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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Consumer.net, LLC
)
and
)
Russ Smith, an Individual,
)
Complainants,
)
v.
)
Verizon Communications, Inc., d/b/a
)
Verizon Inc.,
) File No. EB-05-TC-F-002
Verizon-New Jersey, Inc., d/b/a Verizon,
)
Cellco Partnership & Affiliated
Entities- )
CONSOLIDATED d/b/a Verizon Wireless, )
Bell Atlantic Communications, Inc., )
d/b/a
)
Verizon Long Distance,
)
Verizon Select Services, Inc.,
)
Defendants.
)
)
MEMORANDUM OPINION AND ORDER
Adopted: March 31, 2010 Released: April 1, 2010
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this order, we grant one count, but deny all others, in a formal
complaint filed by Consumer.net, LLC and Russ Smith (collectively
"Complainants") against the above-captioned Defendants pursuant to
section 208 of the Communications Act of 1934, as amended ("the Act").
The Complainants have argued that Defendants violated the Commission's
do-not-call rules by purportedly making multiple prohibited telephone
solicitations to Mr. Smith, and by failing to record properly his
requests to be placed on the companies' do-not-call lists. We find,
however, that none of the calls at issue constituted "telephone
solicitations" within the meaning of section 227 of the Communications
Act, and thus we find no violation of the Act or our rules in
connection with those calls. As to the allegations that the companies
did not honor Mr. Smith's requests to be placed on their do-not-call
lists, we find that Verizon New Jersey did violate section
64.1200(e)(2)(iii) of the Commission's rules and section 201(b) of the
Act by failing to record a company-specific do-not-call request made
by Smith in September 2003. We find insufficient evidence, however, to
conclude that Verizon Wireless similarly failed to record a
do-not-call request.
2. Complainants also raised a number of other allegations against the
Defendants. We dismiss all counts against Verizon Communications
because complaints under section 208 may be filed only against common
carriers, and the record does not show that Verizon Communications is
properly deemed such a carrier. With respect to the remaining
allegations, we find no violations, as set forth below. Finally, we
find insufficient evidence to justify Complainants' request for an
award of damages for the one violation (failure to timely record a
do-not-call request) that we find here.
II. BACKGROUND
3. Complainants challenge whether the Defendants have adhered to their
statutory and regulatory obligations concerning telephone
solicitations and the maintenance of do-not-call lists. The formal
complaint follows a related, previously-filed informal complaint, and
arises from Defendants' alleged failure to honor Smith's requests to
be placed on Defendants' company-specific do-not-call list. In their
formal complaint, Complainants allege that Defendants violated
sections 64.1200(e)(2)(v) and 64.1200(d)(5) of the Commission's rules
and section 227 of the Act, by failing to implement properly
company-specific do-not-call requests; and that Defendants violated
sections 64.1200(e)(2)(iii) and 64.1200(d)(3) of the Commission's
rules, and section 227 of the Act, by failing to implement
company-specific do-not-call requests within a reasonable amount of
time. Complainants also allege that Verizon Communications violated
sections 201, 205, 225, 227, 251, 254, 258 and 416 of the Act by
failing to register in accordance with section 64.1195(c) of the
Commission's rules while providing telecommunications service as a
telecommunications carrier; and that Verizon New Jersey and Verizon
Wireless violated section 64.1195(b)(1) of the Commission's rules, and
sections 201, 205, 225, 227, 251, 254, 258, and 416 of the Act by
filing false information on FCC Form 499-A while providing
telecommunications service as a telecommunications carrier.
4. Complainants allege that at various times, Smith subscribed to Verizon
local service in different locations, and that he asked that his
residential telephone number be placed on Verizon's internal
do-not-call lists at each of those locations. The calls and requests
relevant to this proceeding began in September 2003. Smith asserts
that in September 2003, he moved to Ocean City, New Jersey, obtained
local telephone service from Verizon New Jersey, and requested that
his new residential telephone number be unpublished and placed on the
company's internal do-not-call list. Verizon states that Smith chose
Verizon Long Distance Service at that time, but that he subsequently
switched his long distance service to Sprint on November 5, 2003.
