*Pages 1--18 from  Microsoft Word - 16037*
 Federal  Communications  Commission  FCC  99-  299  ______________________________________________________________________________ 
 Before  the  FEDERAL  COMMUNICATIONS  COMMISSION 
 Washington,  D.  C.  20554 


 In  the  Matter  of  )  )  File  No.  ENF-  99-  11 
 Qwest  Communications  )  International,  Inc.  ) 
 )  NAL/  Acct.  No.  916EF0008  Apparent  Liability  for  Forfeiture  ) 


 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Adopted:  October  15,  1999  Released:  October  19,  1999 
 By  the  Commission:  I.  INTRODUCTION 


 1.  By  this  Notice  of  Apparent  Liability  for  Forfeiture  for  slamming  (NAL),  1  we  initiate  enforcement  action  against  Qwest  Communications  International,  Inc.  (Qwest).  2  For  the 
 reasons  set  forth  below,  we  find  that  Qwest  apparently  willfully  or  repeatedly  violated  section  258  of  the  Communications  Act  of  1934,  as  amended  (the  Act),  3  as  well  as  Commission  rules 
 and  orders,  by  changing  the  designated  preferred  carriers  of  thirty  consumers  without  their  authorization.  4  For  twenty-  two  of  the  complaints  forming  the  basis  of  this  NAL,  the  violations 
 are  particularly  egregious  because  Qwest  relied  on  Letters  of  Agency  (LOAs)  that  appear  to  contain  forged  or  falsified  signatures  of  the  unsuspecting  consumers.  In  another  four  complaints, 
 Qwest  provided  no  evidence  to  rebut  the  complainants  allegations  that  although  the  consumers  never  communicated  with  the  company,  Qwest  changed  the  consumers  preferred  carriers 
 without  their  authorization.  In  the  remaining  four  complaints,  Qwest  submitted  preferred  carrier  change  requests  based  upon  LOAs  completed  by  individuals  who  were  not  authorized  to  effect 
 changes  on  the  accounts  that  were  switched.  Based  upon  our  review  of  the  facts  and 
 1  See  47  U.  S.  C.    503(  b)(  4)  A).  The  Commission  has  authority  under  this  section  of  the  Act  to  assess  a 
 forfeiture  penalty  against  a  common  carrier  if  the  Commission  determines  that  the  carrier  has  "willfully  or  repeatedly"  failed  to  comply  with  the  provisions  of  the  Act  or  with  any  rule,  regulation,  or  order  issued  by  the 


 Commission  under  the  Act.  The  section  provides  that  the  Commission  must  assess  such  penalties  through  the  use  of  a  written  notice  of  apparent  liability. 


 2  Qwest,  a  publicly  traded  company  headquartered  in  Denver,  Colorado,  was  incorporated  in  1991  and 
 completed  a  merger  with  LCI  International  Telecom  Corp.  (LCI)  on  October  17,  1998.  The  complaints,  which  form  the  basis  for  this  NAL,  involve  unauthorized  conversions  by  both  Qwest  and  LCI. 


 3  47  U.  S.  C.    258. 
 4  The  practice  of  changing  a  customer's  preferred  carrier  without  the  customer's  authorization  is  commonly 
 referred  to  as  "slamming." 
1
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 2 
 circumstances  surrounding  the  violations,  we  find  that  Qwest  is  apparently  liable  for  a  forfeiture  in  the  amount  of  eighty  thousand  dollars  ($  80,000)  for  the  twenty-  two  violations  involving 
 forged  or  falsified  signatures  and  forty  thousand  dollars  ($  40,000)  for  the  eight  remaining  violations,  resulting  in  a  total  forfeiture  amount  of  two  million  and  eighty  thousand  dollars 
 ($  2,080,000). 
 2.  In  response  to  the  Commissions  service  of  these  complaints,  as  well  as  the  many  others  served  on  Qwest  in  the  past  year,  5  Qwests  form  reply  asserts  that  it  made  the  respective 
 switches  based  upon  authorizations  received  from  several  third-  party  marketers  of  Qwests  service.  Accordingly,  we  take  the  opportunity  at  the  outset  of  this  order  to  emphasize  what  we 
 have  stated  on  numerous  occasions:  that  reliance  on  actions  of  third-  party  marketers  does  not  constitute  a  defense  to  an  allegation  of  slamming.  Pursuant  to  the  Act  and  Commission  rules, 
 carriers  are  responsible  for  the  actions  of  their  sales  agents,  whether  they  are  employees  or  third-party  contractors. 


 II.  THE  CONSUMER  COMPLAINTS 
 3.  The  Common  Carrier  Bureau  conducted  an  investigation  into  consumer  complaints  filed  with  the  Commission  alleging  that  Qwest  had  switched  the  complainants  long 
 distance  service  without  their  authorization.  This  action  is  based  upon  thirty  of  those  complaints  from  consumers  throughout  the  nation.  Each  of  these  complainants  contends  that  Qwest  changed 
 their  preferred  interexchange  carriers  without  their  authorization.  The  complainants  are  Anusha  Srinivasan  of  Eden  Prairie,  Minnesota;  Alda  J.  Hodgson  of  Lake  Matthews,  California;  Linda 
 Carroll  of  Fayetteville,  Georgia;  Sue  Wu  of  Short  Hills,  New  Jersey;  Rosalie  Pinto  of  Jersey  City,  New  Jersey;  Elwood  I.  Kita  of  Hilo,  Hawaii;  Bobby  F.  &  Linda  D.  Lacy  of  McDonough, 
 Georgia;  Enrique  G.  Martinez  of  Kalamazoo,  Michigan;  Dolores  Pestana  of  Dracut,  Massachusetts;  Jeffrey  S.  Protzel  of  Pittsburgh,  Pennsylvania;  Siu-  ki  Tso  of  Edison,  New 
 Jersey;  Katherine  F.  Howell  of  Rolla,  Missouri;  George  A.  Robles  of  Priest  River,  Idaho;  Saul  O.  Paredes  of  Saint  Louis,  Missouri;  Don  P.  Romero  of  Welsh,  Louisiana;  Edward  A.  Herrera  of 
 Phoenix,  Arizona;  Szuchien  Yau  of  Hamden,  Connecticut;  Carolyn  Booth,  of  East  Concord,  New  Hampshire;  Jose  A.  Pabon  of  Las  Vegas,  Nevada;  Diane  C.  Lares  of  Sarver,  Pennsylvania; 
 Arturo  Sobrino  of  Allentown,  Pennsylvania;  Edna  Cruz  of  Centreville,  Virginia;  Audrey  R.  Tien  of  East  Lansing,  Michigan;  Laura  Petrou  of  Washington,  D.  C.;  Janice  and  Jerry  Yun  of 
 Annandale,  Virginia;  Liem  B.  Lam  of  Plainsboro,  New  Jersey;  Frank  J.  Ruiz  of  Chalmette,  Louisiana;  James  S.  Angert  of  Honolulu,  Hawaii;  Pieh-  Ling  Shing  of  Fremont,  California  and 
 Enrique  Vargas  of  Cave  Creek,  Arizona.  The  pertinent  facts  underlying  these  complaints  are  set  forth  below. 


 5  During  a  period  between  September  1,  1998  and  August  31,  1999,  the  Commission's  National  Call  Center 
 received  1,142  consumer  calls  regarding  unauthorized  preferred  carrier  changes  by  Qwest  and  218  consumer  calls  regarding  unauthorized  preferred  carrier  changes  by  LCI.  During  the  same  period,  the  Consumer  Protection 


 Branch  processed  637  written  consumer  complaints  alleging  slamming  by  Qwest  and  551  written  consumer  complaints  alleging  slamming  by  LCI. 
2
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 3 
 A.  The  Booth  Complaint 
 4.  In  their  written  complaint,  Carolyn  and  Stephen  Booth  allege  that  Qwest  switched  their  preferred  interexchange  carrier  from  AT&  T,  Incorporated  (AT&  T)  to  Qwest  without 
 authorization.  The  phone  line  at  issue  serves  a  summer  camp  owned  by  the  Booths.  The  account  for  this  line  is  in  the  name  of  Stephen  Booth,  but  for  privacy  reasons,  the  Booths  listed  the 
 telephone  in  the  name  of  the  Booths  former  dog,  Boris,  that  had  died  in  1987.  6  The  Booths  state  that  they  discovered  the  switch  when  they  noticed  charges  from  Qwest  on  their  Bell  Atlantic  bill. 
 When  the  Booths  contacted  Qwest,  the  customer  service  representative  credited  the  account,  but  did  not  offer  an  explanation  for  the  switch. 


