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A. 1. a.(1)(a) i) a)Xp x (#%'0*,.8135@8:$#A\  P(P# I. A. 1. a.(1)(a) i) a)ЍBDP Response to Second Notice of Informal Complaint No. IC9810198 (Aug. 31, 1998).> 3.` ` ` The Kelly Complaint The complaint submitted by Ms. Diane Kelly, a court reporter, on March 9, 1998 is remarkably similar to the Marketing Partners and Okamoto Complaints.L%#A\  P)P# I. A. 1. a.(1)(a) i) a)ЍDiane Kelly, Court Reporter, Informal Complaint No. IC9823669 (March 9, 1998) (Kelly Complaint).L In her written complaint, Ms. Kelly accuses BDP of switching her company's longdistance service from AT&T without her authorization.&#A\  P*P# I. A. 1. a.(1)(a) i) a)ЍIn support of her complaint, Ms. Kelly submitted to the Commission a declaration dated November 20, 1998. Declaration of Diane Kelly, Informal Complaint No. IC9823669 (Nov. 20, 1998). Specifically, Ms. Kelly states that in January of 1998, she received a telephone call from an individual who identified himself as an AT&T representative. Ms. Kelly contends that the caller spoke quickly, mumbled, and was difficult to understand. Nevertheless, Ms. Kelly asserts, she did not terminate the conversation because the caller had represented that he was affiliated with AT&T, her preferred interexchange carrier. Ms. Kelly contends that the caller explained that he was providing a "courtesy call" to inform businesses of a consolidation of their local and longdistance charges, and that by verifying her billing information, Ms. Kelly could receive a bill consolidation. Ms. Kelly states that she verified her company's billing information, but did not authorize a change in her longdistance carrier.'#A\  P+P# I. A. 1. a.(1)(a) i) a)ЍKelly Complaint at 12. BDP's Response to the Notice of the Kelly Complaint$(#A\  P,P# I. A. 1. a.(1)(a) i) a)ЍNotice of Informal Complaint IC9823669 (Aug. 26, 1998).$ followed the same basic pattern as BDP's responses to the complaints described above.)#A\  P-P# I. A. 1. a.(1)(a) i) a)ЍBDP Response to Notice of Informal Complaint No. IC9823669 (Sept. 17, 1998). In response to the Branch's request, Bell Atlantic reported that a PIC change occurred on January 2, 1998. On November 20, 1998, the Consumer Protection Branch issued to BDP a Second Notice concerning the Kelly Complaint..*#A\  P.P# I. A. 1. a.(1)(a) i) a)ЍSecond Notice of Informal Complaint No. IC9823669 (Nov. 20, 1998).. In the Second Notice, the Branch asked BDP to submit an audiotape of the verification call made to Ms. Kelly's office. In response, BDP submitted a copy of an audiotape that, it asserts, demonstrates that Ms. Kelly confirmed she had authorized a PIC change to BDP.>+#A\  P/P# I. A. 1. a.(1)(a) i) a)ЍBDP Response to Second Notice of Informal Complaint No. IC9823669 (Nov. 30, 1998).> Contrary to BDP's contention, however, a review of the audiotape reveals that BDP's thirdparty verifier discussed a change in Ms. Kelly's billing format, but never mentioned anything about a change in Ms. Kelly's preferred interexchange carrier. As an initial matter, the verifier informed Ms. Kelly that he was calling to confirm the details of Ms. Kelly's conversation regarding her "Bell Atlantic billing getting business discount planning,#A\  P0P# I. A. 1. a.(1)(a) i) a)ЍWe note that it is unclear from the audiotape whether the verifier is saying "business discount planning" or "Business Discount Plan, Inc." Because BDP neither used the word "Incorporated" nor identified BDP as a separate business entity, we have transcribed the phrase as "business discount planning." This is consistent with Ms. Kelly's assertion that she believed she was speaking with an AT&T representative. See supra paragraph 19. one-bill service." Speaking quickly, the verifier recounted Ms. Kelly's full name and asked whether Ms. Kelly could "approve this." When Ms. Kelly questioned whether the verifier was referring to a bill consolidation, the verifier replied that it was "very simple . . . basically, your AT&T network calls will be routed through the business discount planning, and they will appear upon your local phone company's invoice, so therefore, you make your check out to your local phone company . . . you'll be receiving a onebill service. Can you approve this?" At this point, Ms. Kelly agreed to a bill consolidation. Promising a "simplified billing format," BDP's verifier then told Ms. Kelly that "the service is currently only for AT&T users spending under five hundred dollars a month," a statement which implies that AT&T, not BDP, offers the longdistance service. The verifier noted that Ms. Kelly would be "remaining on the AT&T network," and mumbled quickly, "changing to business discount planning as your carrier for rates and service for inter and intraLATA calls."?-#A\  P1P# I. A. 1. a.(1)(a) i) a)ЍThe verifier did not explain the meaning of these technical telecommunications terms.? The verifier concluded the call by informing Ms. Kelly that there will "be a number on your invoice as usual," another statement suggesting that Ms. Kelly would remain with her preferred interexchange carrier, AT&T. 4.  The TCS Complaint The written complaint submitted by Mr. Jim Taggert of TCS Engineering Company (TCS) dated March 19, 1998 provides another example of BDP's apparently deceptive and misleading PICchange practices.G.#A\  P2P# I. A. 1. a.(1)(a) i) a)ЍTCS Engineering Company, Informal Complaint No. IC9806052 (March 19, 1998) (TCS Complaint).G In his complaint, Mr. Taggert alleges that BDP fraudulently converted his company's preferred interexchange carrier from AT&T to BDP without his authorization./#A\  P3P# I. A. 1. a.