5. Smith states that on or about June 29, 2004, he received an automated
call from Verizon at his residential telephone number that he
describes as promoting a plan that provided that long distance
minutes would carry over from month-to-month. Smith notes that Sprint
was his long distance carrier at that time. Smith asserts that he
contacted a Verizon New Jersey representative that same day, who
informed him that his account had not been marked as do-not-call, and
that the do-not-call policy was a part of a privacy pamphlet that
would be sent to him via U.S. mail. Smith states that he never
received the pamphlet. Smith asserts that he also sent letters to
Verizon New Jersey and Verizon Communications requesting a copy of its
internal do-not-call policy, and offering to accept a monetary payment
to settle the matter. He states that he did not receive a response
from the two Verizon entities.
6. Smith contends that he received another telephone solicitation on or
about September 6, 2004, when he received an artificial or prerecorded
message that stated, "This is a Verizon Select..." before the line
went dead.
7. Smith further asserts that on or about November 7, 2004, he attempted
to place his Sprint cell phone number on both Verizon and Verizon
Wireless's internal do-not-call lists via the Internet. He states that
the Verizon Wireless website instructed him to either write Verizon
Wireless or call the customer service number listed to make his
do-not-call request. According to Smith, when he called customer
service the same day, the customer service representative insisted
that she could not take his request over the phone, and she gave him
the telephone number for the National Do-Not-Call Registry
administered by the federal government.
8. According to Smith, on or about November 17, 2004, he received another
automated call from Verizon, similar to the one received on June 29,
2004. The entity identified in the call was Verizon Long Distance, and
Smith alleges that the message promoted a plan that allowed minutes to
carry over from month to month.
9. Finally, Smith contends that on or about November 22, 2004, he
received another automated message that mentioned Bell Atlantic before
the line went dead. He alleges that this call, too, constituted a
telephone solicitation.
III. DISCUSSION
10. It is well established that the Complainant has the burden of proof in
a formal complaint proceeding under section 208 of the Act. Thus, to
prevail, a Complainant must demonstrate by a preponderance of the
evidence that the alleged violation of the Act or the Commission's
rules actually occurred.
A. The Alleged Telephone Solicitations
11. We address first Complainants' claim that Verizon Long Distance and
Verizon Select made unlawful telephone solicitations, and find that
none of the calls at issue constituted "telephone solicitations" under
section 227(a)(3) of the Act.
1. Verizon Long Distance's June 29, 2004, and November 17, 2004, calls did
not constitute telephone solicitations.
12. Complainants assert that Smith received two unlawful telephone
solicitations from Verizon Long Distance, one on June 29, 2004, and
one on November 17, 2004. The message that Smith received in June was
the following:
Hello. This is Verizon Long Distance calling with a special reminder for
valued customers like you. Don't forget that you'll receive 60 free
domestic long distance minutes on Sunday, July Fourth. So whether you call
Independence, Missouri, or Liberty, Texas, or Freedom, New York, you can
celebrate on us and you don't have to do anything. These minutes will
automatically be applied to your account. Just be sure to use them on the
Fourth because they won't rollover. Thanks again for your business.
In November, he received a similar message:
This is Verizon Long Distance calling to remind you that you will receive
60 free domestic long distance minutes on Thanksgiving Day, Thursday,
November 25th. These minutes will be automatically applied to your
account. Just be sure to use them on the 25th because they won't rollover.
It's our way of saying, `Thanks for your business.
While Complainants assert that these messages constitute telephone
solicitations, Verizon states that the June 29 and November 17 offers that
Smith received are typical of those periodically sent to current Verizon
customers as a form of good will, and that Smith received those calls in
error because his residential number had been held previously by a Verizon
Long Distance customer.
13. While we appreciate the annoying nature of these unwelcome calls, we
must be governed by the language of the statute, and based on that
language we find that neither of these messages constitutes a
"telephone solicitation" within the meaning of section 227 of the Act.
Section 227(a)(3) defines a "telephone solicitation" as "the
initiation of a telephone call or message for the purpose of
encouraging the purchase or rental of, or investment in, property,
goods, or services, which is transmitted to any person." Verizon
denies that its purpose was to encourage the purchase of services,
arguing that the messages at issue were intended to be sent only to
current Verizon customers. The specific language used in the messages
is consistent with that explanation. For instance, the June 24 message
refers to "a special reminder for valued customers like you," "your
account," and "[t]hanks again for your business," language that
appears to be directed to current Verizon Long Distance customers
rather than the general public or potential new customers. The
November 17 message includes similar references to "calling to remind
you," "your account," and "[i]t's our way of saying, `Thanks for your
business.'" Moreover, nothing in the messages expressly encourages the
purchase of any services. The fact that the messages contain no
information about how to contact Verizon to take advantage of the
offer further suggests that they were not intended as solicitations.