 5.  The  Common  Carrier  Bureau's  Consumer  Protection  Branch  (the  Branch)  forwarded  the  Booths  complaint  to  Qwest  along  with  a  Notice  of  Informal  Complaint  (Notice).  7 
 In  response  to  the  Notice,  Qwest  filed  a  letter  stating  that  it  had  received  an  LOA  from  Amnet  Services,  a  third  party  distributor  (marketing  agent)  of  Qwests  services.  The  letter  indicates  that 
 the  Booth's  account  was  credited  $33.04  for  switching  and  usage  charges.  8  Qwest's  response  goes  on  to  indicate  that  it  established  an  account  for  Boris  Booth  on  January  5,  1999.  As  noted 
 previously,  the  Booths  listed  the  name  of  their  deceased  dog  Boris  in  the  telephone  directory,  even  though  the  account  was  in  the  name  of  Stephen  Booth.  Qwest  also  included  a  copy  of  a 
 LOA  allegedly  signed  by  Boris  Booth  on  May  23,  1999,  five  months  after  Qwest  admittedly  established  the  Booth  account.  The  response  fails  to  describe  Qwest's  efforts,  if  any,  to  confirm 
 the  LOA's  authenticity. 
 B.  The  Hodgson  Complaint 
 6.  In  her  written  complaint,  Alda  J.  Hodgson  alleges  that  Qwest  switched  her  preferred  interexchange  carrier  from  AT&  T  to  Qwest  without  her  authorization.  Mrs.  Hodgson 
 states  that  she  discovered  the  switch  when  an  AT&  T  telemarketer  contacted  her  and  asked  her  permission  to  reinstate  her  AT&  T  service.  On  the  same  day,  she  received  a  letter  from  Qwest 
 addressed  to  her  late  husband,  James  Hodgson.  9  The  letter  welcomed  Mr.  Hodgson  to  Qwests  service.  Mrs.  Hodgson  then  contacted  Qwest  to  determine  why  her  long  distance  service  was 
 changed  without  her  authorization.  The  Qwest  customer  service  representative  stated  that  James  Hodgson  authorized  the  switch.  Mrs.  Hodgson  states  that  her  husband  could  not  have 
 authorized  the  switch  because  he  died  over  eight  years  ago.  10  When  she  pressed  the  Qwest 
 6  See  Declaration  of  Carolyn  and  Steven  Booth. 
 7  See  Appendix  A.  Also  see  47  C.  F.  R.    1.711-  1.718  (regarding  the  Commission's  procedures  for 
 processing  informal  complaints  filed  against  carriers). 
 8  Qwest  Response  to  Notice  of  Informal  Complaint  No.  IC-  99-  20305  (filed  September  20,  1999). 


 9  Alda  J.  Hodgson,  Informal  Complaint  No.  IC-  99-  02489  (December  8,  1998)  (Hodgson  Complaint). 
 10  Id.  In  further  support  of  her  complaint,  Mrs.  Hodgson  submitted  to  the  Common  Carrier  Bureau  a 
 declaration  dated  May  25,  1999.  Declaration  of  Alda  J.  Hodgson,  IC-  99-  02489  (May  25,  1998). 
3
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 4 
 customer  service  representative  for  an  explanation  of  how  she  was  switched,  the  representative  hung  up  on  her.  11 
 7.  In  response  to  the  Branchs  Notice,  Qwest  filed  a  letter  stating  that  it  had  received  an  LOA  from  American  Communications  Network,  12  a  third  party  distributor  (marketing  agent) 
 of  Qwests  services.  The  letter  indicates  that  Mrs.  Hodgson's  account  was  credited  $14.08  for  switching  and  usage  charges.  13  The  letter  also  included  a  copy  of  the  LOA  allegedly  signed  by 
 Mr.  Hodgson  on  November  13,  1998.  Qwest's  response  does  not  rebut  Mrs.  Hodgson's  allegation  that  her  deceased  husband  did  not  and  indeed  could  not  have  authorized  the  switch. 
 The  response  also  fails  to  provide  any  information  regarding  the  circumstances  of  how  the  LOA  was  obtained,  nor  does  it  describe  Qwest's  efforts  to  confirm  the  LOA's  authenticity. 


 C.  The  Wu  Complaint 
 8.  Sue  Wu  alleges  in  her  complaint  that  Qwest  switched  her  preferred  interexchange  carrier  from  AT&  T  to  Qwest  twice  without  her  authorization.  14  Ms.  Wu  noticed  the  December, 
 1998,  switch  when  she  received  an  invoice  from  Qwest  in  January  1999.  15  Ms.  Wu  states  that  she  repeatedly  corresponded  with  Qwest  to  demand  that  the  company  cease  changing  her  long 
 distance  service  without  her  authorization.  16 
 9.  In  response  to  the  Branch's  Notice,  17  Qwest  states  that  it  received  a  LOA  authorizing  Ms.  Wus  switch  from  Everlasting  Telecomm,  18  a  third-  party  distributor  of  Qwests 
 services.  Qwest  adds  that  the  Wus  account  was  credited  $10  for  switching  charges.  19  As  an  attachment  to  its  letter,  Qwest  included  a  copy  of  the  LOA  allegedly  signed  by  Ms.  Wus 


 11  Id. 
 12  American  Communications  Network  is  also  the  Qwest  distributor  in  the  Carroll  and  Lacey  complaints. 
 13  Qwest  Response  to  Notice  of  Informal  Complaint  No.  IC-  99-  02489  (filed  March  17,  1999). 
 14  Sue  Wu,  Informal  Complaint  No.  IC-  99-  03274  (January  26,  1998)  (Wu  Complaint).  The  wrongful  switch 
 considered  as  the  basis  of  this  complaint  occurred  on  December  3,  1998.  Ms.  Wu  also  alleges  that  Qwest  previously  slammed  her  in  February  of  1998.  See  Wu  Complaint  at  2-  3. 


 15  See  Wu  Complaint. 
 16  See  Wu  Complaint  at  2-  3. 
 17  See  Appendix  A. 
 18  Ms.  Wu,  echoing  the  concerns  of  other  complainants,  expresses  their  suspicion  that  they  were  specifically 
 targeted  as  members  of  the  Chinese  speaking  community  that  could  be  more  susceptible  to  victimization  due  to  a  lack  of  fluency  in  English.  See  Wu  Supplemental  Letter  at  1. 


 19  Qwest  Response  to  Notice  of  Informal  Complaint  No.  IC-  99-  03274  (filed  April  14,  1999). 
4
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 5 
 husband.  In  a  supplemental  letter  submitted  to  the  Branch  in  April  1999,  20  Ms.  Wu  states  that  the  signature  purportedly  authorizing  the  carrier  change  clearly  is  a  forgery.  21  In  support  of  her 
 assertion,  Ms.  Wu  provided  the  Commission  with  a  copy  of  her  husbands  signature  and  also  explains  that  her  husbands  name  on  the  purported  LOA  is  spelled  incorrectly.  22  Our  own 
 review  of  the  LOA  and  the  Wu  declaration  reveals  that  the  two  signatures  appear  clearly  to  be  different  and  Mr.  Wus  name  is  spelled  incorrectly.  The  only  explanation  offered  by  Qwest  for 
 its  actions  is  that  the  enclosed  Letter  of  Agency  (LOA)  that  Qwest  accepted  in  good  faith  from  Everlasting  Telecom  indicates  that  Wen-  Hsien  Wu  authorized  the  change  in  long  distance 
 service.  23  Qwests  response  does  not,  however,  dispute  Ms.  Wu's  assertions  that  the  LOA  used  to  convert  her  long  distance  service  contains  a  forged  signature. 


