Advisory Opinion to Cohn-Ellyatt (09-29-99)

Roy Ellyatt, Chairman
International Telemedia Association
45 South Molton Street
London, England
W1Y 1HD

RE: International Long Distance Toll Charges for Computer-Accessed Entertainment Programs

Dear Mr. Ellyatt:

This is in response to your letter, dated June 4, 1998, regarding computer-accessed information or entertainment services that are billed via international telephone toll charges ("toll-billed entertainment services"). At the request of Eileen Harrington, I have prepared this staff advisory opinion regarding toll-billed entertainment services.

The attachment to your letter indicates that a consumer would access these services by downloading and installing "viewer" software at a particular site on the World Wide Web. This software would then cause the consumer's modem to disconnect from the Internet and dial an international long distance number to access the service. The entertainment provider would evidently receive remuneration for the entertainment service by sharing in the revenues resulting from charges associated with the international long distance call and collected by a telephone company. This revenue sharing arrangement would presumably be identical to the revenue sharing arrangement that some providers of international audio information or audio entertainment now have, as discussed in the Commission's recent Notice of Proposed Rulemaking relating to the Pay-Per-Call Rule.(1)

Your letter requests FTC staff comment on two International Telemedia Association ("ITA") proposals relating to advertising disclosures for these toll-billed entertainment services. Specifically, you request comment on an ITA-recommended "disclaimer screen" that consumers would see prior to downloading the software and starting the process described above. You also request comment on a proposal to change the current ITA policy relating to the disclosures which your members must provide when offering such services. Currently, that policy requires that your members use the disclaimer "International long distance rates apply," where appropriate. According to your letter, you now propose changing that requirement to include the additional statement "contact your long distance carrier for exact call charges." Your letter also states your belief that these disclosures would be preferable to an attempt to disclose the precise cost of a call, because such an attempt could be "potentially misleading" due to the wide range of charges that a consumer might incur when accessing an international audiotext program.

Based on the information provided in your letter, and based on our law enforcement experience with these (and similar) toll-billed entertainment services, we have a number of concerns regarding the proposed disclaimers. In addition, we have larger concerns about the overall method by which these programs are billed. These concerns, outlined below, are solely the opinion of staff, and do not necessarily represent the views of the Commission or any individual Commissioner.

Preliminarily, it should be noted that we consider your request for a staff advisory opinion within the analytical framework of Section 5 of the FTC Act, which prohibits "unfair or deceptive acts or practices in or affecting commerce."(2) Section 5 applies to a wide range of business practices, including advertising, marketing, and billing and collection. Deception occurs under Section 5 if, "first, there is a representation, omission, or practice that, second, is likely to mislead consumers acting reasonably under the circumstances, and third, the representation, omission, or practice is material."(3) Section 5 also prohibits "unfair" acts or practices. A practice is "unfair" if it causes substantial injury to consumers, if the harm is not outweighed by any countervailing benefits, and if the harm is not reasonably avoidable.(4) The Commission pursues both deceptive and unfair practices under Section 5 either through administrative law enforcement actions or through federal district court actions seeking temporary and permanent injunctive relief and, ultimately, restitution to injured consumers.

I. Proposed Disclaimer Screen

Your letter requests an opinion on a proposed "disclaimer screen" that would be viewed by consumers before accessing toll-billed entertainment programs. The proposed disclaimer screen raises a number of concerns.

First, the cost disclosures on the proposed disclaimer screen may be inadequate. The disclaimer screen currently in use states that costs "may currently range between $0.46 to $1.85 per minute" (emphasis added). In your letter, you express the view that this disclosure is "potentially misleading due to the wide and increasing range of call options." If $1.85 per minute were, in fact, the maximum a consumer could be charged for the toll-billed entertainment service, this disclaimer would not likely raise concerns about potential deception. However, based on our experience with international audiotext charges, we believe that, depending on the carrier used by the consumer and the time of day, some consumers will be charged in excess of $1.85 per minute for some toll-billed entertainment services - even though the disclaimer states that the cost of the call "may" range between these two figures. If this is the case, then we strongly agree with your assessment that a "quoted charge range of between $0.46 and $1.85 per minute does little to inform the consumer" of the cost of the service. As you stated in your letter, such a statement may be misleading to consumers, who might reasonably interpret it to mean that the most they would be charged for the services is $1.85 per minute. Obviously, the maximum per-minute charge for the service is information likely to influence a consumers' decision whether to purchase a service, and is therefore material under Section 5.

