Click here for Microsoft Word Version
******************************************************** 
                      NOTICE
********************************************************

This document was converted from
WordPerfect or Word to ASCII Text format.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Word or WordPerfect version or Adobe Acrobat version (above).

*****************************************************************



                           Before the
                FEDERAL COMMUNICATIONS COMMISSION
                     Washington, D.C.  20554


In the Matter of                )
                                )       File No.  ENF 98-02
Business Discount Plan, Inc.    )
                                )       NAL/Acct. No. 916EF0004
Apparent Liability for Forfeiture       )


                    ORDER ON RECONSIDERATION


Adopted:  December 1, 2000;                       Released: 
December 7, 2000

By the  Commission:  Commissioner Furchtgott-Roth  concurring  in 
part,          dissenting          in          part,          and                                       
issuing a separate statement.

                        I.   INTRODUCTION

          In this Order,  we deny  in part  and grant  in part  a 
Petition for  Reconsideration  (``Petition'') filed  by  Business 
Discount Plan, Inc. (``BDP'').  BDP requests that the  Commission 
review its July 17,  2000 Order of  Forfeiture,1 which imposed  a 
forfeiture of  $2,400,000 against  BDP  for willful  or  repeated 
violations of sections 201(b)2 and 2583 of the Communications Act 
of 1934,  as amended  (the ``Act''),  and our  related rules  and 
orders. In the  Forfeiture Order, the  Commission found that  BDP 
had willfully or repeatedly violated section 258 by changing  the 
preferred interexchange  carriers  (``PICs'')  designated  by  30 
consumers  without  their  authorization,  a  practice   commonly 
referred to as  ``slamming.''  Additionally,  we determined  that 
BDP,  in  effecting  these  30  unauthorized  PIC  changes,   had 
willfully or repeatedly violated  section 201(b) by using  unjust 
and unreasonable telemarketing practices, such as misrepresenting 
the nature of BDP's service offering.  In its Petition, BDP  asks 
the Commission to  reduce the amount  of the forfeiture  assessed 
for the section 201(b) and 258 violations.



                         II.  BACKGROUND

          Between December 1997 and October 1998, the  Commission 
processed  thousands  of  written  consumer  complaints  alleging 
slamming  and  unreasonable  telemarketing  practices  by   BDP.4  
Following  an  investigation  of  30  of  these  complaints,  the 
Commission issued  the  BDP  NAL,5  which  concluded  that  BDP's 
failure  to  obtain  the  complainants'  authorization  prior  to 
submitting PIC-change  requests apparently  violated section  258 
and the Commission's rules and orders against slamming.  Further, 
we  determined  that  BDP's   use  of  unjust  and   unreasonable 
telemarketing practices  in  connection with  these  unauthorized 
conversions  apparently  violated  section  201(b)  of  the  Act.  
Accordingly, we  found  that  BDP was  apparently  liable  for  a 
proposed forfeiture of  $40,000 for each  of the 30  unauthorized 
conversions, and an additional $40,000 for each instance in which 
BDP employed  unjust  and unreasonable  telemarketing  practices, 
resulting in a total forfeiture amount of $2,400,000.6  BDP filed 
a response,  contesting  the Commission's  findings  of  apparent 
liability under sections 201(b) and 258, as well as the amount of 
the proposed forfeiture.  We rejected each of these arguments  in 
the Forfeiture Order,  and determined that  the record before  us 
justified the proposed forfeiture.7  

          On August 16, 2000, BDP filed the instant Petition  for 
Reconsideration  with  the  Commission.   In  its  Petition,  BDP 
reiterates  its  earlier  arguments  that  the  Commission  lacks 
jurisdiction under section  201(b) over  unjust and  unreasonable 
telemarketing practices,  and  that the  assessed  forfeiture  is 
disproportionate to the  alleged offense.   BDP further  contends 
that the Forfeiture Order relies  on evidence that fails to  meet 
the proper standard for assessing forfeitures pursuant to section 
503(b) of the Act.  As discussed below, we deny in part and grant 
in part BDP's Petition.

