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DISSENTING STATEMENT OF
COMMISSIONER HAROLD FURCHTGOTT-ROTH
Re: NOS Communications, Inc. and Affinity Network, Inc.
Apparent Liability for Forfeiture, Notice of Apparent
Liability for Forfeiture, File No. EB-00-TC-005, NAL/Acct.
No. 200132170011.
The Commission has taken this action under section
201(b) of the Communications Act without ever conducting a
rulemaking to establish the contours of that provision's
applicability to common carrier advertising. Moreover, as I
have explained before, section 201(b) does not empower the
Commission to regulate common carrier advertising. This
enforcement action is therefore illegal, and I urge the
affected parties to seek judicial review of this decision.
Background. Although section 201(b) has been on the
books for upwards of sixty-five years, the Commission first
applied this provision to common carrier advertising in
1998. In a notice of apparent liability issued against a
long-distance carrier that had slammed customers, the
Commission concluded - without citing a single precedent -
that a company's representations regarding its product also
constituted ``unjust and unreasonable practices'' under
section 201(b). See Business Discount Plan, Inc., Notice of
Apparent Liability for Forfeiture, 14 FCC Rcd 340 [¶ 29]
(1998). The Commission decided that the company ``knowingly
misrepresented both its identity as a reseller and the
nature of its service offering in an effort to
[intentionally] mislead small business customers, who
relied, to their detriment, on BDP's misrepresentations of
these material facts.'' Id. [¶ 34].1 Beyond reciting the
facts of that case, the Commission did not explain what it
meant by the terms ``knowing misrepresentation,''
``detrimental reliance,'' or ``material facts.''
The Commission followed up its action in Business
Discount Plan with a policy statement entitled ``Joint
FCC/FTC Policy Statement for the Advertising of Dial-Around
and Other Long-Distance Services to Consumers,'' 15 FCC Rcd
8654 (Mar. 1, 2000) (hereinafter ``Policy Statement'').
There, the Commission acted though it had for years
regulated common carrier advertising practices under section
201(b), when in fact it had only ever explicitly addressed
that issue in the Business Discount Plan dockets.2 See
id. [¶ 4]. Borrowing from the FTC's truth-in-advertising
rules, the Policy Statement explained if an advertisement
makes an ``implied or express objective claim'' that
``conveys a material representation to reasonable
consumers,'' the advertisor must make sure the
representation is true and be able to substantiate it.
Id. [¶ 11]. Advertisements that might be ``misleading in
the absence of qualifying or limiting information'' must
contain ``any necessary disclosures,'' which must be ``clear
and conspicuous.'' Id. [¶ 12].
The Commission went on to set out what amounts to a
detailed set of rules interpreting this standard and
provided examples of advertisements that would be deceptive.
Compliance with all of these requirements is mandatory:
(1) ``[A]dvertisers should exercise the greatest care
in ensuring the accuracy of their claims related to
price, including the clear and conspicuous
disclosure of information such as minimum per-call
charges, monthly fees, fees for additional minutes
beyond the initial calling period, and other
information that significantly affects the total
charge of a particular call or calling plan or
service,'' id. [¶ 13];
(2) ``[A]ny significant conditions or limitations on
the availability of the advertised rates should also
be clearly and conspicuously disclosed,'' id.
[¶ 14];
(3) ``[T]he advertiser should clearly and
conspicuously disclose whether the advertised
service includes in-state calls, and the fact that
such calls are charged at a higher rate if such is
the case,'' id. [¶ 15];
(4) ``Advertisers should . . . exercise care to
adequately explain phrases such as `basic rates' in
their ads. . . . [W]hen making claims using such
terms as `basic rates' or `regular rates,'
advertisers should be mindful that those terms will
be evaluated from the point of view of the
reasonable consumer, and may be deceptive,'' id.
[¶ 16];
(5) ``By representing a competitor's rates, an
advertiser is making an implied claim that these
rates are reasonably current. As in the case of any
other objective claim, the advertiser must have a
reasonable basis for this representation,'' id.