(1)(a) i) a)ЍIn support of his complaint, Mr. Taggert submitted to the Commission a declaration dated November 17, 1998. Declaration of Jim Taggert, Informal Complaint No. IC9806052 (Nov. 17, 1998). Mr. Taggert contends that in January 1998, he received a telephone call from a woman identifying herself as an "AT&T representative." According to Mr. Taggert, the woman stated that she was calling to inform him that TCS's longdistance charges would be consolidated with TCS's charges from Bell Atlantic, TCS's local exchange carrier. Mr. Taggert asserts that he twice asked the caller to confirm that she was with AT&T, and that she responded in the affirmative on both occasions. Nevertheless, when Mr. Taggert reviewed TCS's March 1998 telephone bill, he discovered that his company's longdistance service had been switched from AT&T to BDP. According to Mr. Taggert, he then spent an "enormous amount of time" attempting to contact BDP and return to his preferred interexchange carrier.0#A\  P4P# I. A. 1. a.(1)(a) i) a)ЍTCS Declaration at 1. For example, Mr. Taggert contends that BDP's phone rang between 15 and 20 times before it was answered by a customer service representative. Further, Mr. Taggert asserts, the BDP representative was not cooperative in resolving his concerns. Id. BDP's response to the Consumer Protection Branch's Notice&1#A\  P5P# I. A. 1. a.(1)(a) i) a)ЍNotice of Informal Complaint No. IC9806052 (May 12, 1998).& forwarding the TCS Complaint contains the same boilerplate language and minimal information provided in the responses described above.2#A\  P6P# I. A. 1. a.(1)(a) i) a)ЍBDP Response to Notice of Informal Complaint No. IC9806052 (June 2, 1998).  In response to the Branch's request, Bell Atlantic reported that a PIC change occurred on January 19, 1998. In reply to the Branch's Second Notice,.3#A\  P7P# I. A. 1. a.(1)(a) i) a)ЍSecond Notice of Informal Complaint No. IC9806052 (Aug. 12, 1998).. BDP submitted a copy of an audiotape to support its claim that TCS agreed to become BDP's customer.>4#A\  P8P# I. A. 1. a.(1)(a) i) a)ЍBDP Response to Second Notice of Informal Complaint No. IC9806052 (Aug. 31, 1998).> As with the Kelly audiotape, discussed above, the audiotape submitted in connection with the TCS complaint demonstrates that BDP's thirdparty verifier misrepresented the nature of BDP's service offering. A review of the audiotape shows that BDP's thirdparty verifier informed Mr. Taggert that she was calling to discuss TCS's "Bell Atlantic billing getting business discount planning one-bill service." As in the Kelly audiotape, the verifier promised a "simplified billing format," and informed Mr. Taggert that "the service is currently only for AT&T users spending under five hundred dollars per month." Further, BDP's verifier stated that TCS will be "remaining on the AT&T network," and noted that in case of problems, there will be a number on the invoice "as usual." 5.The R&S Complaint  In her informal complaint of February 23, 1998, Ms. Dorothy Milford, the office manager of R&S Investment Group (R&S), asserts that BDP converted her company's preferred interexchange carrier from AT&T to BDP without authorization.C5#A\  P9P# I. A. 1. a.(1)(a) i) a)ЍR&S Investment Group, Informal Complaint No. IC9810177 (Feb. 23, 1998) (R&S Complaint).C Ms. Milford alleges that in January of 1998, she received a telephone call from an individual identifying himself as an AT&T representative.6#A\  P:P# I. A. 1. a.(1)(a) i) a)ЍIn support of her complaint, Ms. Milford submitted to the Commission a declaration dated August 3, 1998. Declaration of Dorothy Milford, Informal Complaint No. IC9810177 (Aug. 3, 1998). According to Ms. Milford, the caller informed her that in the future, R&S's charges for AT&T longdistance service would be included on her bill for local exchange services. Ms. Milford asserts that the caller "reiterated several times" that he was with AT&T, and "that the only change would be lack of a separate billing." 7#A\  P;P# I. A. 1. a.(1)(a) i) a)ЍMilford Declaration at 1.  Moreover, Ms. Milford contends that "[a]t no time was the fact mentioned that this call concerned switching my long distance carrier." In fact, Ms. Milford asserts, "care was taken to make me believe that I would remain with AT&T with no difference except lack of a separate bill." At no time, Ms. Milford states, did she "authorize or even suggest" that she would be willing to change longdistance carriers. Nevertheless, when Ms. Milford reviewed R&S's February 1998 telephone bill, she discovered that the company's longdistance carrier had been switched to BDP without her authorization.8#A\  P<P# I. A. 1. a.(1)(a) i) a)ЍId. BDP's response to the Consumer Protection Branch's Notice&9#A\  P=P# I. A. 1. a.(1)(a) i) a)ЍNotice of Informal Complaint No. IC9810177 (May 27, 1998).& of the R&S Complaint consists of a brief letter containing boilerplate language and minimal information.:#A\  P>P# I. A. 1. a.(1)(a) i) a)ЍBDP Response to Notice of Informal Complaint No. IC9810177 (June 11, 1998).  In response to the Branch's request, the Sprint Local Telephone Companies reported that a PIC change occurred on January 12, 1998. In reply to the Branch's Second Notice,7;#A\  P?P# I. A. 1. a.(1)(a) i) a)ЍSecond Notice of Informal Complaint No. IC9810177 (Aug. 12, 1998).7 BDP submitted a copy of an audiotape which, BDP asserts, demonstrates that R&S agreed to become BDP's customer.><#A\  P@P# I. A. 1. a.(1)(a) i) a)ЍBDP Response to Second Notice of Informal Complaint No. IC9810177 (Aug. 31, 1998).> Contrary to BDP's claim, however, a review of the audiotape demonstrates that, as with Ms. Kelly and Mr. Taggert, discussed above, BDP's verifier misrepresented the nature of BDP's service offering. BDP's verifier stated that she was calling to discuss R&S's "billing with business discount planning onebill service," and stressed that she was calling simply to inform R&S of a change in billing format. C.The Remaining Consumer Complaints The remaining fifteen consumer complaints that are the subject of this NAL similarly allege that BDP fraudulently changed consumers' PICs without their authorization.4=#A\  PAP# I. A. 1. a.