This Code of Conduct adopted by Pilgrim Telephone, Inc. is incorporated into and a required component of all vendor, service provider, sales organization and other Pilgrim Agreements. Pilgrim requires that all persons and businesses doing business with it conduct themselves in an ethical manner, respect consumer rights and privacy, and operate in compliance with all applicable laws and regulations.
The purpose of this Code of Conduct is to provide a working knowledge of basic legal and regulatory requirements, and provide notice of requirements with respect to vendor assurances of compliance with applicable laws and regulations. Persons and businesses executing Agreements with Pilgrim warrant that they have reviewed and will comply with all requirements herein.
The listings contained herein are not intended to constitute a comprehensive statement of the most current applicable statutory language, and it does not constitute the provision of legal advice. Parties relying on this listing are advised to obtain independent legal analysis and advice, and to check for the current language of the statutes contained below as well as any additional statutes and regulations that may apply.
Every party’s compliance obligations require diligence in the operation of any web site, and in all Promotions and communications with the public. Parties must obtain and maintain all hardware and software necessary to ensure proper functioning of any Web site, and monitor all links on its Web site to ensure that the destination sites for such links make no representations that would themselves constitute a violation of their Agreements with Pilgrim. Parties should also make best efforts to ensure that sites linking to its site do not make statements or representations that could constitute a violation of any Agreement with Pilgrim or any of Pilgrim’s terms of service contained in its tariffs or on this web site.
Parties may not knowingly place, or allow others to place, promotions in any work (including but not limited to publications, television channels, web sites, video programming streams, video discs or tapes, magazines, or any other transmission, media or publication) when any part of that work is not fully in compliance with all applicable federal, state and local laws and regulations, including but not limited to obscene or indecent communications and consumer protection laws.
Consumer Protection and Trade Laws. The Federal Trade Commission (FTC) enforces advertising and other requirements as set forth in 15 U.S.C. §§ 5701, 5711-14 and 5721-24 and 16 C.F.R. §§ 16.308.1-308.9. The requirements of the Federal Communications Commission (FCC) are set forth in 47 U.S.C. § 228 and 47 C.F.R. § 64.1501-15. These provisions are attached immediately below at Roman Numerals I – IV.
Dating and Adult Service Provisions. If applicable, Parties are responsible for obtaining and maintaining any records required under 18 U.S.C. § 2257, and ensuring compliance with obscenity and indecency laws, including but not limited to 47 U.S.C. § 223 and 18 U.S.C. §§ 1460-70. These provisions are reproduced at Roman Numerals VI-VIII.
Advertising Regulations. All advertising must be conducted in compliance with all applicable rules and regulations of the FCC, FTC, United States Postal Service and other governmental authorities. Specific attention is directed to:
1. CAN-SPAM Act. Parties must comply with the provisions of the CAN-SPAM Act, to be codified at 18 U.S.C. § 1037. This law is reproduced at Roman Numeral IX. Parties certify that they will not engage in or support spam advertising or promotions.
2. Telemarketing Sales Rule (TSR) and Telemarketing. Any Party engaged in telemarketing must comply with the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. § 6101-08, and the TSR regulations adopted by the FTC found at 16 C.F.R. § 310, as well as the regulations of the FCC found at 47 C.F.R. § 64.1200. Parties certify that they will comply with these regulations and postings to the Do Not Call registry. The FTC’s TSR is reproduced below at Roman Numeral X, the remaining regulations have not been appended.
3. Telephone Consumer Protection Act (TCPA). Unsolicited facsimile messages are governed by the TCPA, found at 47 U.S.C. § 227. These regulations have not been appended.
4. United States Postal Service (USPS) Regulations. The use of mails for unsolicited advertisements or the advertising of adult products or services is regulated pursuant to 39 U.S.C. § 3010, and all mailings must comply with the USPS Domestic Mail Manual. See § C032 for adult mailings. These regulations have not been appended.
Delivery of Automatic Number Identification (ANI). The delivery and use of ANI is restricted by the FCC pursuant to rules found at 47 C.F.R. § 64.1602. Any Party receiving ANI from Pilgrim must comply with 47 C.F.R. § 64.1602 and all other rules and regulations imposed by the FTC and FCC, and indemnify Pilgrim for all costs, legal and other expenses arising from the misuse of ANI. Any instance of misuse of ANI will lead to termination of rights to receive ANI, and may lead to termination of service and reporting of the offending Party to the appropriate legal authorities.
Any Party receiving ANI from Pilgrim consents to Pilgrim obtaining injunctive relief in the courts of Boston, Massachusetts to prevent violations of these provisions of the Code of Conduct, and to the payment of Pilgrim’s attorneys fees for obtaining such injunctive relief. Any Party receiving ANI agrees to these terms and conditions upon receipt of ANI.
The relevant FCC regulations are reprinted at Roman Numeral V. As required by the FCC, Pilgrim has adopted the following restrictions upon the use of ANI when provided by Pilgrim.
(a) Pilgrim --
(1) Permits the use of telephone number and billing information for billing and collection, routing, screening, and completion of the originating telephone subscriber's call or transaction, or for services directly related to the originating telephone subscriber's call or transaction;
(2) Prohibits the reuse or selling the telephone number or billing information without first
(i) Notifying the originating telephone subscriber and,
(ii) Obtaining the affirmative consent of such subscriber for such reuse or sale.
(3) Prohibits the disclosure, except as permitted by paragraphs (1) and (2) above, any information derived from the automatic number identification or charge number service for any purpose other than
(i) Performing the services or transactions that are the subject of the originating telephone subscriber's call,
(ii) Ensuring network performance security, and the effectiveness of call delivery,
(iii) Compiling, using, and disclosing aggregate information, and
(iv) Complying with applicable law or legal process.
(b) The requirements imposed under paragraph (a), above,
shall not prevent a person to whom Pilgrim supplies automatic number identification or charge number services are provided from using
(1) The telephone number and billing information provided pursuant to such service, and
(2) Any information derived from the automatic number identification or charge number service, or from the analysis of the characteristics of a telecommunications transmission, to offer a product or service that is directly related to the products or services previously acquired by that customer from such person. Use of such information is subject to the requirements of 47 CFR 64.1200, restrictions on Telemarketing and Telephone Solicitation, and 64.1504(c), Restrictions on the Use of Toll-Free Numbers.
Applicable statutory provisions as of the date of this web site posting include, but are not limited to, the following:
I. FEDERAL TRADE COMMISSION STATUTE
TITLE 15--Commerce And Trade
CHAPTER 83--Telephone Disclosure And Dispute Resolution
Sec. 5701. Short title; findings
(a) Short title
This chapter may be cited as the ``Telephone Disclosure and Dispute
Resolution Act''.
(b) Findings
The Congress finds the following:
(1) The use of pay-per-call services, most commonly through the use of 900 telephone numbers, has grown exponentially in the past few years into a national, billion-dollar industry as a result of recent technological innovations. Such services are convenient to consumers, cost-effective to vendors, and profitable to communications common carriers.
(2) Many pay-per-call businesses provide valuable information, consumer choices, and stimulate innovative and responsive services that benefit the public.
(3) The interstate nature of the pay-per-call industry means that its activities are beyond the reach of individual States and therefore requires Federal regulatory treatment to protect the public interest.
(4) The lack of nationally uniform regulatory guidelines has led to confusion for callers, subscribers, industry participants, and regulatory agencies as to the rights of callers and the oversight responsibilities of regulatory authorities, and has allowed some pay-per-call businesses to engage in practices that abuse the rights of consumers.
(5) Some interstate pay-per-call businesses have engaged in practices which are misleading to the consumer, harmful to the public interest, or contrary to accepted standards of business practices and thus cause harm to the many reputable businesses that are serving the public.
(6) Because the consumer most often incurs a financial obligation as soon as a pay-per-call transaction is completed, the accuracy and descriptiveness of vendor advertisements become crucial in avoiding consumer abuse. The obligation for accuracy should include price-per-call and duration-of-call information, odds disclosure for lotteries, games, and sweepstakes, and obligations for obtaining parental consent from callers under 18.
(7) The continued growth of the legitimate pay-per-call industry is dependent upon consumer confidence that unfair and deceptive behavior will be effectively curtailed and that consumers will have adequate rights of redress.
