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New Jersey Register
Volume 41, Issue 9
Issue Date: MAY 4, 2009
RULE PROPOSALS
Law and Public Safety
DIVISION OF CONSUMER AFFAIRS

Reproposed New Rules: N.J.A.C. 13:45A-8

Prepaid Calling Cards

Authorized By: New Jersey Division of Consumer Affairs, David Szuchman, Director.
Authority: P.L. 2007, c. 293.
Calendar Reference: See Summary below for explanation of exemption to calendar requirement.

Proposal Number: PRN 2009-134.
Submit written comments by July 3, 2009 to:

Burt Liebman
Director of Legislative and Regulatory Affairs
New Jersey Division of Consumer Affairs
124 Halsey Street
P.O. Box 45027
Newark, NJ 07101

The agency proposal follows:

Summary

This proposed new rules were originally published in the April 21, 2008 issue of the New Jersey Register at 40 N.J.R. 2056(a). Upon consideration of the comments received, the Division has decided to repropose with changes from the original proposal. A summary of the comments received and the Division's responses follows.

The Division received comments from the following:

Michael Grossman, Managing Counsel Union Telecard Alliance, LLC on behalf of IDT Corporation Union Telecard Alliance, LLCiBasis, Inc. Locus Telecommunications, Inc. CVT Prepaid Solutions, Inc. Epana Networks, Inc. STi Prepaid, LLC Total Call International, Inc. William J. Stankos, COO, Touch-Tel Partners William K. Mosca, Jr., Esq; Monica A. Otte, Esq.; and Mark Keffer, Esq. Attorneys for AT&T Communications of NJ, L.P. and AT&T Corp. Paul Penna, Dollar Phone Enterprises David McMillin, Esq., Legal Services of New Jersey

1. COMMENT: One commenter observes that the wording of N.J.A.C. 13:45A-8.1 would exempt advertisements and voice prompts disseminated after August 1, 2008, for cards that were issued prior to that date. The commenter believes that advertisements and voice prompts disseminated after August 1, 2008, relating to cards issued before that date should be subject to the new rules and that the section should be modified to make clear that the new rules would apply to all prepaid calling cards issued after August 1, 2008 and to any advertisement or voice prompt regarding a prepaid calling service that is created or disseminated after such date, no matter when the card to which it relates was printed.

RESPONSE: The Division agrees with the commenter that N.J.A.C. 13:45A-8.1 could be read to exempt sales material and voice prompts created, aired, printed or distributed after August 1, 2008, relating to cards printed before that date, which would be inconsistent with the Act (N.J.S.A. 56:8-181). In the notice of reproposal, N.J.A.C. 13:45A-8.1 is being reworded to make clear that the provisions of the subchapter apply to all sales material and voice prompts created, aired, printed or distributed after August 1, 2008, no matter when the card to which they relate was printed.

2. COMMENT: One commenter is concerned that the definition of distributor in the rule may not capture certain industry players, including usage customers that buy minutes from providers to service their own prepaid calling cards.

RESPONSE: The Division believes that the definition of "distributor" includes distributors who purchase minutes from a provider for use with their private label cards, but will make it more clear in the notice of reproposal.

3. COMMENT: One commenter suggests that N.J.A.C. 13:45A-8.3 be totally rewritten. The commenter suggests that the disclosures required to be made on a card should be set forth in paragraph (a)1 and that disclosures of material terms and conditions for the use of the card, including value of card, permitted fees and notice that additional rates and fees may apply for international calls, required to be made either on a card or its packaging be set forth in paragraph (a)2. The commenter claims this would make clear that certain material disclosures are required to be made directly on a prepaid calling card, including the name of the provider, customer service information and the expiration policy.

RESPONSE: The Division notes that N.J.A.C. 13:45A-8.3(a)2 of the proposed rules contains the disclosures required to be made on a card and paragraph (a)3 contains the disclosures required to be made on packaging, if any, or on a clear and conspicuous poster or other plain language at the point of sale and through the customer service number, a web site or other electronic medium. The Division points out that the commenter's suggested paragraph (a)1 disclosures are required under proposed paragraph (a)2. While commenters may disagree with particular disclosures, as discussed below, the Division sees no need to reorganize the section.

4. COMMENT: One commenter believes that both the provider and the distributor should be responsible for all disclosures and suggests that in N.J.A.C. 13:45A-8.3(a)2 and 3 the word "or" after the word "provider" should be changed to "and."

RESPONSE: The Division believes that there will be situations where it may be appropriate to hold a provider and a distributor jointly and severally responsible for disclosures relating to a card, some situations where a distributor rather than the provider should be responsible for disclosures and other situations where the provider and not the distributor should be responsible for disclosures. Therefore, the Division does not agree with the change suggested by the commenter, but the rule as reproposed seeks to assign culpability according to responsibility.

5. COMMENT: One commenter points out that the limited size of calling cards, about the size of a credit card, makes it impossible for national prepaid calling card providers to put on the card all of the information required by the proposed rule. Uniform calling cards and associated packaging that can be sold in any state and that meet requirements of all states keep costs lower, enabling providers of calling cards nationwide to offer low rates. The commenter notes the proposed rule requires providers to offer a toll-free customer service number where card users can obtain information about the number of minutes remaining on the card for a particular call and also requires a voice prompt at the time the call is placed giving the remaining call time. The commenter suggests that proposed rule N.J.A.C. 13:45A-8.3(a)2ii be modified to eliminate the requirement that the printed card contain notice that the remaining call time information is available from customer service by deleting the phrase "and notice that at that number the user can obtain the number of minutes remaining on the card for a call to a particular destination number."

RESPONSE: Calling cards of the provider on whose behalf the comment was made contain the notice required by proposed rule N.J.A.C. 13:45A-8.3(a)2ii. If the commenter's cards already contain the notice required by the rule, the cards of other providers also should be able to comply. The Division believes it would be important for card users to know that they can use the toll-free customer service number to find out the number of minutes remaining on the card for a call to a particular destination number, so that they can determine, before commencing the call, whether there are enough minutes remaining on the card for the completed call. Accordingly, on reproposal the Division will not change the rule as suggested.

6. COMMENT: One commenter notes that N.J.S.A. 56:8-175 et seq., P.L. 2007, c. 293 (the Act) requires that key disclosures concerning price, card value, fees and related information must be made "on cards or the packaging . . . and in any advertising, including any Internet web site used to promote or distribute the service or card." The commenter states that the proposed rules in N.J.A.C. 13:45A-8.3(a)3 would allow disclosure of this key information to be made either on the packaging or separately on a poster or other plain language at the point of sale and [page=1971] either telephonically or electronically and would permit price terms to be disclosed in a form that would not provide the information to consumers in writing. The commenter contends that this is inconsistent with the Act. The commenter states that if it is the Division's intent that pricing information would be required to be made available through the customer service number if it is not on the packaging, that intent is not clear. According to the commenter, the notice of proposal fails to meet the standard set forth in the Act in any event.