 D.  The  Tso  Complaint 
 10.  Ms.  Siu-  ki  Tso's  complaint  details  how  she  learned  that  her  preferred  interexchange  carrier  had  been  converted  from  AT&  T  to  Qwest  when  she  received  her  January, 
 1999  bill  from  Bell  Atlantic.  She  attempted  to  resolve  the  problem  by  calling  Qwest  numerous  times,  but  was  unable  to  reach  anyone  at  the  number  provided  on  the  bill.  24  Only  after  the 
 Branch  served  it  with  a  Notice,  25  did  Qwest  send  Ms.  Tso  a  copy  of  the  LOA  it  purportedly  relied  upon  to  switch  her  long  distance  provider.  Ms.  Tso  describes  the  signature  on  the  LOA  as 
 a  forgery  and  states  that  the  LOA  contains  an  incorrect  spelling  of  her  name.  26 
 11.  In  response  to  the  Branchs  Notice  of  Ms.  Tsos  complaint,  Qwest  filed  a  letter  with  the  Commission  providing  a  summary  of  charges  it  had  assessed  Ms.  Tso's  account 
 following  the  unauthorized  preferred  carrier  change,  and  the  amount  of  money  Qwest  had  credited  to  her  account  in  an  apparent  attempt  to  resolve  the  complaint.  27  Qwests  letter  included 
 a  copy  of  the  LOA  allegedly  signed  by  Ms.  Tso.  Qwests  response  fails  to  provide  any 
 20  See  Supplemental  Letter  from  Ms.  Su  Wu  to  Sharon  Lee,  Chief,  Consumer  Protection  Branch,  April  19, 
 1999,  IC  No.  IC-  99-  03274.  (Wu  Supplemental  Letter). 
 21  Id. 


 22  See  Declaration  of  Sue  and  Wen-  hsien  Wu,  IC  99-  03274  (May  16,  1999). 
 23  Id. 
 24  We  note  this  practice  might  constitute  a  violation  of  the  Commissions  recently  adopted  Truth-  In-  Billing 
 rules.  See  In  the  Matter  of  Truth-  in-  Billing  and  Billing  Format,  14  FCC  Rcd.  7492  (1999),  at  paras.  65-  67.  Although  TIB  does  not  adopt  any  standards  for  customer  service  personnel,  the  Order  states  that  the  we  expect  that 


 customer  service  reps  will  be  well  trained  and  that  there  will  be  enough  of  them  to  handle  call  volumes. 
 25  See  April  25,  1999  letter  from  Siu-  Ki  Tso  to  the  Commission  responding  to  Qwests  April  15,  1999  letter 
 regarding,  Informal  Complaint  No.  IC-  99-  03438  (January  21,  1999). 
 26  Id. 


 27  Qwest  Response  to  Notice  of  Informal  Complaint  No.  IC-  99-  03438  (filed  April  15,  1999). 
5
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 6 
 information  about  how  it  attempted  to  confirm  the  LOA's  authenticity  nor  does  it  dispute  Ms.  Tsos  assertion  that  she  did  not  authorize  the  switch. 
 E.  The  Robles  Complaint 
 12.  Mr.  George  Robles  also  alleges  in  his  complaint  that  Qwest  switched  his  preferred  interexchange  carrier  from  AT&  T  to  Qwest  without  his  authorization.  28  Mr.  Robles 
 states  that,  he  learned  that  that  Qwest  had  converted  his  long  distance  service  when  he  received  a  welcome  letter  from  Qwest  on  December  18,  1998.  He  contacted  Qwest  to  inquire  under  what 
 authority  Qwest  made  the  change.  29  The  LOA  provided  by  Qwest  contained  the  name  Glen  Mickelson  and  an  address  different  from  Mr.  Robles,  but  Mr.  Robles  telephone  number.  30  Mr. 
 Robles  phone  bill  is  in  his  name,  and  he  is  the  only  individual  authorized  to  make  changes  to  that  account. 


 13.  Qwest's  response  to  the  Branchs  Notice  31  of  Mr.  Robles  complaint  states  that  Qwest  established  an  account  under  the  name  of  George  Robles  on  December  7,  1998. 
 Incongruously,  the  LOA  provided  by  Qwest  to  evidence  its  authorization  is  signed  by  a  Glen  Mickelson.  Qwests  response  does  not  explain  how  an  account  was  established  in  the  name  of 
 George  Robles  based  upon  an  LOA  signed  by  a  Glen  Mickelson.  Nor  does  Qwests  response  address  the  assertion  that  the  LOA  used  to  convert  Mr.  Robles  long  distance  service  was  signed 
 by  an  individual  unaffiliated  with  his  telephone  service  account,  and  therefore,  without  authority  to  approve  such  a  change. 


 F.  The  Yau  Complaint 
 14.  Mr.  Szuchien  Yau  also  states  that  he  became  aware  that  he  had  been  switched  to  Qwest  without  his  authorization  when  he  received  a  monthly  bill.  Mr.  Yau  made  several 
 telephone  calls  to  Qwest  in  an  effort  to  determine  how  Qwest  changed  his  preferred  long  distance  carrier,  and  was  told  that  Qwest  had  been  given  approval  by  a  third-  party  marketing 
 company.  Even  though  Mr.  Yau  asserted  that  neither  Qwest  nor  the  marketing  company  had  ever  contacted  him,  the  customer  service  representative  he  spoke  with  informed  him  he  would 
 still  have  to  pay  Qwest  for  the  charges  incurred  32  .  Mr.  Yau  states  that  he  then  attempted  to  speak  with  a  customer  service  supervisor  in  order  to  resolve  his  complaint.  Although  Mr.  Yau  left  a 
 message  on  the  supervisors  answering  machine,  his  call  was  not  returned. 


 28  George  Robles,  Informal  Complaint  No.  IC-  99-  02911  (December  30,  1998)  (Robles  Complaint). 
 29  Id. 
 30  Id.  In  support  of  his  complaint,  Mr.  Robles  submitted  to  the  Common  Carrier  Bureau  a  declaration  dated 
 May  21,  1999.  See  Declaration  of  George  Robles,  IC-  99-  02911  (May  21,  1999). 
 31  See  Appendix  A. 


 32  See  Yau  Complaint  at  1;  also  see  Declaration  of  Szuchien  Yau,  IC-  99-  19325  (September  13,  1999). 
6
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 7 
 15.  As  in  the  other  complaints,  Qwest  states  that  an  account  was  established  in  Mr.  Yaus  name  based  upon  authorization  it  received  from  Advanced  Direct  Marketing,  a  third-  party 
 distributor.  33  The  LOA  provided  by  Qwest  as  evidence  of  this  authorization  appears  to  include  the  signature  of  someone  other  than  Mr.  Yau.  Moreover,  handwriting  on  the  LOA  says 
 Authorized  By  Phone,  further  suggesting  that  the  signature  on  the  LOA  is  that  of  someone  other  than  Mr.  Yau.  Qwests  response  does  not  explain  how  a  signed  LOA,  as  required  by  the 
 Commissions  rules,  could  be  obtained  over  the  telephone.  34  Nor  does  Qwest  challenge  Mr.  Yaus  assertion  that  he  had  never  given  authorization  to  have  his  preferred  long  distance  carrier 
 switched  to  Qwest. 
 G.  The  Romero  Complaint 
 16.  Mr.  Don  Romero  states  that  he  first  learned  that  Qwest  had  converted  his  long  distance  service  without  his  authorization  when  he  received  a  bill  from  Qwest  on  April  30, 
 1999.  35  In  his  complaint,  Mr.  Romero  states  that  he  immediately  contacted  Qwest  to  explain  that  he  did  not  authorize  a  change  and  to  request  that  the  charges  be  taken  off  or  credited  to  reflect  a 
 zero  balance.  36  In  response,  Qwest  claimed  it  would  send  to  Mr.  Romero  a  copy  of  a  the  LOA  illustrating  his  agreement  to  change  his  carrier.  In  a  subsequent  conversation  with  Qwest 
 customer  service,  Mr.  Romero  was  informed  that  Qwest  did  not  have  a  letter  of  authorization,  and  no  LOA  was  ever  provided  to  him.  Mr.  Romero  states  in  his  complaint  and  a  supporting 
 declaration  that  he  never  authorized  Qwest  to  order  a  change  in  his  long  distance  carrier.  37 
 17.  Qwest's  response  to  the  Branchs  Notice  38  of  Mr.  Romeros  complaint  lists  the  amount  of  charges  Qwest  assessed  Mr.  Romero,  and  the  amount  of  money  it  had  credited  to  Mr. 
 Romeros  account.  39  Qwest  states  further  that  it  received  authorization  from  the  Dino  Group,  a  third  party  distributor  of  Qwests  services,  40  although  it  had  been  unable  to  obtain  the  Letter  of 
 Authorization  that  established  this  account.  41  Qwest  fails  to  provide  the  Commission  with  any 
 33  Qwest  Response  to  Informal  Complaint  No.  IC-  99-  19325  (filed  September  20,  1999). 
 34  Id. 
 35  Don  P.  Romero,  Informal  Complaint  No.  IC-  99-  19477  (June  4,  1999)  (Romero  Complaint). 
 36  Id. 
 37  See  Romero  Complaint  at  1;  also  see  Declaration  of  Don  P.  Romero,  IC-  99-  19477  (September  10,  1999). 