(8) Vendors of telephone-billed goods and services must also feel confident in their rights and obligations for resolving billing disputes if they are to use this new marketplace for the sale of products of more than nominal value.
Sec. 5711. Federal Trade Commission regulations
(a) In general
(1) Advertising regulations
The Commission shall prescribe rules in accordance with this subsection to prohibit unfair and deceptive acts and practices in any advertisement for pay-per-call services. Such rules shall require that the person offering such pay-per-call services--
(A) clearly and conspicuously disclose in any advertising the cost of the use of such telephone number, including the total cost or the cost per minute and any other fees for that service and for any other pay-per-call service to which the caller may be transferred;
(B) in the case of an advertisement which offers a prize or award or a service or product at no cost or for a reduced cost, and conspicuously disclose the odds of being able to receive such prize, award, service, or product at no cost or reduced cost, or, if such odds are not calculable in advance, the factors determining such odds;
(C) in the case of an advertisement that promotes a service that is not operated or expressly authorized by a Federal agency but that provides information on a Federal program, include at the beginning of such advertisement a clear disclosure that the service is not authorized, endorsed, or approved by any Federal agency;
(D) shall not direct such advertisement at children under the age of 12, unless such service is a bona fide educational service;
(E) in the case of advertising directed primarily to individuals under the age of 18, clearly and conspicuously state in such advertising that such individual must have the consent of such individual's parent or legal guardian for the use of such services;
(F) be prohibited from using advertisements that emit electronic tones which can automatically dial a pay-per-call telephone number;
(G) ensure that, whenever the number to be called is shown in television and print media advertisements, the charges for the call are clear and conspicuous and (when shown in television advertisements) displayed for the same duration as that number is displayed;
(H) in delivering any telephone message soliciting calls to a pay-per-call service, specify clearly, and at no less than the audible volume of the solicitation, the total cost and the cost per minute and any other fees for that service and for any other pay-per-call service to which the caller may be transferred; and
(I) not advertise an 800 telephone number, or any other telephone number advertised or widely understood to be toll free, from which callers are connected to an access number for a pay-per-call service.
(2) Pay-per-call service standards
The Commission shall prescribe rules to require that each provider of pay-per-call services--
(A) include in each pay-per-call message an introductory disclosure message that--
(i) describes the service being provided;
(ii) specifies clearly and at a reasonably understandable volume the total cost or the cost per minute and any other fees for that service and for any other pay-per-call service to which the caller may be transferred;
(iii) informs the caller that charges for the call begin at the end of the introductory message;
(iv) informs the caller that parental consent is required for calls made by children; and
(v) in the case of a pay-per-call service that is not operated or expressly authorized by a Federal agency but that provides information on any Federal program, a statement that clearly states that the service is not authorized, endorsed, or approved by any Federal agency;
(B) enable the caller to hang up at or before the end of the introductory message without incurring any charge whatsoever;
(C) not direct such services at children under the age of 12, unless such service is a bona fide educational service;
(D) stop the assessment of time-based charges immediately upon disconnection by the caller;
(E) disable any bypass mechanism which allows frequent callers to avoid listening to the disclosure message described in subparagraph (A) after the institution of any price increase and for a period of time sufficient to give such frequent callers adequate and sufficient notice of the price change;
(F) be prohibited from providing pay-per-call services through an 800 number or other telephone number advertised or widely understood to be toll free;
(G) be prohibited from billing consumers in excess of the amounts described in the introductory message and from billing for services provided in violation of the rules prescribed by the Commission pursuant to this section;
(H) ensure that any billing statement for such provider's charges shall--
(i) display any charges for pay-per-call services in a part of the consumer's bill that is identified as not being related to local and long distance telephone charges; and
(ii) for each charge so displayed, specify, at a minimum, the type of service, the amount of the charge, and the date, time, and duration of the call;
(I) be liable for refunds to consumers who have been billed for pay-per-call services pursuant to programs that have been found to have violated the regulations prescribed pursuant to this section or subchapter II of this chapter or any other Federal law; and
(J) comply with such additional standards as the Commission may prescribe to prevent abusive practices.
(3) Access to information
The Commission shall by rule require a common carrier that provides telephone services to a provider of pay-per-call services to make available to the Commission any records and financial information maintained by such carrier relating to the arrangements (other than for the provision of local exchange service) between such carrier and any provider of pay-per-call services.
(4) Evasions
The rules issued by the Commission under this section shall include provisions to prohibit unfair or deceptive acts or practices that evade such rules or undermine the rights provided to customers under this subchapter, including through the use of alternative billing or other procedures.
(5) Exemptions
The regulations prescribed by the Commission pursuant to paragraph (2)(A) may exempt from the requirements of such paragraph—
(A) calls from frequent callers or regular subscribers using a bypass mechanism to avoid listening to the disclosure message required by such regulations, subject to the requirements of paragraph (2)(E); or
(B) pay-per-call services provided at nominal charges, as defined by the Commission in such regulations.
(6) Consideration of other rules required
In conducting a proceeding under this section, the Commission shall consider requiring, by rule or regulation, that providers of pay-per-call services--
(A) automatically disconnect a call after one full cycle of the program; and
(B) include a beep tone or other appropriate and clear signal during a live interactive group program so that callers will be alerted to the passage of time.
(7) Special rule for infrequent publications
The rules prescribed by the Commission under subparagraphs (A) and (G) of paragraph (1) may permit, in the case of publications that are widely distributed, that are printed annually or less frequently, and that have an established policy of not publishing specific prices, advertising that in lieu of the cost disclosures required by such subparagraphs, clearly and conspicuously disclose that use of the telephone number may result in a substantial charge.
(8) Treatment of rules
A rule issued under this subsection shall be treated as a rule issued under section 57a(a)(1)(B) of this title.
(b) Rulemaking
The Commission shall prescribe the rules under subsection (a) of this section within 270 days after October 28, 1992. Such rules shall be prescribed in accordance with section 553 of title 5.
(c) Enforcement
Any violation of any rule prescribed under subsection (a) of this section shall be treated as a violation of a rule respecting unfair or deceptive acts or practices under section 45 of this title. Notwithstanding section 45(a)(2) of this title, communications common carriers shall be subject to the jurisdiction of the Commission for purposes of this subchapter.
Sec. 5712. Actions by States
(a) In general
Whenever an attorney general of any State has reason to believe that the interests of the residents of that State have been or are being threatened or adversely affected because any person has engaged or is engaging in a pattern or practice which violates any rule of the Commission under section 5711(a) of this title, the State may bring a civil action on behalf of its residents in an appropriate district court of the United States to enjoin such pattern or practice, to enforce compliance with such rule of the Commission, to obtain damages on behalf of their residents, or to obtain such further and other relief as the court may deem appropriate.
(b) Notice
The State shall serve prior written notice of any civil action under subsection (a) of this section upon the Commission and provide the Commission with a copy of its complaint, except that if it is not feasible for the State to provide such prior notice, the State shall serve such notice immediately upon instituting such action. Upon receiving a notice respecting a civil action, the Commission shall have the right (1) to intervene in such action, (2) upon so intervening, to be heard on all matters arising therein, and (3) to file petitions for appeal.
(c) Venue
Any civil action brought under this section in a district court of the United States may be brought in the district wherein the defendant is found or is an inhabitant or transacts business or wherein the violation occurred or is occurring, and process in such cases may be served in any district in which the defendant is an inhabitant or wherever the defendant may be found.
(d) Investigatory powers
For purposes of bringing any civil action under this section, nothing in this chapter shall prevent the attorney general from exercising the powers conferred on the attorney general by the laws of such State to conduct investigations or to administer oaths or affirmations or to compel the attendance of witnesses or the production of documentary and other evidence.
(e) Effect on State court proceedings
Nothing contained in this section shall prohibit an authorized State official from proceeding in State court on the basis of an alleged violation of any general civil or criminal antifraud statute of such State.
(f) Limitation
Whenever the Commission has instituted a civil action for violation of any rule or regulation under this chapter, no State may, during the pendency of such action instituted by the Commission, subsequently institute a civil action against any defendant named in the Commission's complaint for violation of any rule as alleged in the Commission's complaint.