RESPONSE: The Division believes that N.J.S.A. 56:8-176a and b taken together, give the Director certain discretion to determine where some of the disclosures required by the Act are to be made. The Division believes that key disclosures about the use of the card and where information about rates and balances can be found should be made on the card itself. The Division also believes that since packaging is frequently discarded, information on packaging is in the same category as information on point of sale material. The same information is required to be made available through the customer service number, a web site or other electronic medium. That a customer could re-call the customer service number or revisit a web site is equivalent to having the information in a form that the customer can keep. The notice of reproposal includes the rule as originally proposed.

7. COMMENT: One commenter disagrees with N.J.A.C. 13:45A-8.3(a)3v, which the commenter states requires certain rates to be disclosed on a card. The commenter contends that requiring rates to be disclosed on cards or their packaging is not beneficial to consumers for the following reasons: (i) rates are better promoted on point-of-sale posters and advertisements where providers and distributors can list many more rates than on a card; (ii) consumers know that the best way to get current rate information is to call customer service; (iii) requiring rates denominated in dollars on cards is not a helpful disclosure to consumers; (iv) requiring the maximum international per minute rate is not helpful to consumers as it is very unlikely that a consumer will ever call this destination (for example, the highest per minute rate for many cards is for a call made to ocean destinations (for example, a cruise ship in the Pacific Ocean), which is often $ 5.00 per minute); and (v) requiring all per minute rates for each destination served by the card is not feasible as there is not sufficient room on a card or its packaging to list the rate per minute for the hundreds of destinations served by the card.

RESPONSE: The Division notes that N.J.A.C. 13:45A-8.3(a)3 as originally proposed sets forth the disclosures that are to be made available on packaging, if any, or on a clear and conspicuous poster or other writing in plain language at the point of sale and through the customer service number, a web site or other electronic medium. N.J.A.C. 13:45A-8.3(a)3v does not require that rates be disclosed on the card. With respect to the commenter's objection to any disclosure of rates for calls to an advertised destination, the Division notes that cards are advertised for calls to a particular country or countries. In order for consumers to be able to compare cards advertised for calls to Brazil, for example, the rates have to be disclosed. If there are different rates for different cities in Brazil , N.J.A.C. 13:45A-8.3(a)3v permits disclosing the highest rate to any city in Brazil . The Division has revised this subparagraph to make it more clear.

8. COMMENT: One commenter states that proposed rules N.J.A.C. 13:45A-8.3(a)3vi, vii and viii permit providers to impose several types of fees and surcharges merely by giving notice that they "may apply" or that charges "may be higher" in certain circumstances, undermining the attempt of the rules to ensure that accurate and complete pricing information be available to consumers purchasing cards and services. The commenter suggests that the amount of all fees that are permitted and the circumstances under which they will be charged, should be clearly and conspicuously disclosed in writing, so that consumers have access to complete information before purchasing a card and whenever they need to make usage decisions, as required by N.J.A.C. 13:45A-8.3(a)3iii and iv.

RESPONSE: N.J.A.C. 13:45A-8.3(a)3vi, vii and viii require that consumers be given notice that additional or different per minute rates, charges or fees may apply to use a card for calls to or from international cellular and international wireless telephone numbers, to calls made through a toll-free number that is not the exclusive access number and to calls from a payphone. The Division believes that it is not feasible to require disclosure of the rates for calls to or from international cellular and wireless telephone numbers because providers typically contract with land line services to route calls to the destination number, rather than with providers of cellular and wireless services. In some foreign countries, as in the United States, there are competing providers of cellular and wireless telephone service, which may have different rates.

The Division believes that it is not necessary to require disclosure of the amount of a surcharge for use of a toll-free number for access if that number is not the exclusive access number, since consumers can avoid any such surcharge by using the alternate access number. With respect to payphone surcharges, the Division notes that payphone service is provided by more than one carrier; the Division believes that it is not practical to require disclosure of payphone surcharges since rates may vary from carrier to carrier.

9. COMMENT: One commenter notes that N.J.A.C. 13:45A-8.5 requires that a provider maintain a toll-free customer service number where a consumer can obtain information about rates, surcharges and fees; N.J.A.C. 13:45A-8.3(a)3iii, iv, vi and vii require a provider to disclose on the packaging or point of sale material the amount and frequency of fees and surcharges that may apply to certain uses of the card; and N.J.A.C. 13:45A-8.6(a) requires that a provider furnish a voice prompt at the time a call is placed giving actual notice of the impact of charges or fees to a card user. The commenter suggests that proposed rule N.J.A.C. 13:45A-8.3(a)3ix requiring notice on the package or at the point of sale that such fees and charges will increase the effective per-minute rate for the card, occupies too much limited space, does not give the consumer materially more information and should be eliminated.

The commenter also suggests that the Division require all prepaid card service providers offering services in New Jersey to publish a website showing its rates, fees and surcharges.

RESPONSE: Notice that fees and surcharges disclosed under N.J.A.C. 13:45A-8.3(a)3iii, iv, vi and vii may increase the per-minute rate of a call is information that a consumer should have when selecting what card to buy. Access to the toll-free customer service number requires a PIN, which is available only after the card is purchased. The voice prompt also does not come into play until after purchase. However, the Division agrees that the disclosures required by N.J.A.C. 13:45A-8.3(a)3iii, iv, vi and vii are adequate to alert the consumer that the disclosed fees and charges will increase the per minute rate. Because the notice required by N.J.A.C. 13:45A-8.3(a)3ix is redundant, it has been deleted from the notice of reproposal.

The Division has no objection to providers using the internet as a sales tool, provided that all required disclosures are made, but the Division believes that information on the packaging or at the point of sale will reach more buyers.

10. COMMENT: One commenter asserts that point-of-sale advertisements and materials (primarily rate posters) are one of the most important sources of information for consumers. Non-point-of-sale materials do not have the same impact on consumers because these materials (primarily radio and television advertisements) are heard and seen outside the purchasing context. They are designed only to pique the consumer's interest, while referring to the point-of-sale materials for greater detail. The commenter suggests that only the key terms, such as the name of the provider, customer service information and expiration policy, need be disclosed on non-point-of-sale materials.

RESPONSE: The Division agrees that a distinction can be made between advertising on radio and television and advertising on point-of-sale materials, a website or other electronic medium. N.J.A.C. 13:45A-8.3(a)3 refers to packaging, a poster or other point-of-sale materials, a website or other electronic medium. It does not address non-point of sale advertising. However, the Division agrees that non-point-of-sale advertising needs to contain only certain information and will address that in N.J.A.C. 13:45A-8.3(a)4 of the reproposed rules.

