[Federal Register Volume 71, Number 11 (Wednesday, January 18, 2006)]
[Rules and Regulations]
[Pages 2895-2897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-322]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 94-129; DA 05-1618]


Policies and Rules Concerning Unauthorized Changes of Consumers' 
Long Distance Carriers

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: A Petition for Declaratory Ruling regarding the Commission's 
carrier change verification rules was filed by a coalition of rural 
local exchange carriers (LEC Petitioners). Specifically, the LEC 
Petitioners asked the Commission to declare that certain carrier change 
verification actions do not violate the Commission's rules, which 
prohibits executing carriers from verifying the submission of a change 
request by a submitting carrier or causing an unreasonable delay in the 
execution of a change. In this document, the Commission denies the LEC 
Petitioners' request.

DATES: Effective January 18, 2006.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: David Marks, Consumer & Governmental 
Affairs Bureau, (202) 418-2512 (voice), [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Declaratory Ruling (Order) DA 05-1618, CC Docket No. 94-129, adopted 
June 8, 2005 and released June 9, 2005. The Order denies a Petition for 
Declaratory Ruling regarding the Commission's carrier change 
verification rules filed by a coalition of rural local exchange 
carriers (LEC Petitioners) on February 1, 2005.
    This document does not contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. In addition, it does not contain new or 
modified ``information collection burdens for small business concerns 
with fewer than 25 employees,'' pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4). Copies of any subsequently filed documents in this matter 
will be available for public inspection and copying during regular 
business hours at the FCC Reference Information Center, Portals II, 
Room CY-A257, 445 12th Street, SW., Washington, DC 20054. The complete 
text of this decision may be purchased from the Commission's 
duplicating contractor at Portals II, 445 12th Street, SW., Room CY-
B402, Washington, DC 20554. Customers may contact the Commission's 
contractor at their Web site: http://www.bcpiweb.com or call 1-800-378-
3160. To request materials in accessible formats for people with 
disabilities (Braille, large print, electronic files, audio format), 
send an e-mail to [email protected] or call the Consumer & Governmental 
Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). The 
Order can also be downloaded in Word and Portable Document Format (PDF) 
at http://www.fcc.gov/cgb/policy.

Synopsis

    On February 1, 2005, a coalition of rural local exchange carriers 
(LEC Petitioners) filed a Petition for Declaratory Ruling regarding the 
Commission's carrier change verification rules. In their Petition, LEC 
Petitioners set forth three main arguments that their practices do not 
violate the Commission's rules. First, they argue that there is no 
basis in law, including agency law, for the proposition that a third 
party (such as an executing LEC) should rely on a claim of authority of 
a person who the executing carrier believes to be without 
authorization. See Petition for Declaratory Ruling, CC Docket No. 94-
129, filed February 1, 2005 (Petition), by 3 Rivers Telephone 
Cooperative, Inc., Armstrong Telephone Company Maryland, Armstrong 
Telephone Company New York, Armstrong, Telephone Company North, 
Armstrong Telephone Company Northern Division, Armstrong Telephone 
Company Pennsylvania, Armstrong Telephone Company West Virginia, 
Calaveras Telephone Company, Inc., Chester Telephone Company, Chibardun 
Telephone Cooperative, Inc., Chickasaw Telephone Company, Citizens 
Telephone Company of Higginsville, Concord Telephone Company, CTC 
Telcom, Inc., Darien Telephone Company, DTC Communications, Egyptian 
Telephone Cooperative, Five Area Telephone, Hardy Telephone Company, 
Horry Telephone Cooperative, Inc., HTC Communications, Lackawaxen 
Telecommunications Services, Inc., Lockhart Telephone Co., 
Margaratville

[[Page 2896]]