(g) Actions by other State officials
(1) Nothing contained in this section shall prohibit an authorized State official from proceeding in State court on the basis of an alleged violation of any general civil or criminal statute of such State.
(2) In addition to actions brought by an attorney general of a State under subsection (a) of this section, such an action may be brought by officers of such State who are authorized by the State to bring actions in such State for protection of consumers and who are designated by the Commission to bring an action under subsection (a) of this section against persons that the Commission has determined have or are engaged in a pattern or practice which violates a rule of the Commission under section 5711(a) of this title.
Sec. 5713. Administration and applicability of subchapter
(a) In general
Except as otherwise provided in section 5712 of this title, this subchapter shall be enforced by the Commission under the Federal Trade Commission Act (15 U.S.C. 41 et seq.). Consequently, no activity which is outside the jurisdiction of that Act shall be affected by this chapter, except for purposes of this subchapter.
(b) Actions by Commission
The Commission shall prevent any person from violating a rule of the Commission under section 5711 of this title in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this subchapter. Any person who violates such rule shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act in the same manner, by the same means, and with the same jurisdiction, power, and duties as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated into and made a part of this subchapter.
Sec. 5714. Definitions
For purposes of this subchapter:
(1) The term ``pay-per-call services'' has the meaning provided in section 228(i) of title 47, except that the Commission by rule may, notwithstanding subparagraphs (B) and (C) of section 228(i)(1) of title 47, extend such definition to other similar services providing audio information or audio entertainment if the Commission determines that such services are susceptible to the unfair and deceptive practices that are prohibited by the rules prescribed pursuant to section 5711(a) of this title.
(2) The term ``attorney general'' means the chief legal officer of a State.
(3) The term ``State'' means any State of the United States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, and any territory or possession of the United States.
(4) The term ``Commission'' means the Federal Trade Commission.
Sec. 5721. Regulations
(a) In general
(1) Rules required
The Commission shall, in accordance with the requirements of this section, prescribe rules establishing procedures for the correction of billing errors with respect to telephone-billed purchases. The rules prescribed by the Commission shall also include provisions to prohibit unfair or deceptive acts or practices that evade such rules or undermine the rights provided to customers under this subchapter.
(2) Substantial similarity to credit billing
The Commission shall promulgate rules under this section that impose requirements that are substantially similar to the requirements imposed, with respect to the resolution of credit disputes, under the Truth in Lending and Fair Credit Billing Acts [15 U.S.C. 1601 et seq., 1666 et seq.].
(3) Treatment of rule
A rule issued under paragraph (1) shall be treated as a rule issued under section 57a(a)(1)(B) of this title.
(b) Rulemaking schedule and procedure
The Commission shall prescribe the rules under subsection (a) of this section within 270 days after October 28, 1992. Such rules shall be prescribed in accordance with section 553 of title 5.
(c) Enforcement
Any violation of any rule prescribed under subsection (a) of this section shall be treated as a violation of a rule under section 45 of this title regarding unfair or deceptive acts or practices. Notwithstanding section 45(a)(2) of this title, communications common carriers shall be subject to the jurisdiction of the Commission for purposes of this subchapter.
(d) Correction of billing errors and correction of credit reports
In prescribing rules under this section, the Commission shall consider, with respect to telephone-billed purchases, the following:
(1) The initiation of a billing review by a customer.
(2) Responses by billing entities and providing carriers to the initiation of a billing review.
(3) Investigations concerning delivery of telephone-billed purchases.
(4) Limitations upon providing carrier responsibilities, limitations on a carrier's responsibility to verify delivery of audio information or entertainment.
(5) Requirements on actions by billing entities to set aside charges from a customer's billing statement.
(6) Limitations on collection actions by billing entities and vendors.
(7) The regulation of credit reports on billing disputes.
(8) The prompt notification of credit to an account.
(9) Rights of customers and telephone common carriers regarding claims and defenses.
(10) The extent to which the regulations should diverge from requirements under the Truth in Lending and Fair Credit Billing Acts [15 U.S.C. 1601 et seq., 1666 et seq.] in order to protect customers, and in order to be cost effective to billing entities.
Sec. 5722. Relation to State laws
(a) State law applicable unless inconsistent
This subchapter does not annul, alter, or affect, or exempt any person subject to the provisions of this subchapter from complying with, the laws of any State with respect to telephone billing practices, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency. The Commission is authorized to determine whether such inconsistencies exist. The Commission may not determine that any State law is inconsistent with any provision of this subchapter [1] if the Commission determines that such law gives greater protection to the consumer.
(b) Regulatory exemptions
The Commission shall by regulation exempt from the requirements of this subchapter any class of telephone-billed purchase transactions within any State if it determines that under the law of that State that class of transactions is subject to requirements substantially similar to those imposed under this subchapter \1\ or that such law gives greater protection to the consumer, and that there is adequate provision for enforcement.
Sec. 5724. Definitions
As used in this subchapter--
(1) The term ``telephone-billed purchase'' means any purchase that is completed solely as a consequence of the completion of the call or a subsequent dialing, touch tone entry, or comparable action of the caller. Such term does not include--
(A) a purchase by a caller pursuant to a preexisting agreement with the vendor;
(B) local exchange telephone services or interexchange telephone services or any service that the Federal Communications Commission determines, by rule--
(i) is closely related to the provision of local exchange telephone services or interexchange telephone services; and
(ii) is subject to billing dispute resolution procedures required by Federal or State statute or regulation; or
(C) the purchase of goods or services which is otherwise subject to billing dispute resolution procedures required by Federal statute or regulation.
(2) A ``billing error'' consists of any of the following:
(A) A reflection on a billing statement for a telephone-billed purchase which was not made by the customer or, if made, not in the amount reflected on such statement.
(B) A reflection on a billing statement of a telephone-billed purchase for which the customer requests additional clarification, including documentary evidence thereof.
(C) A reflection on a billing statement of a telephone-billed purchase that was not accepted by the customer or not provided to the customer in accordance with the stated terms of the transaction.
(D) A reflection on a billing statement of a telephone-billed purchase for a call made to an 800 or other toll free telephone number.
(E) The failure to reflect properly on a billing statement a payment made by the customer or a credit issued to the customer with respect to a telephone-billed purchase.
(F) A computation error or similar error of an accounting nature on a statement.
(G) Failure to transmit the billing statement to the last known address of the customer, unless that address was furnished less than twenty days before the end of the billing cycle for which the statement is required.
(H) Any other error described in regulations prescribed by the Commission pursuant to section 553 of title 5.
(3) The term ``Commission'' means the Federal Trade Commission.
(4) The term ``providing carrier'' means a local exchange or interexchange common carrier providing telephone services (other than local exchange services) to a vendor for a telephone-billed purchase that is the subject of a billing error complaint.
(5) The term ``vendor'' means any person who, through the use of the telephone, offers goods or services for a telephone-billed purchase.
(6) The term ``customer'' means any person who acquires or attempts to acquire goods or services in a telephone-billed purchase.
II. FEDERAL TRADE COMMISSION REGULATIONS
16 CFR PART 308 -- Trade Regulation Rule Pursuant To The Telephone Disclosure And Dispute Resolution Act Of 1992
Section 308.1 Scope of regulations in this part.
Section 308.2 Definitions.
Section 308.3 Advertising of pay-per-call services.
Section 308.4 Special rule for infrequent publications.
Section 308.5 Pay-per-call service standards.
Section 308.6 Access to information.
Section 308.7 Billing and collection for pay-per-call services.
Section 308.8 Severability.
Section 308.9 Rulemaking review.
§308.1 Scope of regulations in this part.
This rule implements titles II and III of the Telephone Disclosure and Dispute Resolution Act of 1992, to be codified in relevant part at 15 U.S.C. 5711-14, 5721-24.
§308.2 Definitions.
(a) Bona fide educational service means any pay-per-call service dedicated to providing information or instruction relating to education, subjects of academic study, or other related areas of school study.
(b) Commission means the Federal Trade Commission.
(c) Pay-per-call service has the meaning provided in section 228 of the Communications Act of 1934, 47 U.S.C. 228. [2]
(d) Person means any individual, partnership, corporation, association, government or governmental subdivision or agency, or other entity.