11. COMMENT: One commenter notes that N.J.A.C. 13:45A-8.3(a)6 provides that where rates advertised in writing are subject to change, that fact must be disclosed, as well as the date the written information was printed, the date through which the rates are in effect and how the consumer can contact the provider to determine current rates. That section also provides that such rates must be available for at least 30 days, which the commenter claims goes beyond the scope of the Act. The [page=1972] Act is primarily focused on disclosure issues, not on rate regulation. The commenter points to N.J.A.C. 13:45A-8.7, which requires that any limitations on the period of time for which advertised rates are available must be clearly and conspicuously disclosed to consumers, but provides no minimum period that they must be available. The commenter also believes that requiring certain rates or mandating that rates remain effective for a minimum amount of time, if those rates are unrelated to intrastate calling, is beyond a State's authority. Another commenter contends that proposed N.J.A.C. 13:45A-8.3(a)6 undermines the requirement in N.J.A.C. 13:45A-8.7 that advertised minutes must be achievable without limitation, unless the limitation is clearly and conspicuously disclosed, by allowing the provider to change the promised terms any time more than 30 days after the card was printed, whether or not the card has been purchased or used. The commenter suggests that changes in terms should be prohibited or that changes be permitted after a minimum period of time after the first use of the card.

RESPONSE: The Division acknowledges the apparent the lack of congruity between N.J.A.C. 13:45A-8.3(a)6 and 8.7. Although the Division believes that the requirement in N.J.A.C. 13:45A-8.7 that advertised minutes be available and achievable is somewhat illusory if the minutes are offered for a very short period of time, especially if measured from a date that precedes the date the cards are first offered for sale and the date of purchase, the Division agrees that the Act is essentially a disclosure statute. On reproposal, the 30-day minimum availability will be deleted.

12. COMMENT: One commenter agrees that under certain circumstances it is appropriate to include disclosures in a language other than English. However, the commenter notes that the wording in proposed N.J.A.C. 13:45A-8.3(a)8 imposes a dual language disclosure obligation whenever a language other than English is predominately used on a card or packaging to provide dialing instructions or to contact customer services. N.J.A.C. 13:45A-8.3(a)9 imposes a dual language obligation when language other than English is predominately used in advertising or on a card or packaging, other than for dialing instructions. The commenter believes that the wording in N.J.A.C. 13:45A-8.3(a)8 and 9 is confusing and should be revised. The commenter suggests that the requirement for providing disclosures in a language other than English tracks the language of the Act.

RESPONSE: The Division agrees that the statutory language covers the circumstances described in both N.J.A.C. 13:45A-8.3(a)8 and 9 and will use that language in the reproposed rule.

13. COMMENT: One commenter complains that the requirement in N.J.A.C. 13:45A-8.5 that live operator service be available 24 hours a day is excessive, prohibitive and wasteful, in that customer call volume for its products, aimed at the Mexico, Central America market, reduces to near zero at midnight.

RESPONSE: The requirement for live operator service 24 hours a day, seven days a week is statutory. (see N.J.S.A. 56:8-176f).

14. COMMENT: One commenter notes that N.J.A.C. 13:45A-8.5(a)2 states that "The provider shall provide customer service in each language used on a prepaid calling card or its packaging and in the advertising or promotion of the prepaid calling card . . ." (emphasis added) The commenter contends that providers could avoid their obligation to provide customer service in languages that are used extensively in their advertising, but not on the card or packaging or vice versa. The commenter suggests replacing the "and" with "or." The commenter also suggests that the word "recording" that appears as the last word in the section should be "request."

15. COMMENT: A commenter objects that N.J.A.C. 45A-8.5(a)2 imposes an obligation to provide customer service in each language used on the card, packaging or in advertising, which the commenter believes is unduly burdensome and costly to providers and ultimately would result in fewer cards being available to consumers in other languages. The commenter maintains that requiring live customer service representatives who speak languages other than English will be very costly and the increased costs will likely force providers to stop advertising and printing cards with disclosures in other languages, which will have the effect of providing less disclosure and choice to consumers -- a result contrary to the Act's intentions. The commenter suggests that the rule provide that a card or advertisement in which a language other than English is predominantly used, must disclose in that other language whether customer service is available in that other language. Consumers would know prior to purchase if customer service is available in the other language and will be able to make an informed decision about whether to purchase the card.

RESPONSE TO COMMENTS 14 AND 15: The Act, at N.J.S.A. 56:8-176e and f, requires disclosures in a language other than English if that language is used in written material. It does not require customer service in a language other than English. However, the Division accepts the commenter's suggestion, thanks the commenter and has made the change on reproposal at N.J.A.C. 13:45A-8.5(a)2.

16. COMMENT: A commenter states that a consumer who calls customer service to learn the usage remaining on the consumer's card should be given the information in the same format (dollars or minutes) as the card purchased, but should also be able to learn the number of minutes remaining on a dollar-based card. The commenter suggests that proposed N.J.A.C. 13:45A-8.5(a)3iv be modified by inserting the words "or minute" before the phrase "balance of use available in the consumer's account, if applicable."

RESPONSE: The Division believes that a consumer seeking the balance remaining on a calling card would find the number of minutes remaining most useful, but agrees that the consumer should be able to learn the value remaining on a dollar-based card. The Division will combine N.J.A.C. 13:45A-8.5(a)3ii and iv in the reproposed rule.

17. COMMENT: One commenter stated that 80 percent of its customers use pre-paid international calling cards multiple times. The commenter suggested that in N.J.A.C. 13:45A-8.6(b), the voice prompt should state that the number of minutes available for that call to the dialed destination is subject to fees permitted under N.J.A.C. 13:45A-8.4(a)3 that would reduce the number of minutes available and disclose such fees at the start of the call. The commenter also suggests that requirement that a caller must receive 100 percent of the minutes announced be subject to the fees disclosed at the start of the call. The commenter suggests that the recommended changes would give consumers greater flexibility and information pertaining to available minutes.

RESPONSE: The commenter's suggestions would mean that a consumer would not know how many minutes were actually available for the dialed call; the conversation might have to be terminated prematurely. The Act requires that all minutes promoted, advertised or disclosed on a voice prompt shall be immediately available and achievable by the customer on that call. A consumer who did not use all of the announced minutes on a call would receive a voice prompt on the next call disclosing how many minutes were available for a call to the dialed destination. The remaining minutes announced for the subsequent call would be after deduction of fees allowed under N.J.A.C. 13:45A-8.4(a)3.

18. COMMENT: One commenter believes that the "immediately available and achievable" language of the Act should also be in N.J.A.C. 13:45A-8.6(b), so there is no confusion as to the obligation to be able to provide all minutes announced on a voice prompt.

RESPONSE: The Division believes that the language of this subsection makes it clear that all minutes announced on a voice prompt must be immediately available and achievable.

19. COMMENT: One commenter is concerned that the provision in N.J.A.C. 13:45A-8.6(c) requiring another voice prompt/audible sound towards the end of a call that states the number of minutes then remaining will be a costly change to the platforms currently used by providers. Given that it is general industry practice to provide a voice prompt/audible sound one minute before expiration, consumers recognize this sound and know that one minute remains. Thus, the cost of the proposed rule outweighs the benefits gained. The commenter proposes that only if the voice prompt/audible sound is more than one minute prior to the call ending should the prompt/sound indicate the number of minutes remaining.