                      III.      DISCUSSION

          Reconsideration   is   appropriate   only   where   the 
petitioner either  shows  a material  error  or omission  in  the 
original order or raises additional  facts not known or  existing 
until after  the petitioner's  last opportunity  to present  such 
matters.8  A petition  that simply  repeats arguments  previously 
considered and rejected  will be  denied.9  As  set forth  below, 
review of BDP's petition  for reconsideration and the  Forfeiture 
Order reveals  that the  Commission  has already  considered  and 
rejected many of the arguments contained in BDP's Petition.
A.   Section 201(b) Authority

          BDP contends  that  the Commission's  Forfeiture  Order 
``ignores or fails  to address'' statutory  and other  precedents 
showing that  the  Commission lacks  jurisdiction  under  section 
201(b) of the Act over fraudulent and deceptive telemarketing and 
advertising practices.10  As  in its  Response  to the  NAL,  BDP 
maintains that a line of state preemption cases establishes  that 
section 201(b) does not provide a cause of action for  addressing 
the reasonableness  of common  carriers' deceptive  telemarketing 
practices.11  BDP also  challenges the  Commission's reliance  on 
earlier Commission proceedings in which we exercised our  section 
201(b) jurisdiction.12  Further, BDP asserts that we were  barred 
from acting under  section 201(b)  in this  instance because  the 
Federal Trade Commission (``FTC'') has sole jurisdiction over the 
telemarketing and advertising practices of common carriers.13

          As an initial matter, the Commission's Forfeiture Order 
previously  considered  and  rejected  BDP's  reliance  on  state 
preemption analyses  to  support its  jurisdictional  argument.14  
These state  preemption cases  involved situations  in which  the 
courts held  that  the Communications  Act  does not  indicate  a 
``uniquely federal  interest''  in common  carriers'  unfair  and 
deceptive telemarketing  practices, so  as to  ``preempt''  state 
efforts to prevent these  practices.15  In the Forfeiture  Order, 
we stated that even if the Commission lacks a ``uniquely  federal 
interest''  in  preventing   slamming  and  deceptive   marketing 
practices, BDP presented no evidence or arguments to persuade  us 
that the  Commission  therefore  lacks  authority  to  declare  a 
deceptive marketing  practice ``unjust  and unreasonable''  under 
section 201(b) and to  issue a forfeiture  based on the  unlawful 
conduct.  Hence, we concluded that the Commission need not have a 
``uniquely federal interest''  in preventing deceptive  marketing 
practices in order  to exercise its  section 201(b)  jurisdiction 
over ``unjust  and unreasonable''  practices by  common  carriers 
``in  connection   with''  communication   service.16    We   now 
reiterate that  even  though the  states  share our  interest  in 
preventing slamming and deceptive marketing practices, we are not 
barred from attacking these fraudulent practices with weapons  in 
our own arsenal -  such as section  201(b) of the  Communications 
Act.17

          Nor do  we  accept  BDP's argument  that  we  erred  in 
finding support in  earlier Commission  proceedings that  invoked 
section 201(b) to address common carriers' unreasonable marketing 
practices.  We disagree with  BDP's claim that these  proceedings 
are irrelevant because ``[n]either  of these decisions hold  that 
the parties had  allegedly engaged  in fraudulent  practices.''18  
To the  contrary,  the  TRAC Decision19  demonstrates  that  long 
before the instant  proceeding, the  Commission's Common  Carrier 
Bureau recognized that section 201(b) provided a cause of  action 
against several  common carriers  who had  engaged in  fraudulent 
business  practices,  such  as  ``failing  to  convey  sufficient 
information as to the  carriers' identity, rates, practices,  and 
range of services.''20 And although the Commission stopped  short 
of finding a section 201(b)  violation in the AT&T  proceeding,21 
it nevertheless cited the statutory provision in admonishing AT&T 
about fraudulent credit card marketing practices that had created 
significant consumer confusion.22

          Likewise, we  reject  BDP's  claim that  we  could  not 
exercise our section 201(b)  authority in this instance  because: 
1)  Congress  did  not  refer  specifically  to   ``telemarketing 
practices''  when  it  granted  the  Commission  authority   over 
``unjust and unreasonable  practices'' in section  201(b) of  the 
original Communications  Act of  1934; and  2) Congress  has  not 
amended  section  201(b)  to  specifically  include  ``fraudulent 
telemarketing practices.''  Neither  of these observations  shows 
that the Commission lacks authority over fraudulent telemarketing 
practices  under  the   ``unjust  and  unreasonable   practices'' 
standard in section 201(b).   Congress gave the Commission  broad 
authority over  unjust and  unreasonable practices  ``for and  in 
connection with communication services.''23  In enacting  section 
201(b),  Congress  did  not  enumerate  or  otherwise  limit  the 
specific practices to which this provision applies.  Instead,  it 
granted us a more general authority to address such practices  as 
they might arise in a changing telecommunications marketplace.