(e) (1) Presubscription or comparable arrangement means a contractual agreement in which
(i) The service provider clearly and conspicuously discloses to the consumer all material terms and conditions associated with the use of the service, including the service provider's name and address, a business telephone number which the consumer may use to obtain additional information or to register a complaint, and the rates for the service;
(ii) The service provider agrees to notify the consumer of any future rate changes;
(iii) The consumer agrees to utilize the service on the terms and conditions disclosed by the service provider; and
(iv) The service provider requires the use of an identification number or other means to prevent unauthorized access to the service by nonsubscribers.
(2) Disclosure of a credit card or charge card number, along with authorization to bill that number, made during the course of a call to a pay-per-call service shall constitute a presubscription or comparable arrangement if the credit or charge card is subject to the dispute resolution requirements of the Fair Credit Billing Act and the Truth in Lending Act, as amended. No other action taken by the consumer during the course of a call to a pay-per-call service can be construed as creating a presubscription or comparable arrangement.
(f) Program-length commercial means any commercial or other advertisement fifteen (15) minutes in length or longer or intended to fill a television or radio broadcasting or cablecasting time slot of fifteen (15) minutes in length or longer.
(g) Provider of pay-per-call services means any person who sells or offers to sell a pay-per-call service. A person who provides only transmission services or billing and collection services shall not be considered a provider of pay-per-call services.
(h) Reasonably understandable volume means at an audible level that renders the message intelligible to the receiving audience, and, in any event, at least the same audible level as that principally used in the advertisement or the pay-per-call service.
(i) Service bureau means any person, other than a common carrier, who provides, among other things, access to telephone service and voice storage to pay-per-call service providers.
(j) Slow and deliberate manner means at a rate that renders the message intelligible to the receiving audience, and, in any event, at a cadence or rate no faster than that principally used in the advertisement or the pay-per-call service.
(k) Sweepstakes, including games of chance, means a game or promotional mechanism that involves the elements of a prize and chance and does not require consideration.
§308.3 Advertising of pay-per-call services.
(a) General requirements. The following requirements apply to disclosures required in advertisements under §§308.3 (b)-(d), and (f):
(1) The disclosures shall be made in the same language as that principally used in the advertisement.
(2) Television video and print disclosures shall be of a color or shade that readily contrasts with the background of the advertisement.
(3) In print advertisements, disclosures shall be parallel with the base of the advertisement.
(4) Audio disclosures, whether in television or radio, shall be delivered in a slow and deliberate manner and in a reasonably understandable volume.
(5) Nothing contrary to, inconsistent with, or in mitigation of, the required disclosures shall be used in any advertisement in any medium; nor shall any audio, video or print technique be used that is likely to detract significantly from the communication of the disclosures.
(6) In any program-length commercial, required disclosures shall be made at least three times (unless more frequent disclosure is otherwise required) near the beginning, middle and end of the commercial.
(b) Cost of the call.
(1) The provider of pay-per-call services shall clearly and conspicuously disclose the cost of the call, in Arabic numerals, in any advertisement for the pay-per-call service, as follows:
(i) If there is a flat fee for the call, the advertisement shall state the total cost of the call.
(ii) If the call is billed on a time-sensitive basis, the advertisement shall state the cost per minute and any minimum charges. If the length of the program can be determined in advance, the advertisement shall also state the maximum charge that could be incurred if the caller listens to the complete program.
(iii) If the call is billed on a variable rate basis, the advertisement shall state, in accordance with §§308.3(b)(1) (i) and (ii), the cost of the initial portion of the call, any minimum charges, and the range of rates that may be charged depending on the options chosen by the caller.
(iv) The advertisement shall disclose any other fees that will be charged for the service.
(v) if the caller may be transferred to another pay-per-call service, the advertisement shall disclose the cost of the other call, in accordance with §§308.3(b)(1) (i), (ii), (iii), and (iv).
(2) For purposes of §308.3(b), disclosures shall be made "clearly and conspicuously" as
set forth in §308.3(a) and as follows:
(i) In a television or videotape advertisement, the video disclosure shall appear adjacent to each video presentation of the pay-per-call number. However, in an advertisement displaying more than one pay-per-call number with the same cost, the video disclosure need only appear adjacent to the largest presentation of the pay-per-call number. Each letter or numeral of the video disclosure shall be, at a minimum, one-half the size of each letter or numeral of the pay-per-call number to which the disclosure is adjacent. In addition, the video disclosure shall appear on the screen for the duration of the presentation of the pay-per-call number. An audio disclosure shall be made at least once, simultaneously with a video presentation of the disclosure. However, no audio presentation of the disclosure is required in: (A) An advertisement fifteen (15) seconds or less in length in which the pay-per-call number is not presented in the audio portion, or (B) an advertisement in which there is no audio presentation of information regarding the pay-per-call service, including the pay-per-call number. In an advertisement in which the pay-per-call number is presented only in the audio portion, the cost of the call shall be delivered immediately following the first and last delivery of the pay-per-call number, except that in a program-length commercial, the disclosure shall be delivered immediately following each delivery of the pay-per-call number.
(ii) In a print advertisement, the disclosure shall be placed adjacent to each presentation of the pay-per-call number. However, in an advertisement displaying more than one pay-per-call number with the same cost, the disclosure need only appear adjacent to the largest presentation of the pay-per-call number. Each letter or numeral of the disclosure shall be, at a minimum, one-half the size of each letter or numeral of the pay-per-call number to which the disclosure is adjacent.
(iii) In a radio advertisement, the disclosure shall be made at least once, and shall be delivered immediately following the first delivery of the pay-per-call number. In a program-length commercial, the disclosure shall be delivered immediately following each delivery of the pay-per-call number.
(c) Sweepstakes; games of chance.
(1) The provider of pay-per-call services that advertises a prize or award or a service or product at no cost or for a reduced cost, to be awarded to the winner of any sweepstakes, including games of chance, shall clearly and conspicuously disclose in the advertisement the odds of being able to receive the prize, award, service, or product at no cost or reduced cost. If the odds are not calculable in advance, the advertisement shall disclose the factors used in calculating the odds. Either the advertisement or the preamble required by §308.5(a) for such service shall clearly and conspicuously disclose that no call to the pay-per-call service is required to participate, and shall also disclose the existence of a free alternative method of entry, and either instructions on how to enter, or a local or toll-free telephone number or address to which consumers may call or write for information on how to enter the sweepstakes. Any description or characterization of the prize, award, service, or product that is being offered at no cost or reduced cost shall be truthful and accurate.
(2) For purposes of §308.3(c), disclosures shall be made "clearly and conspicuously" as set forth in §308.3(a) and as follows:
(i) In a television or videotape advertisement, the disclosures may be made in either the audio or video portion of the advertisement. If the disclosures are made in the video portion, they shall appear on the screen in sufficient size and for sufficient time to allow consumers to read and comprehend the disclosures.
(ii) In a print advertisement, the disclosures shall appear in a sufficient size and prominence and such location to be readily noticeable, readable and comprehensible.
(d) Federal programs.
(1) The provider of pay-per-call services that advertises a pay-per-call service that is not operated or expressly authorized by a Federal agency, but that provides information on a Federal program, shall clearly and conspicuously disclose in the advertisement that the pay-per-call service is not authorized, endorsed, or approved by any Federal agency. Advertisements providing information on a Federal program shall include, but not be limited to, advertisements that contain a seal, insignia, trade or brand name, or any other term or symbol that reasonably could be interpreted or construed as implying any Federal government connection, approval, or endorsement.
(2) For purposes of §308.3(d), disclosures shall be made "clearly and conspicuously" as set forth in §308.3(a) and as follows:
(i) In a television or videotape advertisement, the disclosure may be made in either the audio or video portion of the advertisement. If the disclosure is made in the video portion, it shall appear on the screen in sufficient size and for sufficient time to allow consumers to read and comprehend the disclosure. The disclosure shall begin within the first fifteen (15) seconds of the advertisement.
(ii) In a print advertisement, the disclosure shall appear in a sufficient size and prominence and such location to be readily noticeable, readable and comprehensible. The disclosure shall appear in the top one-third of the advertisement.
(iii) In a radio advertisement, the disclosure shall begin within the first fifteen (15) seconds of the advertisement.
(e) Prohibition on advertising to children.
