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 regulation.

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 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 part.