In re Consumer.Net LLC
| Decision Date | 01 April 2010 |
| Docket Number | EB-05-TC-F-002,DA 10-477 |
| Court | Federal Communications Commission Decisions |
| Parties | In the Matter of Consumer.net, LLC and Russ Smith, an Individual, Complainants, v. Verizon Communications, Inc., d/b/a Verizon Inc., 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. |
Adopted: March 31, 2010
P MICHELE ELLISON CHIEF, ENFORCEMENT BUREAU
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[1] pursuant to section 208 of the Communications Act of 1934, as amended ("the Act").[2] 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.[3] 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.[4]In their formal complaint, Complainants allege that Defendants violated sections 64.1200(e)(2)(v)[5] and 64.1200(d)(5) of the Commission's rules[6] and section 227 of the Act, [7] by failing to implement properly company-specific do-not-call requests; and that Defendants violated sections 64.1200(e)(2)(iii)[8] and 64.1200(d)(3) of the Commission's rules, [9] and section 227 of the Act, [10] 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[11] 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, [12] 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.[13]
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.[14] 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.[15]
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.[16] 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.[17]
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.[18] 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.[19] 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.[20]
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.[21]
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.[22] 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.
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.
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.[24]
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."[25] Verizon denies that its purpose was to...
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