[¶ 17];
(6) ``The fact that information about significant
limitations or restrictions on advertised prices may
be available by calling a toll-free number or a
clicking on a Web site is generally insufficient to
cure an otherwise decptive price claim in
advertising,'' id. [¶ 18];
(7) ``To ensure that disclosures are effective,
advertisers should use clear and unambiguous
language, avoid small type, place any qualifying
information close to the claim being qualified, and
avoid making inconsistent statements or using
distracting elements that could undercut or
contradict the disclosure,'' id. [¶ 20];
(8) ``Disclosures that are large in size, are
emphasized through a sharply contrasting color, and,
in the case of television advertisements, remain
visible and/or audible for a sufficiently long
duration are likely to be more effective than those
lacking such prominence,'' id. [¶ 28];
(9) ``[T]he proximity and placement of disclosures are
important factors in determining whether they are
clear and conspicuous. . . The placement of
qualifying information away from the triggering
representation . . . reduces the effectiveness of
the disclosure. Furthermore, when significant
qualifying information about the cost of a long-
distance plan or service is necessary to prevent the
ad from misleading consumers, the user of an
asterisk will generally be considered insufficient
to draw a consumer's attention to a disclosure
placed elsewhere in an ad,'' id. [¶30];
(10) ``Even if a disclosure is large in size and
long in duration, other elements of an advertisement
may distract consumers so that they may fail to
notice the disclosure. . . . Advertisers should take
care not to undercut the effectiveness of
disclosures by placing them in competition with
other arresting elements of the ad,'' id. [¶ 31];
and
(11) ``[C]onsiderations specific to television
ads include volume, cadence, and placement of any
audio disclosures. Disclosures generally are more
effective when they are made in the same mode
(visual or oral) in which the claim necessitating
the disclosure is presented,'' id. [¶32].
Today, the Commission applies section 201(b) for the
second time to a common carrier's advertising practices. In
contrast to the facts in Business Discount Plan, however,
there are no allegations of slamming in this case. Rather,
the Commission bases its finding solely on its conclusion
that the common carriers here used rate calculations that
were ``complicated and confusing,'' see Notice of Apparent
Liability ¶ 7, and that disclosures the carriers made
regarding their promotional rates were inadequate, id. ¶ 13.
Based on these determinations, the Commission concludes that
each company is apparently liable for $500,000.
The Commission's advertising rules have not been
promulgated in accordance with the APA. Even assuming that
common carrier advertising were an appropriate concern of
the Commission, the agency's rules regarding this issue have
not been promulgated in accordance with the Administrative
Procedure Act. The Commission came up with a brand-new rule
in a 1998 enforcement case, greatly expanded on that rule in
a so-called ``policy statement,'' and now appears prepared
to apply this expanded set of standards against common
carriers generally. Affected parties have never had an
opportunity to weigh in on the matter. I explain below why
the APA does not permit the Commission to apply section
201(b) to common carrier advertising without first
conducting a rulemaking.
1. As an initial matter, it was inappropriate for the
Commission to apply section 201(b) to common carrier
advertising for the first time in an adjudication, as it did
in Business Discount Plan. The APA distinguishes between
``rules'' and ``orders.'' A ``rule'' is ``an agency
statement of general or particular applicability and future
effect designed to implement, interpret, or prescribe law or
policy or describing the organization, procedure, or
practice requirements of an agency.'' 5 U.S.C. § 551(4).
Rulemaking is the ``agency process for formulating,
amending, or repealing a rule,'' id. at §551(5), and the APA
requires agencies to give public notice of a proposed
rulemaking and give interested parties an opportunity to
submit comments on the proposal, id. at § 553(b). An
``order,'' by contrast, is the ``whole or part of a final
disposition . . . of an agency in a matter other than
rulemaking,'' and it is formulated through ``adjudication.''
Id. at § 551(6), (7). Notice and comment are not required.
Id. at § 554. (Also exempt from the APA's notice and
comment requirements are ``interpretive rules'' and
``general statements of policy.'' Id. at § 553(d)(2).)
The distinction between rulemaking and adjudication is
fundamental: ``[T]he entire Act is based upon a dichotomy
between rule making and adjudication. . . . Rule making is
agency action which regulates the future conduct of either
groups of persons or a single person; it is essentially
legislative in nature, not only because it operates in the
future but also because it primarily concerned with policy
considerations. . . . Conversely, adjudication is concerned
with the determination of past and present rights and
liabilities.'' Attorney General's Manual on the
Administrative Procedure Act 13-13 (1947).