You propose modifying the disclaimer screen by replacing the disclosures described above with the statements "International long distance rates apply," and "contact your long distance carrier for exact call charges." These modified disclosures provide consumers withless information about the very material issue of cost, and are certainly not consumer-friendly, since they require a consumer to take several cumbersome steps to determine the cost of the toll-billed entertainment service.(5) More importantly, however, the modified disclaimer may not be sufficient to alert consumers to the magnitude of the charges they are about to incur. Consumers may have a reasonable expectation that the "international long distance rates" mentioned in the disclaimer screen will be lower than the actual rates charged for the toll-billed entertainment service. For some time now, U.S. consumers have been exposed to frequent and prevalent advertisements for domestic long distance services that charge 5 or 10 cents per minute, and some consumers may not realize that international rates charged in connection with toll-billed entertainment services may be considerably higher. This confusion is likely to be exacerbated by the fact that the international long distance rates involved in any toll-billed entertainment service are - by their very nature - likely to be higher than rates to countries with competitive long distance rates (where settlement rates are not high enough to sustain a revenue sharing arrangement with an entertainment provider). Under these circumstances, we believe that failure to accurately disclose the cost of accessing the service may mislead consumers about a material fact, in violation of Section 5.(6) Disclosure of the maximum cost may be necessary to prevent consumers from being misled by their otherwise reasonable expectations. To minimize the likelihood of deceiving consumers, we believe that the stated range should, at the very least, include the maximum charge which consumers may reasonably expect to be charged for accessing the service.

We understand that providing an accurate disclosure of the range of costs for a toll-billed entertainment service would require a vendor of such a service to determine the highest rate that a consumer might reasonably expect to pay. The necessity for performing this task, however, results solely from the vendor's choice to offer and charge for his or her service via a billing mechanism that makes accurate cost disclosures difficult.

Providers of toll-billed entertainment services seek to utilize a billing system that was designed solely for the purpose of collecting charges for common carrier transmission services -- i.e., long distance toll charges. Common carrier transmission services are closely regulated by the Federal Communications Commission, and are provided pursuant to the rates specified in tariffs filed with that agency. Traditionally, the provision of common carrier transmission services pursuant to tariff is granted special treatment in accordance with a national policy promoting ubiquitous phone service to the nation. Under this regulated legal structure, per-call cost disclosures have never been required for tariffed common carrier services because, under the "filed rate doctrine," consumers are deemed to know the terms and conditions of those common carrier services that are provided pursuant to a filed tariff.

Of course, the filed rate doctrine and other legal principles that apply to tariffed common carrier services have no applicability whatsoever to the services described in your letter, which are not tariffed services,(7) and are not common carrier transmission services. Providers of toll-billed entertainment services charge consumers for information or entertainment, not for the transmission of telecommunications. Therefore, the legal policies applicable to tariffed common carrier transmission services simply do not apply to toll-billed entertainment services. What does apply, however, are the basic principles of state contract law, and the basic consumer protection principles under both state law and Section 5 of the FTC Act.

To correct consumers' reasonable expectations that the cost of a toll-billed entertainment service may be significantly lower than it actually is, Section 5 may require that providers of these services disclose accurate cost information to consumers prior to purchase. The fact that a charge for an entertainment service is concealed within what appears to be an ordinary, regulated tariffed common carrier service charge does nothing to lessen this requirement.(8)

Second, the use of the word "viewer software" in the disclaimer screen raises serious concerns. From the description provided in your letter, the function of the software that would be downloaded by the consumer appears to be to cause the consumer's computer to disconnect from the Internet, and dial a long distance telephone number that connects the caller to the vendor's entertainment service. This being the case, it is difficult to conclude that this kind of computer program could be accurately described as "viewer software," since this software is not designed to manipulate computer data in order to display (or "view") the pictures. Indeed, in our view, the software is tantamount to a billing program, not a viewing program. The description of the software as a "viewer" program is likely misleading because it could: (1) obscure the fact that there are costs to downloading and running the software; and (2) create the false impression that the "viewer software" has its own intrinsic value -- for instance, that it will enhance the consumer's ability to use his or her computer to manipulate computer data in order to display pictures. This representation is material because it may reasonably lead some consumers to purchase toll-billed entertainment service when they might not have done so had the software been accurately described.

