MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Public Utilities; Finance

By: Senator(s) Browning

AN ACT TO CREATE THE "MISSISSIPPI TELECOMMUNICATIONS MARKETING ACT"; TO PROVIDE PROCEDURES FOR CONFIRMATION OF CHANGES IN SELECTION OF A PRIMARY LONG DISTANCE CARRIER GENERATED BY TELEMARKETING; TO PRESCRIBE THE CONTENTS OF A LETTER OF AGENCY WHICH MUST BE OBTAINED FROM A CUSTOMER FOR A PRIMARY LONG DISTANCE CARRIER CHANGE; TO PROVIDE INVESTIGATION AND REPORTING REQUIREMENTS; TO PROHIBIT THE FORGERY OR FALSIFICATION OF CUSTOMER AUTHORIZATION OF A PRIMARY LONG DISTANCE CARRIER CHANGE; TO PROVIDE PENALTIES FOR WILLFUL VIOLATIONS OF THE ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Short title.

This act shall be known and may be cited as the "Mississippi Telecommunications Marketing Act."

SECTION 2. Definitions.

As used in this act, the term:

(a) "Commission" means the Mississippi Public Service Commission.

(b) "Local exchange company" means a telecommunications company authorized to provide local exchange service as described in this act.

(c) "Local exchange services" means services offered for the transmission and utilization of two-way interactive communications and associated usage with the local calling area.

(d) "Telecommunications company" means any person, firm, partnership, corporation, association, or municipal, county, or local governmental entity offering telecommunications services to the public for hire.

(e) "Telecommunications services" means the services for the transmission of two-way interactive communications to the public for hire. For purposes of illustration, the term "telecommunications services" includes without limitation local exchange services and interconnection services.

SECTION 3. Procedures for confirmation of changes in selection of a primary long distance carrier generated by telemarketing.

(1) No telecommunications company shall submit a customer's local exchange company a change order for the customer's primary carrier of long distance service which is generated by outbound telemarketing unless and until the telecommunications company has obtained the customer's written authorization in a form that meets the requirements of Section 4 of this act.

(2) All letters of agency, recordings or other evidence of change orders shall be maintained by the soliciting telecommunications company for at least one (1) year from the date the customer's service was switched. Failure to maintain such records shall constitute prima-facie evidence that consent from the customer was not obtained.

(3) Any telecommunications company's telemarketing or direct mail solicitations or confirmation cards soliciting to change a customer's primary long distance carrier shall include the following disclosures:

(a) Identification of the telecommunications company soliciting the change;

(b) That the purpose of the call or confirmation card is to solicit a change of the customer's primary carrier of long distance service;

(c) That the customer's long distance service may not be changed unless and until the requested change is confirmed in accordance with this section and Section 5 of this act; and

(d) A description of any charge that may be imposed upon the customer by any party for processing the primary long distance carrier change.

(4) Customer requests for other services, such as travel, calling card or prepaid calling card services, do not constitute a change in the long distance carrier.

(5) The requirements of this section do not apply to consumer initiated calls.

(6) A request for information by a customer shall not be considered a request for a change of a primary long distance carrier, and no confirmation card requiring the customer to deny or cancel a service order may be sent out with any information package related to a customer's request for information.

SECTION 4. Contents of letter of agency.

(1) A telecommunications company relying on a written authorization from a customer for a primary long distance carrier change must obtain a letter of agency as specified in this section. Any letter of agency that does not conform with this section is invalid.

(2) The letter of agency shall be a separate document, or an easily separable document containing only the authorizing language described in subsection (5) of this section, having the sole purpose of authorizing a telecommunications company to initiate a primary long distance carrier change. The letter of agency must be signed and dated by the subscriber to the telephone line or lines requesting the primary long distance carrier change.

(3) The letter of agency shall not be combined with inducements of any kind on the same document.

(4) Notwithstanding subsections (2) and (3) of this section, the letter of agency may be combined with checks that contain only the required letter of agency language prescribed in subsection (5) of this section and the necessary information to make the check a negotiable instrument. The letter of agency check shall not contain any promotional language or material. The letter of agency check shall contain, on the front of the check in easily readable, boldface type at least as large and as dark as any other on the front of the check, a notice that the customer is authorizing a primary long distance carrier change by signing the check. The letter of agency language also shall be placed near the signature line on the back of the check.

(5) At a minimum, the letter of agency must be printed in a type of a size and readability equal to at least 12-point New Roman font and must contain clear and unambiguous language that confirms:

(a) The customer's billing name and address and each telephone number to be covered by the primary long distance carrier change order;

(b) The decision to change the customer's primary long distance service from the current telecommunications company to the prospective telecommunications company;

(c) That the customer designates the telecommunications company to act as the customer's agent for the primary long distance carrier change;

(d) That the customer understands that any primary long distance carrier selection the customer chooses may involve a charge to the customer for changing the customer's primary carrier and could involve a charge for changing back to the original primary carrier.

