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 (5^th^ Cir. 2001);
*Pfaff v. Department of Housing & Urban Development*, 88 F.3d 739, 748
(9^th^ 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 (11^th^ Cir. 1984); *First Bancorporation v. Board of Governors*,
728 F2d 434, 438 (10^th^ 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
(7^th^ 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.