          We  also  reject  BDP's  argument  that  Congress,   in 
enacting the  Telephone  Disclosure and  Dispute  Resolution  Act 
(``TDDRA''), 24 ``must have recognized that the FCC did not  have 
authority to  regulate telemarketing  and advertising  under  the 
Communications Act,  because in  approving this  new public  law, 
Congress expressly  granted  authority  to the  FTC  to  regulate 
communication  common  carriers'  telemarketing  and  advertising 
activities in connection with pay-per-call services.''25   First, 
this argument is a logical non sequitur.  The grant of  authority 
to the  FTC  indicates nothing  about  the FCC's  own  authority.  
Moreover, the FTC was not directed to regulate the activities  of 
common carriers; rather,  it was directed  to regulate those  who 
advertise and sell  services offered on  a pay-per-call  basis.26  
Thus, the FTC's role under the  TDDRA is irrelevant to the  FCC's 
role in regulating common carrier practices.

B.   Supporting Evidence  for Assessment  of a  Forfeiture  Under 
Section 503(b)

          BDP next  argues that  the Forfeiture  Order relies  on 
``incompetent evidence'' that  does not meet  the ``proper  legal 
standard'' for assessing a forfeiture pursuant to section  503(b) 
of the Act.27  As  explained below, upon  further review we  have 
decided to reduce  the amount  of the forfeiture  to reflect  the 
fact that some of the  inferences drawn from the evidence  cannot 
fairly be supported. 

          The Commission's Forfeiture Order was based on numerous 
pieces of evidence,  including 30  written consumer  complaints28 
against BDP.29  Of the 30 written complaints in the record,  1530 
were filed by consumers who did not recall having had any contact 
with BDP prior to discovering unauthorized long distance  charges 
from BDP on their telephone bills.31  Accordingly, while there is 
ample direct  evidence in  the record  showing that  BDP  slammed 
these 15 customers, there is no such direct evidence showing that 
BDP deceived these 15 consumers  about the nature of its  service 
offering.  In the NAL, the  Commission inferred that, ``based  on 
the clear  pattern  of  deceptive  behavior  established  in  the 
record, BDP's  telemarketers and  third-party verifiers  deceived 
these consumers  by  misrepresenting  BDP's  service  as  a  bill 
consolidation plan  offered  by  the  consumers'  local  exchange 
carriers or  preferred interexchange  carriers.''32 Upon  further 
consideration, we agree with BDP  that this inference, for 15  of 
the complaints, was unwarranted,  but is valid  for the other  15 
complaints.  Accordingly, we will reduce the forfeiture amount by 
$600,000 (i.e., the $40,000 forfeiture amount for each  violation 
of section 201(b), for 15 complainants).

          We reject, however, BDP's assertion that the Commission 
should reduce the amount of the forfeiture because several of the 
sworn declarations, filed in support of consumer complaints,  are 
unreliable in that they  rely upon hearsay.  33  Neither the  Act 
nor the rules speak to the type or quantity of evidence necessary 
for assessing  a  forfeiture. Within  constitutional  limits,  we 
believe it is within the Commission's discretion to determine the 
kind of evidence needed  to support a  forfeiture.   A review  of 
the Commission's past forfeiture  actions reveals that while  the 
Commission has  based forfeitures  on a  combination of  consumer 
complaints and  sworn  declarations,34 the  Commission  has  also 
based forfeitures solely  on consumer  complaints.35  Hence,  the 
Commission decides, on  a case-by-case basis,  whether to  obtain 
declarations in support of the complaints and whether to  include 
these declarations as part of  the record.  In the instant  case, 
the forfeiture was supported by a body of evidence that  included 
numerous complaints sufficient to establish a consistent  pattern 
of abuses,  as well  as declarations  filed in  support of  these 
complaints. While BDP is correct in  asserting that a few of  the 
declarants lacked  personal knowledge  of  what occurred  in  the 
telemarketing calls with BDP, we continue to believe that it  was 
a reasonable exercise of our  discretion to accept such  evidence 
against the backdrop of the  complete record in this  proceeding, 
which, as a whole, adequately supported the forfeiture.   Indeed, 
the Commission  has  stated  that  while  the  Federal  Rules  of 
Evidence generally govern Commission hearings, these rules may be 
``relaxed if the ends  of justice will be  better serviced by  so 
doing.''36  To that end, the Commission has noted that in certain 
circumstances, we may consider hearsay as probative evidence ``if 
it would serve the interests of justice.''37  We believe that  in 
the instant proceeding,  it serves  the interests  of justice  to 
consider the challenged declarations along with the whole body of 
evidence, which, as stated  above, includes documentary  evidence 
sufficient to support the assessed forfeiture.