14. Taking into account Verizon's statement as to its purpose in
delivering the messages, the language used in those messages, and the
lack of any evidence of an inappropriate pattern or practice of using
such calls to solicit new customers, we find that Verizon's assertion
that it contacted Smith in error, intending only to communicate the
offers to existing Verizon customers, is more likely than that
Verizon's messages were soliciting new customers. We therefore find,
based on the specific facts before us, that the June 29 and November
17, 2004 prerecorded messages are not telephone solicitations within
the meaning of section 227(a)(3) of the Act because they were not "for
the purpose of encouraging the purchase or rental of, or investment
in, property, goods, or services," and that Verizon Long Distance did
not violate section 64.1200(a)(3) of the rules.
2. Verizon Select's September 6, 2004, call did not constitute a telephone
solicitation.
15. Complainants assert that on or around September 6, 2004, Smith
received a call to his residential telephone number using a
prerecorded or artificial voice that stated "This is a Verizon
Select...," before the line went dead. While the message identifies
the caller as Verizon Select, the message does not state the purpose
of the call, nor whether any product or service was being advertised.
Absent such information, Complainants have not proved that the
September 6 call constitutes a "telephone solicitation" within the
meaning of section 227(a)(3) of the Act. As a result, we find that
Verizon Select did not violate section 64.1200(d)(3) of the
Commission's rules with this call.
B. Complainants' Do-Not-Call Requests
16. We find that Verizon New Jersey violated section 64.1200(e)(2)(iii) of
the Commission's rules and section 201(b) of the Act when it failed to
place Smith's residential telephone number on its company-specific
do-not-call list. Complainants have failed, however, to meet their burden
of proof under section 1.721 of the Commission's rules to show that
Verizon Wireless similarly violated section 64.1200(d)(3) of the
Commission's rules governing do-not-call requests, or section 201(b) of
the Act.
1. Defendants violated the Commission's rules by failing to record Smith's
company-specific do-not-call request in September 2003.
17. The parties do not dispute that on or around September 17, 2003, Smith
activated residential local service with Verizon New Jersey. The parties
disagree, however, as to when Smith requested that Verizon place him on
its company-specific do-not-call list. Smith presents a sworn affidavit
stating that he made that request at the time he obtained service in
September 2003, and also provides evidence that a Verizon customer service
representative informed him on June 29, 2004, that his account had not
been marked as do-not-call. According to Verizon, however, its records
indicate that Smith asked to be placed on the company-specific do-not-call
list on or around June 29, 2004, and that Verizon New Jersey did so on
July 1, 2004. Verizon denies generally that it failed to honor any of
Smith's do-not-call requests in a timely fashion.
18. Section 64.1200(e)(2)(iii) of the Commission's rules requires
telemarketers to "place the subscriber's name and telephone number on the
do-not-call list at the time the request is made." Thus, Verizon New
Jersey should have placed Smith on its company-specific do-not-call list
when he made his initial do-not-call request at issue in this case. Smith
has provided a sworn declaration stating that he made that request when he
activated service in September 2003. Verizon, however, does not
specifically address Smith's claim of a September 2003 request, instead
offering only a general denial that it failed to honor any of his requests
in a timely fashion and making no specific representation about whether
Verizon records contain any notation regarding a September 2003
do-not-call request. In particular, Verizon failed to demonstrate that
they have accurate business records that show no request. Smith's very
specific sworn claim regarding his September 2003 do-not-call request,
when weighed against Verizon's failure to specifically address that
alleged request, persuades us that Smith has demonstrated by a
preponderance of the evidence that he requested that his account be placed
on Verizon's company-specific do-not-call list on or around September 17,
2003. Inasmuch as Verizon states affirmatively that Smith was not placed
on the do-not-call list until July 1, 2004, it is clear that they did not
timely record a September 2003 do-not-call request. We therefore conclude,
based on the facts presented, that Verizon New Jersey violated section
64.1200(e)(2)(iii) of the Commission's rules by failing to record Smith's
company-specific do-not-call request on or around September 17, 2003. We
further find that a failure to record Smith's company-specific do-not-call
request as mentioned herein in accordance with section 64.1200(e)(2)(iii)
of the Commission's rules constitutes both a violation of
64.1200(e)(2)(iii) and a violation of section 201(b) of the Act.