Third, the proposed disclaimer screen does not disclose the telephone number that will be dialed by the computer modem. This information is highly material information to a telephone line subscriber purchasing a toll-billed information service because it would be the only means for that consumer to later determine which telephone bill charges were attributable to which service, and is thus the only possible means for that consumer to later verify that the service was billed at the rate disclosed in the advertisement for the toll-billed entertainment service.(9) Without such information, line subscribers might reasonably, but incorrectly, conclude that the calls for which they are later billed were ordinary international long distance calls, or they may reasonably misconstrue which international toll charges are attributable to which service. This misinformation may result in consumer injury where a service is not provided as promised or billed in accordance with the disclosures, and the consumer has no adequate means of identifying this fact. Thus, we believe that failure to clearly and conspicuously disclose the telephone number that will be dialed on the disclaimer screen may be deceptive, in violation of Section 5 of the FTC Act.(10)

Finally, the disclaimer screen is inadequate to inform the consumer of the manner in which the charge will be billed. The screen does not inform consumers of the fact that the charges for using the service will appear on their telephone bill as if it were a charge for an international long distance call. This information is highly material to consumers, because this form of billing may substantially affect the consumers' ability to dispute the charges in case of a billing error or in case the toll-billed entertainment service is not provided as promised. If consumers were made aware of this information prior to purchase, it might reasonably affect their purchasing decision. Thus, failure to inform consumers that the charges will appear on their telephone bill as a charge for an ordinary international long distance call, and that this may substantially affect their ability to dispute the charge in the event of a billing error or in the event that the service is not provided as promised, is likely a violation of Section 5 of the FTC Act.

II. Billing Statements

Your letter focuses primarily on the disclosures that consumers will see when they view the web site promoting these entertainment services. An equally important area of concern, however, is the billing statement for the charges which result from the purchase of these entertainment services.

Although toll-billed entertainment services are not common carrier transmission services, charges for toll-billed entertainment services look exactly like charges for ordinary international telephone calls. In a recent case, the Commission alleged that it is a deceptive practice, in violation of Section 5 of the FTC Act, to misrepresent that an adult entertainment service, psychic service, or chat line, is actually a "directly dialed" or "collect" telephone service.(11) We believe that the principle behind this case applies here as well, that billing statements for the international toll-billed entertainment services discussed in your letter may be deceptive, in violation of Section 5 of the FTC Act.(12)

Generally, in a billing statement for a toll-billed entertainment service, the service for which the consumer is being charged (the entertainment service) is mis-identified as a long-distance call. This is an express statement, and therefore presumed to be material under the law.(13) Even without the presumption, however, this statement is obviously material because it is likely to influence a consumer's choices with respect to paying the bill, or attempting to dispute it. Consumers receiving the bill may reasonably assume that the charges are for common carrier transmission service, not for the purchase of any entertainment service, and may act on this false information in ways that cause consumer injury. For instance, some line subscribers may act on this false information by paying for entertainment services that they did not order or which they did not receive, and for which they have no legal obligation to pay.

This mis-identifying of a toll-billed entertainment service as a common carrier transmission service presents an especially difficult problem for the consumer who receives charges for such a service on his or her telephone bill, but who was not actually responsible for accessing and agreeing to pay for the service in the first place. Such consumers have no practical way of figuring out that the charges identified as "long distance" charges are actually for entertainment services ordered and/or received by someone else. The billing statements provide no information that could assist such consumers in seeking a refund or a credit for the cost of the unordered service, since the billing statement not only fails to accurately identify the service, but also fails to identify the name of any party who is actually responsible for placing the charge on the bill (e.g., the underlying vendor). These consumers may reasonably conclude that they are being billed for a common carrier transmission service, and may suffer injury when they pay for an unordered entertainment service. For these reasons, charging consumers for entertainment or information services in the form of a common carrier transmission charge may be a deceptive practice and a violation of the FTC Act.

III. Charges for Unordered Services

Under the legal principles that apply to regulated tariffed communications services, consumers have traditionally been held responsible for paying charges for unauthorized tariffed communications services incurred from their telephones.(14) However, as discussed earlier in this letter, these legal principles are wholly inapplicable to information and entertainment services such as the ones described in your letter. Instead, the applicable legal principles are the law of contracts, and the requirements set forth in Section 5 of the FTC Act.

