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STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH
CONCURRING IN PART, DISSENTING IN PART
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-à-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 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.