#########  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**

1 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 258[^3] 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**

2 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]

3 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**

4 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**

5 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]

6 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]

7 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 Decision*[^19]
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]

8 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.

9 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)**

10 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.

11 The Commission's *Forfeiture Order* was based on numerous pieces of
evidence, including 30 written consumer complaints[^28] against
BDP.[^29] Of the 30 written complaints in the record, 15[^30] 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).

12 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 *complet*e 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

13 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]

14 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.

15 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]

16 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

17 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.

18 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,
    102^nd^ Cong. 1^st^ 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; s*ee 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).