(1)(a) i) a)ЍPertinent information concerning these complaints and the responses thereto is set forth in Appendix B to this Order. We note that BDP's responses to the Consumer Protection Branch's initial Notices regarding the remaining complaints are similar to those submitted in response to the complaints described above. In each case, BDP filed brief letters containing boilerplate language stating that the customer's service was switched to BDP "pursuant to a telemarketing order that was verified by an independent third party pursuant to 47 C.F.R.  64.1100(c)." Further, BDP's letters consistently stated that complainants' accounts would be credited with the amount of any disputed longdistance charges, in an apparent attempt to resolve the informal complaints and terminate proceedings before the Commission. With regard to the verification tapes that the Consumer Protection Branch requested in its Second Notices to BDP, the record reflects that BDP failed to produce any audiotapes to support its position that the complainants verified their authorization for the PICchanges at issue. 4 In the majority of these cases, consumers cannot recall having had any contact with BDP prior to discovering unauthorized longdistance charges from BDP on their telephone bills.>#A\  PBP# I. A. 1. a.(1)(a) i) a)ЍSee, e.g., The Job Center, Informal Complaint No. IC9823919 (July 15, 1998) (complainant alleges that upon reviewing his telephone bill, he found, to his "amazement," that AT&T was no longer his company's longdistance carrier); KoontzBryant, P.C., Informal Complaint No. IC9823384 (May 13, 1998) (complainant alleges that his company never received any information from BDP prior to having its preferred interexchange carrier switched without authorization). Nevertheless, we find it reasonable to accept that based on the clear pattern of deceptive behavior established in the record, BDP's telemarketers and thirdparty verifiers deceived these consumers as well by misrepresenting BDP's service as a bill consolidation plan offered by the consumers' local exchange carriers or preferred interexchange carriers. Indeed, it is likely that these consumers could not recall any contact with BDP because BDP's telemarketers and thirdparty verifiers misrepresented that they were affiliated with the consumers' local exchange carriers or preferred interexchange carriers. Under these circumstances, we will treat all thirty complaints in the record as establishing an apparent pattern of conduct by BDP to employ deceptive telemarketing practices in soliciting consumers to change their longdistance service providers. # III. DISCUSSION ă A.Violations Evidenced in the Complaints 1.Summary The consumer complaints described above and BDP's inadequate responses depict a callous disregard for the requirements of the Communications Act and the Commission's rules and orders.?#A\  PCP# I. A. 1. a.(1)(a) i) a)ЍWe note that BDP's telemarketing practices have been the subject of at least nine state actions. For example, the Attorney General of the state of Illinois filed a complaint against BDP in the Circuit Court of the Seventh Judicial Circuit, alleging that "BDP's solicitation and purported verification process never clearly informs consumers that their long distance carrier will be changed, or that the new long distance rates may be higher than their current rates. According to the complaint, many consumers are left with the impression that they are simply going to receive a discount plan with their current carrier and have their local and long distance telephone bills combined." Illinois Attorney General's Complaint, Dec. 11, 1997. In May 1998, the Attorney General issued a "Final Judgment and Consent Decree" that fined BDP $80,000 and, among other things, enjoined BDP and its owner, Thomas David Jenkins, from engaging in the "alleged unfair and deceptive acts or practices" detailed in the Complaint. See Final Judgment and Consent Decree, May 29, 1998. See also Order of Florida PSC, July 1, 1997 (approving a settlement offer whereby BDP paid $25,000 for alleged violations of state requirements concerning the sale of intrastate interexchange telecommunications services, but would "admit no wrongdoing"). Further, we note that in March 1998, AT&T filed suit against BDP in United States District Court in Illinois, alleging that BDP used fraud and deception to routinely slam customers to its telecommunications services. The parties settled the lawsuit in June 1998. As part of the settlement with AT&T, BDP was required to send a letter notifying its customers that BDP is not affiliated with AT&T and that BDP's telemarketers may have left a different impression with consumers who were slammed by BDP. BDP also was required to give its customers the opportunity to return to their preferred interexchange carriers, free of charge. A copy of BDP's letter is attached as Appendix D to this Order. In particular, BDP's deceptive and fraudulent telemarketing practices and BDP's failure to obtain authorization from consumers before submitting a PICchange request evidence apparent willful or repeated violations of sections 201(b) and 258 of the Act, as well as Commission rules and orders pertaining to PIC changes.6@#A\  PDP# I. A. 1. a.(1)(a) i) a)ЍSee 47 C.F.R.  64.1150; PIC Change Order, 7 FCC Rcd at 1045.6 As explained below, BDP's fraudulent representation of its offering as a bill consolidation service, as well as its repeated efforts to obscure the true nature of its service offering, appear to constitute "unjust and unreasonable practices" within the meaning of section 201(b). In addition, the record supports a finding that BDP apparently willfully or repeatedly violated section 258 of the Act and the Commission's rules and orders governing PIC changes in connection with the unauthorized PIC changes alleged by the complainants. 