(6) Letters of agency shall not suggest or require that a customer take some action in order to retain the customer's current telecommunications company.

(7) 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.

SECTION 5. Investigation and reporting requirements.

(1) A customer shall first report any unwanted, unauthorized change of the customer's primary long distance carrier to the customer's current primary long distance carrier or the commission; and, thereafter, such carrier shall investigate this complaint along with the soliciting long distance carrier in order to determine if the change was authorized in accordance with the procedures specified in Section 3 and 4 of this act. If the customer's current primary long distance carrier and the soliciting long distance carrier have exhausted all means of making a determination regarding authorization of such change, then they may employ the assistance of the commission in resolving the complaint.

(2) If the soliciting carrier subscribes to an expedited primary interexchange carrier switchback service, no investigation will be conducted by the customer's current primary local exchange carrier unless the customer specifically requests that an investigation be conducted. In these situations, the customer shall be switched back promptly to the former primary long distance carrier at no charge to the customer, consistent with this act.

(3) All local exchange companies shall maintain monthly records of the number of unauthorized changes and expedited switchbacks of a customer's primary long distance service carrier and shall report such data to the commission on a quarterly basis within forty-five (45) days following the end of the quarter.

(4) Nothing in this section shall be construed to require a customer reporting any unwanted, unauthorized change to exhaust any administrative remedy or remedies that such customer may have available by law before filing an action under the provisions of Section 9 of this act.

SECTION 6. Forgery or falsification prohibited.

Any employee, representative or agent of a telecommunications company who forges a customer's signature on a letter of agency or otherwise falsifies evidence of customer authorization of a change of a primary long distance carrier shall be guilty of a misdemeanor. Each instance of such forgery or falsification shall be a separate offense.

SECTION 7. Penalty for willful violation.

Any willful violation of this act is subject to enforcement as provided in Sections 77-1-53, 77-3-81 and 77-3-83. Continued willful violations of this act may also constitute grounds for revocation of a telecommunications company's authority or certificate to provide service in Mississippi. Notwithstanding anything to the contrary contained elsewhere in this act, any other activity or conduct engaged in during the course of changing a customer's primary long distance carrier which is intended to mislead, deceive, confuse or perpetrate a fraud or unfair or deceptive act or practice shall constitute cause, within the discretion of the commission, to invoke the penalties or revocation, or both, described in this section.

SECTION 8. Factual findings by Public Service Commission.

If, after a hearing on a complaint, the commission shall determine that the complainant's selection of a primary long distance carrier was switched in violation of this act, the commission may make factual findings regarding the amount of damages suffered by the complainant as a result of the unauthorized switch. Such damages shall be calculated as the amount of the difference between the charges for the unauthorized and the authorized service from the date of the unauthorized switch in the complainant's service.

SECTION 9. Cause of action for damages.

In the event that the remedies provided by Section 5 of this act fail to restore a person or entity to that person's or entity's selected primary carrier of long distance service and fail to reimburse the person or entity for the difference between the charges for the unauthorized and the authorized service, within ninety (90) days of the person's or entity's report of an unwanted, unauthorized change of a primary long distance carrier to the carriers or the commission as provided in Section 5 of this act, then such person or entity whose primary carrier of long distance service has been switched in violation of this act may bring an action to recover damages from the telecommunications company responsible for the violation. Notwithstanding Section 77-3-85 or any other provision of law to the contrary, such action may be brought in any county of this state in which the telecommunications company transacts business within twenty-four (24) months of the date of the unauthorized switch of a primary carrier; provided, however, that the running of the statute of limitations shall be tolled during the ninety-day period during which the matter is under investigation pursuant to Section 5 of this act. Such action shall proceed in all respects like other civil suits for damages, except that on the trial of such suits any findings of the commission made pursuant to Section 8 of this act shall be prima-facie evidence of the facts stated therein, and damages shall be calculated as three (3) times the amount of the difference between the charges for the unauthorized and the authorized service from the date of the unauthorized switch in the complainant's service. A prevailing plaintiff shall be awarded reasonable attorneys' fees and expenses of litigation incurred in connection with an action brought under this section.

SECTION 10. Construction.

(1) Nothing in this act shall be construed to limit or repeal the application of any state or federal law or regulation regarding telemarketing. In addition, nothing in this act shall be construed to limit the application of any such law or regulation to telecommunications companies which engage in telemarketing.

(2) Nothing in this act shall prohibit a telecommunications company from recovering the cost of conducting investigations and reporting unauthorized changes of a customer's primary long distance carrier through tariffed charges or through rates filed with the commission which are applicable to the carrier making such an unauthorized charge.

SECTION 11. This act shall take effect and be in force from and after July 1, 1999.