2. Complainants Have Not Demonstrated That Verizon Wireless Failed to
Record a November 7, 2004, Do-not-call Request.
19. Complainants assert that on November 7, 2004, Smith attempted to place
his Sprint cell phone number on Verizon Wireless's company-specific
do-not-call list via the Internet. According to Smith, the website
instructed him to either call or write Verizon Wireless to make his
request. Smith asserts that he used the prescribed customer service
telephone number that same day to contact Verizon Wireless, but that the
customer service representative insisted that she could not take his
do-not-call request over the phone. Instead, according to Smith, she
provided him with a telephone number for the National Do-Not-Call
Registry. Complainants assert that Verizon Wireless thereby violated
section 64.1200(d)(3) of the Commission's rules by failing to record
Smith's company-specific do-not-call request. Defendants generally deny
that they refused to record or honor any of Smith's do-not-call requests.
20. We are not convinced, in the first instance, that Complainants met
their initial burden under section 1.721(a)(5) of the Commission's rules
to proffer sufficient evidence to demonstrate that Verizon Wireless in
fact refused to record Smith's do-not-call request. Given that a trained
customer service representative referred Smith to the National Do-Not-Call
Registry, it appears just as likely that this representative simply
misunderstood Smith's request. We therefore find that Complainants failed
to meet their burden of proof under section 1.721(a)(5) of the
Commission's rules to show that Verizon Wireless violated section
64.1200(d)(3) of the Commission's rules.
C. The Counts Against Verizon Communications, Inc.
21. Complainants assert that Verizon Communications has violated section
64.1195(c) of the Commission's rules, requiring interstate
telecommunications carriers to register with the Commission, and sections
201, 205, 225, 227, 251, 254, 258 and 416 of the Act. Complainants contend
that the company operates not only as a holding company, but also as a
telecommunications carrier. We find, however, that Complainants have
failed to demonstrate by a preponderance of the evidence on this record
that Verizon Communications is a common carrier. Accordingly, Verizon
Communications is not subject to complaints under section 208, nor is it
subject to the cited rule or statutory provisions. Therefore, we dismiss
all counts against Verizon Communications.
22. In order to be a "common carrier," Verizon Communications would have
to offer telecommunications for a fee directly to the public. Defendants
state that Verizon Communications is not a telecommunications carrier, but
rather a holding company that holds stock in its subsidiaries, which in
turn operate as separate corporate entities. Defendants further state that
Verizon Communications does not conduct any other business and does not
sell, market, or provide telecommunications services of any kind.
Complainants, by contrast, assert that Verizon Communications is actually
selling telecommunications services directly to the public by collecting
marketing lists from its telephone companies and selling combined or
bundled services to the public that no individual Verizon entity could
sell on its own.
23. In support of that assertion, Complainants reference an affidavit from
the marketing executive employed by a different entity, Verizon Services
Corporation, that discusses how that entity (and not Verizon
Communications) works with Verizon local service operating companies, long
distance affiliates, and Verizon Online, to enable those Verizon entities
to offer and market bundled services. Complainants also reference an
article in which an executive of Verizon Communications' Retail Markets
speaks about Verizon service offerings in general, but not to any specific
alleged telecommunications carriage activity by Verizon Communications. We
reject Complainants' assertion that Verizon Communications' use of the
unified brand name and trademark "Verizon" is direct proof of
telecommunications carriage. Thus, on the whole, the evidence in the
record does not establish that Verizon Communications itself provides
telecommunications services, or that it is a telecommunications carrier.
As a result, no claims against Verizon Communications are cognizable under
section 208 based on the facts presented herein by the Complainants, and
such claims are therefore dismissed.