RESPONSE: The Division believes that N.J.A.C. 13:45A-8.6(c), allowing an audible signal at least one minute before time expires, permits the continuation of the industry-standard one-minute tone. The Division accepts the commenter's suggestion that a prompt during a call alerting the customer that time on the card will expire should be required [page=1973] to indicate the minutes remaining only if the prompt is given more than one minute before the call time will expire.

20. COMMENT: One commenter claims that in N.J.A.C. 13:45A-8.6, the requirement for a verbal announcement of the number of minutes remaining on an account or a card is at variance with both guidance being received from other states, as well as industry standards. The commenter notes that cards issued by an industry leader do not provide this service and other states are requiring either the remaining dollar or remaining minutes be announced without mandating either. The commenter notes that a common comment from its customers is that they become annoyed by too many voice prompts.

RESPONSE: The Division believes that knowing the number of minutes remaining is more valuable to a user than the dollar amount left on the card, which would require a consumer to calculate the number of minutes.

21. COMMENT: One commenter suggests that N.J.A.C. 13:45A-8.7 be made more clear that providers and distributors cannot avoid the obligation to deliver the number of minutes promoted or advertised by claiming that the number of minutes advertised is subject to fees. Some providers will advertise a number of minutes to a destination that cannot under any circumstances be achieved because they are after the application of fees. The commenter offers that the language in N.J.A.C. 13:45A-8.7 relating to voice prompts is duplicative of language in N.J.A.C. 13:45A-8.6.

RESPONSE: N.J.A.C. 13:45A-8.7 precludes providers and distributors from simply stating that the number of minutes advertised is subject to fees. Any limitations must be clearly and conspicuously disclosed in proximity to the advertised minutes. The Division agrees that the penultimate sentence of N.J.A.C. 13:45A-8.7 is redundant; it has been deleted in the reproposed rule.

22. COMMENT: A commenter suggests that in N.J.A.C. 13:45A-8.7, the number of minutes advertised or promoted on a voice prompt should be available and achievable subject to clearly and conspicuously disclosed fees allowed under N.J.A.C. 13:45A-8.4(a)3 that would reduce the number of minutes available on that call or any subsequent call. The commenter suggests that the recommended changes would give consumers greater flexibility and information pertaining to available minutes.

RESPONSE: The Act clearly requires that all minutes promoted, advertised or disclosed on any voice prompt given to a customer at the time the customer places a call be immediately available and achievable. The Division believes that the penultimate sentence of N.J.A.C. 13:45A-8.7 is redundant in light of N.J.A.C. 13:45A-8.6.

23. COMMENT: One commenter notes that proposed rule N.J.A.C. 13:45A-8.8(a) permits providers to apply an additional or different decrement policy merely by giving notice that they may apply, thus defeating the effort of the rule to ensure that accurate and complete pricing information is available to consumers purchasing prepaid calling cards and services. The commenter suggests that N.J.A.C. 13:45A-8.8(a) should require the disclosure of the other policies.

RESPONSE: The decrement policy for a call using a card advertised as affording a certain per minute rate to a particular country or region should be based on a call from New Jersey to that country or region. The Division understands that the policy may be different with respect to a call to a destination not advertised or for a call from outside of New Jersey, and believes it reasonable to give notice of that fact. It would be impractical to recite the policy for all possible call destinations.

24. COMMENT: Two commenters point to the duty imposed on telecommunications carriers by the Federal Telecommunications Act. (47 U.S.C. §222(a)) to protect the confidentiality of information relating to customers, which includes call detail and call history information: originating and terminating telephone numbers and call date and time. Confidential customer information may be disclosed with the authorization of the customer or pursuant to appropriate legal process. The commenters point out that the Federal Communications Commission (FCC) rules require telecommunications carriers to employ specific procedures to authenticate a customer-initiated request for call detail information, including the use of a password. Authentication of customer identity is impractical since records necessary for authentication are not kept. Carriers typically do not collect and maintain records of customer names and addresses, prepaid card PINs purchased by a particular customer, or account numbers. Providers should not be required to give the PIN and call detail records to an anonymous caller. Customers generally do not have any expectation that call detail will be provided to them.

One of the commenters suggests that proposed rule N.J.A.C. 13:45A-8.9(a) be revised to provide that any call detail data furnished to customers be consistent with applicable consumer privacy laws.

The other commenter suggests that carriers not be required to provide any call detail for calling card calls and that the requirement in proposed N.J.A.C. 13:45A-8.5(a)3iv to provide call history should be deleted and the requirement to provide call detail information in N.J.A.C. 13:45A-8.9(a)1 through 6 be deleted in its entirety. Alternatively, recognizing the Division's concern that cardholders be able to resolve disputes with their prepaid card provider, the commenter suggests that limited information be disclosed in the event of a dispute, which the commenter contends could be done without jeopardizing the privacy of cardholders.

RESPONSE: The Division points out that the Telecommunications Act does not apply to non-subscription based services, but agrees that prepaid card users should also be protected. The Division believes that simply to provide that information be furnished in accordance with applicable privacy laws does not provide sufficient guidance to the industry. The Division believes that customers want call detail information when they have a dispute with the provider and therefore agrees with the commenter who suggested that limited call information be available to enable customer service representatives to resolve customer disputes. As reproposed, the Division will also add a requirement that records of consumer complaints be maintained for two years, so that the Division can follow up if consumer complaints are not adequately dealt with and a provision in N.J.A.C. 13:45A-8.5(a)4 to make clear that a consumer cannot be charged for a call for customer service.

25. COMMENT: Two commenters object to the breadth of the requirement in N.J.A.C. 13:45A-8.9(b) and suggest that it be limited. One commenter suggests that a provider maintain for at least two years the following records: (i) detailed rate decks for all of provider's cards, including detailed breakdowns of all rates, charges and fees applicable for calls to all destinations on the rate deck and all records showing all modifications made to the rate decks during such period; (ii) records of provider's calling card platform settings showing whether voice prompts announcing call duration have been set to correspond with actual call duration; and (iii) call detail records and PIN decrement records. The other commenter suggests that call flows contain hundreds of different voice prompts performing many different functions, including a welcome message, instructions on how to place a call and when card balance is exhausted. Retaining copies of all prompts would be costly with no corresponding benefit to the customer. It suggests limiting the types of voice prompts to be retained. It offers the following language: A provider shall maintain internal records of changes to all rates and call detail data records and recordings of voice prompts announcing rates, fees or charges for at least two years.

RESPONSE: The Division generally agrees with the commenters. As reproposed, N.J.A.C. 13:45A-8.9(c) will combine the suggestions of the two commenters.

26. COMMENT: Two commenters disagree with the provision in N.J.A.C. 13:45A-8.12(b) that entitles customers to a refund unless at least 98 percent of all call attempts with a provider's cards to valid, correctly dialed numbers are completed. One commenter states that it is impossible to comply with paragraph (b)1, at least in the case of its international calls. The commenter reports that it is working with its terminating carriers to improve its ratio of successfully connected calls to attempted calls and suggests that the standard should be based on the destination of the call.