Telephone Company, Mid-Century Telephone Company, Mid-Rivers Telephone 
Cooperative, Nicholville Telephone Company, Inc., North Central 
Telephone Cooperative, Inc., North-Eastern Pennsylvania Telephone 
Company, Peoples Telephone Company, Poka Lambro Telephone Cooperative, 
Public Service Telephone Company, Ridgeway Telephone Co., Siskiyou 
Telephone Company, Smart City Telecom, Smithville Telephone Company, 
Stayton Cooperative Telephone Company, TEC Services, Inc., Trumansburg 
Telephone Company, Inc., United Telephone Company, Washington County 
Rural Telephone Cooperative, West Plains Telephone. Second, LEC 
Petitioners contend that their actions do not constitute reverification 
in violation of Sec.  64.1120(a)(2) of the Commission's rules. Third, 
the LEC Petitioners argue that carrier change rejections under these 
circumstances do not cause ``unreasonable delay'' in violation of Sec.  
64.1120(a)(2) of the Commission's rules. The LEC Petitioners filed the 
Petition to clarify issues related to those complaints.
    Section 64.1120(a)(2) of the Commission's rules provides that 
``[a]n executing carrier shall not verify the submission of a change in 
the subscriber's selection of a telecommunications service received 
from a submitting carrier.'' See 47 CFR 64.1120(a)(2) of the 
Commission's rules. Based on this rule, the Commission concluded that 
an executing carrier's rejection of carrier change submissions by a 
submitting carrier, based on the executing carrier's own conclusion 
that the customer contacted by the submitting carrier was not 
authorized to make a long distance carrier change, violates Sec.  
64.1120(a)(2) of the Commission's rules.
    The LEC Petitioners argue that there is no basis in law, including 
agency law, to hold that the executing LEC ``has any right to rely on 
the claim of authority of a person without authorization from the 
subscriber and thus no obligation to its subscriber to make changes to 
the subscriber's account.'' This argument fails. The executing carrier 
may not make an independent determination regarding whether the person 
authorizing the switch was an authorized agent of the party identified 
on the executing carrier's account. The Commission has already defined 
the role of both the submitting and executing carrier in a carrier 
change request. The submitting carrier, in the course of verifying the 
intention to change long distance service, is already required to 
elicit confirmation that the person contacted was authorized to make 
the change (that is, an agent of the party identified on the account). 
That the name(s) contained in the executing carrier's local account 
information differs from that of the contact person listed on the 
submitting carrier's change is not necessarily indicative of a lack of 
authority or agency on the part of the person requesting the long 
distance change. The Commission's rules require that executing carries 
engage in ``prompt execution of changes verified by a submitting 
carrier.'' Moreover, executing carriers are only allowed to use 
submitted carrier change information to effectuate the provision of 
service by the submitting carrier to its customer. An independent 
determination by an executing carrier of whether the person initiating 
a switch is an agent of the party listed on the account goes beyond 
this limited role. LEC Petitioners also state that the Commission, in 
its Third Report and Order, noted without disapproval that carriers 
maintain lists of customers authorized to make changes. See Petition at 
15-16, citing the Third Report and Order, 15 FCC Record at 16021, 
paragraph 50 note 148. In this vein, the LEC Petitioners cite several 
other situations that can result in their return of a carrier change 
request to the submitting carrier, such as when a customer is already 
presubscribed to the submitting carrier, when a customer has a PIC 
freeze in place, or when PIC changes are not permitted. The Commission 
recognizes that carriers may access account information in the course 
of effectuating carrier changes, and does not believe that an executing 
carrier's return of a carrier change to the submitting carrier, under 
the limited circumstances described above, constitutes reverification 
in violation of our rules. The Commission's objection to the LEC 
actions at issue is not related to their consulting account information 
per se during the course of executing a carrier change. Rather, 
executing carriers may not make an independent determination with 
respect to the ability of a person to authorize a carrier change.
    It is noted that the Commission's preferred carrier change 
provisions give consumers the option to ``freeze'' their choice of 
telecommunications carrier such that they must then contact their LEC 
to lift the freeze before any carrier changes can be effectuated. The 
LEC Petitioners argue that it is unreasonable to ask subscribers that 
wish additional carrier change protections to utilize a preferred 
carrier freeze. LEC Petitioners state that their method of simply 
rejecting submitting carrier changes that contain name(s) that differ 
from what is in the LEC's account information ``poses less of an 
impediment to consumers own desire to change carriers.'' The Commission 
disagrees. The Commission's preferred carrier freeze procedures are not 
``complex'' for subscribers. Unlike the ``de facto'' freeze actions of 
the LEC Petitioners, the Commission's preferred carrier change 
provisions give consumers extra protections without raising anti-
competitive concerns. In addition, because the Commission finds that 
LEC Petitioners' actions violate the prohibition on verification by 
executing carriers established in Sec.  64.1120(a)(2) of the 
Commission's rules, the Commission finds it unnecessary to reach a 
conclusion as to whether these actions also result in unreasonable 
delay by an executing carrier in violation of its rules.
    Finally, the LEC Petitioners requested that the Commission consider 
their petition in conjunction with a petition filed by MCI (MCI 
Petition) regarding preemption of a state rule. See Petition for 
Declaratory Ruling filed by MCI on March 12, 2004. See also Motion to 
Hold Proceeding in Abeyance filed by the Public Service Commission of 
West Virginia on June 17, 2004. The MCI Petition concerned the question 
of permissible actions by a state regulatory agency. This Petition, in 
contrast, concerned the actions of private companies. The Commission, 
therefore, declines the LEC Petitioner's request to combine 
consideration of their Petition with the MCI Petition.
    The Commission will not send a copy of this Order pursuant to the 
Congressional Review Act, see 5 U.S.C. 801(a)(1)(a), because the 
adopted rules are rules of particular applicability.

Ordering Clauses

    Pursuant to the authority contained in section 258 of the 
Communications Act, of 1934, as amended, 47 U.S.C. 258, and Sec. Sec.  
0.141, 0.361, 1.3, 64.1120(a)(2) of the Commission's rules, 47 CFR 
0.141, 0.361, 1.2, 64.1120(a)(2), the Rural LECs' Petition for 
Declaratory Ruling is denied.
    Pursuant to the authority contained in section 258 of the 
Communications Act of 1934, as amended, 47 U.S.C. 258, and Sec. Sec.  
0.141, 0.361, 1.3, 64.1120(a)(2) of the Commission's rules, 47 CFR 
0.141, 0.361, 1.2, 64.1120(a)(2), this Declaratory Ruling is adopted.


[[Page 2897]]


Federal Communications Commission.
Jay Keithley,
Deputy Bureau Chief, Consumer & Governmental Affairs Bureau.
[FR Doc. 06-322 Filed 1-17-06; 8:45 am]
BILLING CODE 6712-01-P