2.Section 201(b) of the Communications Act Section 201(b) of the Act provides in pertinent part that "[a]ll charges, practices, classifications, and regulations for and in connection with . . . communication service shall be just and reasonable . . . ." Based on our review of the consumer complaints before us, we find that BDP's business practices were unjust and unreasonable under section 201(b). First, BDP's business practices appear to have been intended to mislead customers into enrolling in BDP's service. The complaints reveal that BDP's telemarketers apparently misrepresented or implied to customers: 1) that BDP was affiliated with the customer's existing local or longdistance carriers; 2) that the customer's longdistance service would remain with the existing carrier; and 3) that the customer's new longdistance charges would be discounted. In addition, it appears that BDP personnel routinely misrepresented that BDP's service consisted solely of a "consolidated billing service" that would simplify customers' telephone bills by combining local and long distance charges on one bill. Apparently, BDP representatives failed to inform customers that by agreeing to a bill consolidation, they would be switching their longdistance carrier to BDP and would be paying BDP's higher rates.A#A\  PEP# I. A. 1. a.(1)(a) i) a)ЍThe complainants' allegations concerning BDP's telemarketing practices are corroborated by an informal complaint filed by Kevin Kennedy, who asserts that in February 1998, he worked briefly in BDP's customer service department while on assignment from a temporary employment agency. See Kevin Kennedy, Informal Complaint No. IC9823621 (Oct. 13, 1998). In his complaint, Mr. Kennedy challenges BDP's telemarketing practices, characterizing the company as "fraudulent and a public nuisance." Id. at 1. Mr. Kennedy contends, among other things, that BDP's goal was "to trick the customer into believing that they are still with AT&T when in fact they are not." Id. According to Mr. Kennedy, he quit his job at BDP after only four days, but was later told by the temporary employment agency that BDP did not want him to return anyway, on the grounds that he was "too inquisitive." Id. at 3. In support of his complaint, Mr. Kennedy submitted a declaration dated December 16, 1998. See Declaration of Kevin Kennedy, Informal Complaint No. IC9823621 (Dec. 16, 1998). In response to the Consumer Protection Branch's Notice of Mr. Kennedy's complaint (Notice of Informal Complaint No. IC9823621 (Aug. 26, 1998)), BDP's only comment was that the "Company's research revealed that Kevin Kennedy was never a customer of BDP, Inc." BDP Response to Notice of Informal Complaint No. IC9823621 (Sept. 25, 1998). Further, BDP reasonably should have anticipated that consumers could have been misled by its selection of the deceptive company name, "Business Discount Plan." When viewed against the backdrop of the complaints before us, BDP's name appears to have been designed solely to persuade customers that they would be enrolled in a generic "business discount plan" offered by their existing longdistance carrier, as opposed to a longdistance service provided by a company named "Business Discount Plan." The misleading nature of BDP's name is underscored by the fact that despite the word "discount" in its name, BDP's rates are higher than AT&T's rates for basic business services.UB#A\  PFP# I. A. 1. a.(1)(a) i) a)ЍSee Business Discount Plan Tariff F.C.C. No. 1, effective Aug. 14, 1997. On October 29, 1998, the Common Carrier Bureau conducted a review of BDP's tariff, comparing BDP's "oneminute usage charge" for customers spending less than $200 per month with AT&T's nondiscounted commercial long distance oneminute usage charge. The tariff review indicated that BDP's rates were approximately 14 to 47 percent higher than AT&T's nondiscounted rates for basic business services, depending on the particular mileage bands examined. In addition, during an August 11, 1998 meeting with Commission staff, counsel for BDP represented that BDP's rates are 20 percent higher than AT&T's basic rates. Further, in a March 1998 complaint against BDP, AT&T alleged that BDP's rates are often more than double the rates that customers had paid to AT&T. See supra note 63.U In order to ensure that marketing practices are fair and nondeceptive, it is incumbent upon telemarketers to adequately inform potential customers of: 1) the identity of the telemarketer; and 2) the nature of the product the telemarketer is selling. In the instant case, it is clear that the complainants did not understand that they were speaking with a reseller who was trying to switch their longdistance service. This appears to have been due primarily to BDP's repeated mischaracterization of its role as a longdistance provider. As noted above, resellers purchase bulk telecommunications services from other providers and resell these services to their customers.C#A\  PGP# I. A. 1. a.(1)(a) i) a)ЍSee supra note 2. Switchless resellers such as BDP use their access to other carriers' facilities to provide their own longdistance service to their customers. Hence, BDP, not the longdistance carrier that originally sold bulk telecommunications service to BDP, is considered the "carrier" of the longdistance service. BDP's tariff, not the underlying carrier's tariff, sets forth the rates, terms, and conditions under which BDP's customers will receive longdistance service. And it is BDP, not the underlying carrier, that bills its customers for service provided pursuant to BDP's tariff. The complaints reveal that BDP's sales personnel fraudulently represented or implied that BDP was affiliated with or otherwise represented customers' existing local or longdistance carriers, when this was in fact not the case. For example, BDP's verifier informed Mr. Taggert of TCS was that she was calling to discuss TCS's "Bell Atlantic billing with business discount plan one-bill service." Although BDP purchased longdistance service from AT&T and resold it to TCS, BDP was TCS's carrier, not AT&T. Further, the audiotapes described above demonstrate that BDP's thirdparty verifiers repeatedly told the complainants that they would be "remaining on the AT&T network."D#A\  PHP# I. A. 1. a.