 38  See  Appendix  A. 
 39  Qwest  Response  to  Informal  Complaint  No.  IC-  99-  19477  (filed  July  13,  1999). 
 40  Id. 
 41  Id. 
7
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 8 
 evidence  to  rebut  Mr.  Romeros  allegations  that  Qwest  changed  his  preferred  carrier  service  without  authorization. 
 H.  The  Cruz  Complaint 
 18.  In  her  complaint,  Edna  Cruz  similarly  explains  that  she  discovered  that  her  preferred  long  distance  carrier  had  been  switched  to  Qwest  when  she  received  her  bill.  She 
 asserts  that  she  never  authorized  this  switch.  Ms.  Cruz  declares  that  she  does  recall  receiving  a  telemarketing  call  from  Qwest,  but  emphatically  declined  their  offer.  42  She  states  that  when 
 she  contacted  Qwest,  a  customer  service  representative  indicated  that  she  was  unable  to  discontinue  future  bills  and  service,  and  refused  to  credit  her  account  for  the  current  bill  of 
 $5.13.  The  customer  service  representative  also  denied  Ms.  Cruz  request  to  speak  to  a  supervisor. 


 19.  In  response  to  the  Branchs  service  of  Ms.  Cruz  complaint,  Qwest  sent  a  letter  43  addressed  to  the  Branch  Chief  apologizing  for  any  frustration  this  situation  may  have  caused. 
 There  is  no  indication  whether  a  copy  of  this  letter  was  also  sent  to  the  complainant,  Ms.  Cruz.  As  with  the  other  complaints,  Qwest  response  states  that  Ms.  Cruz  service  was  switched  based 
 on  an  order  received  from  LI  Deer  International,  an  authorized  marketer  of  Qwests  service.  However  Qwests  response  does  not  include  a  copy  of  an  LOA,  or  any  other  evidence 
 demonstrating  that  they  verified  Ms.  Cruz  purported  carrier  change  request  in  accordance  with  Commission  rules. 


 20.  In  a  manner  similar  to  several  other  recent  responses,  Qwest  goes  on  to  state  that, 
 Qwest  is  entitled  to  reimbursement  for  calls  carried  over  its  network.  In  those  cases  where  a  change  in  primary  long  distance  carrier  is  disputed, 
 the  FCC  has  ruled  that  the  customer  is  responsible  for  charges  incurred  on  the  current  carrier.  44 


 Qwest  does  not  explain  the  basis  for  its  assertion  concerning  Commission  rulings  that  it  is  entitled  to  be  paid  in  full  for  charges  assessed  upon  customers  that  it  allegedly  switched  without 
 authorization. 
 I.  The  Remaining  Consumer  Complaints 


 42  See  Declaration  of  Edna  Cruz,  IC  Number  99-  16094,  (September  30,  1999) 
 43  Qwest  Response  to  Informal  Complaint  No.  IC-  99-  16094  (filed  September  7,  1999). 


 44  Id. 
8
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 9 
 21.  The  remaining  consumer  complaints  45  that  are  the  basis  of  this  NAL  are  factually  similar  to  the  allegations  in  the  complaints  described  above,  and  appear  to  establish  a  pattern  of 
 conduct  by  Qwest  to  change  consumers'  preferred  interexchange  carriers  through  the  use  of  forged  or  otherwise  unauthorized  LOAs.  In  each  case,  the  complainant  discovered  that  his  or  her 
 long  distance  service  had  been  changed  to  Qwest  after  reviewing  a  telephone  bill,  receiving  a  welcome  letter  from  Qwest  or  receiving  a  phone  solicitation  from  their  previous  long  distance 
 company.  Twenty-  two  of  the  complainants  have  provided  statements  and  evidence  that  the  signature  on  the  purported  LOA  supplied  by  Qwest  as  its  authority  for  submitting  a  preferred 
 carrier  change  request  on  behalf  of  the  complainants  is  falsified  or  a  forgery.  46  Three  other  complainants,  in  a  manner  similar  to  the  Robles  complaint,  have  provided  statements  and 
 evidence  that  the  signature  on  the  LOA  provided  by  Qwest  is  not  the  signature  of  a  person  with  authority  to  make  such  a  request.  In  each  instance,  the  complainants  contend  that  the  alleged 
 signatory  is  both  unauthorized  to  approve  preferred  carrier  changes  for  that  telephone  line  and  unknown  to  the  complainants.  47  One  additional  complainant,  in  fashion  analogous  to  the 
 Romero  complaint,  alleges  that  his  preferred  carrier  was  changed  without  authorization,  much  less  any  contact  with  the  company.  48  Qwest,  in  response  to  this  complaint,  fails  to  provide  any 
 evidence  to  refute  the  consumers  allegations  that  Qwest  converted  the  consumers  long  distance  carrier  without  obtaining  his  authorization.  Although  Qwest  claims  that  these  changes  were 
 made  pursuant  to  a  signed  LOA,  Qwest  concedes  that  it  is  unable  to  locate  the  purported  LOAs  upon  which  it  claims  to  rely.  Finally,  in  one  other  case  similar  to  the  Cruz  complaint,  Qwest  has 
 failed  to  provide  the  Commission  with  any  evidence  rebutting  the  complainants  sworn  allegation  that  his  preferred  carrier  was  switched  to  Qwest  without  authorization. 


 22.  Qwest's  responses  to  the  Branch's  Notices  49  forwarding  the  complaints  are  similar  to  those  detailed  above.  In  all  of  the  remaining  cases  Qwest  responds  that  it  directed  the 
 preferred  carrier  switches  be  made  based  upon  authorization  received  from  various  third-  party  marketers  of  Qwests  service.  In  those  cases  where  Qwest  has  produced  LOAs,  Qwest  does  not 
 contest  the  complainant's  assertion  that  the  signature  on  the  purported  LOA  is  falsified  or  forged,  50  or  was  in  the  name  of  someone  without  authorization  to  approve  the  switch.  51  In  four 


 45  See  Appendix  A  for  details  concerning  the  remaining  consumer  complaints. 
 46  See  Appendix  A  for  a  list  of  complainants  declarations. 


 47  See  Katherine  F.  Howell  Complaint,  IC  99-  03536.  The  LOA  provided  by  Qwest  in  response  to  the  Howell 
 complaints  is  in  the  name  of  Hong  Li  and  is  written  solely  in  Chinese.  Also  see  Pieh-  Ling  Shing  Complaint,  IC  99-  19341,  and  James  S.  Angert  Complaint,  IC  99-  19328. 