C.   Appropriateness of Assessed Forfeiture Amount

          BDP seeks a reduction of the forfeiture on the  grounds 
that the Forfeiture Order did not consider its arguments that: 1) 
the proposed  forfeiture was  out of  proportion to  the  alleged 
offense, in contravention  of the  Eighth Amendment  to the  U.S. 
Constitution;38 and  2) the  forfeiture  for the  section  201(b) 
violations was  inconsistent  with  the  Commission's  Forfeiture 
Policy Statement.39     BDP  also  asserts  that  the  Commission 
abused its  discretion  because  it failed  to  analyze:  1)  the 
``actual damages''  incurred  by each  complainant  (i.e.,  ``the 
amount BDP refunded  the customer  plus amounts  refunded by  the 
local exchange carrier which BDP paid''); and 2) the ratio of the 
damages to the penalty.40  Finally, BDP claims that it was denied 
due process because  it was  never ``placed on  notice'' that  it 
could be  fined  separately  for fraudulent  acts  under  section 
201(b) of the Act.41   

          BDP's arguments  do  not  justify a  reduction  of  the 
forfeiture amount.  Contrary to BDP's contention, the  Forfeiture 
Order considered  and  rejected BDP's  arguments  concerning  the 
amount of the proposed forfeiture.42  First, as we stated in  the 
Forfeiture  Order,  the   forfeiture  is   consistent  with   the 
guidelines established in  the Forfeiture  Policy Statement,  and 
with our  broad discretion  under section  503(b) of  the Act  to 
determine forfeiture amounts based  on the circumstances of  each 
individual case.43   As  we noted  in  the Forfeiture  Order,  we 
assessed  the  standard   $40,000  amount   established  in   the 
Forfeiture Policy Statement for slamming violations, even  though 
it would have been within  our discretion to assess a  forfeiture 
higher  than  the  standard  amount.   Indeed,  in  other   cases 
involving similarly egregious slamming activity, we have assessed 
double the base forfeiture amount for slamming.44  The amount  of 
the forfeiture is well within the statutory maximum, and we  find 
no basis for the assertion that it is unconstitutionally high.

           Further,  we  reiterate that  neither  the  Forfeiture 
Policy Statement, nor any other Commission order, barred us  from 
finding section  201(b) violations  based on  conduct related  to 
slamming.45  Contrary  to  BDP's  argument,  the  fact  that  the 
Commission's guidelines establish a standard forfeiture amount of 
$40,000 for ``unauthorized  conversions'' does not  imply that  a 
carrier's fraudulent conduct  in connection  with marketing  that 
results in slamming constitutes  a ``single violation'' that  can 
only be punished  under section  258 of the  Act.46  Indeed,  the 
Forfeiture  Policy  Statement  specifically  states  that   ``any 
omission of a specific rule violation  [such as section 201(b)] . 
. . should not signal that the Commission considers any  unlisted 
violation as nonexistent or  unimportant.''47  Moreover, we  note 
that  case  law   indicating  that   deceptive  marketing   could 
constitute a violation of  section 201(b) pre-dated the  behavior 
here.48  For these reasons, we find no merit in BDP's claim  that 
it was  denied  due process  because  it was  never  ``placed  on 
notice'' that it  could be fined  separately for fraudulent  acts 
under section 201(b) of  the Act. We  also reject BDP's  argument 
that  the  total  forfeiture  amount  (resulting  from  the  dual 
violations of sections 201(b) and  258) is excessive, and  direct 
BDP  to  the   Forfeiture  Policy  Statement,   which  seeks   to 
``guarantee that  forfeitures  issued  against  large  or  highly 
profitable entities are not considered merely an affordable  cost 
of doing  business.''49   The Commission  specifically  cautioned 
carriers that  ``the forfeiture  amount set  out in  a Notice  of 
Apparent Liability against them  may in many  cases be above,  or 
even well above, the relevant base amount.''50 