One commenter believes that the definition of "commercially reasonable manner" is not workable and that the requirement is beyond the scope of the Act. The commenter states that the Act requires that refund policies be disclosed, but it does not mandate that a particular policy be required. The commenter suggests that the proposed definition of "commercially reasonable manner" is very problematic. No provider can guarantee this percentage or any percentage, since the entire process of completing a call involves multiple other carriers, none of whom the [page=1974] provider can control. The commenter asks whether the requirement to measure 98 percent completion for all calls relating to a particular card or to the entire platform and what period of time applies to that calculation? How does this all relate to the particular consumer's experience and request for a refund? For example, there could be a 98 percent completion rate for a provider's platform overall but a particular consumer, calling a particular destination(s) during a limited time frame could have had a completion rate much lower than that. Or the reverse could be true. The consumer could have had an overall completion rate on all calls made of 99 percent while the over all platform for that time period had a completion rate lower than 98 percent because of termination failure in a location not called by the consumer. In such an instance, the consumer had a reasonable experience with the card and thus should not be entitled to a refund. Moreover, the percentage completion rate for a particular consumer varies based on the number of calls made for the card in question.

One commenter states that for the same reasons, N.J.A.C. 13:45A-8.12(b)2 is also not feasible. There is often no record of when a call fails to reach a provider's platform. The commenter argues that the prepaid calling card industry is highly competitive. Consumers will complain to the provider if they are not satisfied with the service or will buy other cards.

RESPONSE: Although there is at least one state, Washington , that has the same 98 percent completion performance standard, the New Jersey performance standard for completion of local exchange calls is 95 percent. The Division agrees that 98 percent is not a workable standard. Moreover, the Division acknowledges that it is not clear how proposed rule N.J.A.C. 13:45A-8.12(b) would be applied; whether it applies to a particular card or the entire platform and what the measuring period is. The Division believes that what is commercially reasonable will be developed over time on a case-by-case basis. At some point it may be feasible to quantify the standard, but the Division will delete the quantitative standard in paragraphs (b)1 and 2.

27. COMMENT: One commenter states that requiring voice prompt notification of pay phone surcharges in N.J.A.C. 13:45A-8.13 is redundant. Such notification is required on all marketing and advertising materials and on the card itself. The requirement may be costly to providers who have to acquire additional hardware or software and may be annoying to customers.

RESPONSE: The notice required by N.J.A.C. 13:45A-8.3(a)3vii facilitates the price comparison between cards. The voice prompt required by N.J.A.C. 13:45A-8.13 is notice to the consumer after the card is purchased and the consumer is about to make a call. It would inform a consumer that the call might be less expensive if the access number was dialed from other than a pay phone.

Changes to the rules as originally proposed are discussed in the comments and responses above. The reproposed rules are summarized as follows:

N.J.A.C. 13:45A-8.1 of the reproposed rules sets forth the scope of the subchapter as reproposed. Reproposed N.J.A.C. 13:45A-8.2 contains definitions of terms used in the subchapter. The definitions proposed for "prepaid calling card distributor," "prepaid calling card retailer" and "provider" employ the noun "person," which is defined in the rule to include a natural person in addition to any business entity, as a substitute for the word "company" where that word appears in the definitions in N.J.S.A. 56:8-175. The Division believes that the change does not alter the Legislature's intent, but merely conforms the reproposal to other Division rules that include natural persons as actors within their scope.

The reproposed definition of "prepaid calling card distributor" adds the words "or service" to the definition as in the Act to make clear that it includes distributors who purchase minutes from a provider for use with their private label cards.

The definitions of "prepaid calling card" and "prepaid calling service" in N.J.S.A. 56:8-175 contain exclusions that use the words "the object" without an antecedent, to refer to something that is purchased that establishes a carrier-customer relationship, or a "pre-existing relationship with [a] wireless service provider." These relationships with consumers are expressly excluded from the scope of the prepaid calling cards and prepaid calling services the act is intended to regulate. The proposed definitions use the words "a device" for clarification. A cellular telephone is an example of such a "device," purchased from a wireless telecommunications company with an accompanying service contract, which would not be within the definition of a prepaid calling card or service.

N.J.A.C. 13:45A-8.3 contains disclosures required of providers and distributors for the advertising and sale of prepaid calling cards, including the value of the card, customer service and access numbers; the authorization code or PIN; the expiration date; all fees and charges; the rounding policies; and any geographic, area code or other limitations affecting use, price or unit value. Reproposed N.J.A.C. 13:45A-8.3 specifies those disclosures that are required to be made on the card and those that may be disclosed in other places and in other forms. The section also states requirements for presentation and explanation of certain disclosures and the circumstances in which information must be furnished in a language other than English.

Reproposed N.J.A.C. 13:45A-8.4 sets forth the charges that can be deducted from a card's balance and makes a distributor and retailer responsible for knowing violations of the requirements of N.J.A.C. 13:45A-8.3.

Reproposed N.J.A.C. 13:45A-8.5 requires providers to maintain a toll-free customer service telephone number with sufficient capacity to handle a reasonable anticipated volume of calls, at which a consumer may speak to a live operator.

N.J.A.C. 13:45A-8.6 requires a provider to give consumers verbal announcements after a destination number is entered, but prior to processing a call, stating the minutes remaining on the card. Reproposed N.J.A.C. 13:45A-8.6(c) is reproposed as subsection (d).

Reproposed N.J.A.C. 13:45A-8.7 requires that all minutes or rates advertised or promoted must be immediately available and achievable.

Reproposed N.J.A.C. 13:45A-8.8 contains disclosures relating to billing decrements and monetary rounding.

Under reproposed N.J.A.C. 13:45A-8.9, in the event of a dispute with a provider, a consumer would be entitled to request certain information about the disputed call or calls. Providers are required to maintain records of more detailed information, so that the Division can follow-up consumer complaints.

The reproposed rule also contains requirements and limitations relating to activation and recharging (N.J.A.C. 13:45A-8.10), expiration (N.J.A.C. 13:45A-8.11), network performance standards and refunds (N.J.A.C. 13:45A-8.12), surcharges (N.J.A.C. 13:45A-8.13), access numbers (N.J.A.C. 13:45A-8.14) and violations (N.J.A.C. 13:45A-8.15).

The Director has determined that the comment period for this reproposal shall be 60 days. Therefore, pursuant to N.J.A.C. 1:30 -3.3(a) 5, this notice of reproposal is excepted from the rulemaking calendar requirement.

Social Impact

The reproposed rules affect the prepaid calling card industry and the users of the cards.

Both the Federal Trade Commission (FTC) and the FCC report and the Division found that some issuers do not disclose their rounding policies and all of their fees. Consumers do not know why they seem to get fewer minutes of actual telephone time than advertised. The reproposed rules would require that companies disclose their cards' fees and charges and policies that affect the minutes actually available. Consumers could then make informed choices when purchasing cards.

The proliferation of companies in the prepaid calling card industry results in intense competition, manifested to consumers in cheaper rates and more minutes. The Division's spot check of some industry products indicates that some companies do not deliver all that they promise. The reproposed rule would require some of the providers and distributors to change the way they do business for the benefit of consumers.