 48  See  Enrique  Vargas  Complaint,  IC  99-  19128. 
 49  See  Appendix  A  for  a  list  of  Qwest  responses. 
 50  See  complaints  of  Anusha  Srinivasan,  IC  99-  02727;  Alda  J.  Hodgson,  99-  02489;  Linda  Carroll,  IC  99- 
 03505;  Sue  Wu,  IC  99-  03274;  Rosalie  Pinto,  IC  99-  19015;  Elwood  I.  Kita,  IC  99-  02578;  Bobby  F.  &  Linda  D.  Lacy,  IC  98-  41593;  Enrique  G.  Martinez,  IC  99-  03279;  Dolores  Pestana,  IC  99-  02730;  Jeffrey  S.  Protzel,  IC  99- 


 02689;  Siu-  ki  Tso,  IC  99-  03438;  Saul  O.  Paredes,  IC  99-  09942;  Szuchien  Yau,  IC  99-  19325;  Carolyn  Booth,  IC  99-  20305;  Jose  A.  Pabon,  IC  99-  19314;  Diane  C.  Lares,  IC  99-  19322;  Audrey  R.  Tien,  IC  99-  19495;  Laura  Petrou,  IC 
9
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 10 
 of  the  cases,  52  Qwest  has  failed  to  produce  any  evidence  to  rebut  the  allegation  of  slamming,  or  demonstrated  that  it  had  complied  with  the  Commissions  rules  requiring  verification  of  carrier 
 switch  requests. 
 III.  DISCUSSION 
 A.  Violations  Evidenced  in  the  Complaints 
 23.  Section  258  of  the  Act  makes  it  unlawful  for  any  telecommunications  carrier  to  "submit  or  execute  a  change  53  in  a  subscriber's  selection  of  a  provider  of  telephone  exchange 


 service  or  telephone  toll  service  except  in  accordance  with  such  procedures  as  the  Commission  shall  prescribe."  54  The  goal  of  section  258  is  to  eliminate  the  practice  of  "slamming."  Pursuant 
 to  section  258,  carriers  are  barred  from  changing  a  customer's  preferred  local  or  long  distance  carrier  without  first  complying  with  the  Commission's  verification  procedures. 


 24.  Commission  rules  and  orders  related  to  slamming  require  that  when  using  LOAs  IXCs  obtain  a  signature  from  an  individual  authorized  to  approve  a  change  in  the  presubscribed 
 carrier  for  the  consumer's  telephone  line.  55  The  Commission's  rules  establish  that  the  LOA  must  be  signed  by,  the  "subscriber  to  the  telephone  line(  s)  requesting  the  primary  interexchange 
 carrier  change."  56 
 25..  The  thirty  consumer  complaints  forming  the  basis  for  this  action  appear  to  establish  a  pattern  of  willful  or  repeated  violations  of  the  requirements  of  the  Act  and  the 


 99-  08045;  Janice  and  Jerry  Yun,  IC  99-  19448;  Edward  A.  Herrera,  IC  99-  19139;  Frank  Ruiz,  IC  99-  19144  and  Liem  B.  Lam,  IC  99-  19478. 
 51  See  complaints  of  Katherine  F.  Howell,  IC  99-  03536;  Pieh-  Ling  Sheng,  IC  99-  19341;  James  S.  Angert, 
 IC  99-  19328  and  George  A.  Robles,  IC  99-  02911. 


 52  See  complaints  of  Don  P.  Romero,  IC  99-  19477;  Arturo  Sobrino,  IC  99-  16192;  Edna  Cruz,  IC  99-  16094 
 and  Enrique  Vargas,  IC  99-  19128. 


 53  The  Commission's  rules  and  orders  prescribe  that  interexchange  carriers  (IXCs)  must  submit  preferred 
 carrier  change  orders  to  local  exchange  carriers  (LECs),  who  are  then  obligated  to  make  the  change  absent  some  indication  that  the  request  is  not  legitimate.  See  Policies  and  Rules  Concerning  Unauthorized  Changes  of 


 Consumers  Long  Distance  Carriers,  10  FCC  Rcd  9560  (1995)  (LOA  Order);  Preferred  Carrier  Change  Order,  7  FCC  Rcd  1038  (1992);  Investigation  of  Access  and  Divestiture  Related  Tariffs,  101  FCC  2d  911  (1985)  (Allocation 
 Order);  Investigation  of  Access  and  Divestiture  Related  Tariffs;  101  FCC  2d  935  (Com.  Car.  Bur.  1985)  (Waiver  Order). 


 54  See  47  U.  S.  C.    258. 
 55  Under  the  Commission's  rules,  "the  letter  of  agency  must  be  signed  and  dated  by  the  subscriber  to  the 
 telephone  line(  s)  requesting  the  primary  interexchange  carrier  change."  47  C.  F.  R.  64.1150(  b). 
 56  47  C.  F.  R.    64.1150(  b). 
10
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 11 
 Commission's  rules  and  orders  pertaining  to  preferred  carrier  changes.  57  The  facts  in  the  complaints,  and  Qwest's  own  responses,  illustrate  clearly  that  Qwest  was  or  should  have  been  on 
 notice  as  early  as  October  1998,  that  consumers  had  problems  with  Qwest's  submission  of  LOAs.  58  In  April  and  May  of  1999,  however,  Qwest  apparently  was  continuing  to  submit  forged 
 or  falsified  LOAs  and  change  orders  without  authorizations  in  the  same  manner  which  had  resulted  in  complaints  being  filed  with  Qwest  over  seven  months  earlier.  59  Regarding  the 
 forgery  complaints,  our  own  review  of  signatures  that  have  been  supplied  by  the  complainants  demonstrates  that  there  is  little  similarity  between  the  purported  signatures  on  the  LOAs  and  the 
 exemplars  provided  by  the  complainants,  thus  rendering  it  more  likely  than  not  that  the  signatures  are,  as  the  complainants  allege,  forged.  In  several  of  the  complaints,  this  finding  is 
 supported  by  evidence  that  other  information  on  the  purported  LOA  is  incorrect  or  clearly  fabricated.  60  In  each  of  the  twenty-  two  cases,  we  find  that  the  complainants  have  provided 
 credible  and  compelling  evidence  that  the  respective  LOAs  proffered  by  Qwest  were  either  falsified  or  contain  forgeries  of  the  complainants  signatures.  Therefore,  we  conclude  that  Qwest 
 has  apparently  willfully  or  repeatedly  violated  section  258  of  the  Act  and  the  Commission's  rules  and  orders  by  changing  these  consumers  preferred  carriers  without  authorization  through  the 
 submission  of  forged  letters  of  authorization.  61 
 26.  In  four  of  the  remaining  complaints,  an  individual  authorized  to  make  such  a  preferred  carrier  change  request  on  behalf  of  the  complainants  apparently  did  not  sign  the  LOAs. 


 Qwest  offers  no  explanation  for  how  individuals  without  any  association  to  the  complainants'  telephone  service  were  allowed  to  authorize  a  change  in  that  service,  nor  does  Qwest  explain  the 
 measures  it  employed  to  ensure  that  such  a  violation  of  our  rules  did  not  occur.  Indeed,  in  each  of  these  cases,  it  appears  that  a  simple  comparison  between  the  LOA  and  the  listing  information 
 would  have  revealed  the  inconsistency.  In  each  of  the  cases,  we  find  that  the  complainants  have  provided  credible  and  compelling  evidence  that  an  individual  unaffiliated  with  the  complainants 
 telephone  service  account  signed  the  respective  LOAs  proffered  by  Qwest.  Therefore,  we  conclude  that  Qwest  has  apparently  willfully  or  repeatedly  violated  section  258  of  the  Act  and 


 57  See  47  C.  F.  R.    64.1150;  Preferred  Carrier  Change  Order,  7  FCC  Rcd  at  1045. 
 58  Mr.  And  Mrs.  Lacys  complaint  contends  that  they  initially  contacted  Qwest  on  October  23,  1998.  Lacy 
 Complaint,  Informal  Complaint  No.  IC-  98-  41593  (November  2,  1998).  Qwest  confirms  this  contact  in  its  response  to  the  Commission's  Notice.  See  Qwest  Response  to  Notice  of  Informal  Complaint  No.  IC-  98-  41953  (filed  March 


 1,  1999). 
 59  US  WEST  reported  that  on  May  4,  1999,  they  processed  a  Qwest  order  to  execute  a  preferred  carrier 
 change  for  Enrique  Vargas  telephone  number.  US  WEST  Response  to  Vargas  Complaint,  Notice  of  Informal  Complaint  No.  IC-  99-  19128  (filed  August  13,  1999). 