Section 201(b) imposes on common carriers the immensely
broad requirement that their ``charges, practices,
classifications, and regulations'' be ``just and
reasonable.'' 47 U.S.C. § 201(b). But the provision, by
its plain language, does not authorize the Commission to
define the scope of a common carrier's section 201(b)
obligations through ad hoc adjudicatory proceedings.
Rather, it directs the Commission to ``prescribe such rules
and regulations as may be necessary in the public interest
to carry out the provisions of this Act.'' Id. (emphasis
added). In other words, to support an action against a
carrier based on an expanded or new understanding of section
201(b), the plain language of the statute requires the
Commission first to promulgate a rule, which can be adopted
only after public notice and comment. See American Mining
Congress v. Mine Safety & Health Administration, 995 F.2d
1106, 1109 (D.C. Cir. 1993) (noting that the Securities and
Exchange Act of 1934 ``forbids nothing except acts or
omissions to be spelled out by the Commission in `rules or
regulations,''' and that ``clearly some agency creation of a
duty is a necessary predicate to any enforcement against an
[mine] operator [under 30 U.S.C. § 813(h)] for failure to
keep records'').
Even if the Commission were not precluded by section
201(b)'s plain language from adopting new interpretations of
the provision in an adjudication, policy reasons required it
to define the contours of a common carrier's section 201(b)
advertising obligations in a rulemaking. As the Supreme
Court, the federal appeals courts, and this agency itself
have recognized, adjudication is most appropriate when an
agency seeks incrementally to develop the law, rather than
fundamentally change it. For that reason, the Supreme Court
has held that ``rulemaking is generally a better, fairer,
and more effective method'' of announcing a new rule than ad
hoc adjudication. See Community Television of Southern
California v. Gottfried, 459 U.S. 498, 511 (1983); see also
Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 627-28 (5th
Cir. 2001); Pfaff v. Department of Housing & Urban
Development, 88 F.3d 739, 748 (9th Cir. 1996) (``The
disadvantage to adjudicative procedures is the lack of
notice they provide to those subject to the agency's
authority. While some measure of retroactivity is inherent
in any case-by-case development of the law, and is not
inequitable per se, this problem grows more acute the
further the new rule deviates from the one before it.
Adjudication is best suited to incremental developments to
the law, rather than great leaps forward.''); Curry v.
Block, 738 F.2d 1556, 1563 (11th Cir. 1984); First
Bancorporation v. Board of Governors, 728 F2d 434, 438 (10th
Cir. 1984); National Small Shipment Traffic Conf. v. I.C.C.,
725 F.2d 1442, 1447- 48 (D.C. Cir. 1984) (``Trial-like
procedures are particularly appropriate for retrospective
determination of specific facts . . . [while] [n]otice-and-
comment procedures . . . are especially suited to
determining legislative facts and policy of general,
prospective applicability.''). Even where an agency has
discretion to announce a new rule in an adjudication, there
are limits to this discretion. ``Such a situation may
present itself where the new standard, adopted by
adjudication, departs radically from the agency's previous
interpretation of the law, where the public has relied
substantially and in good faith on the previous
interpretation, where fines or damages are involved, and
where the new standard is very broad and general in scope
and prospective in application.'' See Pfaff, 88 F.3d at 748
(citing NLRB v. Bell Aerospace Co., 416 U.S. at 267, 295
(1974)) (emphasis added).