D. Complainants' Allegations Against Verizon New Jersey and Verizon
Wireless
24. Complainants argue that Verizon New Jersey and Verizon Wireless
violated section 64.1195(b)(1) of the Commission's rules and sections 201,
205, 225, 227, 251, 254, 258, and 416 of the Act by failing to register
with the State of New Jersey the d/b/a names Verizon registered on FCC
Form 499-A, namely "Verizon" and "Cellco Partnership and Affiliated
Entities - CONSOLIDATED," respectively. Because Verizon New Jersey and
Verizon Wireless registered the aforementioned d/b/a names on FCC Form
499-A with the Commission, Smith argues that a similar registration should
have been done with the states, respectively. Complainants fail, however,
to present persuasive legal arguments or documentation to convince us that
this state issue violates the cited rule or statutory provisions.
IV. REQUESTS FOR RELIEF
25. Complainants request that the Commission assess forfeitures against
Verizon for violation of the Commission's rules and orders, issue an order
requiring Defendants to discontinue all telephone solicitations in the
United States until Defendants provide proof that they are in strict
compliance with section 64.1200 of the Commission's rules, and order
Verizon to pay damages in the amount of $5,000, primarily for legal and
administrative costs associated with pursuing their complaint.
26. We deny Complainants' claim for damages. We find here only one
violation, Verizon New Jersey's failure to promptly implement Smith's
September 2003 request to place his telephone number on its
company-specific do-not-call list. We note that Complainants have not
demonstrated that any unlawful telephone solicitations resulted from that
failure. Complainants request approximately $5000 in damages, asserting
that their damages are "the legal and administrative expenses of
attempting to opt-out. The expenses are primarily the expenses associated
with pursuing this complaint." First, we note that the "expenses of
attempting to opt-out" do not encompass all the expenses of pursuing this
complaint. The evidence indicates that the one improperly handled
do-not-call request was promptly rectified when Smith repeated that
request in June 2004. Thus, Complainants have not provided the necessary
information to prove damages as required by section 1.722(h) of the
Commission's rules. Moreover, we find that Complainants' legal and
administrative costs incurred as a pro se litigant are analogous to
attorney fees. Because the Act and the Commission's rules do not allow the
Commission to award attorney fees or costs, we decline to award such costs
as damages here.
27. We also deny Complainant's request that we impose a forfeiture against
Verizon. Sections 206-208 of the Act establish private remedies for
parties aggrieved by carriers, while section 503(b) of the Act gives the
Commission the discretion to assess forfeitures payable to the United
States. Accordingly, a formal complaint proceeding under sections 206-208
of the Act is not an appropriate venue for the Commission's imposition of
forfeitures. If the Commission were to determine that Verizon's
do-not-call practices warranted the issuance of a notice of apparent
liability for forfeiture under section 503(b) of the Act, the Commission
would impose such a penalty in a separate proceeding.
28. Finally, we deny Complainants' request that we order Defendants to
discontinue all telephone solicitations in the United States until
Defendants provide proof that they are in compliance with section 64.1200
of the Commission's rules. We find here only a single violation of our
rules, a one-time failure to promptly implement a do-not-call request.
Complainants have not shown widespread violations or the potential for
future misconduct or harm necessary to warrant the relief they seek.
V. OTHER MATTERS
29. Complainants filed a letter requesting clarification on 11 issues in
the instant proceeding, a motion to strike, and a motion requesting the
Commission's adjudication of this complaint. We find that the resolution
of this proceeding as stated herein renders those filings moot, and we
therefore deny each of them.
30. As to Defendants' confidentiality claim under section 1.731 of the
Commission's rules for certain documents that Defendants filed in Response
to Complainants First and Second Set of Interrogatories, we are persuaded
that the documents relating to brand names and trademarks in Exhibits A-C
of Defendants' response meet the disclosure exemption under 5 U.S.C. S:
552(b)(4) of the Freedom of Information Act ("FOIA"). First, Defendants
argue that Verizon's Brand Identity Standards manual, a significant
financial asset, is confidential because it sets forth Verizon's
confidential brand strategies and the tools to build the identity of the
Verizon brand following that strategy. Second, Defendants claim that the
corporate identity standards for Verizon Wireless are treated as
proprietary and confidential to protect the integrity, value and goodwill
of the Verizon Wireless brand, and such manuals are only released to
entities that have a business relationship with Verizon that require the
use of the Verizon Wireless logo. According to Defendants, this control
limits unauthorized use of the logo that could potentially damage the
reputation of the company. Because we conclude that Defendants have
sufficiently demonstrated that Exhibits A-C of Defendants' Response to
Complainants First and Second Set of Interrogatories meet the disclosure
exemption, we direct Complainants to return Exhibits A-C in accordance
with the procedure set forth in section 1.731(e) of the Commission's
rules.