          As to BDP's assertion that we failed to consider all of 
the evidence in calculating its forfeiture, including transcripts 
of its verification  tapes,51 we  direct BDP's  attention to  the 
NAL, which addressed  the 45  audiotapes submitted  by BDP.   The 
Commission found that  the proffered tapes  failed to negate  the 
complainants' assertions  that during  verification calls,  BDP's 
verifiers misrepresented the nature of BDP's service  offering.52  
BDP's subsequent submission of transcripts of some of these  same 
tapes, in connection with its Response to the NAL, did nothing to 
alter our conclusion.53  We also  reject BDP's assertion that  we 
were required to base the  forfeiture amount on the ``amount  BDP 
refunded the customer plus amounts refunded by the local exchange 
carrier which BDP  paid'' and  the ratio  of the  damages to  the 
penalty.   As  noted  above,   the  Commission  possesses   broad 
discretion to assess penalties for slamming and/or section 201(b) 
violations on a  case-by-case basis,  relying upon  not only  the 
damage to consumers, but ``the nature, circumstances, extent  and 
gravity of the violation and,  with respect to the violator,  the 
degree of culpability, any history of prior offenses, ability  to 
pay, and such  other matters as  justice may require.''54   Thus, 
while BDP may  disagree with  our conclusions  in the  Forfeiture 
Order, it has failed to demonstrate that further reduction of the 
forfeiture amount is warranted.
                                
                      IV.  ORDERING CLAUSES

          Accordingly, for all  the reasons stated  above, IT  IS 
ORDERED, pursuant to  Section 405 of  the Communications Act,  as 
amended, 47 U.S.C.  405, and Section  1.106 of the  Commission's 
Rules, 47 C.F.R.  1.106,  that the Petition for  Reconsideration 
filed by  Business Discount  Plan,  Inc. IS  DENIED IN  PART  AND 
GRANTED IN PART.

          IT IS FURTHER  ORDERED, pursuant to  Section 503(b)  of 
the Act,  47  U.S.C.  503(b),  and  Section  1.80(f)(4)  of  the 
Commission's rules, 47 C.F.R. 1.80(f)(4), that Business Discount 
Plan, Inc. SHALL FORFEIT to the United States Government the  sum 
of one million  eight hundred thousand  dollars ($1,800,000)  for 
violating Sections  201(b)  and 258  of  the Act,  47  U.S.C.   
201(b), 258,  as well  as the  Commission's rules  and orders  in 
effect  from   December   1997   to   December   1998   governing 
interexchange carrier conversions.



                         FEDERAL COMMUNICATIONS COMMISSION


                         Magalie Roman Salas
                         Secretary















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

Re: Business Discount Plan, Inc., Apparent Liability for 
Forfeiture, Order on Reconsideration, File No. ENF 98-02, 
NAL/Acct. No. 916EF0004 (rel. December 7, 2000).

     As I stated in the original Order of Forfeiture, I support 
the Commission's decision to impose a substantial fine for 
``slamming'' on Business Discount Plan.55  However, I 
respectfully dissent from the Commission's imposition of 
additional forfeitures based on allegedly misleading advertising 
claims under Section 201 (b). As I have described extensively 
elsewhere, I believe the Commission should not assert 
jurisdiction over carriers' advertising practices because: (1)  
the Commission's statutory authority in this area is, at best, 
scant; (2)  the FCC has not promulgated advertising guidelines 
through a transparent or open procedural process; (3)  the states 
have greater expertise in this area and are fully capable of 
resolving these issues; and (4)  the Commission's resources are 
better spent on regulatory activities squarely within its 
statutory authority.56   I continue to believe that the 
Commission's forays into the world of advertising regulation are 
an unfortunate distraction from the other important (and clearly 
statutorily authorized) work of the Commission.  