Economic Impact

The reproposed rules should help consumers by discouraging unfair practices that result in consumers getting fewer minutes of telephone time than they are led to believe. By comparing the fees, charges and policies disclosed, consumers should be able to purchase cards that most economically meet their needs. Consumers should get the value in the card that they bargain for. It is impossible to know how many consumers use prepaid calling cards.

[page=1975] The Division does not know how many issuers, distributors and retailers there are, but there may be hundreds. One of the major issuers of prepaid calling cards is headquartered in New Jersey.

Compliance with the reproposed rule may result in increased costs of doing business for companies that had been underselling the competition by advertising more minutes for less money than they actually deliver.

Costs of compliance may include the cost of producing new cards, packaging or point of sale material with the additional required disclosures and providing the disclosures through the customer service number or web site or other electronic medium. Issuers may need to acquire additional equipment and staff to accommodate the anticipated calls to the customer service number. They may also need to acquire new hardware or software or reprogram existing software, to meet the verbal disclosure requirements and required voice prompts, to provide customers with call detail data information and to maintain call detail data records. Companies that cannot provide commercially reasonable service may be required to issue refunds.

Federal Standards Statement

A Federal standards analysis is not required because the reproposed rules are not subject to any Federal standards or requirements. The Federal Telecommunications Act, 47 U.S.C. §222(a) and related FCC regulations requiring telecommunications carriers to employ specific procedures to authenticate a customer's request for call detail information do not apply to non-subscription services.

Jobs Impact

Companies for which compliance with the reproposed rules means increased costs of doing business that may adversely affect their ability to compete, may have to reduce their workforce. To the extent that the reproposed rules create a "level playing field," companies that are already meeting the requirements of the reproposed rules may be better able to compete and maintain or increase market share, avoiding reductions in the workforce and perhaps creating additional jobs.

Agriculture Industry Impact

The reproposed rules will have no impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

There are hundreds of companies in the prepaid calling card industry, some if not many of which may be small businesses as defined in the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq.

The reproposed rules impose no reporting requirements but do impose compliance and recordkeeping requirements. N.J.A.C. 13:45A-8.3 contains required disclosures on the card and through other media about fees, charges, surcharges, taxes and policies affecting the number of minutes actually available. An explanation of how the number of minutes is calculated is also required.

N.J.A.C. 13:45A-8.4 requires companies to maintain a toll-free customer service telephone number with sufficient capacity and staffing to accommodate a reasonably anticipated number of calls.

Under N.J.A.C. 13:45A-8.5, companies are required to provide verbal announcements after the destination number is entered stating how much value remains on the card.

N.J.A.C. 13:45A-8.7 requires companies to maintain internal records of changes to their international rates and call data records for at least two years.

N.J.A.C. 13:45A-8.12 requires providers to make refunds if services fail to operate in a commercially reasonable manner.

The reproposed rules will not require professional services. The reproposed rules apply to providers and distributors of all sizes. The reproposed rule addresses deceptive practices of businesses in the industry, which harm consumers whether the businesses engaging in the practices are large or small.

Smart Growth Impact

The Division does not believe that the reproposed new rules will have any impact upon the achievement of smart growth or upon the implementation of the State Development and Redevelopment Plan.

Housing Affordability Impact

The reproposed new rules will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the regulation would evoke a change in the average costs associated with housing because the reproposed rules concern prepaid calling cards and calling service.

Smart Growth Development Impact

The reproposed new rules will have an insignificant impact on smart growth and there is an extreme unlikelihood that the regulation would evoke a change in housing production in Planning Areas 1 or 2 or within designated centers under the State Development and Redevelopment Plan in New Jersey because the reproposed rules concern prepaid calling cards and calling service.

Full text of the reproposed new rules follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

SUBCHAPTERS 6. [THROUGH 8] AND 7. (RESERVED)

SUBCHAPTER 8. PREPAID CALLING CARDS

13:45A-8.1 Scope

(a) The provisions of this subchapter apply to providers offering or selling prepaid calling service or prepaid calling cards to persons in the State and distributors of such cards for resale to persons in the State.

(b) The provisions of this subchapter shall not apply to prepaid calling cards printed prior to August 1, 2008 and point-of-sale material relating to such cards printed prior to that date.

(c) All prepaid calling cards printed after August 1, 2008 and all sales material and voice prompts created, printed, distributed or aired after that date shall be subject to this subchapter.

13:45A-8.2 Definitions

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Advertisement" means the attempt, directly or indirectly by publication, dissemination, solicitation, endorsement or circulation or in any other way, to induce directly or indirectly any person to purchase any prepaid calling card or calling services, appearing in any newspaper, magazine, periodical, circular, in-store or out-of-store sign or other written matter placed before the consuming public or in any radio broadcast, television broadcast, electronic medium or delivered to or through any computer.

"Government fees" means any and all fees, taxes and charges assessed pursuant to State or Federal law, regulation or other mandate or requirement, including universal service fees and charges.

"Pay phone surcharge" means the surcharge that a provider may charge a customer when that consumer places a call with a card from a pay phone using a toll-free access number. The pay phone surcharge shall be deducted from a card's balance.

"Permitted fee" means the fees and surcharges that a provider may charge to, or deduct from, a card's balance for the use of that card, in addition to the rate per minute to the particular destination called, which includes and is limited to any pay phone surcharge, any recharge convenience fee, any directory assistance fee and any government fees.

"Person" means a natural person, partnership, corporation, limited liability company, or any other entity.

"Prepaid calling card" or "card" means any right of use purchased for a sum certain that contains an access number and authorization code that enables a consumer to use a prepaid calling service. Such rights of use may be embodied on a card or other physical object or may be purchased by an electronic or telephonic means through which the purchaser obtains access numbers and authorization codes that are not physically located on a card or other object. "Prepaid calling card" shall not be construed to include cards or other rights of use that provide access to:

[page=1976] 1. Telecommunications service if the card or other rights of use and telecommunications service are provided:

i. For free or at no additional charge as a promotional item accompanying a product or service purchased by a consumer; or

ii. Pursuant to an awards, loyalty, rebate or promotional program without any separate monetary consideration being given by the consumer solely in exchange therefor; or

2. A wireless telecommunications service account if the purchaser has a pre-existing relationship with the wireless service provider or establishes a carrier-consumer relationship via the purchase of a device.

"Prepaid calling card distributor" or "distributor" means and includes: any person who purchases or receives prepaid calling cards or service from a prepaid calling service provider, a telecommunications carrier or other distributor and sells or distributes those cards or service to one or more distributors of prepaid calling cards, or to one or more prepaid calling card retailers; and any person who otherwise actively engages in the promotion, advertising or dissemination of prepaid calling cards or service and who is not a provider. "Prepaid calling card distributor" shall not include any prepaid calling card retailers engaged exclusively in point-of-sale transactions with consumers.

"Prepaid calling card retailer" means any person who sells or offers to sell prepaid calling cards directly to consumers.

