| PART 308--RULE CONCERNING PAY-PER-CALL SERVICES AND OTHER
TELEPHONE-BILLED PURCHASES Subpart A--Scope and Definitions Sec.308.1 Scope of regulations in this part. 308.2 Definitions. Subpart B--Pay-Per-Call Services 308.3 General requirements for advertising disclosures. 308.4 Advertising disclosures. 308.5 Advertising to children prohibited. 308.6 Misrepresentation of cost prohibited. 308.7 Other advertising restrictions. 308.8 Special rule for infrequent publications. 308.9 Preamble message. 308.10 Deceptive billing practices. 308.11 Prohibition on services to children. 308.12 Prohibition concerning toll charges. 308.13 Prohibitions concerning toll-free numbers. 308.14 Monthly or other recurring charges. 308.15 Refunds to customers. 308.16 Service bureau liability. Subpart C -- Pay-Per Call Services and Other Telephone-Billed Purchases 308.17 Express authorization required. 308.18 Disclosure requirements for billing statements. 308.19 Access to information. 308.20 Dispute resolution procedures. Subpart D--General Provisions 308.21 Severability. 308.22 Actions by States. Authority: Pub. L. 102-556, 106 Stat. 4181(15 U.S.C. 5701, et seq.); Sec. 701, Pub. L.104-104, 110 Stat. 56 (1996). Subpart A--Scope and Definitions § 308.2 Definitions. (a) Billing entity means any person who transmits a billing statement or any other statement of debt to a customer for a telephone-billed purchase, or any person who assumes responsibility for receiving and responding to billing error complaints or inquiries. (b) Billing error means any of the following: (1) 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. (2) A reflection on a billing statement of a telephone-billed purchase for which the customer requests additional clarification, including documentary evidence thereof. (3) A reflection on a billing statement of a telephone-billed purchase that was not accepted by the customer or was not provided to the customer in accordance with the stated terms of the transaction. (4) A reflection on a billing statement of a telephone-billed purchase for a call made to an 800, 888, 877, or other toll-free telephone number. (5) 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. (6) A computation error or similar error of an accounting nature on a billing statement of a telephone-billed purchase. (7) 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 (20) days before the end of the billing cycle for which the statement was required. (8) A reflection on a billing statement of a telephone-billed purchase identified in a manner that violates the requirements of § 308.18. (9) A reflection on a customer's billing statement of a charge incurred pursuant to a purported presubscription agreement that does not meet the requirements of § 308.2(j). (10) A reflection on a customer's billing statement of a telephone-billed purchase not blockable pursuant to 47 U.S.C. 228(c) that was not expressly authorized by that customer. (11) A reflection on a billing statement of a charge that is inconsistent with any blocking option chosen by a customer pursuant to 47 U.S.C. 228(c). [(12) A reflection on a customer's prepaid, debit, check or calling card statement, or a reflection on a customer's checking, savings, share or similar account statement of a charge for audiotext services not blockable pursuant to 47 U.S.C. § 228(c) and that was not expressly authorized pursuant to § 308.17.] (c) 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. (d) Commission means the Federal Trade Commission. (e) Customer means any person who acquires or attempts to acquire goods or services through a telephone-billed purchase, or who receives a billing statement for a telephone-billed purchase. (f) [Excepted Customer means a customer that provides notice of a billing error to any billing entity regarding a charge for any audiotext service; and, prior to the date the call currently being made was placed, has: (A)(1) submitted a notice of billing error to the billing entity or to any other billing entity, vendor or information provider, regarding a charge for a different 900-number call; and, (2) did not, within ten (10) days of submitting the earlier notice of billing error, request a block on the customer's phone line pursuant to 47 U.S.C. § 228(c); or (B)(1) received an audiotext service via a number owned, operated, or controlled by any vendor, billing entity, or information provider (as demonstrated by the call detail record of such vendor, billing entity, or information provider) other that the billing entity at issue; and (2) failed to either (a) pay an invoice from such vendor, billing entity or information provider; or (b) submit a notice of billing error to such vendor, billing entity or information provider; or (C)(1) received an invoice for any audiotext service via a number owned, operated or controlled by the billing entity at issue; and (2) paid in full without submitting a notice of billing error or otherwise complaining to the billing entity. (g)] Pay-per-call purchase means any attempt to purchase, or any actual purchase of pay-per-call services.