_________________________

1    Business Discount Plan, Inc., Order of Forfeiture, 15 FCC 
Rcd 14461 (2000) (Forfeiture Order).
2    Section 201(b) provides in pertinent part that ``all 
charges, practices, classifications, and regulations for and in 
connection with communication service shall be just and 
reasonable . . . .'' 47 U.S.C.  201(b).
3    Section 258 provides in pertinent part that ``no 
telecommunications carrier shall submit . . . a change in a 
subscriber's selection of a provider of telephone exchange 
service or telephone toll service except in accordance with such 
verification procedures as the Commission shall prescribe.''  47 
U.S.C.  258.
4    See Common Carrier Scorecard, Federal Communications 
Commission, Jan. 1999 edition, at 14.
5    Business Discount Plan, Inc., Notice of Apparent Liability 
for Forfeiture, 14 FCC Rcd 340 (1998) (BDP NAL).
6    BDP NAL, 14 FCC Rcd at 342.
7    Forfeiture Order, 15 FCC Rcd at 14473.
8    WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub nom. Lorain 
Journal Co. v. FCC, 351 F2d 824 (D.C. Cir. 1965), cert. denied, 
383 U.S. 967 (1966); 47 C.F.R.  1.106 (b)(2) (C).
9    Bennett Gilbert Gaines, 8 FCC Rcd 3986, 3987 (Rev. Bd. 
1993).
10   BDP Petition for Reconsideration (Petition) at 6.
11   Petition at 7-13.
12   Petition at 7-8.
13   Petition at 8-11.
14   Forfeiture Order, 15 FCC Rcd at 14468-69.
15   See, e.g., Marcus v. AT&T Corp., 938 F.Supp. 1158, 1168 
(S.D.N.Y. 1996).
16   47 U.S.C.  201(b).
17   We note that the Commission exercised jurisdiction over 
slamming under section 201(b) long before Congress enacted 
section 258.
18   Petition at 8.
19   Telecommunications Research and Action Center and Consumer 
Action v. Central Corp. et al., 4 FCC Rcd 2157, 2158 (Com.Car. 
Bur. 1989)(TRAC Decision).
20   See id.
21   AT&T, 71 RR2d 775 (1992).
22   Forfeiture Order, 15 FCC Rcd at 14469.
23   47 U.S.C.  201(b).
24   Pub. L. No. 102-556, 106 Stat. 4181 (codified at 47 U.S.C.  
228 and 15 U.S.C.  5711 et seq.).
25   Petition at 10-11.
26   See House Report No. 102-430, Feb. 5, 1992 (``Title II [of 
TDDRA] directs the Federal Trade Commission (FTC) to prescribe 
rules for any advertisement of services or products procured 
through the use of pay-per-call technology.'') 15 U.S.C.  
5711(a).  In reporting on a predecessor pay-per-call bill, the 
Senate Commerce Committee stated that, ``[t]he term `provider of 
pay-per-call service' excludes common carriers that merely 
transmit such service or provide billing and collection for such 
services . . . . [I]t is not the intention of the Committee to 
include telephone companies in the definition of `provider of 
pay-per-call service' when a telephone company is serving only as 
the carrier of the information service or provider of billing 
service and does not control the content of the information 
provided.''  S. Rep. No. 102-190 at 27, 102nd Cong. 1st Sess. 137 
Cong. Rec. (daily ed. Oct. 16, 1991).  The Committee also 
commented, ``It is important to note that generally neither the 
local telephone company nor the long-distance company provide the 
information; the telephone company provides the telephone lines 
and billing but has traditionally not had control over the 
content.''  S. Rep. No. 102-190 at 3. See also 47 U.S.C.  228 
(i) (limiting the definition of pay-per-call services to those 
services that impose a ``charge, greater than, or in addition to, 
the charge for transmission of the call.'').
27   Petition at 6-7; 13.     
28   To best illustrate BDP's apparent pattern of employing 
unjust and unreasonable telemarketing practices and effecting 
unauthorized PIC changes, the BDP NAL profiled five complaints 