"Prepaid calling service" or "service" means any prepaid telecommunications service that allows consumers to originate calls through a local, long distance or toll-free access number and authorization code, whether manually or electronically dialed. Prepaid calling service shall not be construed to include any service that provides access to a wireless telecommunications service account through which the purchaser has a pre-existing relationship with the wireless service provider or establishes a carrier-customer relationship via the purchase of a device.

"Provider" means any person providing prepaid calling service to the public using its own, or a resold, telecommunications network or voice over Internet technology.

"Telecommunications network" means the combination of network elements that are required to transmit information in the form of voice, data or video between or among points specified by the user in local or long distance applications without change in the form or content of the information sent and received.

"Toll-free number" means an 800 number, or other telephone number widely understood to be toll-free, which, when called as the destination number or as an access number, shall not result in the calling party being assessed, by virtue of completing the call, any fee, charge or higher rate for the call unless such fee, charge or higher rate is disclosed pursuant to N.J.A.C. 13:45A-8.3(c).

13:45A-8.3 Disclosure requirements

(a) The following standards and requirements for consumer disclosure and services shall apply to the advertising and sale of prepaid calling cards and prepaid calling services:

1. Any advertisement of the price, rate or unit value in connection with the sale of prepaid calling cards or services shall include a disclosure of any geographic, area code or exchange limitation to the advertised price, rate or unit value, as well as a disclosure of any additional surcharges, call setup charges or fees applicable to the advertised price, rate or unit value;

2. The person responsible for issuing a card, whether it be the provider or distributor, or both, shall cause the following information to be conspicuously printed on the card or, if the rights to use the service are not embodied in a card or other physical object, the information shall be furnished as provided in (a)3 below:

i. The name of the provider and, if applicable, the distributor issuing the card;

ii. A toll-free customer service number and notice that at that number the user can obtain the number of minutes remaining on the card for a call to a particular destination number;

iii. A network access number, if available, to access service and the charge, if any, for use of that number;

iv. The authorization code or PIN, if required to access service, which shall be concealed by opaque security film with a scratch layer, or other means, until uncovered by the user;

v. The expiration date, if any, which shall be a fixed date, or the expiration period, which shall be a specified period measured from first use of the card;

vi. If applicable, that the card or service is subject to maintenance and other fees and charges;

vii. Instructions on how to use the card; and

viii. Instructions on how to obtain complete information about the use of the card, including fees and charges for, and any restrictions or limitations on the use of, the card;

3. The person responsible for the packaging of a card, whether it be the provider or distributor, or both, shall cause the following information to be conspicuously printed on the packaging, if any, or on a clear and conspicuous poster or other writing in plain language at the point of sale, and through the customer service number, a web site or other electronic medium, the following information:

i. The name of the provider and, if applicable, the distributor issuing the card;

ii. The value of the card or service, in dollars or minutes;

iii. The amount and frequency of any permitted fee that may be applicable to the use of the card or service for calls originating within the United States;

iv. Notice that additional per minute rates or charges, including surcharges, taxes or fees, including monthly or other periodic fees, maintenance fees, per-call access, connection fees or disconnection fees, may apply to use of the card or the service for calls to or from international telephone numbers, indicating the applicable respective amounts and which such rates or charges, if any, are assessed on a call prior to the dialing of a destination number;

v. If advertising for a card includes rates for calls to a particular region, country or countries or a specific city, the rates for calls made to the destination or destinations advertised for the card or, in lieu of disclosing each rate, the highest rate for any calls to the destinations advertised for that card;

vi. Notice that additional or different per minute rates, charges or fees may apply to calls made to or from international cellular and international wireless telephone numbers;

vii. Where a toll-free number is not the exclusive access number, notice that per minute rates may be higher, or a surcharge may be imposed, for calls made via toll-free numbers;

viii. Notice that a pay phone surcharge may be imposed or that the per minute rate may be higher on a call made from a pay phone;

ix. The minimum charge per call, if any;

x. The definition of the term "unit," if applicable;

xi. The billing decrement and monetary rounding policies as provided in N.J.A.C. 13:45A-8.8;

xii. The recharge policy, if any;

xiii. The refund policy, if any; and

xiv. The expiration policy, if any;

4. The person responsible for advertisements that are not at the point of sale or on a website or other electronic medium shall cause the following information to be disclosed in such advertising:

i. The name of the provider or distributor issuing the card;

ii. A toll-free customer service number and notice that at that number the user can obtain complete information about the use of the card, including fees and charges, any restrictions or limitations on the use of the card and the number of minutes remaining on the card for a call to a particular destination number; and

iii. The expiration policy, if any;

5. The value of the card and the amount of the various charges, however denominated, that are required to be disclosed by (a)2 and 3 above, shall be expressed in the same format. That is, if the value of a card is expressed in minutes, all charges shall be expressed in minutes based on calls from New Jersey to the advertised destination. If the value of the card is expressed in dollars, all charges shall be expressed in dollars;

6. Any claims made in the information required by (a)3 above regarding the number of minutes available to one or more [page=1977] destinations shall contain an explanation as to how the maximum number of minutes was determined. Such number of minutes shall be available to the consumer under the conditions stated;

7. Where any rates or claims listing the maximum number of minutes available to one or more particular destinations are made in the information required by (a)3 above that is furnished in writing, and such rates or claims are subject to change, the provider or distributor shall include in such written information, the fact that rates are subject to change, the date the written information was printed, the date through which the rates or claims are in effect, if applicable, and how the consumer can contact the provider to determine current rates and terms of service;

8. Where any rates or claims listing the maximum number of minutes available to one or more particular destinations are made in the information required by (a)3 above that is furnished through the customer service number, a web site or other electronic medium, the rates or minutes shall be those in effect when the information is furnished; and

9. If a language other than English is predominantly used on a prepaid calling card or its packaging, or in point-of-sale advertising or promotion for the prepaid calling card or prepaid calling service, the information required by (a)3 above shall also be disclosed in that language on the card, packaging, advertisement or promotion.

13:45A-8.4 Prohibited practices

(a) A provider shall not charge, apply or deduct from a card's balance any fees, taxes, surcharges or other amounts for use of the card, except:

1. The rate per minute for the particular destination called;

2. Any permitted fees; and

3. Any rate per minute, fee or charge disclosed pursuant to N.J.A.C. 13:45A-8.3(a)3.

(b) Prepaid calling card distributors shall not distribute any prepaid calling card, which they know violates any provision of N.J.A.C. 13:45A-8.3.

(c) Prepaid calling card retailers shall not sell or offer for sale any prepaid calling card, which they know provides fewer minutes than the number of minutes promoted or advertised for that card, including the number of minutes listed on the card, any advertising or point-of-sale material related to the card or any voice prompt indicating the number of minutes available for a call with the card.