(1) The provider of pay-per-call services shall not direct advertisements for such pay-per-call services to children under the age of 12, unless the service is a bona fide educational service.
(2) For the purposes of this regulation, advertisements directed to children under 12 shall include: any pay-per-call advertisement appearing during or immediately adjacent to programming for which competent and reliable audience composition data demonstrate that more than 50% of the audience is composed of children under 12, and any pay-per-call advertisement appearing in a periodical for which competent and reliable readership data demonstrate that more than 50% of the readership is composed of children under 12.
(3) For the purposes of this regulation, if competent and reliable audience composition or readership data does not demonstrate that more than 50% of the audience or readership is composed of children under 12, then the Commission shall consider the following criteria in determining whether an advertisement is directed to children under 12:
(i) Whether the advertisement appears in a publication directed to children under 12, including, but not limited to, books, magazines and comic books;
(ii) Whether the advertisement appears during or immediately adjacent to television programs directed to children under 12, including, but not limited to, children's programming as defined by the Federal Communications Commission, animated programs, and after-school programs;
(iii) Whether the advertisement appears on a television station or channel directed to children under 12;
(iv) Whether the advertisement is broadcast during or immediately adjacent to radio programs directed to children under 12, or broadcast on a radio station directed to children under 12;
(v) Whether the advertisement appears on the same video as a commercially-prepared video directed to children under 12, or preceding a movie directed to children under 12 shown in a movie theater;
(vi) Whether the advertisement or promotion appears on product packaging directed to children under 12; and
(vii) Whether the advertisement, regardless of when or where it appears, is directed to children under 12 in light of its subject matter, visual content, age of models, language, characters, tone, message, or the like.
(f) Advertising to individuals under the age of 18.
(1) The provider of pay-per-call services shall ensure that any pay-per-call advertisement directed primarily to individuals under the age of 18 shall contain a clear and conspicuous disclosure that all individuals under the age of 18 must have the permission of such individual's parent or legal guardian prior to calling such pay-per-call service.
(2) For purposes of §308.3(f), disclosures shall be made "clearly and conspicuously" as set forth in §308.3(a) and as follows:
(i) In a television or videotape advertisement, each letter or numeral of the video disclosure shall be, at a minimum, one-half the size of each letter or numeral of the largest presentation of the pay-per-call number. The video disclosure shall appear on the screen for sufficient time to allow consumers to read and comprehend the disclosure. An audio disclosure shall be made at least once, simultaneously with a video presentation of the disclosure. However, no audio presentation of the disclosure is required in: (A) An advertisement fifteen (15) seconds or less in length in which the pay-per-call number is not presented in the audio portion, or (B) an advertisement in which there is no audio presentation of information regarding the pay-per-call service, including the pay-per-call number.
(ii) In a print advertisement, each letter or numeral of the disclosure shall be, at a minimum, one-half the size of each letter or numeral of the largest presentation of the pay-per-call number.
(3) For the purposes of this regulation, advertisements directed primarily to individuals under 18 shall include: Any pay-per-call advertisement appearing during or immediately adjacent to programming for which competent and reliable audience composition data demonstrate that more than 50% of the audience is composed of individuals under 18, and any pay-per-call advertisement appearing in a periodical for which competent and reliable readership data demonstrate that more than 50% of the readership is composed of individuals under 18.
(4) For the purposes of this regulation, if competent and reliable audience composition or readership data does not demonstrate that more than 50% of the audience or readership is composed of individuals under 18, then the Commission shall consider the following criteria in determining whether an advertisement is directed primarily to individuals under 18:
(i) Whether the advertisement appears in publications directed primarily to individuals under 18, including, but not limited to, books, magazines and comic books;
(ii) Whether the advertisement appears during or immediately adjacent to television programs directed primarily to Individuals under 18, including, but not limited to, mid-afternoon weekday television shows;
(iii) Whether the advertisement is broadcast on radio stations that are directed primarily to individuals under 18;
(iv) Whether the advertisement appears on a cable or broadcast television station directed primarily to individuals under 18;
(v) Whether the advertisement appears on the same video as a commercially-prepared video directed primarily to individuals under 18, or preceding a movie directed primarily to individuals under 18 shown in a movie theater; and
(vi) Whether the advertisement, regardless of when or where it appears, is directed primarily to individuals under 18 in light of its subject matter, visual content, age of models, language, characters, tone, massage, or the like.
(g) Electronic tones in advertisements. The provider of pay-per-call services is prohibited from using advertisements that emit electronic tones that can automatically dial a pay-per-call service.
(h) Telephone solicitations. The provider of pay-per-call services shall ensure that any telephone message that solicits calls to the pay-per-call service discloses the cost of the call in a slow and deliberate manner and in a reasonably understandable volume, in accordance with §§308.3(b)(1)(i)-(v).
(i) Referral to toll-free telephone numbers. The provider of pay-per-call services is prohibited from referring in advertisements to an 800 telephone number, or any other telephone number advertised as or widely understood to be toll-free, if that number violates the prohibition concerning toll-free numbers set forth in §308.5(i).
§308.4 Special rule for infrequent publications.
(a) The provider of any pay-per-call service that advertises a pay-per-call service in a publication that meets the requirements set forth in §308.4(c) may include in such advertisement, in lieu of the cost disclosures required by §308.3(b), a clear and conspicuous disclosure that a call to the advertised pay-per-call service may result in a substantial charge.
(b) The provider of any pay-per-call service that places an alphabetical listing in a publication that meets the requirements set forth in §308.4(c) is not required to make any of the disclosures required by §§308.3 (b), (c), (d) and (f) in the alphabetical listing, provided that such listing does not contain any information except the name, address and telephone number of the pay-per-call provider.
(c) The publication referred to in §308.4 (a) and (b) must be:
(1) Widely distributed;
(2) Printed annually or less frequently; and
(3) One that has an established policy of not publishing specific prices in advertisements.
§308.5 Pay-per-call service standards.
(a) Preamble message. The provider of pay-per-call services shall include, in each pay-per-call message, an introductory disclosure message ("preamble") in the same language as that principally used in the pay-per-call message, that clearly, in a slow and deliberate manner and in a reasonably understandable volume:
(1) Identifies the name of the provider of the pay-per-call service and describes the service being provided;
(2) Specifies the cost of the service as follows:
(i) If there is a flat fee for the call, the preamble shall state the total cost of the call;
(ii) If the call is billed on a time-sensitive basis, the preamble shall state the cost per minute and any minimum charges; if the length of the program can be determined in advance, the preamble shall also state the maximum charge that could be incurred if the caller listens to the complete program;
(iii) If the call is billed on a variable rate basis, the preamble shall state, in accordance with §§308.5(a)(2) (i) and (ii), the cost of the initial portion of the call, any minimum charges, and the range of rates that may be charged depending on the options chosen by the caller;
(iv) Any other fees that will be charged for the service shall be disclosed, as well as fees for any other pay-per-call service to which the caller may be transferred;
(3) Informs the caller that charges for the call begin, and that to avoid charges the call must be terminated, three seconds after a clearly discernible signal or tone indicating the end of the preamble;
(4) Informs the caller that anyone under the age of 18 must have the permission of parent or legal guardian in order to complete the call; and
(5) Informs the caller, in the case of a pay-per-call service that is not operated or expressly authorized by a Federal agency but that provides information on a Federal program, or that uses a trade or brand name or any other term that reasonably could be interpreted or construed as implying any Federal government connection, approval or endorsement, that the pay-per-call service is not authorized, endorsed, or approved by any Federal agency.
(b) No charge to caller for preamble message. The provider of pay-per-call services is prohibited from charging a caller any amount whatsoever for such a service if the caller hangs up at any time prior to three seconds after the signal or tone indicating the end of the preamble described in §308.5(a). However, the three-second delay, and the message concerning such delay described in §308.5(a)(3), is not required if the provider of pay-per-call services offers the caller an affirmative means (such as pressing a key on a telephone keypad) of indicating a decision to incur the charges.
(c) Nominal cost calls. The preamble described in §308.5(a) is not required when the entire cost of the pay-per-call service, whether billed as a flat rate or on a time sensitive basis, is $2.00 or less.
(d) Data service calls. The preamble described in §308.5(a) is not required when the entire call consists of the non-verbal transmission of information.