rather than describe the facts of all 30 complaints that were in 
the record.  See BDP NAL, 14 FCC Rcd at 345.
29   The record also included a letter that BDP sent to consumers 
pursuant to a June 1998 legal settlement with AT&T Corp.  As part 
of the settlement, BDP was required to notify consumers that BDP 
is not affiliated with AT&T and that BDP may have left a 
different impression with consumers.  See BDP NAL, Appendix D.
30   Although the NAL also describes a consumer complaint and 
supporting declaration from Mr. Kevin Kennedy, that complaint was 
not used to support the forfeiture calculation.  Mr. Kennedy was 
not slammed by BDP, but instead worked briefly in BDP's customer 
service department while on assignment from a temporary agency.  
See BDP NAL, 14 FCC Rcd at 355 n.65.
31   See BDP NAL, 14 FCC Rcd at 353 (citing, for example, The Job 
Center, Informal Complaint No. IC-98-23919 (July 15, 1998) (in 
which complainant alleges that upon reviewing his telephone bill, 
he found, to his ``amazement,'' that AT&T was no longer his 
company's long distance carrier).
32   See id.
33   Petition at 16-17.  
34   See, e.g., Long Distance Services, Inc., Order of 
Forfeiture, 13 FCC Rcd 4444 (1998).
35   See, e.g., Amer-I-Net Services Corp., Order of Forfeiture, 
15 FCC Rcd  3118 (2000).
36   47 C.F.R.  1.351; see also WWOR-TV, Inc. et al., 5 FCC Rcd 
4113 (Rev. Bd. 1990).
37   See Paul Kelley, 5 FCC Rcd 1955, 1957 n.13 (1990).
38   Petition at 19-21.
39   Id. at 21 (citing Forfeiture Policy Statement and Amendment 
of Section 1.80 of the Rules to Incorporate Guidelines, Report 
and Order, 12 FCC Rcd 17087(1997), recon. denied, 15 FCC Rcd 303 
(1999) (Forfeiture Policy Statement)).
40   Petition at 21-22.
41   Petition at 23.  
42   See Forfeiture Order, 15 FCC Rcd at 14471.
43   47 U.S.C.  503(b)(2)(D).  Section 503(b) requires that the 
Commission consider the nature, circumstances, extent and gravity 
of the violation, and, with respect to the violator, the degree 
of culpability, any history of prior offenses, ability to pay, 
and other such matters as justice may require.
44   See Forfeiture Order, 15 FCC Rcd at 14471) (citing, for 
example, Amer-I-Net Services Corp., Order of Forfeiture, 15 FCC 
Rcd 3118 (2000)).
45   Id. 
46   Indeed, we stated in the Forfeiture Order that although 
BDP's deceptive marketing practices were closely related to its 
slamming conduct, the two violations were separate and distinct.  
BDP could have slammed the complainants without misrepresenting 
the nature of its service offering, it could have misrepresented 
its service offering without slamming the complainants.  The fact 
that it did both militated strongly in favor of assessing an 
overall forfeiture amount greater than the standard amount for 
slamming.  Id. at 14472 n.65.  
47   See Forfeiture Policy Statement, 12 FCC Rcd at 17099.
48   See, e.g., AT&T, 71 RR2d 775 (1992); TRAC Decision, 4 FCC 
Rcd 2157 (Com.Car. Bur. 1989).
49   Id. 
50   See id.
51   Petition at 20 n.17.  BDP notes that it submitted 
transcripts for 24 of its verification tapes.  Id.
52   BDP NAL, 14 FCC Rcd at 358.
53   Forfeiture Order, 15 FCC Rcd at 14472.
54   47 U.S.C.  503(b)(2)(D).
55   See Statement of Commissioner Harold Furchtgott-Roth, 
 Concurring In Part, Dissenting In Part in Business Discount 
 Plan, Inc., Order of Forfeiture, 15 FCC Rcd 14, 461 (2000); see 
 also Dissenting Statement of Commissioner Harold Furchtgott-
 Roth in Joint FCC/FTC Policy Statement for the Advertising of 
 Dial-Around and Other Long Distance Services to Consumers, 15 
 FCC Rcd 8654 (2000).
56   See Harold Furchtgott-Roth and Bryan Tramont, Commission on 
 the Verge of a Jurisdictional Breakdown, 8 CommLaw Conspectus 
 219 (Summer 2000).