VI. ORDERING CLAUSES
31. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 201, and
208 of the Communications Act of 1934, as amended, 47 U.S.C. S:S: 154(i),
154(j), 201, and 208, and the authority delegated by sections 0.111 and
0.311 of the Commission's rules, 47 C.F.R. S:S: 0.111, 0.311, that the
above-captioned complaint IS GRANTED IN PART to the extent described
herein and is otherwise DENIED and DISMISSED WITH PREJUDICE, and that this
proceeding is TERMINATED.
32. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and 208 of the
Communications Act of 1934, as amended, 47 U.S.C. S:S: 154(i), 154(j), and
208, and the authority delegated by sections 0.111 and 0.311 of the
Commission's rules, 47 C.F.R. S:S: 0.111, 0.311, that Verizon
Communications Inc., et al.'s Motion to Dismiss filed on May 26, 2005 IS
DENIED.
33. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and 208 of the
Communications Act of 1934, as amended, 47 U.S.C. S:S: 154(i), 154(j), and
208, and the authority delegated by sections 0.111 and 0.311 of the
Commission's rules, 47 C.F.R. S:S: 0.111, 0.311, that Consumer.net et
al.'s Motion to Strike IS DENIED.
34. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and 208 of the
Communications Act of 1934, as amended, 47 U.S.C. S:S: 154(i), 154(j), and
208, and the authority delegated by sections 0.111 and 0.311 of the
Commission's rules, 47 C.F.R. S:S: 0.111, 0.311, that Consumer.net et
al.'s Motion to Request Commission's Adjudication IS DENIED.
35. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and 208 of the
Communications Act of 1934, as amended, 47 U.S.C. S:S: 154(i), 154(j), and
208, and the authority delegated by sections 0.111 and 0.311 of the
Commission's rules, 47 C.F.R. S:S: 0.111, 0.311, that Verizon
Communications Inc. et al.'s request for confidential treatment as stated
herein IS GRANTED.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Verizon New Jersey, Inc. ("Verizon New Jersey"), Bell Atlantic
Communications, Inc. d/b/a Verizon Long Distance Inc. ("Verizon Long
Distance"), Verizon Select Services, Inc. (collectively "the Verizon
Entities" or "Verizon"), and Cellco Partnership and Affiliated Entities
CONSOLIDATED d/b/a Verizon Wireless ("Verizon Wireless"). Because we
dismiss all counts in this proceeding against Verizon Communications, Inc.
("Verizon Communications"), we do not refer to Verizon Communications
hereafter as one of the "Defendants."
47 U.S.C. S: 208.
Consumer.net LLC, et al. V. Verizon Communications, Inc., et al,
Complaint, File No. EB-05-TC-F-002 (Jan. 25, 2005)(<< Complaint >>).
Consumer.net LLC, et al. v. Verizon Communications, Inc, et al., Informal
Complaint, IC No. 04-I0137661 (Sept. 7, 2004). We note that Complainants'
formal complaint was timely filed within six months from the date of the
Jan. 7, 2005 informal complaint carrier's report, so that the formal
complaint filing is deemed to relate back to the filing date of the
informal complaint. See 47 C.F.R. S: 1.718. As a result, the limitations
period under section 415(b) of the Act extends to two years before the
filing of the informal complaint. 47 U.S.C. S: 415(b).
47 C.F.R. S: 64.1200(e)(2)(v); see also Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, Report and
Order, 7 FCC RCD 8752, 8766, P: 24 (1992) (1992 TCPA Order). We note that
the Commission amended the TCPA rules in 2003, but did not change the
language contained in section 64.1200(e) (2)(v). See infra, n. 8. Thus,
the effective date for the section at issue remains December 20, 1992.