(1)(a) i) a)ЍSee, e.g., paragraphs 21, 23. Although the complainants' traffic would continue to be carried over facilities owned by AT&T, BDP used the statement in a manner apparently designed to mislead the complainants into believing that they would continue to be customers of AT&T, when in fact they were customers of BDP. Indeed, BDP's statements fueled customers' reasonable expectations that they would be remaining with their preferred longdistance carriers. BDP knew, or should have known, that customers acting reasonably under the circumstances would be misled or confused by misrepresentations regarding the material issue of BDP's identity, and that customers would rely on such misrepresentations to their detriment. Furthermore, the record establishes that BDP's deceptive marketing and sales techniques ensured that customers had virtually no understanding of the product that BDP was offering. Based on BDP's sales pitch, customers should have been entitled to expect that if they agreed to enroll in a "business discount plan," they would receive a discount plan from their current carrier and a consolidated bill that combined their local and long distance telephone charges. There was nothing in BDP's telephone solicitations or verification calls to suggest that customers' PICs would be changed. Indeed, the record shows that BDP's verifiers led customers to believe that they were simply verifying their names and addresses for a complimentary bill consolidation. As Dr. Okamoto stated in her complaint, a BDP verifier promised that if she verified her name and address, Dr. Okamoto would avoid any further calls about a "new look" for future billing statements. Unbeknownst to Dr. Okamoto, BDP changed her PIC based on this verification. Nor did BDP's telemarketers make clear that under BDP's "business discount plan," customers would be charged longdistance rates that are at least 20 percent above AT&T's basic rates.E#A\  PIP# I. A. 1. a.(1)(a) i) a)ЍSee supra note 66. BDP reasonably should have realized that its deceptive telemarketing practices obscured the nature and price of its "product," which are material facts. The record demonstrates that customers would not have agreed to a "new billing format" if they had understood that BDP would be changing their PICs and charging them higher longdistance rates. Based on the foregoing discussion, it appears that BDP knowingly misrepresented both its identity as a reseller and the nature of its service offering in an effort to intentionally mislead small business customers, who relied, to their detriment, on BDP's misrepresentations of these material facts. As a result of being slammed, these customers lost the benefits of the "bargains" they had struck with their preferred carriers. Such benefits could include, but not be limited to, significantly lower longdistance charges and incentive programs (such as optional calling plans). Moreover, the record reflects that customers suffered frustration and inconvenience as they sought to discover the cause of their unauthorized PIC changes and return to the carriers of their choice.F#A\  PJP# I. A. 1. a.(1)(a) i) a)ЍSee, e.g., TCS Declaration at 1. As noted above, Mr. Taggert of TCS found it extremely difficult to contact BDP by telephone. According to Mr. Taggert, BDP's phone rang between 15 and 20 times before it was answered by a customer service representative. Moreover, Mr. Taggert asserts, BDP's representative was uncooperative in resolving his concerns regarding his company's unauthorized switch to BDP. Id.Đ BDP's limited responses to the consumer complaints referenced herein provide no evidence or information to counter the complainants' claims that BDP misrepresented the nature of its service in an apparent effort to obtain complainants' authorization for PIC changes. Indeed, BDP refused to provide any supporting audiotapes of its telemarketers' initial sales calls, claiming that it was not BDP's practice to tape sales calls. As the record shows, however, many of the complaints focus on allegedly deceptive and misleading statements made by BDP's telemarketers. By declining to provide tapes of its telemarketers' initial sales calls to complainants, BDP has failed to furnish any evidence to refute the complainants' allegations of unjust and unreasonable practices on the part of BDP's telemarketers. Moreover, the audiotapes submitted by BDP fail to negate the complainants' assertions that during verification calls BDP's thirdparty verifiers misrepresented the nature of BDP's service offering.WG#A\  PKP# I. A. 1. a.(1)(a) i) a)ЍAs noted supra, BDP furnished only 45 of the 76 audiotapes requested by the Consumer Protection Branch.W Rather, the proffered audiotapes tend to support the complainants' allegations that BDP engaged in unjust and unreasonable business practices by furnishing false or misleading information regarding the nature of BDP's service offering. For example, in the audiotape submitted in connection with the R&S Complaint, BDP's thirdparty verifier deceptively states that she is calling to discuss "billing with business discount planning onebill service," which the verifier further characterizes as a "simplified billing format." The other audiotapes in the record similarly demonstrate that BDP's thirdparty verifiers described BDP's offering as a bill consolidation service rather than as a distinct longdistance service offering. Hence, in light of the egregious behavior evidenced by the audiotapes of the verification calls, as well as BDP's failure to provide the Commission with any information to contradict the complainants' allegations of misleading telemarketing calls, we find that BDP's telemarketing practices demonstrate apparent willful or repeated violations of sections 201(b) of the Act. 3.` ` ` Commission Rules and Orders Concerning Slamming; ` ` ` Section 258 of the Communications Act In addition to evidencing apparently unjust and unreasonable practices within the meaning of section 201(b), the complaints before us demonstrate that BDP apparently failed to obtain consumers' authorization prior to requesting changes in their longdistance service. As discussed below, we conclude that BDP's actions also constitute apparent violations of section 258 of the Act and the Commission's rules and orders governing slamming. In its Allocation Order and subsequent Reconsideration Order,EH#A\  PLP# I. A. 1. a.