The Commission itself has recognized that ``issues of
general applicability are more suited to rulemaking than to
adjudication,'' and numerous occasions it has refused to
develop broad new rules in an adjudicatory context. See
Application of Alton Rainbow Corp. and Cox Radio, Memorandum
Opinion & Order, 1999 WL 566130 [18] (1999) (``It is
generally inappropriate to address this argument in a
restricted adjudicatory proceeding, ``where third parties,
including those with substantial stakes in the outcome, have
had no opportunity to participate, and in which we, as a
result, have not had the benefit of a full and well-
counseled record.''); Application of Great Empire
Broadcasting, Inc. and Journal Broadcast Corp., Memorandum
Opinion and Order, 14 FCC Rcd 11145 [¶ 8] (1999) (same);
Rulemaking to Amend Parts 1, 2, 21, and 25 Of the
Commission's Rules to Redesignate the 27.5-29.5 Ghz
Frequency Band, to Reallocate the 29.5-30.0 Ghz Frequency
Band, to Establish Rules and Policies for Local Multipoint
Distribution Service and for Fixed Satellite Services,
Second Report and Order, Order on Reconsideration, and Fifth
Notice of Proposed Rulemaking, 12 FCC Rcd 12545 [¶¶ 388-90]
(1997); Stockholders of Renaissance Communications Corp. and
Tribune Co., Memorandum Opinion & Order, 12 FCC Rcd. 11866,
11887-88 [¶ 50] (1997); Formulation of Policies And Rules
Relating to Broadcast Renewal Applicants, Competing
Applicants, and Other Participants to the Comparative
Renewal Process and to the Prevention of Abuses of the
Renewal Process, Second Further Notice of Inquiry and Notice
of Proposed Rulemaking, 3 FCC Rcd 5179 (1988) (``[I]t is
generally the view that such decisions are better left to
the rulemaking process where all interested parties can
participate. `Rulemaking,' as the Supreme Court and the
Court of Appeals have recognized, `is generally a better,
fairer, and more effective method of implementing a new
industrywide policy than is the uneven application of
conditions in isolated renewal proceedings.'''); Nextel
Communications Inc., Order, 14 FCC Rcd 11678 [¶ 31] (WTB
1999) (declining to proceed through adjudication because to
do so would be to establish spectrum policies of general
applicability).
In light of these principles, what the Commission did
in Business Discount Plan was illegitimate. In an
enforcement action against a single carrier, it set forth a
broad new understanding of section 201(b), generally
applicable on a going-forward basis to all common carrier
advertising. But section 201(b)'s plain language required
it to conduct a rulemaking before it imposed this new
obligation on a carrier. And even assuming the agency had
some discretion to apply a new interpretation of section
201(b) in an enforcement action, that discretion is not
unbounded. Where fines and damages are involved, and the
new standard is a broad from an agency's previous regulatory
position, as was the case in Business Discount Plan, courts
have held that adjudication is not a proper vehicle for
announcing new law.
2. Not only was the Commission wrong in adopting a new
rule regarding common carrier advertising in Business
Discount Plan, it compounded the problem by expanding on
that rule in what it labeled a ``policy statement.'' The
agency's detailed description of the kinds of advertising
practices that will violate section 201(b) is not a policy
statement at all, but rather amounts to a set of substantive
new rules, which are subject to the APA's notice and comment
requirements. Its attempt to enforce these rules here is
therefore improper.
The APA exempts ``policy statements'' and
``interpretive rules'' from the statute's notice and comment
requirements, 5 U.S.C. § 553 (b)(A), while all other rules -
which the courts have often called ``substantive'' or
``legislative'' rules - are subject to these provisions. A
quick review of these statutory distinctions is helpful.
Although the precise difference between policy
statements and interpretive rules is the subject of some
dispute, see Appalachian Power Co. v. Environmental
Protection Agency, 208 F.3d 1015, 1021 n.13 (D.C. Cir.
2000), courts have observed that a policy statement ``does
not seek to impose or elaborate or interpret a legal norm,''
but rather ``represents an agency position with respect to
how it will treat - typically enforce - the governing legal
norm.'' Syncor International Corp. v. Shalala, 127 F.3d 90,
94 (1997) (emphasis added). ``By issuing a policy
statement, an agency simply lets the public know its current
enforcement or adjudicatory approach. . . . Policy
statements are binding on neither the public, nor the
agency.'' Id. (citations omitted); see also United States
Telephone Ass'n v. FCC, 28 F.3d 1232, 1234 (D.C. Cir. 1994)
(``[T]he paradigm of a policy statement [is] an indication
of an agency's current position on a particular regulatory
issue.'').
An interpretive rule, on the other hand, ``typically
reflects an agency's construction of a statute that has been
entrusted to the agency to administer.'' Id. ``The legal
norm is one that Congress has devised; the agency does not
purport to modify that norm, in other words, to engage in
lawmaking. . . . Instead, it is construing the product of
congressional lawmaking `based on specific statutory
provisions.''' Id. For these reasons, ```[t]he distinction
between an interpretative and substantive rule . . . likely
turns on how tightly the agency's interpretation is drawn
linguistically from the actual language of the statute.'''