47 C.F.R. S: 64.1200(d)(5).
47 U.S.C. S: 227.
47 C.F.R. S: 64.1200(e)(2)(iii); see also 1992 TCPA Order, 7 FCC RCD 8752,
8764, P: 21. We note that the Commission amended the TCPA rules in 2003
and amended section 64.1200(e)(2)(iii) of the Commission's rules to allow
a carrier up to 30 days to honor a consumer's do-not-call request. See
Rules and Regulations Implementing the Telephone Consumer Protection Act
of 1991, Report and Order, 18 FCC Rcd 14014, 14069, P: 94 (2003) (2003
TCPA Order); see also 47 C.F.R. S: 64.1200(d)(3).
47 C.F.R. S: 64.1200(d)(3).
47 U.S.C. S: 227.
47 U.S.C. S:S: 201, 205, 225, 227, 251, 254, 258, 416.
47 C.F.R. S: 64.1195(b)(1).
Complaint at 5-6.
Id.
Consumer.net, et al. v. Verizon Communications, Inc., et al., Response of
Verizon and Verizon Wireless to the FCC's Request for Additional
Information, EB-05-TC-F-002, (July 14, 2005) ("Defendants' Response to
Staff's Request") at 5.
Id.
Id.
Id.
Complaint at Ex. 3.
Complaint at S.A.
Id.
See 47 U.S.C. S: 208; see also Directel, Inc. v. American Telephone and
Telegraph Company, Memorandum Opinion and Order, 11 FCC Rcd 7554, 7560-61,
P: 14-15 (1996); Amendment of Rules Governing Procedures to be Followed
when Formal Complaints are Filed Against Common Carriers, Report and
Order, 12 FCC Rcd 22497 (1997); Amendment of Rules Concerning Procedures
to be Followed when Formal Complaints are Filed Against Common Carriers,
Report and Order, 8 FCC Rcd 2614 (1993); Connecticut Office of Consumer
Counsel v. AT&T Communications, Memorandum Opinion and Order, 4 FCC Rcd
8130 (1989), aff'd sub nom. Connecticut Office of Consumer Counsel v. FCC,
915 F.2d 75 (2d Cir. 1990), cert. denied, 499 U.S. 920 (1991). See
generally 47 C.F.R. S:S: 1.720-1.735.
The parties agree that Smith subscribed to Sprint as his long distance
carrier at the time he received these messages on his residential phone
line.
Defendants' Response to Staff's Request at 5. Verizon further states that
it takes Verizon's systems longer to update non-marketing, non-sales lists
as opposed to messages used as a part of a marketing or sales campaign
that must be updated in accordance with federal and state requirements.
Id.
47 U.S.C. S: 227(a)(3) (emphasis added).
See supra P: 12.
A message purporting to be a free offer can, in some circumstances,
constitute a telephone solicitation, but the Commission has noted that the
"application of the prerecorded message rules should turn, not on the
caller's characterization of the call, but on the purpose of the message."
2003 TCPA Order, 18 FCC Rcd at 14098, P: 141. As described above, we find
that solicitation was not the purpose of the messages at issue.
See supra P: 12.
See supra, n. 25.
Complaint at S.A.
Similarly, the November 22, 2004 call described in para. 9, supra, cannot
be characterized as a "telephone solicitation" because virtually no
information has been provided about the content of the call.
Because Complainants have not shown that Defendants made unlawful
telephone solicitations to Smith, we need not address the issue of how the
do-not-call rules apply to affiliates of the entity to which the
do-not-call request was made, i.e., whether a request made to any Verizon
entity, including Verizon Wireless, is binding as to all Verizon entities,
including Verizon Wireless.
See supra, n. 8.
Section 201(b) of the Communications Act requires that all "charges,
practices, classifications, and regulations for and in connection with
such communication service, shall be just and reasonable, and any such
charge, practice, classification, or regulation that is unjust or
unreasonable is...unlawful." 47 U.S.C. S: 201(b).
Complaint at S.A.; Consumer.net, LLC, et al v. Verizon Communications,
Inc., et al, Answer, File No. EB-05-TC-F-0022, 14 (May 26, 2005)
("Answer").
Complaint at S.A.
Id.
Answer at Ex. 4.
Answer at 5.
Id.
See 47 C.F.R. S: 1.724(b) (stating that the answer shall advise the
complainant and the Commission fully and completely of the nature of any
defense).
Complaint at S.A.
Answer at 5.
Answer at Ex. 4.
Id.
47 C.F.R. S: 64.1200(e)(2)(iii), (current version, 47 C.F.R. S:
64.1200(d)(3), amended Oct. 1, 2003).