 60  See  e.  g.,  Wu  complaint,  IC  99-  03274  or  Carroll  complaint  IC  99-  03505. 
 61  See  47  U.  S.  C.    258;  47  C.  F.  R.    64.1150;  1997  FNPRM  &  Order  on  Reconsideration,  12  FCC  Rcd  10674 
 (1997);  LOA  Order,  10  FCC  Rcd  9560  (1995),  stayed  in  part,  In-  bound  Stay  Order,  11  FCC  Rcd  856  (1995);  (Preferred  Carrier  Change  Order),  7  FCC  Rcd  1038  (1992),  recon.  denied,  8  FCC  Rcd  3215  (1993);  Allocation 


 Order,  101  FCC  2d  911  (1985),  Waiver  Order,  101  FCC  2d  935  (Com.  Car.  Bur.  1985),  recon.  (of  both  Allocation  Order  and  Waiver  Order)  denied,  102  FCC  2d  503  (1985)  (Reconsideration  Order). 
11
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 12 
 the  Commission's  rules  and  orders  in  connection  with  the  unauthorized  preferred  carrier  changes  alleged  by  these  complainants.  62 
 27.  Regarding  the  four  additional  complaints,  we  find  that  the  complainants  have  provided  credible  and  compelling  evidence  that  Qwest  converted  their  long  distance  carriers 
 without  proper  authorization.  Our  review  of  the  record  demonstrates  that  Qwest  fails  to  rebut  the  complainants  allegations  that  their  long  distance  service  was  changed,  and  alternatively  states  it 
 is  unable  to  locate  the  LOAs  used  to  change  the  consumers  carriers.  63  In  fact,  with  respect  to  these  consumers,  Qwest  fails  to  provide  the  Commission  with  any  evidence  that  Qwest  utilized 
 any  verification  method  prior  to  submitting  the  carrier  change  orders.  64  Therefore,  we  conclude,  in  the  absence  of  an  argument  or  rebuttal  evidence  to  the  contrary,  that  Qwest  has  apparently 
 willfully  or  repeatedly  violated  section  258  of  the  Act  and  the  Commission's  rules  and  orders  in  connection  with  the  unauthorized  preferred  carrier  changes  alleged  by  these  complainants.  65 


 28.  We  note  that  each  of  Qwests  responses  to  these  complaints  state  that  Qwest  made  the  switch  based  upon  purported  authorizations  received  from  various  third-  party  marketers  of 
 Qwest  services.  Qwests  responses  typically  add  that  such  distributors  are  required  to  act  within  the  guidelines  of  federal  and  state  laws,  in  addition  to  following  Qwests  policies 
 regarding  carrier  switches.  To  the  extent  Qwest  is  seeking  to  absolve  itself  of  fault  in  these  complaints  by  laying  blame  on  its  third-  party  marketers,  we  emphasize  that  the  Commission  on 
 many  occasions  has  made  clear  that  carriers  are  responsible  for  the  acts  of  their  marketing  agents.  66  Moreover,  despite  Qwests  assertions  that  its  distributors  are  required  to  act  in 
 accordance  with  applicable  law,  we  find  it  particularly  troubling  that  the  complaints  encompassed  by  this  NAL  were  admittedly  originated  by  no  less  than  twelve  different 
 independent  marketing  companies  authorized  by  Qwest.  Thus  apparent  slamming  violations 
 62  See  47  U.  S.  C.    258;  47  C.  F.  R.    64.1150;  1997  FNPRM  &  Order  on  Reconsideration,  12  FCC  Rcd  10674 
 (1997);  LOA  Order,  10  FCC  Rcd  9560  (1995),  stayed  in  part,  In-  bound  Stay  Order,  11  FCC  Rcd  856  (1995);  (Preferred  Carrier  Change  Order),  7  FCC  Rcd  1038  (1992),  recon.  denied,  8  FCC  Rcd  3215  (1993);  Allocation 


 Order,  101  FCC  2d  911  (1985),  Waiver  Order,  101  FCC  2d  935  (Bur.  1985). 
 63  See  Romero,  Sobrino,  Cruz  and  Vargas  complaints;  also  see,  e.  g.,  Qwest  Response  to  Informal  Complaint 
 No.  IC-  99-  19477  (filed  July  13,  1999). 


 64  See  47  U.  S.  C.    64.1100,  64.1150  (detailing  the  different  procedures  by  which  carriers  may  verify  a 
 preferred  carrier  change);  see  also  Implementation  of  the  Subscriber  Carrier  Selection  Changes  Provisions  of  the  Telecommunications  Act  of  1996  and  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  Rulemaking,  14  FCC  Rcd  1508  (1998)  (1998  Second  Order  and  FNPRM)  at    78. 


 65  See  47  U.  S.  C.    258;  47  C.  F.  R.    64.1150;  1997  FNPRM  &  Order  on  Reconsideration,  12  FCC  Rcd  10674 
 (1997);  LOA  Order,  10  FCC  Rcd  9560  (1995),  stayed  in  part,  In-  bound  Stay  Order,  11  FCC  Rcd  856  (1995);  (Preferred  Carrier  Change  Order),  7  FCC  Rcd  1038  (1992),  recon.  denied,  8  FCC  Rcd  3215  (1993);  Allocation 


 Order,  101  FCC  2d  911  (1985),  Waiver  Order,  101  FCC  2d  935  (Bur.  1985). 
 66  See  47  U.  S.  C.    217;  also  see  Excel  Telecommunications  Incorporated,  11  FCC  Rcd  19765  (1997)  and 
 Long  Distance  Direct,  Inc.,  14  FCC  Rcd  314  (1999). 
12
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 13 
 undertaken  by  Qwests  agents  were  widespread  rather  than  limited  to  a  single  marketer  or  marketing  company. 
13
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 14 
 B.  Forfeiture  Amount 
 29.  Qwest's  actions,  including:  (1)  the  apparent  use  of  forged  or  falsified  LOAs  67  to  effect  changes  in  long  distance  service;  (2)  the  use  of  LOAs  signed  by  someone  without 
 authority  to  effectuate  a  change;  and  (3)  the  unauthorized  submission  of  carrier  change  orders  for  the  long  distance  service,  persuades  us  that  a  significant  forfeiture  action  is  warranted  against 
 Qwest  for  willful  or  repeated  violations  of  section  258  of  the  Act  and  the  Commission's  rules  and  orders.  68  Section  503(  b)  of  the  Communications  Act  authorizes  the  Commission  to  assess  a 
 forfeiture  of  up  to  one  hundred  ten  thousand  dollars  ($  110,000)  for  each  violation  of  the  Act  or  of  any  rule,  regulation,  or  order  issued  by  the  Commission  under  the  Act.  69  In  exercising  such 
 authority,  we  are  required  to  take  into  account  "the  nature,  circumstances,  extent,  and  gravity  of  the  violation  and,  with  respect  to  the  violator,  the  degree  of  culpability,  any  history  of  prior 
 offenses,  ability  to  pay,  and  such  other  matters  as  justice  may  require."  70  The  Commission's  forfeiture  guidelines  currently  establish  a  standard  forfeiture  amount  of  $40,000  for  violations  of 
 our  rules  and  orders  regarding  unauthorized  changes  of  preferred  interexchange  carriers.  71  These  policies  and  guidelines,  however,  include  upward  adjustment  criteria  that  warrant  a  higher 
 forfeiture  amount  based  on  our  evaluation  of  the  particular  actions  and  circumstances  of  the  violator.  72  These  include  the  egregiousness  of  the  misconduct,  ability  or  inability  to  pay, 
 whether  the  violation  was  intentional,  whether  substantial  harm  resulted  from  the  violations, 
 67  The  Commission  previously  issued  NALs  finding  carriers  apparently  liable  for  relying  upon  forged  LOAs 
 and  sternly  admonished  carriers  that  it  would  take  swift  and  decisive  enforcement  action  against  any  carrier  found  to  have  engaged  in  the  practice.  Brittan  Communications  International  Corp.,  Notice  of  Apparent  Liability,  FCC  No. 


 98-  291,  rel.  Oct.  29,  1998  (Brittan  NAL),  Amer-  I-  Net  Services  Corp.,  Notice  of  Apparent  Liability,  FCC  No.  285,  rel.  Oct.  30,  1998  (Amer-  I-  Net  NAL);  AT&  T  Corporation,  11  FCC  Rcd  1885  (1996)  (AT&  T  Corp.  NAL);  Home 
 Owners  Long  Distance,  Incorporated,  11  FCC  Rcd  1808  (1996)  (Home  Owners  Long  Distance,  Inc.  NAL);  MCI  Telecommunications  Corporation,  11  FCC  Rcd  1821  (1996)  (MCI  NAL);  Nationwide  Long  Distance,  Incorporated, 
 11  FCC  Rcd  3087,  (1996)  (Nationwide  Long  Distance,  Inc.  NAL);  Target  Telecom,  Incorporated,  11  FCC  Rcd  1811,  (1996)  (Target  Telecom,  Inc.  NAL). 