13:45A-8.5 Required toll-free telephone number

(a) A provider shall establish and maintain a toll-free customer service telephone number that shall meet the following requirements:

1. Customer service may be provided by a combination of a live operator, interactive voice response and electronic voice recording of customer inquiries and complaints, but live operator service shall be available 24 hours a day, seven days a week. If an electronic voice recorder is used, the provider shall attempt to contact the customer no later than the next day following the date of the recording;

2. The telephone number shall have sufficient capacity and staffing to accommodate a reasonably anticipated number of calls without incurring a busy signal or undue wait. If a language other than English is predominantly used on a card or any advertising for a card or service, such card or advertising shall contain a notice in that other language whether customer service is available in that other language;

3. The telephone number shall allow consumers to lodge complaints and obtain information on all of the following:

i. All rates, surcharges, taxes and fees;

ii. The minutes and, if applicable, the dollar balance, available and remaining on the card, for use in a single, uninterrupted call to a single, requested destination through the card and prepaid calling service;

iii. The provider's recharge, refund and expiration policies; and

iv. In the event of a dispute, the information specified in N.J.A.C. 13:45A-8.9(a); and

4. A provider shall not impose a fee or surcharge related to obtaining customer service, including any charge related to connecting with the customer service number or waiting to speak to a live operator.

13:45A-8.6 Verbal disclosure requirements

(a) Providers shall provide a verbal announcement, which may be automated, immediately after a destination number is entered and prior to the processing of the call, stating the minutes remaining on the prepaid calling services account or prepaid calling card for a call to the number entered and offering the caller the opportunity to cancel the call, followed by a pause giving the caller reasonable time to terminate the call without incurring any charge for the call.

(b) The voice prompt shall state only the number of minutes available for that call to the dialed destination. The caller must be able to receive 100 percent of the minutes of prepaid calling service that have been announced on the voice prompt for such call. The provider or distributor may not disclaim liability under this section by providing notice that the announced minutes are subject to, or before the application of, fees or charges or by utilizing other disclaimers or limitations. Other than information about the number of minutes available to the destination dialed by the consumer on the particular call, providers shall not advertise or promote minutes or rates available for calls to other destinations through voice prompts after the entry of the destination number dialed by the caller.

(c) The consumer shall not be charged for any busy signal or unanswered call.

(d) When, during a call, the prepaid account or card balance is about to be completely depleted, the provider shall provide a voice prompt or other audible signal at least one minute or billing increment before the time expires.

1. If the voice prompt or other audible signal occurs more than one minute before the call time expires, then the voice prompt or audible signal shall indicate the minutes of call time remaining.

13:45A-8.7 Availability of minutes advertised or promoted

All minutes or rates, or both, promoted or advertised on any prepaid calling card, any point-of-sale material relating to that card or otherwise relating to any prepaid calling service, shall be available and achievable by the consumer and there shall be no limitations on the period of time for which the promoted or advertised minutes or rates, or both, will be available to the consumer unless those limitations are clearly and conspicuously disclosed in the same location on the card, advertising or point-of-sale material where the minutes or rates, or both, are promoted or advertised.

13:45A-8.8 Billing decrement rounding and monetary rounding

(a) The billing decrement required to be disclosed under N.J.A.C. 13:45A-8.3(a)3xii shall be the policy that applies to the use of the prepaid calling card or calling service for calls from New Jersey to the advertised destination no matter where the caller is when the call is placed. The disclosure shall also give notice, if applicable, that additional or different billing decrement policies may apply to usage of the prepaid calling card or prepaid calling service to or from other destinations;

(b) A provider or distributor shall not be required to print a billing decrement rounding policy when calls are rounded no higher than to the nearest minute.

(c) A provider or distributor shall not be required to print a monetary rounding policy when rates are rounded no higher than the nearest cent.

13:45A-8.9 Call detail information; records

(a) In the event of a dispute between a customer and a provider concerning the duration or occurrence of a call, which cannot otherwise be resolved, the provider shall provide the customer with the following information about the disputed call or calls:

1. The area code or country code of the originating telephone number;

2. The area code or country code of the terminating telephone number; and

3. The date, time and call duration.

[page=1978] (b) A provider shall maintain for at least two years records of all consumer complaints received by live customer service representatives.

(c) A provider shall maintain for at least two years a sample of all prepaid calling cards, card packaging and advertisements, including point-of-sale advertisements; copies of all detailed rate decks for all of provider's cards, including detailed breakdowns of all rates, charges and fees applicable for calls to all destinations on the rate deck and all records showing all modifications made to the rate decks during such period; records of provider's calling card platform settings showing whether voice prompts announcing call duration have been set to correspond with actual call duration; recordings of voice prompts announcing rates, fees or charges; and the following call detail information: the dialing and signaling information that identifies the inbound access telephone number called, the number of the originating telephone, the date and time the call originated, the date and time the call terminated, the called telephone number and the PIN and/or account number associated with the call and the PIN decrement records.

13:45A-8.10 Activation and recharging

(a) If a card is not available for use until activated by a point-of-sale terminal or comparable means, notice shall be provided on the card or on the front of the card's packaging in language that reasonably explains that the card has no value until activated.

(b) If a customer contacts the provider to recharge the card, the provider shall inform the customer, upon request, of the per minute rate and all charges and/or fees that apply to the use of the card for calls within the continental United States made from New Jersey, including, but not limited to, maintenance fees, pay phone surcharge and connection fees.

13:45A-8.11 Minimum active period; maintenance fees

(a) A card shall expire at the earlier of the expiration date or the end of the expiration period stated on the card. Cards without a specific expiration date or policy printed on the card, and with a balance of service remaining, shall be considered active for a minimum of one year from the date of sale, or if recharged, from the date of the last recharge.

(b) No maintenance or dormancy fee shall be charged against a card for any period prior to the time it is first used to dial a destination number.

13:45A-8.12 Required refunds

A provider that issues prepaid calling cards or prepaid calling services shall provide a refund to any purchaser of a prepaid calling card or prepaid calling services if the network services associated with that card or services fail to operate in a commercially reasonable manner. The refund shall be in an amount not less than the value remaining on the card or in the form of a replacement card and shall be provided to the consumer within 60 days from the date of receipt of notification from the consumer that the card has failed to operate in a commercially reasonable manner.

13:45A-8.13 Surcharges

(a) A provider shall not charge any fee or surcharge that is not disclosed as required by this subchapter or that exceeds the amount disclosed by the provider.

(b) A provider shall not charge a consumer for, or impose a fee or surcharge on, any call if the consumer is not connected to the number called. For this purpose, a call shall not be considered connected to the number called if the consumer receives a busy signal or the call is unanswered.

(c) In the case of prepaid calling cards or services utilized at a pay phone, the provider shall provide voice prompt notification of any applicable pay phone surcharges, in addition to the notice required by N.J.A.C. 13:45A-8.3(a)3vii, so long as the provider affords users of prepaid calling cards or services reasonable time to terminate the call after notification of applicable pay phone surcharges without incurring any charge for the call.

13:45A-8.14 Access number

A provider shall maintain access numbers with sufficient capacity to accommodate a reasonably anticipated number of calls without incurring a busy signal or undue delay.

13:45A-8.15 Violations

Without limiting the prosecution of any other practices, which may be unlawful under the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., any violation of the provisions of this subchapter shall be subject to the sanctions contained in the Consumer Fraud Act.

   
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