Where providers cause line subscribers to be billed for toll-billed entertainment services that the line subscribers neither purchased nor received, these providers are engaging in the practice of unauthorized billing. Unauthorized billing is an unfair practice, in violation of Section 5 of the FTC Act.(15) As explained above, a practice is "unfair" if it: (1) causes substantial injury to consumers, (2) if the harm is not outweighed by countervailing benefits, and (3) if the harm is not reasonably avoidable.(16)

The Commission has brought several actions alleging unfairness in cases where information or entertainment providers were engaged in the practice of billing line subscribers for services that the line subscriber neither authorized nor received.(17) In light of these cases and in light of our analysis below, we believe that it may be an unfair practice, in violation of Section 5 of the FTC Act, to cause line subscribers to be billed for international telephone toll services as a means of collecting for purchases of entertainment services made by others.

Providers of toll-billed entertainment services collect for their services by causing a billing statement to be sent to the line subscriber - the person whose telephone line happened to be used to access the service. This may or may not be the same person who actually agreed to purchase and who received the service. Line subscribers who have neither received, nor agreed to pay for such services, receive bills for these services anyway. These line subscribers are injured by this method of billing because they may incur substantial costs for entertainment services which they never purchased, and which they cannot reasonably avoid.(18)

It is difficult to see many benefits that would result from the practice of billing line subscribers for purchases of entertainment services made by someone else. To the extent that such benefits exist, they are most likely the direct result of the cost savings achieved by avoiding costs associated with obtaining line subscriber authorization. In our opinion, the harm caused by billing a non-party to a transaction is not justified by these cost savings. As the Commission has stated in the context of the current Pay-Per-Call rulemaking:

A merchant is not entitled to presume that the linesubscriber has agreed to pay for a good or service merely because that subscriber's telephone was used to order a product or service. A consumer is no more obligated to pay for a non-blockable telephone-billed purchase made from his or her telephone than the consumer is obligated to pay for any other purchase (for example, a purchase of a sweater from a clothing catalog) that just happened to be made from that consumer's telephone.

63 Fed. Reg. 58549 (Oct. 30, 1998).(19)

We believe that the lack of a reasonable means by which consumers can block access from their telephones to these services (without sacrificing their ability to make international or other long distance calls) means that the injury caused by these unauthorized charges is not reasonably avoidable. Prior to the widespread availability of 900-number blocking, the Commission settled two cases with 900-number service providers in which proposed defendants had engaged in practices alleged as unfair.(20) In two more recent cases, where audiotext services were offered over toll-free numbers, the Commission alleged an unfair practice where consumers could not have blocked access to the services without sacrificing their ability to call other toll-free numbers.(21) We believe that the fundamental principle of these cases applies with equal force to toll-billed entertainment services. Where a product or service other than basic telephone transmission is billed to a telephone subscriber, and where there is no agreement from the line subscriber to pay for such product or service, it is unfair to bill a line subscriber for that product or service unless a reasonable means has been given to the line subscriber to avoid such transactions.(22)

IV. Conclusion

In sum, staff believes that the proposed disclosures on the disclaimer screen are most likely inadequate to withstand challenge under Section 5 of the FTC Act. Moreover, we believe that even if these disclosures to the person accessing the service were perfected, that there are still serious legal impediments to providing the service in the manner you propose. We believe that the practice of concealing a charge for a product or service other than basic telecommunications (i.e., common carrier) services within a long distance toll charge is a practice that is likely to injure consumers and may be both an unfair and deceptive practice in violation of Section 5 of the FTC Act. This letter reflects the opinion of the staff of the FTC and in no way represents the opinion of the Commission or of any individual Commissioner. If you have any additional questions regarding staff's response to your inquiry, please do not hesitate to contact me.

Sincerely,

Adam G. Cohn

CONCUR:

__________________________________
Eileen Harrington, Associate Director
Division of Marketing Practices
Federal Trade Commission

Endnotes:

1. 63 Fed. Reg. 58524 (Oct. 30, 1998). The services you describe in your letter would appear to utilize the same payment system as was used by the defendants in FTC v. Audiotex Connection, No. 97-0726 (E.D.N.Y., filed Feb. 13, 1997).

2. 15 U.S.C. § 45(a).