(e) Bypass mechanism. The provider of pay-per-call services that offers to frequent callers or regular subscribers to such services the option of activating a bypass mechanism to avoid listening to the preamble during subsequent calls shall not be deemed to be in violation of §308.5(a), provided that any such bypass mechanism shall be disabled for a period of no less than 30 days immediately after the institution of an increase in the price for the service or a change in the nature of the service offered.
(f) Billing limitations. The provider of pay-per-call services is prohibited from billing consumers in excess of the amount described in the preamble for those services and from billing for any services provided in violation of any section of this rule.
(g) Stopping the assessment of time-based charges. The provider of pay-per-call services shall stop the assessment of time-based charges immediately upon disconnection by the caller.
(h) Prohibition on services to children. The provider of pay-per-call services shall not direct such services to children under the age of 12, unless such service is a bona fide educational service. The Commission shall consider the following criteria in determining whether a pay-per-call service is directed to children under 12:
(1) Whether the pay-per-call service is advertised in the manner set forth in §§308.3(e) (2) and (3); and
(2) Whether the pay-per-call service, regardless of when or where it is advertised, is directed to children under 12, in light of its subject matter, content, language, featured personality, characters, tone, message, or the like.
(i) Prohibition concerning toll-free numbers. Any person is prohibited from using an 800 number or other telephone number advertised as or widely understood to be toll-free in a manner that would result in:
(1) The calling party being assessed, by virtue of completing the call, a charge for the call;
(2) The calling party being connected to an access number for, or otherwise transferred to, a pay-per-call service;
(3) The calling party being charged for information conveyed during the call unless the calling party has a presubscription or comparable arrangement to be charged for the information; or
(4) The calling party being called back collect for the provision of audio or data information services, simultaneous voice conversation services, or products.
(j) Disclosure requirements for billing statements. The provider of pay-per-call services shall ensure that any billing statement for such provider's charges shall:
(1) Display any charges for pay-per-call services in a portion of the consumer's bill that is identified as not being related to local and long distance telephone charges;
(2) For each charge so displayed, specify the type of service, the amount of the charge, and the date, time, and, for calls billed on a time-sensitive basis, the duration of the call; and
(3) Display the local or toll-free telephone number where consumers can obtain answers to their questions and information on their rights and obligations with regard to their use of pay-per-call services, and can obtain the name and mailing address of the provider of pay-per-call services.
(k) Refunds to consumers. The provider of pay-per-call services shall be liable for refunds or credits to consumers who have been billed for pay-per-call services, and who have paid the charges for such services, pursuant to pay-per-call programs that have been found to have violated any provision of this rule or any other Federal rule or law.
(l) Service bureau liability. A service bureau shall be liable for violations of the rule by pay-per-call services using its call processing facilities where it knew or should have known of the violation.
§308.6 Access to information.
Any common carrier that provides telecommunication services to any provider of pay-per-call services shall make available to the Commission, upon written request, any records and financial information maintained by such carrier relating to the arrangements (other than for the provision of local exchange service) between such carrier and any provider of pay-per-call services.
§308.7 Billing and collection for pay-per-call services.
(a) Definitions. For the purposes of this section, the following definitions shall apply:
(1) Billing entity means any person who transmits a billing statement to a customer for a telephone-billed purchase, or any person who assumes responsibility for receiving and responding to billing error complaints or inquiries.
(2) Billing error means any of the following:
(i) A reflection on a billing statement of a telephone-billed purchase that was not made by the customer nor made from the telephone of the customer who was billed for the purchase or, if made, was not in the amount reflected on such statement.
(ii) A reflection on a billing statement of a telephone-billed purchase for which the customer requests additional clarification, including documentary evidence thereof.
(iii) A reflection on a billing statement of a telephone-billed purchase that was not accepted by the customer or not provided to the customer in accordance with the stated terms of the transaction.
(iv) A reflection on a billing statement of a telephone-billed purchase for a call made to an 800 or other toll free telephone number.
(v) The failure to reflect properly on a billing statement a payment made by the customer or a credit issued to the customer with respect to a telephone-billed purchase.
(vi) A computation error or similar error of an accounting nature on a billing statement of a telephone-billed purchase.
(vii) Failure to transmit a billing statement for a telephone-billed purchase to a customer's last known address if that address was furnished by the customer at least twenty days before the end of the billing cycle for which the statement was required.
(viii) A reflection on a billing statement of a telephone-billed purchase that is not identified in accordance with the requirements of §308.5(j).
(3) Customer means any person who acquires or attempts to acquire goods or services in a telephone-billed purchase, or who receives a billing statement for a telephone-billed purchase charged to a telephone number assigned to that person by a providing carrier.
(4) Preexisting agreement means a "presubscription or comparable arrangement," as that term is defined in §308.2(e).
(5) Providing carrier means a local exchange or interexchange common carrier providing telephone services (other than local exchange services) to a vendor for a telephone-billed purchase that is the subject of a billing error complaint or inquiry.
(6) Telephone-billed purchase means any purchase that is completed solely as a consequence of the completion of the call or a subsequent dialing, touch tone entry, or comparable action of the caller. Such term does not include:
(i) A purchase by a caller pursuant to a preexisting agreement with a vendor;
(ii) Local exchange telephone services or interexchange telephone services or any service that the Federal Communications Commission determines by rule --
(A) Is closely related to the provision of local exchange telephone services or interexchange telephone services; and
(B) Is subject to billing dispute resolution procedures required by Federal or state statute or regulation; or
(iii) The purchase of goods or services that is otherwise subject to billing dispute resolution procedures required by Federal statute or regulation.
(7) Vendor means any person who, through the use of the telephone, offers goods or services for a telephone-billed purchase.
(b) Initiation of billing review. A customer may initiate a billing review with respect to a telephone-billed purchase by providing the billing entity with notice of a billing error no later than 60 days after the billing entity transmitted the first billing statement that contains a charge for such telephone-billed purchase. If the billing error is the reflection on a billing statement of a telephone-billed purchase not provided to the customer in accordance with the stated terms of the transaction, the 60-day period shall begin to run from the date the goods or services are delivered or, if not delivered, should have been delivered, if such date is later than the date the billing statement was transmitted. A billing error notice shall:
(1) Set forth or otherwise enable the billing entity to identify the customer's name and the telephone number to which the charge was billed;
(2) Indicate the customer's belief that the statement contains a billing error and the type, date, and amount of such; and
(3) Set forth the reasons for the customer's belief, to the extent possible, that the statement contains a billing error.
(c) Disclosure of method of providing notice; presumption if oral notice is permitted. A billing entity shall clearly and conspicuously [3] disclose on each billing statement or on other material accompanying the billing statement the method (oral or written) by which the customer may provide notice to initiate review of a billing error in the manner set forth in §308.7(b). If oral notice is permitted, any customer who orally communicates an allegation of a billing error to a billing entity shall be presumed to have properly initiated a billing review in accordance with the requirements of §308.7(b).
(d) Response to customer notice. A billing entity that receives notice of a billing error as described in §308.7(b) shall:
(1) Send a written acknowledgement to the customer including a statement that any disputed amount need not be paid pending investigation of the billing error. This shall be done no later than forty (40) days after receiving the notice, unless the action required by §308.7(d)(2) is taken within such 40-day period; and
(2) (i) Correct the billing error and credit the customer's account for any disputed amount and any related charges, and notify the customer of the correction. The billing entity also shall disclose to the customer that collection efforts may occur despite the credit, and shall provide the names, mailing addresses, and business telephone numbers of the vendor and providing carrier, as applicable, that are the subject of the telephone-billed purchase, or provide the customer with a local or toll-free telephone number that the customer may call to obtain this information directly. However, the billing entity is not required to make the disclosure concerning collection efforts if the vendor, its agent, or the providing carrier, as applicable, will not collect or attempt to collect the disputed charge; or
(ii) Transmit an explanation to the customer, after conducting a reasonable investigation (including, where appropriate, contacting the vendor or providing carrier), [4] setting forth the reasons why it has determined that no billing error occurred or that a different billing error occurred from that asserted, make any appropriate adjustments to the customer's account, and, if the customer so requests, provide a written explanation and copies of documentary evidence of the customer's indebtedness.