Id. (citing Paralyzed Veterans of American v. D.C. Arena
L.P., 117 F.3d 579, 588 (D.C. Cir. 1997).
Substantive rules, in contrast to both interpretive
rules and policy statements, modify or add to a legal norm,
based on the agency's own authority. Id. at 95. ``That
authority flows from a congressional delegation to
promulgate substantive rules, to engage in supplementary
lawmaking.'' Id. Because the agency is engaged in
lawmaking, the APA requires it to comply with notice and
comment. Id.
In determining whether an agency's exercise of
regulatory authority qualifies as a substantive rule, courts
begin with an examination of the applicable statute. Where
the authorizing statute is ``very general, using terms like
`equitable' or `fair,' and the `interpretation' really
provides all the guidance, then the latter will more likely
be a substantive regulation, because then the agency's rule
gives content to the legal norm in question.'' Id. at 94
n.6 (citing Paralyzed Veterans, 117 F.3d at 588). As the
Seventh Circuit has explained:
When Congress authorizes an agency to create standards,
it is delegating legislative authority, rather than
itself setting forth a standard which the agency might
then particularize through interpretation. Put
differently, when a statute does not impose a duty on
the persons subject to it but instead authorizes (or
requires - it makes no difference) an agency to impose
a duty, the formulation of that duty becomes a
legislative task entrusted to the agency. Provided
that a rule promulgated pursuant to such a delegation
is intended to bind, and not merely to be a tentative
statement of the agency's view, which would make it
just a policy statement, and not a rule at all, the
rule would be the clearest possible example of a
legislative rule, as to which the notice and comment
procedure . . . is mandatory.
Hoctor v. United States Dep't of Agriculture, 82 F.3d 165,
169-70 (7th Cir. 1996) (emphasis added).
Also important to the determination whether an agency
publication amounts a substantive rule is whether it
prescribes mandatory requirements. See Syncor, 127 F.3d at
95 (holding that an agency's decision is substantive if it
uses language that is ``consistent only with the invocation
of its general rulemaking authority to extend its regulatory
reach.''). In Syncor, for example, the court concluded that
a ``notice'' issued by the Food and Drug Administration
announcing that a certain category of radioactive drugs
should comply with various statutory requirements was
substantive. Although the agency described this notice as a
``policy statement'' and as ``guidance,'' the court ruled
that the agency's statement that it had ``concluded'' that
these drugs ``should be regulated'' amounted to
fundamentally new regulation, which must be informed by
notice and comment rulemaking. Id.; see also Appalachian
Power Co., 208 F.3d at 1023 (``[T]he entire Guidance, from
beginning to end, reads like a ukase. It commands, it
requires, it orders, it dictates. Throughout the guidance,
EPA has given the States their `marching orders' and EPA
expects the States to fall into line . . ..''); Sweet v.
Sheahan, 235 F.3d 80, (2d Cir. 2000) (``Legislative [i.e.,
substantive] rules can impose obligations on members of the
public distinct from, and in addition to, those imposed by
statute.''); United States v. Picciotto, 875 F.2d 345, 348
(D.C. Cir. 1989) (holding that rules that ``impose
obligations'' are substantive, whereas rules that ``merely
restate existing duties'' are interpretive).
Applying these principles here, it is clear that the
advertising guidelines set out in the Commission's so-called
policy statement are substantive rules. First, section
201(b) is a classic example of a congressional delegation to
an agency of lawmaking authority. The provision requires
only that a carrier's ``charges, practices,
classifications, and regulations'' be ``just and
reasonable,'' leaving it to the agency to supply content to
these enormously broad terms. Despite what the Commission
might say, it is certainly not obvious from the text of the
statute that a carrier's ``practices'' necessarily include
advertising. Indeed, the word ``practices,'' standing
alone, is so broad that it could include virtually any
corporate practice. Nor does the statute, on its face, tell
us what ``just'' or ``reasonable'' mean.
In its ``policy statement,'' the Commission gave new
meaning to these terms, and in doing so, acted in its
lawmaking capacity. The agency informed carriers that
their advertising practices would not meet the ``just and
reasonable'' standard unless they ensured the accuracy of
their price-related claims, including information regarding
minimum per-call charges, monthly fees, fees for additional
minutes beyond the initial calling period, geographic
restrictions on rates, and comparative price claims. Policy
Statement ¶ 12-15. The Commission also concluded that
section 201(b)'s ``just and reasonable'' standard required
advertisers ``clearly and conspicuously'' to disclose
``qualifying information,'' and it explained in detail the
form such disclosures should take. See id. ¶ 20-32.