(1) Any service covered by the definition of ''pay-per-call services'' provided in Section 228(i) of the Communications Act of 1934, as amended;(1) or (2) Any service that provides, or that is purported to provide, audio information or audio entertainment, including simultaneous voice conversation services, where the action of placing a call, receiving a call, or subsequent dialing, touch-tone entry, or comparable action of the caller results in a charge to a customer, and where all or a portion of such charge results in a payment, directly or indirectly, to the person who provides or purports to provide such information or entertainment services. (3) Services meeting the criteria of § 308.2(g)(2) will not be considered pay-per- call services if: (i) The provider of the audio information or an audio entertainment service demonstrates that the person from whom payment is being sought has entered into a presubscription agreement, meeting the requirements of § 308.2(j), to be charged for the information or service; (ii) The provider of audio information or audio entertainment services demonstrates that, on average, the payment to the providers of audio information or audio entertainment services will not exceed $0.05 per minute or $0.50 per call for that particular service; or (iii) The services provided are calls utilizing telecommunications services for the deaf, or are tariffed directory services provided by a common carrier or its affiliate; (4) Nothing in this definition shall be construed to permit any conduct or practice otherwise precluded or limited by regulations of the Federal Communications Commission.
(1) Is requested by a consumer; (2) Is provided exclusively to the consumer who will be billed for services provided pursuant to that presubscription agreement; and (3) Has been delivered [(4) Vendors, service bureaus and billing entities shall have no liability for unauthorized use of customers' PIN numbers where they neither knew nor should have known that the use was unwarranted. (k)(1)] (i) The service provider clearly and conspicuously discloses to the consumer who will be billed for the service, 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; The service provider agrees to notify the consumer who will be billed for the service of any future rate changes; (iii) The consumer who will be billed for the service agrees to utilize the service on the terms and conditions disclosed by the service provider; and (iv) The service provider requires the use of a valid personal identification number to prevent unauthorized charges by persons other than the person who will be billed for the service. (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 purchase goods or services, including audio information or audio entertainment services, shall constitute a presubscription agreement 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, and if the credit or charge card is the sole method used to pay for the charge. [(3) Disclosure of a prepaid, debit or calling card number, together with authorization to bill that number or account, made during the course of a call to purchase goods or services, including audio information or audio entertainment services, shall constitute a presubscription agreement provided the consumer receives a preamble message conforming in all material respects to Section 308.9. (4) Disclosure of a checking, savings, share, or similar account number together with authorization to debit that account, made during the course of a call to purchase goods or services, including audio information or audio entertainment services, shall constitute a presubscription agreement provided the consumer receives a preamble message conforming in all material respects to Section 308.9, and provided further that it shall be unlawful and a violation of this Rule for a service provider or billing entity to obtain or submit for payment a check, draft, or other form of negotiable paper drawn on a person's checking, savings, share, or similar account, without the person's express verifiable authorization. Such authorization shall be deemed verifiable if any of the following means are employed: (i) Express written authorization by the customer, which may include the customer's signature on the negotiable instrument; or (ii) Express oral authorization which is tape recorded and made available upon request to the customer's bank and which evidences clearly both the customer's authorization of payment for the goods and services that are the subject of the sales offer and the customer's receipt of all of the following information: (A) The date of the draft(s); (B) The amount of the draft(s); (C) The payor's name; (D) The number of draft payments (if more than one); (E) A telephone number for customer inquiry that is answered during normal business hours; (F) The date of the customer's oral authorization; (G) The cost per minute of the call, or if unknown: (1) The maximum per-minute charge; or (2) A stated range of possible costs for the call, where the maximum possible per-minute charge is disclosed at least as prominently as any lower estimate of possible charges; and (H) Whether any recurring charges will be billed to the consumer; or (iii) Written confirmation of the transaction, sent to the customer prior to submission for payment of the customer's check, draft, or other form of negotiable paper, that includes: (A) All of the information contained in § 308.2(j)(4)(ii)(A)-(); and (B) The procedures by which the customer can obtain a refund from the service provider or billing entity in the event the confirmation is inaccurate. (l)]
(1) Any person, including a common carrier, who provides one or more of the following services to vendors: voice storage, voice processing, call processing, billing aggregation, call statistics (call and minute counts), call revenue arrangements (including revenue-sharing arrangements with common carriers), or pre-packaged pay-per- call investment opportunities; or (2) Any person, other than a common carrier, who provides access to telephone service to vendors of pay-per-call services.
