 64.1120(b).

[^13]:
    > *See* 47 C.F.R. § 64.1150(d).

[^14]: 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.

[^15]: ^?^ 47 C.F.R. § 64.1170(b).

[^16]: ^?^ *Id.*

[^17]: ^?^ *See* 47 C.F.R. § 64.1170(c).

[^18]: ^?^ *See* 47 C.F.R. § 64.1170(e).