 68  See  Commission's  Forfeiture  Policy  Statement  and  Amendment  of  Section  1.80  of  the  Rules  to  Incorporate 
 the  Forfeiture  Guidelines,  Report  and  Order,  12  FCC  Rcd  17087  (1997)  (petitions  for  reconsideration  pending). 
 69  47  U.  S.  C.    503(  b)(  2)(  B);  47  C.  F.  R.    1.80.  The  Commission  recently  amended  its  rules  by  adding  a  new 
 subsection  to  its  monetary  forfeiture  provisions  that  incorporates  the  inflation  adjustment  requirements  contained  in  the  Debt  Collection  Improvement  Act  of  1996  (Pub.  L.  104-  134,  Sec.  31001,  110  Stat.  1321),  enacted  on  April  26, 


 1996.  Amendment  of  Section  1.80  of  the  Commission's  Rules,  12  FCC  Rcd  1038  (1997). 
 70  See  47  U.  S.  C.    503(  b)(  2)(  D). 


 71  Section  503(  b)(  2)(  B)  provides  for  forfeitures  up  to  $100,000  for  each  violation  or  a  maximum  of 
 $1,000,000  for  each  continuing  violation  by  common  carriers  or  an  applicant  for  any  common  carrier  license,  permit,  certificate  or  similar  instrument.  47  U.  S.  C.    503(  b)(  2)(  B).  The  Debt  Collection  Improvement  Act  of  1996 


 (DCIA),  Pub  L.  No.  104-  134,    31001,  110  Stat.  1321  (1996),  requires,  however,  that  civil  monetary  penalties  assessed  by  the  federal  government  be  adjusted  for  inflation  based  on  the  formula  outlined  in  the  DCIA.  Thus,  the 
 statutory  maxima  pursuant  to  Section  503(  b)(  2)(  B)  increased  from  $100,000  and  $1,000,000  to  $110,000  and  $1,100,000  respectively.  Amendment  of  Section  1.80  of  the  Commission's  Rules,  12  FCC  Rcd  1038  (1997). 


 72  Id. 
14
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 15 
 history  of  compliance  with  Commission  requirements,  whether  the  violator  realized  substantial  economic  gain  from  the  misconduct,  and  whether  the  violation  is  repeated  or  continuous.  73 
 30.  We  note  that  on  several  occasions,  the  Commission  has  sternly  admonished  carriers  that  it  would  take  swift  and  decisive  enforcement  action,  including  the  imposition  of 
 substantial  monetary  forfeitures,  against  any  carrier  found  to  have  engaged  in  slamming,  particularly  through  the  practice  of  forged  LOAs.  74  More  recently,  the  Commission  has  issued 
 several  NALs  assessing  forfeitures  at  $80,000  per  violation  for  the  use  of  forged  LOAs.  75  In  those  Orders,  the  Commission  found  that  the  higher  forfeiture  amount  was  warranted  by  the 
 egregiousness  of  misconduct.  76 
 31.  In  the  instant  case,  the  evidence  before  us  indicates  that  Qwest,  despite  our  previous  warnings  to  the  long  distance  industry  about  the  use  of  forged  LOAs,  has  willfully  or 
 repeatedly  engaged  in  this  conduct  as  part  of  a  pattern  to  slam  consumers.  Moreover,  as  we  have  explained  in  earlier  NALs,  we  find  forgery  to  be  a  particularly  egregious  form  of  slamming.  77 
 We  thus  find  that  the  upward  adjustment  criteria  in  our  forfeiture  guidelines  that  involve  egregiousness  of  misconduct  and  the  repeated  nature  of  violations  are  applicable  in  this  case. 
 Applying  those  criteria  to  the  facts  of  this  case,  we  conclude  that  it  is  appropriate  to  impose  a  forfeiture  amount  that  is  double  the  base  amount  contained  in  our  forfeiture  guidelines  for  those 
 preferred  carrier  change  requests  based  on  forged  LOAs.  78  This  determination  is  consistent  with  the  most  recent  NALs,  which  involved  conduct  comparable  to  that  alleged  herein.  79  In  this 
 regard,  the  unauthorized  conversions  of  twenty-  two  of  the  complainants  presubscribed  carriers  through  the  use  of  forged  or  falsified  LOAs  constitute  twenty-  two  separate  violations.  We 
 propose  to  assess  a  forfeiture  of  eighty  thousand  dollars  ($  80,000)  per  violation.  We  will  apply 


 73  Id.  See  also  47  U.  S.  C.    503(  b)(  2)(  D). 
 74  See,  e.  g.,  Nationwide  Long  Distance,  Inc.  NAL,  11  FCC  Rcd  at  3089.  The  Commission  has  also 
 emphasized  on  numerous  occasions  that  the  actions  of  a  carrier's  marketing  agents  do  not  relieve  a  carrier  of  its  independent  obligation  to  ensure  compliance  with  the  rules.  Rather,  under  the  Communications  Act,  the  acts  or 


 omissions  of  an  agent  or  other  person  acting  for  a  common  carrier  are  deemed  to  be  the  acts  or  omissions  of  the  carrier  itself.  See  47  U.  S.  C.    217;  see  also  Heartline  Communications,  Inc.  11  FCC  Rcd  18487,  18494  (1996). 


 75  All  American  Telephone  Company,  Inc.,  13  FCC  Rcd  15040  (1998)  (All  American  NAL);  Brittan 
 Communications  International  Corp.,  Notice  of  Apparent  Liability,  FCC  No.  98-  291,  rel.  Oct.  29,  1998  (Brittan  NAL);  Amer-  I-  Net  Services  Corp.,  Notice  of  Apparent  Liability,  FCC  No.  285,  rel.  Oct.  30,  1998  (Amer-  I-  Net 


 NAL). 
 76  See,  e.  g.,  Brittan  NAL,  FCC  No  98-  291,    22-  27,  (1998). 


 77  See  Amer-  I-  Net  NAL,  FCC  No.  98-  285,    21  (1998);  See  also  Excel  Telecommunications  Incorporated,  11 
 FCC  Rcd  19765,  19767  (1997). 
 78  Cf.  All  American  NAL,  13  FCC  Rcd  15040,  15049;  Brittan  NAL,  FCC  No  98-  291,    24  (1998).;  Amer-  I-Net 
 NAL,  FCC  No.  98-  285,    21  (1998). 
 79  See  All  American  NAL,  13  FCC  Rcd  15040,  15049;  Brittan  NAL,  FCC  No  98-  291,    24-  25  (1998). 
15
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 16 
 the  forty  thousand  dollar  ($  40,000)  base  slamming  forfeiture  amount  for  each  of  the  remaining  eight  violations.  Thus,  we  find  that  Qwest  is  apparently  liable  for  a  forfeiture  of  two  million  and 
 eighty  thousand  dollars  ($  2,080,000)  for  the  unauthorized  conversion  of  the  thirty  complainants'  long  distance  service.  Qwest  will  have  the  opportunity  to  submit  evidence  and  arguments  in 
 response  to  this  NAL  to  show  that  no  forfeiture  should  be  imposed  or  that  some  lesser  amount  should  be  assessed.  80 