(1) A purchase pursuant to a presubscription agreement that meets the requirements of § 308.2(j); (2) 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 (3) The purchase of goods or services that is otherwise subject to billing dispute resolution procedures required by Federal statute or regulation.
Subpart B--Pay-Per-Call Services § 308.3 General requirements for advertising disclosures. The following requirements apply to disclosures required in advertisements under § 308.4: (a) The disclosures shall be made in the same language as that principally used in the advertisement. (b) Television, video, and print disclosures shall be of a color or shade that readily contrasts with the background of the advertisement. (c) In print advertisements, disclosures shall be parallel with the base of the advertisement. (d) Audio disclosures, whether in television or radio, shall be delivered in a slow and deliberate manner and in a reasonably understandable volume. (e) 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. (f) In any program-length commercial, required disclosures shall be made at least three (3) times (unless more frequent disclosure is otherwise required) near the beginning, middle, and end of the commercial. (g) In any advertising medium not specifically addressed in this Rule, all advertising
disclosures must be clear and conspicuous § 308.9 Preamble message. (a) The vendor shall include, in each pay-per-call message, [and for all
audiotext services for which the customer has chosen to pay by providing a prepaid, debit
or calling card number, or bank account number, together with permission to charge or
debit that account,] an introductory disclosure message (1) Identifies the name of the vendor 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)(A) If the call is billed on a variable option rate basis, the preamble shall state, in accordance with § 308.9(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; (B) If the call is billed on a variable time rate basis, the preamble shall state, in accordance with § 308.9(a)(2)(i) and (ii), the cost of each different portion of the call; (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 (3) 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 a 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 vendor is prohibited from charging a caller any amount whatsoever for such a service if the caller hangs up at any time prior to three (3) seconds after the signal or tone indicating the end of the preamble described in § 308.9(a). However, the three-second delay, and the message concerning such delay described in § 308.9(a)(3), is not required if the vendor 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 § 308.9(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 three (3) dollars or less. (d) Data service calls. The preamble described in § 308.9(a) is not required when the entire call consists of the non-verbal transmission of information. (e) Bypass mechanism. The vendor that offers to frequent callers or regular customers 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 § 308.9(a), provided that any such bypass mechanism shall be disabled for a period of no less than thirty (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. Subpart C--Pay-Per-Call Services and Other Telephone-Billed Purchases § 308.17 Express authorization required. Any telephone-billed purchase, other than a pay-per-call purchase that is blockable pursuant to 47 U.S.C. 228(c), requires the express authorization of the person to be billed for the purchase.(3) It is a deceptive act or practice and a violation of this Rule for any vendor, service bureau, or billing entity to collect or attempt to collect, directly or indirectly, payment for such a telephone-billed purchase where the vendor, service bureau, or billing entity knew or should have known that the charge was not expressly authorized by the person from whom payment is being sought. § 308.20 Dispute resolution procedures. (a) Initiation of billing review. To be guaranteed the protections provided under § 308.20, a customer shall 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 sixty (60) days after the billing entity transmitted the first billing statement that contains the disputed charge. 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(4)êorth the reasons why it has determined that no billing error occurred, make any appropriate adjustments to the customer's account, and provide copies of documentary evidence of the customer's indebtedness. The reasonable investigation and written explanation shall, in every case, address each potential billing error, and shall address with particularity the relevant facts asserted by the customer. [There shall be a rebuttable presumption that goods or services were actually transmitted or delivered to the extent that a vendor, service bureau, or providing carrier produces documents prepared and maintained in the ordinary course of business showing the date on, and the place to, which the goods or services were transmitted or delivered. If a billing entity relies on this presumption in responding to a billing error notice, it shall, unless the customer is an "excepted customer," provide the customer with the opportunity to rebut this presumption with a declaration signed under penalty of perjury. The billing entity shall not require this declaration to be notarized. In enforcing violations of this Rule, the Commission may rebut this presumption with evidence indicating that, in numerous instances, the goods or services were not actually transmitted or delivered.