(1)(a) i) a)ЍSee supra proceedings cited at note 3.#XN\  PMXP#E the Commission set forth rules and procedures for implementing equal accessX0ÍX0ÍLI#A\  PNP# I. A. 1. a.(1)(a) i) a)ÍEqual access for interexchange carriers is that which is equal in type, quality and price to the access to local exchange facilities provided to AT&T and its affiliates. United States v. American Tel. & Tel., 552 F. Supp. 131, 227 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983) (Modification of Final Judgment or "MFJ"). Equal access allows end users to access facilities of a designated [interexchange carrier] by dialing 1 only. Allocation Order, 101 FCC 2d at 911.#XN\  POXP# #A\  PPP# Pursuant to the MFJ, the Bell Operating Companies were ordered to provide equal access to their customers, where technically feasible, by September 1986. Allocation Order, 101 FCC Rcd at 911. #XN\  PQXP#L and the customer presubscription process. Pursuant to this process, each customer selects one preferred interexchange carrier from among several available carriers, for the customer's phone line(s).X0ÍX0ÍJ#A\  PRP# I. A. 1. a.(1)(a) i) a)Í Allocation Order, 101 FCC 2d at 911, 928. Thus, when a customer dials "1," the customer accesses only the preferred interexchange carrier's services. An end user can also access other interexchange carriers by dialing either a five or sevendigit access code. Id. at 911; Administration of the North American Numbering Plan, Notice of Proposed Rulemaking, 9 FCC Rcd 2068, 207677 (1994).#XN\  PSXP#Ѻ To ensure that carriers obtain the requisite authority prior to changing a customer's longdistance carrier, the Commission requires that interexchange carriers (IXCs) either obtain a signed letter of agency (LOA)K#A\  PTP# I. A. 1. a.(1)(a) i) a)ЍAn LOA is a document, signed by the customer, which states that the customer has selected a particular carrier as that customer's primary long distance carrier. Allocation Order, 101 FCC 2d at 929. or, in the case of telemarketing solicitations, follow one of the telemarketing verification procedures before submitting PICchanges to LECs on behalf of consumers.L#A\  PUP# I. A. 1. a.(1)(a) i) a)ЍPursuant to these procedures, IXCs must: (1) obtain the subscriber's written authorization; (2) obtain confirmation from the subscriber via a tollfree number provided exclusively for the purpose of confirming orders electronically; (3) utilize an independent third party to verify the subscriber's order; or (4) send an information package, including a prepaid, return postcard, within three days of the subscriber's request for a PIC change, and wait 14 days before submitting the subscriber's order to the LEC, so that the subscriber has sufficient time to return the postcard denying, cancelling or confirming the change order. See 47 C.F.R.  64.1100(c). Section 258 of the Act, adopted in 1996, affirms and expands the Commission's authority to deter, punish, and ultimately, eliminate slamming by making it unlawful for any telecommunications carrier to "submit or execute a change 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."M#A\  PVP# I. A. 1. a.(1)(a) i) a)Ѝ47 U.S.C.  258. The statements and other information provided by the complainants, and the limited responses by BDP, represent credible and compelling evidence that BDP failed to obtain the complainants' authorization prior to submitting PICchange orders. First, the record provides substantial evidence that BDP's telemarketers repeatedly misrepresented the nature of BDP's service offering or in other ways engaged in practices designed to prevent consumers from understanding that BDP was seeking to change their PICs. In the Marketing Partners Complaint, for example, Ms. Fullmer asserts that the BDP telemarketer who slammed her merely stated that he was making a "courtesy call" to advise Marketing Partners that all charges for local and longdistance calls would soon be combined on the local exchange carrier's bill.N#A\  PWP# I. A. 1. a.(1)(a) i) a)ЍSee Marketing Partners Complaint at 1. Another complainant, Dr. Okamoto, found that her service had been switched without her authorization after she received a "courtesy call" from an individual purporting to be an AT&T operator. According to Dr. Okamoto, the individual made no mention of any change in longdistance carriers, much less to BDP. O#A\  PXP# I. A. 1. a.(1)(a) i) a)ЍSeeĠOkamoto Complaint at 1.   Further, there is ample record evidence to demonstrate that BDP's verifiersP#A\  PYP# I. A. 1. a.(1)(a) i) a)Ѝ It appears that these thirdparty verifiers used scripts prepared by BDP, as there is a similarity between the content of the audiotaped verification calls and BDP's sales script. For instance, in the verification tape submitted in connection with the TCS complaint, BDP's verifier informs Mr. Taggert that his company will be "remaining on the AT&T network" the exact language contained in BDP's sales script. See TCS Complaint at 1. Moreover, there is evidence in the record to suggest that BDP employed a verification company that was either affiliated with or directed by BDP, in contravention of the Commission's requirement that thirdparty verifiers operate independently of IXCs. See 47 C.F.R.  64.1100(c); See Strataphysics Complaint (third partyverification company known as "Third Party Verification" allegedly worked only for BDP and was located at the same location as BDP). routinely mischaracterized the nature of the information they were purportedly verifying. The Commission's rules and orders and section 258 of the Act are intended to ensure that independent thirdparty verifiers indicate that the purpose of their call is to verify that a customer has authorized a change in his or her longdistance service provider.Q#A\  PZP# I. A. 1. a.