(3) The action required by §308.7(d)(2) shall be taken no later than two complete billing cycles of the billing entity (in no event later than ninety (90) days) after receiving the notice of the billing error and before taking any action to collect the disputed amount, or any part thereof. After complying with §308.7(d)(2), the billing entity shall:
(i) If it is determined that any disputed amount is in error, promptly notify the appropriate providing carrier or vendor, as applicable, of its disposition of the customer's billing error and the reasons therefor; and
(ii) Promptly notify the customer in writing of the time when payment is due of any portion of the disputed amount determined not to be in error, which time shall be the longer of ten (10) days or the number of days the customer is ordinarily allowed (whether by custom, contract or state law) to pay undisputed amounts, and that failure to pay such amount may be reported to a credit reporting agency or subject the customer to a collection action, if that in fact may happen.
(e) Withdrawal of billing error notice. A billing entity need not comply with the requirements of §308.7(d) if the customer has, after giving notice of a billing error and before the expiration of the time limits specified therein, agreed that the billing statement was correct or agreed to withdraw voluntarily the billing error notice.
(f) Limitation on responsibility for billing error. After complying with the provisions of §308.7(d), a billing entity has no further responsibility under that section if the customer continues to make substantially the same allegation with respect to a billing error.
(g) Customer's right to withhold disputed amount; limitation on collection action. Once the customer has submitted notice of a billing error to a billing entity, the customer need not pay, and the billing entity, providing carrier, or vendor may not try to collect, any portion of any required payment that the customer reasonably believes is related to the disputed amount until the billing entity receiving the notice has complied with the requirements of §308.7(d). The billing entity, providing carrier, or vendor are not prohibited from taking any action to collect any undisputed portion of the bill, or from reflecting a disputed amount and related charges on a billing statement, provided that the billing statement clearly states that payment of any disputed amount or related charges is not required pending the billing entity's compliance with §308.7(d).
(h) Prohibition on charges for initiating billing review. A billing entity, providing carrier, or vendor may not impose on the customer any charge related to the billing review, including charges for documentation or investigation.
(i) Restrictions on credit reporting –
(1) Adverse credit reports prohibited. Once the customer has submitted notice of a billing error to a billing entity, a billing entity, providing carrier, vendor, or other agent may not report or threaten directly or indirectly to report adverse information to any person because of the customer's withholding payment of the disputed amount or related charges, until the billing entity has met the requirements of §308.7(d) and allowed the customer as many days thereafter to make payment as prescribed by §308.7(d)(3)(ii).
(2) Reports on continuing disputes. If a billing entity receives further notice from a customer within the time allowed for payment under §308.7(i)(1) that any portion of the billing error is still in dispute, a billing entity, providing carrier, vendor, or other agent may not report to any person that the customer's account is delinquent because of the customer's failure to pay that disputed amount unless the billing entity, providing carrier, vendor, or other agent also reports that the amount is in dispute and notifies the customer in writing of the name and address of each person to whom the vendor, billing entity, providing carrier, or other agent has reported the account as delinquent.
(3) Reporting of dispute resolutions required. A billing entity, providing carrier, vendor, or other agent shall report in writing any subsequent resolution of any matter reported pursuant to §308.7(i)(2) to all persons to whom such matter was initially reported.
(j) Forfeiture of right to collect disputed amount. Any billing entity, providing carrier, vendor, or other agent who fails to comply with the requirements of §§308.7(c), (d), (g), (h), or (i) forfeits any right to collect from the customer the amount indicated by the customer, under §308.7(b)(2), to be in error, and any late charges or other related charges thereon, up to $50 per transaction.
(k) Prompt notification of returns and crediting of refunds. When a vendor other than the billing entity accepts the return of property or forgives a debt for services in connection with a telephone-billed purchase, the vendor shall, within seven (7) business days from accepting the return or forgiving the debt, either:
(1) Mail or deliver a cash refund directly to the customer's address, and notify the appropriate billing entity that the customer has been given a refund, or
(2) Transmit a credit statement to the billing entity through the vendor's normal channels for billing telephone-billed purchases. The billing entity shall, within seven (7) business days after receiving a credit statement, credit the customer's account with the amount of the refund.
(l) Right of customer to assert claims or defenses. Any billing entity or providing carrier who seeks to collect charges from a customer for a telephone-billed purchase that is the subject of a dispute between the customer and the vendor shall be subject to all claims (other than tort claims) and defenses arising out of the transaction and relating to the failure to resolve the dispute that the customer could assert against the vendor, if the customer has made a good faith attempt to resolve the dispute with the vendor or providing carrier (other than the billing entity). The billing entity or providing carrier shall not be liable under this paragraph for any amount greater than the amount billed to the customer for the purchase (including any related charges).
(m) Retaliatory actions prohibited. A billing entity, providing carrier, vendor, or other agent may not accelerate any part of the customer's indebtedness or restrict or terminate the customer's access to pay-per-call services solely because the customer has exercised in good faith rights provided by this section.
(n) Notice of billing error rights –
(1) Annual statement.
(i) A billing entity shall mail or deliver to each customer, with the first billing statement for a telephone-billed purchase mailed or delivered after the effective date of these regulations, a statement of the customer's billing rights with respect to telephone-billed purchases. Thereafter the billing entity shall mail or deliver the billing rights statement at least once per calendar year to each customer to whom it has mailed or delivered a billing statement for a telephone-billed purchase during the previous twelve months. The billing rights statement shall disclose that the rights and obligations of the customer and the billing entity, set forth therein, are provided under the federal Telephone Disclosure and Dispute Resolution Act. The statement shall describe the procedure that the customer must follow to notify the billing entity of a billing error and the steps that the billing entity must take in response to the customer's notice. If the customer is permitted to provide oral notice of a billing error, the statement shall disclose that a customer who orally communicates an allegation of a billing error is presumed to have provided sufficient notice to initiate a billing review. The statement shall also disclose the customer's right to withhold payment of any disputed amount, and that any action to collect any disputed amount will be suspended, pending completion of the billing review. The statement shall further disclose the customer's rights and obligations if the billing entity determines that no billing error occurred, including what action the billing entity may take if the customer continues to withhold payment of the disputed amount. Additionally, the statement shall inform the customer of the billing entity's obligation to forfeit any disputed amount (up to $50 per transaction) if the billing entity fails to follow the billing and collection procedures prescribed by §308.7 of this rule.
(ii) A billing entity that is a common carrier may comply with §308.7(n)(1)(i) by, within 60 days after the effective date of these regulations, mailing or delivering the billing rights statement to all of its customers and, thereafter, mailing or delivering the billing rights statement at least once per calendar year, at intervals of not less than 6 months nor more than 18 months, to all of its customers.
(2) Alternative summary statement. As an alternative to §308.7(n)(1), a billing entity may mail or deliver, on or with each billing statement, a statement that sets forth the procedure that a customer must follow to notify the billing entity of a billing error. The statement shall also disclose the customer's right to withhold payment of any disputed amount, and that any action to collect any disputed amount will be suspended, pending completion of the billing review.
(3) General disclosure requirements.
(i) The disclosures required by §308.7(n)(1) shall be made clearly and conspicuously on a separate statement that the customer may keep.
(ii) The disclosures required by §308.7(n)(2) shall be made clearly and conspicuously and may be made on a separate statement or on the customer's billing statement. If any of the disclosures are provided on the back of the billing statement, the billing entity shall include a reference to those disclosures on the front of the statement.
(iii) At the billing entity's option, additional information or explanations may be supplied with the disclosures required by §308.7(n), but none shall be stated, utilized, or placed so as to mislead or confuse the customer or contradict, obscure, or detract attention from the information required to be disclosed. The disclosures required by §308.7(n) shall appear separately and above any other disclosures.
(o) Multiple billing entities. If a telephone-billed purchase involves more than one billing entity, only one set of disclosures need by given, and the billing entities shall agree among themselves which billing entity must comply with the requirements that this regulation imposes on any or all of them. The billing entity designated to receive and respond to billing errors shall remain the only billing entity responsible for complying with the terms of §308.7(d). If a billing entity other than the one designated to receive and respond to billing errors receives notice of a billing error as described in §308.7(b), that billing entity shall either: (1) Promptly transmit to the customer the name, mailing address, and business telephone number of the billing entity designated to receive and respond to billing errors; or (2) transmit the billing error notice within fifteen (15) days to the billing entity designated to receive and respond to billing errors. The time requirements in §308.7(d) shall not begin to run until the billing entity designated to receive and respond to billing errors receives notice of the billing error, either from the customer or from the billing entity to whom the customer transmitted the notice.