(5)] (3) The action required by § 308.20(c)(2) shall be taken no later than (i) Within thirty (30) days of such determination, notify the appropriate providing carrier, vendor, or service bureau as applicable, of its disposition of the customer's billing error and the reasons therefor, and provide sufficient information for the appropriate entity to identify the customer account at issue; 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 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. The billing entity shall allow 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. (d) Withdrawal of billing error notice. A billing entity need not comply with the requirements of § 308.20(c) 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. (e) Limitation on responsibility for billing error. After complying with the provisions of § 308.20(c), 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. (f) 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 no billing entity, providing carrier, service bureau, or vendor may 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 § 308.20(c) and until the customer has received the written explanation and documentary evidence setting forth that no billing error has occurred, pursuant to § 308.20(c)(2)(ii) or § 308.20(n)(2). The billing entity, providing carrier, service bureau, 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 § 308.20(c). (g) Prohibition on charges for initiating billing review. A billing entity, providing carrier, service bureau, or vendor may not impose on the customer any charge related to the billing review, including charges for documentation or investigation. (h) 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, service bureau, 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 § 308.20(c) and allowed the customer as many days thereafter to make payment of any amount determined not to be in error, as prescribed by § 308.20(c)(3)(ii). (2) Reports on continuing disputes. If a billing entity receives further notice from a customer within the time allowed for payment under § 308.20(h)(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 § 308.20(h)(2) to all persons to whom such matter was initially reported. (i)
(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. (k) 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). (l) 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. (m) Notice of billing error rights-- (1) Billing notice. With each billing statement that contains charges for a telephone-billed purchase, a billing entity shall include 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: (i) The customer's right to withhold payment of any disputed amount; (ii) That any action to collect any disputed amount will be suspended, pending completion of the billing review; and (iii) That, to be guaranteed the protections provided under the Dispute Resolution Procedures of the Federal Trade Commission's Rule Concerning Pay-Per-Call Services and Other Telephone-Billed Purchases, a customer must initiate a billing review no later than sixty (60) days after the billing entity transmitted the first billing statement that contains a charge for such telephone-billed purchase. (2) General disclosure requirements. (i) The disclosures required by § 308.20(m)(1) 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. (ii) At the billing entity's option, additional information or explanations may be supplied with the disclosures required by § 308.20(m), 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 § 308.20(m) shall appear separately and above any other disclosures except those required under 47 CFR 64.1510(a)(2)(i). (n) Multiple billing entities. (1) If a telephone-billed purchase involves more than one billing entity, only one set of disclosures need be given, and the billing entities shall agree among themselves which billing entity must receive and respond to billing error notices. (2) If any billing entity has forgiven a disputed charge for a telephone-billed purchase, no other billing entity may attempt to collect such charge without first conducting the reasonable investigation and providing the customer with the written explanation and documentary evidence as specified by § 308.20(c)(2)(ii). (3) 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 § 308.20(a), that billing entity shall either: (i) 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 (ii) 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 § 308.20(c) 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. (4) If a customer fails to pay for a telephone-billed purchase and fails to initiate a billing review within the sixty (60) days provided under § 308.20(a), the billing entity that transmitted the first billing statement containing the unpaid charge shall, no later no later than one hundred and twenty (120) days after such statement was transmitted, provide the vendor or service bureau with: (i) Notice of the failure to pay; (ii) The amount of the unpaid charge; and (iii) Sufficient information to identify the customer's account. (o) 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. (p) Deceptive statements to billing entities by vendors, service bureaus, and providing carriers. It is a deceptive act or practice and a violation of this Rule for any vendor, service bureau, or providing carrier to provide false or misleading information to a billing entity conducting an investigation of a telephone-billed purchase charge under § 308.20(c) or § 308.20(n). ------------------ COMPARISON OF FOOTNOTES ------------------ -FOOTNOTE 1- / Section 228(i) of the Communications Act of 1934, as amended by Section 701 of the Telecommunications Act of 1996, states: (1) The term pay-per-call services means any service -- (A) In which any person