(1)(a) i) a)ЍSee 47 C.F.R.  64.1100(c). Nevertheless, BDP's verifiers apparently created a false impression by advising customers that they were confirming a bill consolidation, all the while assuring customers that they would remain on their existing carriers' networks. For example, in the audiotaped verification submitted in connection with the TCS Complaint, the verifier states that she is calling to confirm that TCS had agreed to a simplified billing format. Clearly, however, BDP's verifier could not "confirm" that TCS had in fact authorized a PIC change because BDP's telemarketer had failed to obtain Mr. Taggert's authorization in the first instance. In sum, the statements and other information provided by the complainants, and the limited responses by BDP, demonstrate that BDP apparently: (1) employed unjust and unreasonable telemarketing practices; and (2) changed complainants' PICs without their authorization. As described above, BDP has failed to provide any evidence or information to counter the complainants' claims. Accordingly, we conclude that BDP has apparently willfully or repeatedly violated sections 201(b) and 258 of the Act and the Commission's rules and orders pertaining to PIC changes.;R#A\  P[P# I. A. 1. a.(1)(a) i) a)ЍSee 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); PIC 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).; B.Forfeiture Amount BDP's apparent use of unjust and unreasonable telemarketing practices and its apparent failure to obtain authorization to effect changes in the longdistance service of the consumers described in this NAL persuades us that a significant forfeiture is warranted against BDP for willful or repeated violations of sections 201(b) and 258 of the Act and the Commission's rules and orders regarding slamming. Section 503(b) of the Communications Act authorizes the Commission to assess a forfeiture of up to $110,000 for each violation of the Act or of any rule, regulation, or order issued by the Commission under the Act.S#A\  P\P# I. A. 1. a.(1)(a) i) a)Ѝ47 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. 104134, Sec. 31001, 110 Stat. 1321), enacted on April 26, 1996. See Amendment of Section 1.80 of the Commission's Rules, 12 FCC Rcd 1038 (1997). 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."T#A\  P]P# I. A. 1. a.(1)(a) i) a)ЍSee 47 U.S.C.  503(b)(2)(D). 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.U#A\  P^P# I. A. 1. a.(1)(a) i) a)ЍSee 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) (Forfeiture Policy Statement). These policies and guidelines include "upward adjustment criteria" that warrant a higher forfeiture amount based on our evaluation of the particular actions and circumstances of the violator.V#A\  P_P# I. A. 1. a.(1)(a) i) a)ЍId. These include the egregiousness of the misconduct, ability or inability to pay, whether the violation was an intentional violation, whether substantial harm resulted from the violations, history of compliance with Commission requirements, whether the violator realized substantial economic gain from the misconduct, and whether the violation is repeated or continuous. W#A\  P`P# I. A. 1. a.(1)(a) i) a)ЍId. See also 47 U.S.C.  503(b)(2)(D).  Although the forfeiture guidelines do not establish a forfeiture amount for unjust or unreasonable practices, such as engaging in deceptive telemarketing practices, the guidelines state that, ". . . any omission of a specific rule violation from the . . . [forfeiture guidelines]. . . should not signal that the Commission considers any unlisted violation as nonexistent or unimportant."!X#A\  PaP# I. A. 1. a.(1)(a) i) a)ЍForfeiture Policy Statement, 12 FCC Rcd at 17099.! The Commission retains the discretion, moreover, to depart from the guidelines and issue forfeitures on a casebycase basis, under its general forfeiture authority contained in section 503 of the Act.Y#A\  PbP# I. A. 1. a.(1)(a) i) a)ЍId. In calculating BDP's forfeiture, we consider each unauthorized conversion of the preferred interexchange carrier of a complainant to constitute a separate violation for which we will apply our standard $40,000 forfeiture amount.Z#A\  PcP# I. A. 1. a.(1)(a) i) a)ЍWe note that the Commission has found that forfeitures over $40,000 for the unauthorized conversion of a consumer's PIC are justified when the carrier has engaged in egregious conduct such as submitting PICchange requests based upon forged LOAs. All American Telephone Company, Inc., Notice of Apparent Liability, 13 FCC Rcd 15040 (1998); Brittan Communications International Corp., Notice of Apparent Liability, FCC No. 98291, rel. Oct. 29, 1998; AmerINet Services Corp., Notice of Apparent Liability, FCC No. 98285, rel. Oct. 30, 1998. Based on BDP's apparent conduct as described in this NAL, the Commission could find BDP liable for a forfeiture of over $40,000 for each of the unauthorized long distance service conversions. However, because the Commission today finds that BDP has also violated section 201(b) of the Act and assesses forfeitures in connection with these section 201(b) violations, we will assess the standard $40,000 forfeiture for each violation of section 258 of the Act. In the future, the Commission may elect to apply a higher forfeiture amount for section 258 violations based upon the upward adjustment criteria set forth in the forfeiture guidelines.  Thus, we find that BDP is apparently liable for a forfeiture of $1,200,000 for the unauthorized conversion of the thirty complainants' preferred interexchange carriers in violation of section 258 of the Act. In addition, we consider each instance that BDP engaged in an unjust and unreasonable telemarketing practice in violation of section 201(b) of the Act to constitute a separate violation. As evidenced by the record, BDP's deceptive telemarketing practices were aimed at slamming consumers. Therefore, based upon our broad discretion to issue forfeitures on a casebycase basis, we find that under these circumstances, the standard $40,000 forfeiture amount applied for slamming violations is an appropriate guideline to use in assessing a forfeiture for the section 201(b) violations before us. Accordingly, we find that BDP is also apparently liable for a forfeiture of $1,200,000 for engaging in unjust and unreasonable telemarketing practices with regard to each of the thirty complainants identified in this NAL. Taken together, the forfeitures we assess for violations of sections 201(b) and 258 of the Act result in a total forfeiture amount of $2,400,000. BDP shall 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.