Complaint at S.A.
Complaint at Ex. 3.
See 47 C.F.R. S: 64.1200(d)(3).
See supra, n. 43.
See 47 C.F.R. S: 1.721(a)(5).
47 C.F.R. S: 64.1195(c).
47 U.S.C. S:S: 201, 205, 225, 227, 251, 254, 258, 416.
Cf. Bright House Networks, LLC, et al. v. Verizon California, Inc., et
al., Memorandum Opinion and Order, 23 FCC Rcd 10704 (2008), where the
Commission, likewise limiting its holding to the particular facts and the
particular statutory provision at issue, determined that the entities
involved in that case were properly deemed telecommunications carriers.
See National Association of Regulatory Utility Commissioners v. FCC, 533
F.2d 601, 608 (D.C. Cir. 1976) (stating that common carrier status
comprises a quasi-public character evidenced by a carrier's affirmative
act to serve indifferently all potential users). The term "common carrier"
is largely synonymous with the term "telecommunications carrier," as
defined in the Act. The Act defines "telecommunications" as "the
transmission, between or among points specified by the user of information
of the user's choosing, without change in the form or content of the
information as sent and received." 47 U.S.C. S: 153(43). In turn, if
"telecommunications" is offered for a fee directly to the public, the
carrier is offering "telecommunications services" and is a
"telecommunications carrier." Id. S: 153(44).
Answer at Ex. 6.
Id.
Complaint at 6.
Id. at 6, Ex. 16.
Id. at 6, Ex. 8.
Id. at 7-8.
Although under section 411 of the Act, 47 U.S.C. S: 411, the Commission
may permit the joinder of parties other than common carriers where those
parties are "interested in or affected by the...practice under
consideration," the pleadings here fail to implicate Verizon
Communications in the practices set forth in the complaint. As a result,
we find that the joinder of Verizon Communications as a party to this
proceeding is not warranted under the facts of this case.
Id. S: 64.1195(b)(1).
47 U.S.C. S:S: 201, 205, 225, 227, 251, 254, 258, 416.
Complaint at 9.
Id.
See 47 C.F.R. S: 1.720.
Complaint at 19-20.
Complaint at para. 40.
See para. 17, supra, indicating that Smith repeated his request on June
29, 2004, and that his number was placed on Verizon's do-not-call list on
July 1, 2004.
See Complaint at 20, S.A.
See Ascom Communications, Inc. v. Sprint Communications Co., L.P., 15 FCC
Rcd 3236 (2000); Multimedia Cablevision, Inc. v. Southwestern Bell
Telephone Co., 11 FCC Rcd 11202, 11208 (1996); Comark Cable Fund III v.
Northwestern Indiana Telephone Co., 100 FCC2d 1244, 1259 (1985).
47 U.S.C. S:S: 208, 503(b); 47 C.F.R. S: 1.80(e).
See Halprin v. MCI Telecommunications Corp., Memorandum Opinion and Order,
13 FCC Rcd 22568, 22581, at P: 29 (1998).
We note that "Defendants" does not include Verizon Communications. See
supra P: 21.
See Letter from Russ Smith to David Hunt, Senior Attorney,
Telecommunications Consumers Division, Enforcement Bureau (April 15,
2005); see also Consumer.net LLC, et al. v. Verizon Communications, Inc.,
et al., Motion to Strike, File No. EB-05-TC-F-002 (June 23, 2005); see
also, Consumer.net LLC, et al. v. Verizon Communications, Inc., et al.,
Motion to Request Commission's Adjudication, File No. EB-05-TC-F-002 (Feb.
2, 2007).
Consumer.net LLC, et al. v. Verizon Communications, Inc., et al.,
Responses of Verizon and Verizon Wireless to Complainant Russ Smith's
First and Second Set of Interrogatories, File No. EB-05-TC-F-002 (July 14,
2005).
5 U.S.C. S: 552(b)(4).
See Letter from Joshua S. Turner, Counsel to the Verizon Defendants, Wiley
Rein & Fielding, to Colleen Heitkamp, Chief, Telecommunications Consumers
Division, Enforcement Bureau (August 3, 2005).
Id.
Id.
See 47 C.F.R. S: 1.731(e).
Federal Communications Commission DA 10-477
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Federal Communications Commission DA 10-477