provides or purports to [ -FOOTNOTE 2- / A presubscription agreement is only valid if it is between the service provider and the person to be billed for the service. Service providers are entitled to a presumption that they have in fact contracted with the party to be billed, however, where they adopt procedures requiring consumers to indicate, by tape-recorded (or digitally-recorded) oral consent or in writing, that they authorize the purchase be billed to their credit, charge, prepaid, debit, or calling cards, or debited to their checking, savings, share or similar account, or billed directly to them. -FOOTNOTE 3- / Service providers shall be entitled to a presumption that they have obtained express authorization of the person to be billed for the purchase by obtaining a tape-recorded (or digitally-recorded) verification of the consumer being informed of the material terms of the agreement and then agreeing to make the purchase on those terms and pay the charge, and confirming that they are the responsible billing party for the telephone number to which the purchase will be billed.] -FOOTNOTE Blank Footnote -FOOTNOTE / The standard for ''clear and conspicuous'' as used in this Section shall be the
standard enunciated by the Board of Governors of the Federal Reserve System in its
Official Staff Commentary on Regulation Z, which requires simply that the disclosures be
in a reasonably understandable form. -FOOTNOTE / 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 308.20(a). -FOOTNOTE / 1. Section 228(i) of the Communications Act of 1934, as amended by Section 701 of the Telecommunications Act of 1996, states: (1) The term pay-per-call services means any service -- (A) In which any person provides or purports to provide -- (i) Audio information or audio entertainment produced or packaged by such person; (ii) Access to simultaneous voice conversation services; or (iii) Any service, including the provision of a product, the charges for which are assessed on the basis of the completion of the call; (B) For which the caller pays a per-call or per-time-interval charge that is greater than, or in addition to, the charge for transmission of the call; and (C) Which is accessed through use of a 900 telephone number or other prefix or area code designated by the [Federal Communications] Commission in accordance with subsection (b)(5) (47 U.S.C. 228(b)(5)). (2) Such term does not include calls utilizing telecommunications devices for the deaf, or directory services provided by a common carrier or its affiliate or by a local exchange carrier or its affiliate, or any service for which users are assessed charges only after entering into a presubscription or comparable arrangement with the provider of such service. 2. A presubscription agreement is only valid if it is between the service provider and the person to be billed for the service. Service providers are entitled to a presumption that they have in fact contracted with the party to be billed, however, where they adopt procedures requiring consumers to indicate, by tape-recorded (or digitally-recorded) oral consent or in writing, that they authorize the purchase be billed to their credit, charge, prepaid, debit, or calling cards, or debited to their checking, savings, share or similar account, or billed directly to them. 3. Service providers shall be entitled to a presumption that they have obtained express authorization of the person to be billed for the purchase by obtaining a tape-recorded (or digitally-recorded) verification of the consumer being informed of the material terms of the agreement and then agreeing to make the purchase on those terms and pay the charge, and confirming that they are the responsible billing party for the telephone number to which the purchase will be billed. 5. Whether a consumer's declaration will successfully rebut the presumption that goods and services were actually transmitted or delivered will generally depend on the facts and circumstances of each case, including whether the consumer has provided supporting documents reasonably available to him or her, such as a police report in the event of an alleged theft of service during a break-in, airline or other travel tickets and/or hotel receipts in the event the customer alleges he was out of town when the calls were made, a birth cirtificate in the event the customer alleges that the calls were made by a minor, or a corroborating letter or other document from the customer's local exchange carrier in the event the customer lleges that the billing error is the result of crossed wires, together with the declaration. |