3. Cliffdale Associates, Inc., 103 F.T.C. 110, 165, appeal dismissed sub nom., Koven v. FTC, No. 84-5337 (11th Cir. 1984) (hereinafterCliffdale). It is deceptive to omit "material information, the disclosure of which is necessary to prevent [a] claim, practice, or sale from being misleading." Id. at 177. Express claims, or deliberately-made implied claims used to induce the purchase of or payment for a particular product or service, are presumed to be material. Thompson Medical Co., Inc., 104 F.T.C. 648, 816 (1984), aff'd, 791 F.2d 189 (D.C. Cir. 1986), cert. denied, 479 U.S. 1086 (1987). Information concerning the cost of a product or service also has been found to be material. Cliffdale at 174.

4. 15 U.S.C. § 45(n). See also Orkin Exterminating Company, Inc. v. FTC, 849 F.2d 1354, 1363-68, reh'g denied, 859 F.2d 928 (11th Cir. 1988), cert. denied, 488 U.S. 1041 (1989); and American Financial Services v. FTC, 767 F.2d 957, 972-78 (D.C. Cir. 1985), cert. denied, 475 U.S. 1011 (1986).

5. Assuming the consumer used the same telephone line for Internet access and telephone calls, the consumer would need to: (1) log off of the Internet, (2) call his or her long distance carrier to ask for the rates, (3) log on to the Internet again, (4) access the web page where the toll-billed entertainment service had been marketed, (5) download the software program, and (6) wait for the computer to automatically disconnect from the Internet and dial the long distance number.

6. Cliffdale at 169, n.4

7. An FCC advisory opinion explains in more detail why information and entertainment services are not tariffed services. Letter dated September 1, 1995, to Ronald J. Marlowe of Cohen, Berke, Bernstein, Brodie, Kondell & Laszlo, from John B. Muleta, Chief, Enforcement Division, Common Carrier Bureau, Federal Communications Commission.

8. We note that there are several other means to bill consumers for this type of service where cost disclosures would not be a problem (e.g., credit cards, 900 numbers, direct billing).

9. This discussion focuses on problems that may be encountered when the telephone line subscriber uses his or her own telephone line to purchase a toll-billed entertainment service. However, the discussion that follows addresses the additional problems that arise when the purchaser is not the line subscriber -- that is, the person whose telephone is used is not the same person who ordered or received the service.

10. We also note that this injury may be substantial, and is not reasonably avoidable by consumers who choose to access a toll-billed entertainment service that uses these disclaimer screens. Because there are likely to be few benefits to such a practice, it is likely that failure to disclose the sufficient information to prevent such injury to line subscribers who purchase these toll-billed entertainment services is an unfair practice in violation of Section 5 of the FTC Act.

11. FTC v. Communication Concepts & Investments, Inc., No. 98-7450 (S.D. Fla., filed December 22, 1998) ("Crown")

12. It is important to note that the Commission's proposed revisions to the Pay-Per-Call Rule would include many toll-billed entertainment services within the definition of "Pay-Per-Call" and would also prohibit the practice of disguising the charges as long-distance or other telephone toll charges. 63 Fed. Reg. 58546-47 (Oct. 30, 1998). Regardless of the outcome of the ongoing Rule amendment proceeding, vendors of toll-billed entertainment services must comply with Section 5 of the FTC Act.

13. Federal Trade Commission Policy Statement on Deception, appended to Cliffdale Associates, Inc., 103 F.T.C. 110, 188, appeal dismissed sub nom., Koven v. F.T.C., No. 84-5337 (11th Cir. 1984).

14. See e.g., American Message Centers v. FCC, 50 F.3d 35 (D.C. Cir. 1995) (denying petition to review FCC's determination that tariff required customers to pay for all completed calls); Chartways Technologies, Inc. v. AT&T, 8 F.C.C.R. 5601 (1993) (tariff's general payment obligation, which did not exclude unauthorized calls, was not unjust or unreasonable).

15. See, e.g., FTC v. J.K. Publications, Inc., et al, Docket No. CV-990004 ABC (AJWx) (C.D. Cal., filed Jan 5. 1999); U.S. v. Bally's Health & Tennis Corp., No. 94-0821 (D.D.C. 1994) (consent order) (unauthorized billing of charges to consumers' credit card accounts alleged as unfair); FTC v. Windward Marketing, No. 1:96-CV-615-FMH (N.D. Ga. May 22, 1996) (unfair debiting of consumers' checking accounts); Choice Diet Products, Inc. et al., C-3587 (F.T.C. 1995) (consent order) (unauthorized debiting of consumers' bank accounts and unauthorized billing of charges to consumers' credit card accounts alleged as unfair).