(p) Multiple customers. If there is more than one customer involved in a telephone-billed purchase, the disclosures may be made to any customer who is primarily liable on the account.
§308.8 Severability.
The provisions of this rule are separate and severable from one another. If any provision is stayed or determined to be invalid, it is the Commission's intention that the remaining provisions shall continue in effect.
§308.9 Rulemaking review.
No later than four years after the effective date of this Rule, the Commission shall initiate a rulemaking review proceeding to evaluate the operation of the rule.
III. FEDERAL COMMUNICATIONS COMMISSION STATUTE
TITLE 47--Telegraphs, Telephones, And Radiotelegraphs
Chapter 5--Wire Or Radio Communication
Subchapter II--Common Carriers
Sec. 228. Regulation of carrier offering of pay-per-call services
(a) Purpose
It is the purpose of this section--
(1) to put into effect a system of national regulation and review that will oversee interstate pay-per-call services; and
(2) to recognize the Commission's authority to prescribe regulations and enforcement procedures and conduct oversight to afford reasonable protection to consumers of pay-per-call services and to assure that violations of Federal law do not occur.
(b) General authority for regulations
The Commission by regulation shall, within 270 days after October 28, 1992, establish a system for oversight and regulation of pay-per-call services in order to provide for the protection of consumers in accordance with this chapter and other applicable Federal statutes and regulations. The Commission's final rules shall--
(1) include measures that provide a consumer of pay-per-call services with adequate and clear descriptions of the rights of the caller;
(2) define the obligations of common carriers with respect to the provision of pay-per-call services;
(3) include requirements on such carriers to protect against abusive practices by providers of pay-per-call services;
(4) identify procedures by which common carriers and providers of pay-per-call services may take affirmative steps to protect against nonpayment of legitimate charges; and
(5) require that any service described in subparagraphs (A) and B) of subsection (i)(1) of this section be offered only through the use of certain telephone number prefixes and area codes.
(c) Common carrier obligations
Within 270 days after October 28, 1992, the Commission shall, by regulation, establish the following requirements for common carriers:
(1) Contractual obligations to comply
Any common carrier assigning to a provider of pay-per-call services a telephone number with a prefix or area code designated by the Commission in accordance with subsection (b)(5) of this section shall require by contract or tariff that such provider comply with the provisions of titles II and III of the Telephone Disclosure and Dispute Resolution Act [15 U.S.C. 5711 et seq.; 5721 et seq.] and the regulations prescribed by the Federal Trade Commission pursuant to those titles.
(2) Information availability
A common carrier that by tariff or contract assigns a telephone number with a prefix or area code designated by the Commission in accordance with subsection (b)(5) of this section to a provider of a pay-per-call service shall make readily available on request to Federal and State agencies and other interested persons--
(A) a list of the telephone numbers for each of the pay-per-call services it carries;
(B) a short description of each such service;
(C) a statement of the total cost or the cost per minute and any other fees for each such service;
(D) a statement of the pay-per-call service's name, business address, and business telephone; and
(E) such other information as the Commission considers necessary for the enforcement of this section and other applicable Federal statutes and regulations.
(3) Compliance procedures
A common carrier that by contract or tariff assigns a telephone number with a prefix or area code designated by the Commission in accordance with subsection (b)(5) of this section to a provider of pay-per-call services shall terminate, in accordance with procedures specified in such regulations, the offering of a pay-per-call service of a provider if the carrier knows or reasonably should know that such service is not provided in compliance with title II or III of the Telephone Disclosure and Dispute Resolution Act [15 U.S.C. 5711 et seq.; 5721 et seq.] or the regulations prescribed by the Federal Trade Commission pursuant to such titles.
(4) Subscriber disconnection prohibited
A common carrier shall not disconnect or interrupt a subscriber's local exchange telephone service or long distance telephone service because of nonpayment of charges for any pay-per-call service.
(5) Blocking and presubscription
A common carrier that provides local exchange service shall--
(A) offer telephone subscribers (where technically feasible) the option of blocking access from their telephone number to all, or to certain specific, prefixes or area codes used by pay-per-call services, which option--
(i) shall be offered at no charge (I) to all subscribers for a period of 60 days after the issuance of the regulations under subsection (b) of this section, and (II) to any subscriber who subscribes to a new telephone number until 60 days after the time the new telephone number is effective; and
(ii) shall otherwise be offered at a reasonable fee; and
(B) offer telephone subscribers (where the Commission determines it is technically and economically feasible), in combination with the blocking option described under subparagraph (A), the option of presubscribing to or blocking only specific pay-per-call services for a reasonable one-time charge.
The regulations prescribed under subparagraph (A)(i) of this paragraph may permit the costs of such blocking to be recovered by contract or tariff, but such costs may not be recovered from local or long-distance ratepayers. Nothing in this subsection precludes a common carrier from filing its rates and regulations regarding blocking and presubscription in its interstate tariffs.
(6) Verification of charitable status
A common carrier that assigns by contract or tariff a telephone number with a prefix or area code designated by the Commission in accordance with subsection (b)(5) of this section to a provider of pay-per-call services that the carrier knows or reasonably should know is engaged in soliciting charitable contributions shall obtain from such provider proof of the tax exempt status of any person or organization for which contributions are solicited.
(7) Billing for 800 calls
A common carrier shall prohibit by tariff or contract the use of any 800 telephone number, or other telephone number advertised or widely understood to be toll free, in a manner that would result in--
(A) the calling party being assessed, by virtue of completing the call, a charge for the call;
(B) the calling party being connected to a pay-per-call service;
(C) the calling party being charged for information conveyed during the call unless--
(i) the calling party has a written agreement (including an agreement transmitted through electronic medium) that meets the requirements of paragraph (8); or
(ii) the calling party is charged for the information in accordance with paragraph (9);
(D) the calling party being called back collect for the provision of audio information services or simultaneous voice conversation services; or
(E) the calling party being assessed, by virtue of being asked to connect or otherwise transfer to a pay-per-call service, a charge for the call.
(8) Subscription agreements for billing for information provided via toll-free calls
(A) In general
For purposes of paragraph (7)(C)(i), a written subscription does not meet the requirements of this paragraph unless the agreement specifies the material terms and conditions under which the information is offered and includes--
(i) the rate at which charges are assessed for the information;
(ii) the information provider's name;
(iii) the information provider's business address;
(iv) the information provider's regular business telephone number;
(v) the information provider's agreement to notify the subscriber at least one billing cycle in advance of all future changes in the rates charged for the information; and
(vi) the subscriber's choice of payment method, which may be by direct remit, debit, prepaid account, phone bill, credit or calling card.
(B) Billing arrangements
If a subscriber elects, pursuant to subparagraph (A)(vi), to pay by means of a phone bill—
(i) the agreement shall clearly explain that the subscriber will be assessed for calls made to the information service from the subscriber's phone line;
(ii) the phone bill shall include, in prominent type, following disclaimer:
``Common carriers may not disconnect local or long distance telephone service for failure to pay disputed charges for information services.''
; and
(iii) the phone bill shall clearly list the 800 number dialed.
(C) Use of PINs to prevent unauthorized use
A written agreement does not meet the requirements of this paragraph unless it--
(i) includes a unique personal identification number or other subscriber-specific identifier and requires a subscriber to use this number or identifier to obtain access to the information provided and includes instructions on its use; and
(ii) assures that any charges for services accessed by use of the subscriber's personal identification number or subscriber-specific identifier be assessed to subscriber's source of payment elected pursuant to subparagraph (A)(vi).
(D) Exceptions
Notwithstanding paragraph (7)(C), a written agreement that meets the requirements of this paragraph is not required--
(i) for calls utilizing telecommunications devices for the deaf;
(ii) for directory services provided by a common carrier or its affiliate or by a local exchange carrier or its affiliate; or
(iii) for any purchase of goods or of services that are not information services.