These are plainly new requirements. Even assuming that
Business Discount Plan legitimately announced a new rule
(which it did not), that case dealt only with a carrier's
misrepresentations in the slamming context. The carrier
there told customers that it was a consolidated billing
service and misled them into changing their long-distance
carrier. The most one may make of that case is that section
201(b) applies to a carrier's illegal slamming conduct,
precluding a carrier from misrepresenting to customers the
type of service the carrier offers and from fraudulently
inducing them to change their long-distance carrier.
Business Discount Plan said nothing about the accuracy of
price-related advertising or the need for ``clear and
conspicuous'' disclosures, or any of the other issues the
Commission addressed in its policy statement.
A second sign that the Commission's ``policy
statement'' is actually a set of substantive rules is the
mandatory nature of these new requirements. Section B, for
example, is entitled ``Material Information that Should Be
Disclosed in Advertisements for Long-Distance Calling
Services.'' Each paragraph in Section B states that
carriers ``should'' disclose specific pieces of pricing
information, and carriers are informed that they ``should''
also ensure that these disclosures are ``clear and
conspicuous.''
In short, the Commission's so-called policy statement
is a substantive rule in masquerade. The agency created a
new regime governing common carrier advertising, with legal
consequences for common carriers. It went far beyond
whatever rule it created in Business Discount Plan. The
statement simply does not qualify as a mere interpretation
of an existing rule or a statement of policy regarding the
enforcement of governing law. It is a substantive change in
the law. As such, it should have been promulgated in
compliance with the APA's notice and comment rulemaking
procedures. It was not, and this enforcement action is
therefore illegal.
The Commission Lacks Jurisdiction to Regulate Common
Carrier Advertising Under Section 201(b). As I have written
before, I do not believe Congress intended to delegate to
the Commission the authority to regulate common carrier
advertising. See, e.g., Commission on the Verge of a
Jurisdictional Breakdown: The FCC and Its Quest to Regulate
Advertising, 8 CommLaw Conspectus 219 (2000); Dissenting
Statement, Joint FCC/FTC Policy Statement for the
Advertising of Dial-Around and Other Long Distance Services
to Consumers, 15 FCC Rcd 8654 (2000). By specifically
giving the Federal Trade Commission authority to regulate
pay-per-call service advertising in the 1992 Telephone
Disclosure and Dispute Resolution Act, Congress indicated
that it did not think this Commission possessed general
jurisdiction to regulate common carrier advertising. In the
preemption context, moreover, the federal courts have
indicated that the Communications Act does not impose a duty
on common carriers regarding advertising. For these
reasons, it is my view that the Commission lacks
jurisdiction to regulate advertising.
* * * *
Although it apparently thinks otherwise, this agency
does not have unlimited authority to enforce against parties
any standard of conduct it might think is appropriate. If
the Commission wishes to regulate common carrier advertising
under section 201(b), it must put its proposed position out
for comment and be prepared to justify whatever rule it
fashions to the public and to the courts. It has not done
this here, and this enforcement action is therefore
unlawful. I dissent from this decision.
_________________________
1 The Commission issued an order of forfeiture in the matter
last July, 15 FCC Rcd 14,461 (2000), and denied a petition
for reconsideration in December, 2000 WL 1785129 (Dec. 7,
2000).
2 The Commission cited AT&T Card Issuer Identification
Cards., Letter, 7 FCC Rcd. 7529 (1992), as standing for the
proposition that it had previously ``found unfair and
deceptive marketing practices by common carriers constitute
unjust and unreasonable practices under section 201(b).''
But that case did not squarely raise the section 201(b)
issue. It concerned statements that AT&T had made in
literature sent to card holders, telling them that
``government requirements'' required the company to issue
new cards and asking them to destroy their old cards. The
Commission staff determined that the language might lead
customers to destroy cards issued by companies affiliated
with AT&T, and it sent a letter of admonishment to AT&T.
But it never actually addressed the section 201(b) question,
and the Commission's suggestion that the case supports its
regulation of common carrier advertising under section
201(b) is disingenuous.