 32.  Finally,  our  review  of  Qwests  responses  indicates  a  need  for  the  Commission  to  continue  to  monitor  Qwest's  preferred  carrier  change  practices.  As  is  evident  by  its  submissions 
 in  response  to  other  consumer  complaints,  Qwest  has  illustrated  a  lack  of  responsiveness  to  its  customers  and  to  the  Commissions  inquiries  and  Consumer  Protection  Branch  policies. 
 Among  other  things,  the  widespread  nature  of  Qwests  slamming  complaints  among  numerous  third  party  marketers  indicates  that  Qwest  has  failed  to  exercise  appropriate  oversight  of  such 
 agents  or  to  take  reasonable  steps  to  verify  the  legitimacy  of  authorizations  received  from  them.  Qwests  failure  in  several  instances  to  provide  an  LOA  or  any  other  evidence  of  verification 
 required  by  the  Commissions  rules  also  suggests  that  Qwest  has  failed  to  implement  reasonable  precautions  to  ensure  it  has  received  proper  authorization  before  directing  a  switch  in  a 
 consumers  preferred  carrier.  We  also  note  that  most  of  the  complainants  referenced  in  the  NAL  express  frustration  resulting  from  an  inability  to  reach  Qwest  or  lack  of  responsiveness  to  their 
 complaints  from  Qwest  customer  service  representatives.  Additionally,  we  are  concerned  about  recent  letters  from  Qwest  that  state  the  Commission  requires  consumers  to  pay  Qwests  charges 
 even  if  Qwest  has  slammed  the  consumer.  This  letter,  which  is  an  apparent  attempt  to  intimidate  consumers  into  paying  slamming  charges,  does  not  accurately  reflect  the  Commissions  rules  in 
 this  regard.  81  We,  therefore,  require  Qwest  to  file  with  this  Commission  within  30  days  of  the  release  of  this  order  a  compliance  plan  which  shall  include  procedures  designed  to  promptly 
 identify  and  address  consumer  inquiries  and  concerns  about  Qwest's  preferred  carrier  change  practices.  82  The  compliance  plan  shall  also  detail  actions  Qwest  will  take  and  procedures  it  will 
 establish  to  comply  with  the  Act,  and  the  Commission's  rules  and  orders.  The  Commission  will  continue  to  closely  monitor  the  level  and  content  of  consumer  complaints  to  determine  whether 
 the  establishment  of  Qwest's  proposed  management  practices  leads  to  a  decrease  in  unauthorized  preferred  carrier  changes. 


 IV.  CONCLUSIONS  AND  ORDERING  CLAUSES 


 80  See    47  U.  S.  C.    503(  b)(  4)(  C);  47  C.  F.  R.    1.80(  f)(  3). 
 81  See  47  U.  S.  C.    258;  Implementation  of  the  Subscriber  Carrier  Selection  Changes  Provisions  of  the 
 Telecommunications  Act  of  1996  and  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  Rulemaking, 


 14  FCC  Rcd  1508  (1998)  (1998  Second  Order  &  FNPRM). 


 82  See  47  U.  S.  C.    218. 
16
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 17 
 33.  We  have  determined  that  Qwest  Communications  International  Corporation  apparently  violated  section  258  of  the  Act  and  the  Commission's  preferred  carrier  change  rules 
 and  orders  83  by  converting  the  preferred  carriers  of  the  thirty  consumers  identified  above,  on  the  dates  and  in  the  manner  described  herein.  We  have  further  determined  that  Qwest 
 Communications  International  Corporation  is  apparently  liable  for  forfeitures  in  the  amount  of  eighty  thousand  dollars  ($  80,000)  for  each  of  the  twenty-  two  violations  involving  forgeries  or 
 falsifications  and  forty  thousand  dollars  ($  40,000)  for  each  of  the  eight  violations  that  did  not  involve  forgeries  or  falsifications,  resulting  in  a  total  forfeiture  amount  of  two  million  and  eighty 
 thousand  dollars  ($  2,080,000). 
 34.  Accordingly,  IT  IS  ORDERED,  pursuant  to  section  503(  b)  of  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    503(  b),  section  1.80  of  the  Commission's  rules,  47  C.  F.  R. 
   1.80,  that  Qwest  Communications  International  Corporation  IS  HEREBY  NOTIFIED  of  an  Apparent  Liability  for  Forfeiture  in  the  amount  of  two  million  and  eighty  thousand  dollars 
 ($  2,080,000)  for  willful  or  repeated  violations  of  section  258  of  the  Act  84  and  the  Commission's  preferred  carrier  change  rules  and  orders  as  described  in  the  paragraphs  above.  85 


 35.  IT  IS  FURTHER  ORDERED,  pursuant  to  section  1.80  of  the  Commission's  rules,  47  C.  F.  R.    1.80,  that  within  thirty  (30)  days  of  the  release  of  this  Notice,  Qwest 
 Communications  International  Corporation  SHALL  PAY  the  full  amount  of  the  proposed  forfeiture  86  OR  SHALL  FILE  a  response  showing  why  the  proposed  forfeiture  should  not  be 
 imposed  or  should  be  reduced. 


 83  See,  e.  g.,  47  C.  F.  R.    64.1150;  Implementation  of  the  Subscriber  Carrier  Selection  Changes  Provisions  of 
 the  Telecommunications  Act  of  1996  and  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 


 Rulemaking,  14  FCC  Rcd  1508  (1998)  (1998  Second  Order  &  FNPRM);  EqualNet  Corporation  Proposed  Request  for  Waiver,  14  FCC  Rcd  3975  (1999)  (EqualNet  Waiver  Order);  Further  Notice  of  Proposed  Rule  Making  and 
 Memorandum  Opinion  and  Order  on  Reconsideration,  12  FCC  Rcd  10674  (1997)  (1997  FNPRM  &  Order  on  Reconsideration.);  Policies  and  Rules  Concerning  Unauthorized  Changes  of  Consumers'  Long  Distance  Carriers, 
 10  FCC  Rcd  9560  (1995)  (LOA  Order),  stayed  in  part,  11  FCC  Rcd  856  (1995)  (In-  bound  Stay  Order);  Policies  and  Rules  Concerning  Changing  Long  Distance  Carriers,  7  FCC  Rcd  1038  (1992)  (Preferred  Carrier  Change  Order), 
 recon.  denied,  8  FCC  Rcd  3215  (1993);  Investigation  of  Access  and  Divestiture  Related  Tariffs,  101  FCC  2d  911  (1985)  (Allocation  Order),  Investigation  of  Access  and  Divestiture  Related  Tariffs,  101  FCC  2d  935  (Com.  Car. 
 Bur.  1985)  (Waiver  Order),  recon.  (of  both  Allocation  Order  and  Waiver  Order)  denied,  102  FCC  2d  503  (1985)  (Reconsideration  Order). 


 84  47  U.  S.  C.    258. 
 85  See  47  C.  F.  R.    64.1150;  1997  FNPRM  &  Order  on  Recon.,  12  FCC  Rcd  10674;  LOA  Order,  10  FCC  Rcd 
 9560;  Preferred  Carrier  Change  Order,  7  FCC  Rcd  1038;  Allocation  Order,  101  FCC  2d  911;  Waiver  Order,  101  FCC  2d  935. 


 86  The  forfeiture  amount  should  be  paid  by  check  or  money  order  drawn  to  the  order  of  the  Federal 
 Communications  Commission.  Reference  should  be  made  on  Qwest  Communications  International  Corporation's  check  or  money  order  to  "NAL/  Acct.  No.  916EF0008."  Such  remittances  must  be  mailed  to  Forfeiture  Collection 


 Section,  Finance  Branch,  Federal  Communications  Commission,  P.  O.  Box.  73482,  Chicago,  Illinois  60673-  7482. 
17
 Federal  Communications  Commission  FCC  99-  299  _____________________________________________________________________________ 
 18 
 36.  IT  IS  FURTHER  ORDERED,  pursuant  to  sections  4(  i)  and  218  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  218,  that  Qwest 
 Communications  International  Corporation  SHALL  FILE  with  the  Commission,  within  thirty  (30)  days  of  the  release  of  this  Notice,  a  compliance  plan  detailing  the  actions  it  will  take  and  the 
 procedures  it  will  establish,  to  ensure  compliance  with  section  258  of  the  Act  and  the  Commission's  rules  and  orders  relating  to  preferred  carrier  changes.  The  compliance  plan  shall 
 set  forth  procedures  designed  to  enable  Qwest  Communications  International  Corporation  to  promptly  identify  and  address  consumer  inquiries  and  concerns  about  its  preferred  carrier  change 
 practices. 
 37.  IT  IS  FURTHER  ORDERED  that  a  copy  of  this  Notice  of  Apparent  Liability  for  Forfeiture  SHALL  BE  SENT  by  certified  mail  to  Joseph  Nacchio,  Qwest  Communications 
 International  Corporation,  555  17  th  Street,  #700,  Denver,  Colorado  80202  and  to  Cheryl  A.  Tritt,  Esq.,  Morrison  &  Foerster  LLP,  2000  Pennsylvania  Avenue,  N.  W.,  Suite  5500,  Washington, 
 D.  C.  20006,  Qwests  registered  agent. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Magalie  Roman  Salas  Secretary 
18