16. 15 U.S.C. § 45(n).

17. SeeFTC v. Hold Billing Services, Ltd., No. SA98CA0629 FB (W.D. Texas, filed July 19, 1998) (unfair practice to bill line subscribers for sweepstakes entry forms filled out by someone other than line subscriber where line subscriber did not consent to the charges);International Telemedia Associates, Inc., No. 1-98-CV-1925 (N.D. Ga, filed July 10, 1998) (unfair practice to bill line subscriber for services that line subscriber did not purchase or receive, based on the use, or purported use, of a line subscriber's telephone to call to a toll-free number); FTC v. Interactive Audiotext Services, Inc., No. 98-3049 CBM (C.D. Calif., filed April 22, 1998) (unfair practice to bill consumers whose telephones were used by someone else to access and purchase defendants' entertainment services by dialing non-blockable toll-free numbers); Audio Communications, Inc., 114 F.T.C. 414 (July 24, 1991) (unfair practice to induce children to dial a 900 number without providing adequate means to ensure parental authorization); Phone Programs, Inc., 115 F.T.C. 977 (Dec. 10, 1992) (unfair practice to induce children to dial 900 number without providing any reasonable means for persons responsible for payment to exercise control over the transaction).

18. This injury is further compounded by the fact that the charges in question appear on the billing statement as regulated telephone toll charges which are usually "deniable" charges. This means a consumer may, in certain instances, be denied access to telephone service for failure to pay the charge.

19. The dearth of countervailing benefits to this practice is highlighted by the fact that, in at least some instances, the charges for a supposed "international long distance telephone call" are a complete fiction -- the calls do not actually terminate in the destination indicated on the telephone bill. In these cases, where the telephone call is not actually transported to the destination for which the line subscriber is eventually charged, the appearance of a long distance telephone charge on the line subscriber's bill can be seen as little more than an abuse of the regulated telephone-toll payment system to collect for non-regulated charges. Indeed, in recent cases, the Commission has brought actions against businesses who engaged in this misleading practice. SeeFTC v. Audiotex Connection, No. 97-0726 (E.D.N.Y., filed Feb. 13, 1997); and In the Matter of Beylen Telecom, FTC File No 972-3128 (telephone calls supposedly to receive Internet entertainment services in Moldova were actually terminating in Canada). According to one source, even where the calls do terminate in the stated country of destination, "the IPs marketing the programs are usually based in the U.S.," further suggesting that the underlying goal behind toll-billed entertainment programs is not to efficiently transport entertainment content across international borders, but rather to "use regular tariffed transport for pay-per-call purposes, a practice which is at best misleading." Robert Mastin, 900 Know-How 66 (3d ed. 1996).

20. See Audio Communications, Inc. and Phone Programs, Inc.

21. International Telemedia Associates, Inc., No. 1-98-CV-1925 (N.D. Ga., filed July 10, 1998) (unfair practice to bill line subscriber for services that line subscriber did not purchase or receive, based on the use, or purported use, of a line subscriber's telephone to call to a toll-free number); FTC v. Interactive Audiotext Services, Inc., No. 98-3049 CBM (C.D. Calif., filed April 22, 1998) (unfair practice to bill consumers whose telephones were used by someone else to access and purchase defendants' entertainment services by dialing non-blockable toll-free numbers). In one respect, the harm caused by unauthorized charges for toll-billed entertainment programs is evenmore difficult for consumers to avoid than the harm caused by billing for information or entertainment services offered over toll-free numbers. This is because line subscribers may face loss of important common carrier services should they fail to pay the bill for these unauthorized charges. Unauthorized charges for toll-billed entertainment services are treated by telephone carriers as ordinary toll charges -- in other words, the consumer may be required to pay the charge at the pain of forfeiting the right to make long distance telephone calls with that carrier.

22. Importantly, we do not think that the unavoidability problem is solved by providers who offer blocking to consumers who contact them and request such blocking. We do not believe it is reasonable to require a consumer to contact a company in advance in order to "opt out" of that company's practice of unauthorized billing. In fact, we note that advertisements for toll-billed entertainment services in industry publications brag about the lack of blocking for these calls. We have seen ads that say "no chargebacks" or "FORGET 900#s AND CREDIT CARDS! EVERY CALL GOES THROUGH!"