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Re:  Qwest Communications International, Inc., Apparent 
Liability for Forfeiture, Consent Decree and Order, File No. 
ENF-99-11, NAL/Acct. No. 916EF008 (rel. July 21, 2000).

     I write separately to again express my uneasiness with 
the Commission's use of consent decrees to extend our 
regulatory reach.1  While I fully support the use of consent 
decrees as an effective way to bring closure to enforcement 
proceedings, I urge my colleagues to reexamine the 
Commission's consent decree philosophy.  In my view decrees 
must adhere to three tenets:  (1) the terms of the consent 
decree must be directly linked to the violations; (2) the 
Commission must be prepared to monitor and enforce each 
provision of the decree; and (3) the resulting regulatory 
obligations should not create excessive company-specific 

     First, there must be a direct link between the terms of 
the consent decree and the violation itself.  While it is 
important to ensure that carriers not engage in slamming, 
the Commission must not be tempted into micromanaging 
business decisions of offending carriers.  For example, here 
our order requires Qwest to ``withhold twenty percent of the 
commission [to distributors] for at least sixty days to 
recover any penalties and charges that may result from any 
unauthorized orders.''2  While it may be appropriate for the 
consent decree to require Qwest to take steps to eliminate 
financial incentives for unauthorized orders, and thus deter 
misconduct, it is not clear to me why the FCC is mandating a 
hold back percentage or a 60-day period.  There does not 
appear to be any link between a 60-day hold period (as 
opposed to a 30- or 45-day hold) and the alleged violations 
at issue.  Therefore, I see no basis for including these 
specific terms in the decree.  On the other hand, requiring 
an offending carrier to train its employees and agents about 
our slamming rules and policies seems appropriate.3  
However, micromanaging the specifics of a licensee's hiring 
and firing is not.4  I urge the Commission, therefore, to 
develop a ``germaneness test'' to define the limits of what 
the Commission should undertake in consent decrees.  

     Second, the Commission should not include provisions in 
consent decrees that it cannot or, practically speaking, 
will not enforce.  Today's Order requires the Commission to 
monitor, among other things, advertising campaigns, labor 
practices, employee pay-backs, and commission 
``holdbacks.''5  So, for example, Qwest, as part of a 
mandated media campaign, must within 6 months ``distribute 
brochures and place media advertising for consumers who do 
not speak English as their primary language, in their 
language of choice.''6  Yet there are hundreds of 
``languages of choice,'' so it is not at all clear what the 
full scope of this obligation truly is.  And how are we 
going to police this obligation? Similarly, regarding the 
hold back provisions mentioned above, are we really 
committed to monitoring and enforcing these details?  If 
Qwest decides that 30% for 90 days is more appropriate than 
the 20% for 60 days provision, is Qwest really required to 
petition this agency for ``permission'' to change this 
business practice?  The consent decree's provisions are well 
intentioned, but the scope of our legally-binding 
obligations must be no broader than we are prepared to 
monitor and enforce.

     Third, a consent decree should not impose excessive 
carrier-specific obligations, particularly on consumer 
protection issues.  I believe consumers should be able to 
look at our rules and regulations to easily determine what 
their rights are vis--vis our licensees.  By creating 
extensive carrier-specific regulation - either through 
consent decrees or license transfer proceedings - we 
undercut the ability of consumers to know their rights.  In 
fact, we virtually guarantee that consumers will not know 
what obligations apply because it is simply impractical to 
expect consumers to unearth these decrees from the various 
resting places within the code to ascertain their rights.  
For example, the consent decree requires Qwest to establish 
a ``stay away'' list of customers who have stated that they 
would never do business with Qwest.7  Yet we have detailed 
(and different) regulations restricting telephone 
solicitation: in response to a consumer request, telephone 
solicitors must place the consumer on a ``do-not-call list'' 
for a period of ten years.8  Presumably our current rule 
adequately protects consumers.  Therefore, I would be 
inclined to reinforce our current ``do-not-call list'' 
obligations on Qwest with additional reporting and 
monitoring requirements.  Moreover, in my view, any 
violation of these rules during the consent decree period 
should be subject to particularly harsh penalties.  My 
approach achieves the Commission's basic goals, but without 
adding to the extensive company-specific regulations already 
in place.

     In the end, consent decrees must punish the violation, 
establish an explicit probationary period, and memorialize 
the licensee's commitment to preventing recurrence of the 
violations.  In turn, the FCC assures the public that the 
licensee will be strictly monitored during the probationary 
period and that the remedial provisions of the decree will 
be vigorously enforced.  Any additional violations during 
the probationary period will be met with harsh penalties.  
Unfortunately, as detailed above, our current consent decree 
philosophy goes far beyond these fundamental principles.

     For the foregoing reasons, I respectfully dissent in 

1 See Statement Of Commissioner Harold Furchtgott-Roth, 
Concurring In Part, Dissenting In Part, Re:  MCI Worldcom 
Communications, Inc., Consent Decree and Order, File No. EB-
00-TC-055, NAL/Acct. No. X3217-008 (rel. June 6, 2000).

2 Qwest Communications International, Inc., Apparent 
Liability for Forfeiture, Consent Decree and Order, File No. 
ENF-99-11, NAL/Acct. No. 916EF008,  16 (rel. July XX, 

3 See Qwest Consent Decree  14.

4 See id. at  14-15.

5 See id. at  23, 14-17.

6 See id. at  23.  It is also not clear how effective such 
a campaign would be at resolving the apparent underlying 
problem.  If, in response to a record of violations, the 
goal is to prevent language barriers from facilitating 
slamming, then bilingual operators provide a much more 
direct answer to this problem.

7 See id. at  20.  These rules also apply to customers who 
have accused Qwest of slamming.

8 See 47 C.F.R.  64.1200.