+[#A\  PdP# I. A. 1. a.(1)(a) i) a)ЍSee 47 U.S.C.  503(b)(4)(C); 47 C.F.R.  1.80(f)(3).+ Finally, we note that our review of BDP's inadequate responses indicates a need for the Commission to continue to monitor BDP's PICchange practices. We, therefore, require BDP to file with this Commission a compliance plan that shall include procedures designed to promptly identify and address consumer inquiries and concerns about BDP's PICchange practices.\#A\  PeP# I. A. 1. a.(1)(a) i) a)ЍSee 47 U.S.C.  218. The compliance plan shall also detail actions BDP will take and procedures it will establish to comply with the Act and with the Commission's rules and orders The Commission will closely monitor the level and content of consumer complaints to determine whether the establishment of BDP's proposed management practices leads to a decrease in unauthorized PIC changes. >  VI. CONCLUSIONS AND ORDERING CLAUSES ă We have determined that BDP apparently violated sections 201(b) and 258 of the Communications Act and the Commission's PICchange rules and orders by engaging in unjust and unreasonable telemarketing practices and by converting the PICs of the thirty consumers identified above, on the dates and in the manner described herein. We have further determined that BDP is apparently liable for a total forfeiture amount of $2,400,000. 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 Business Discount Plan, Inc. IS HEREBY NOTIFIED of an Apparent Liability for Forfeiture in the amount of $2,400,000 for willful or repeated violations of sections 201(b) and 258 of the Act ]#A\  PfP# I. A. 1. a.(1)(a) i) a)Ѝ47 U.S.C.  201(b); 258.  and the Commission's PICchange rules and orders as described in the paragraphs above.^#A\  PgP# I. A. 1. a.(1)(a) i) a)ЍSee 47 C.F.R.  64.1150; 1997 FNPRM & Order on Recon., 12 FCC Rcd 10674; LOA Order, 10 FCC Rcd 9560; PIC Change Order, 7 FCC Rcd 1038; Allocation Order, 101 FCC 2d 911; Waiver Order, 101 FCC 2d 935. 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, Business Discount Plan, Inc. SHALL PAY the full amount of the proposed forfeiturew_#A\  PhP# I. A. 1. a.(1)(a) i) a)ЍThe forfeiture amount should be paid by check or money order drawn to the order of the Federal Communications Commission. Reference should be made on Business Discount Plan, Inc.'s check or money order to "NAL/Acct. No. 916EF0004." Such remittances must be mailed to Forfeiture Collection section, Finance Branch, Federal Communications Commission, P.O. Box. 73482, Chicago, Illinois 606737482.w OR SHALL FILE a response showing why the proposed forfeiture should not be imposed or should be reduced. IT IS FURTHER ORDERED, pursuant to section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), that Business Discount Plan, Inc. SHALL FILE with the Commission, within thirty (30) days of the date of this NAL, a compliance plan detailing the actions it has taken and the procedures it has established, to ensure compliance with sections 201(b)and 258 of the Act and the Commission's rules and orders relating to PIC changes. The compliance plan shall set forth procedures designed to enable Business Discount Plan, Inc. to promptly identify and address consumer inquiries and concerns about its PICchange practices. IT IS FURTHER ORDERED that copies of this Notice of Apparent Liability for Forfeiture SHALL BE SENT by certified mail to: Thomas David Jenkins, Owner and President, Business Discount Plan, Inc., 3780 Kilroy Airport Way, Suite 200, Long Beach, California, 20806; and to Craig Konrad, Vice President, Business Discount Plan, Inc., 3780 Kilroy Airport Way, Suite 200, Long Beach, California, 90806.  FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary  #XN\  PiXP#  STATEMENT OF COMMISSIONER HAROLD FURCHTGOTTROTH  Re:Business Discount Plan, Inc. Apparent Liability for Forfeiture (Enf No. 9802). Today the Commission issues a Notice of Apparent Liability for Forfeiture against Business Discount Plan, Inc. for violating Sections 201(b) and 258 of the Communications Act by misrepresenting their service offering and for the unauthorized change of a customer's preferred long distance carrier ("slamming"). Slamming and other fraudulent business practices are a growing concern for consumers and this agency, and I congratulate the Commission on taking steps to combat these problems. Providing false information to consumers corrupts free markets and will not be tolerated. I also caution consumers, however, that they must be more vigilant in their own defense. It is not within this agency's legal authority to protect consumers from mere aggressive marketing. Neither the urging of a salesman nor a consumer's inability to understand a service offering justifies the Commission's intervening in otherwise legitimate contracts. While this agency should and will do what it can to ensure that false information and fraudulent activities are not tolerated, consumers themselves need to become vigilant against accurate but aggressive marketing techniques. In such a situation it is consumers, not the federal government, that can ensure that only the services actually requested by the customer are accepted. Before we proceed much further with enforcement of slamming rules as they relate to marketing, the Commission should develop clear and unambiguous rules delineating permissible marketing practices from impermissible practices. We do not yet have such rules on either a prospective or retrospective basis, and it is consequently difficult to defend FCC judgments about slamming under specific circumstances. #XN\  PjXP#