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FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of ) File No. EB-01-IH-0030
SBC Communications, Inc. ) NAL/Acct. No.
Apparent Liability for Forfeiture ) FRN 0004-3051-24,
Adopted: October 8, 2002 Released: October 9,
By the Commission:
1. In this Forfeiture Order (``Order''), we find that SBC
Communications, Inc. (``SBC'') willfully and repeatedly violated
one of the conditions that the Commission imposed in its order
approving the merger application of Ameritech Corp.
(``Ameritech'') and SBC.1 Specifically, SBC2 failed to offer
shared transport in the former Ameritech states3 under terms and
conditions substantially similar to those that it offered in
Texas as of August 27, 1999, in violation of the SBC/Ameritech
Merger Order. Based upon our review of the facts and
circumstances before us and after considering SBC's response to
the Commission's Notice of Apparent Liability (``NAL'')4 in this
matter, we conclude that SBC is liable for a forfeiture of six
million dollars ($6,000,000.00), the amount we proposed in the
NAL.5 II. BACKGROUND
2. In its order approving the merger between SBC and Ameritech,
the Commission imposed a condition requiring that, within 12
months of the date of the SBC/Ameritech merger, SBC offer shared
transport within the former Ameritech states under terms and
conditions substantially similar to, or more favorable than those
that SBC was offering to telecommunications carriers in Texas as
of August 27, 1999.6 In the NAL, we found that SBC had
apparently repeatedly refused to provide shared transport for
intraLATA toll calls, despite the existence as of August 27, 1999
of ``at least two interconnection agreements in Texas pursuant to
which it offered CLECs the option of using shared transport to
route intraLATA toll calls, without restriction, between their
end user customers and customers served by SBC.''7 Consequently,
we found that SBC had apparently violated the requirements of
paragraph 56, and that it was apparently liable for a forfeiture
3. Under section 503(b) of the Act, any person who the
Commission determines has willfully or repeatedly failed to
comply substantially with the terms and conditions of any
license, permit, certificate, or other instrument of
authorization issued by the Commission shall be liable for a
forfeiture penalty.9 In order to impose such a forfeiture
penalty, the Commission must issue a notice of apparent
liability, the notice must be received, and the person against
whom the notice has been issued must have an opportunity to show
in writing why the Commission should not impose such a forfeiture
penalty.10 The Commission will then issue a forfeiture if it
finds by a preponderance of the evidence that the person has
failed to comply with the relevant requirement.11 As set forth
in more detail below, we conclude under this standard that SBC is
liable for a forfeiture for its willful and repeated violations
of the SBC/Ameritech Merger Order.
4. The issue in this case is whether SBC's refusal to offer
shared transport to CLECs in its Ameritech service area for
intraLATA toll service violated the conditions of the
Commission's approval of SBC's merger with Ameritech. SBC does
not deny that it refused to offer shared transport for intraLATA
toll calls in the Ameritech states, but instead argues that the
paragraph 56 merger condition did not contain a clear requirement
that it do so.12 We find, however, that paragraph 56 is
unambiguous and that SBC's arguments to the contrary are
unpersuasive. SBC violated the paragraph 56 merger condition at
least five times, once in each of the five former Ameritech
states, by refusing to offer shared transport to route intraLATA
toll calls. Therefore, we affirm the NAL, both as to the
violations of paragraph 56 and as to the forfeiture amount.
A. Paragraph 56 of the Merger Conditions Imposed on
SBC a Clear Obligation to Provide to CLECs in its
Ameritech Region Shared Transport for IntraLATA Toll
5. It is hornbook law that ``where [a] regulation is not
sufficiently clear to warn a party about what is expected of it -
an agency may not deprive a party of property by imposing civil
or criminal liability.''13 The paragraph 56 merger condition's
shared transport requirements are abundantly clear, and ``a
regulated party acting in good faith would [have been] able to
identify, with ascertainable certainty,''14 its obligation to
offer to CLECs in the Ameritech region shared transport for
intraLATA toll service. As of October 8, 2000, twelve months
after the effective date of the SBC/Ameritech Merger Order, SBC
had a legal obligation to offer shared transport in the Ameritech
states on terms ``substantially similar to (or more favorable
than)'' the most favorable terms it offered in Texas as of August
27, 1999.15 On that day in August in Texas, SBC was actually
offering shared transport to CLECs who were using that shared
transport to provide intraLATA toll service.16 The plain
language of paragraph 56 required SBC to offer that same shared
transport for intraLATA toll to CLECs in the Ameritech region as
of October 8, 2000.17 That requirement is clear and simple, and
SBC's post hoc efforts to muddy the waters cannot justify its
failure to comply with the law.18
1. SBC argued both prior to the NAL and in response to it
that various circumstances and matters of interpretation render
paragraph 56 inapplicable, invalid, or insufficiently clear to
support the imposition of a forfeiture. As much of SBC's
response to the NAL consists of restatement of the arguments that
it made previously and that we resolved in the NAL, we will not
repeat our analysis of each argument. Rather, we incorporate and
adopt here the reasoning and conclusions we set forth in the
NAL.19 We address below SBC's new or newly expanded-upon
1. The Texas Arbitration Award supports the
conclusion that SBC offered shared transport for
intraLATA toll service as of August 27, 1999.
2. In the NAL, we relied in part on a November 4, 1999
ruling by an arbitration panel of the Texas PUC concerning SBC's
shared transport obligations to support our conclusion that SBC
was offering shared transport for intraLATA toll service in Texas
as of August 27, 1999.20 SBC contends that we misinterpreted the
Texas PUC's ruling, and that our interpretation of the company's
paragraph 56 federal obligation is therefore flawed.21 SBC
argues that the Texas Arbitration Award addressed SBC's
obligation to provide access to combinations of unbundled network
elements (``UNEs''), not shared transport, and thus is not
relevant in interpreting the scope of SBC's shared transport
offering in Texas. Specifically, SBC asserts that:
insofar as it relied upon agreement language at
all, the Texas PUC focused primarily on the
language mandating access to UNE combinations - in
particular, section 2.4.1. in Attachment 6 of the
agreement, which ``requires SWBT to provide the
CLEC with all the functionality of a combination
of UNEs.'' In the Texas PUC's view, because that
language required Southwestern Bell to provide UNE
functionality equivalent to what ``SWBT [wa]s
providing to itself . . . without restriction,''
it followed that Southwestern Bell had to permit
CLECs to route intraLATA toll calls in the same
manner that Southwestern Bell did [i.e., using
We find SBC's argument to be unpersuasive for a number of
reasons, and we reaffirm our conclusion that the Texas
Arbitration Award clearly stated SBC's obligation to provide
shared transport for intraLATA toll calls.
3. In the Texas arbitration, two CLECs, Sage and Birch,
were asserting their right to use a combination of local
switching and shared transport, plus unbundled local loops and
tandem switching, to transport intraLATA toll calls.23 That the
Texas Commission ordered SBC to provide this particular
combination of UNEs necessarily means that SBC was obligated to
provide each of the individual UNEs.24 Thus, the Texas
Arbitration Award's discussion of UNE combinations does nothing
to undermine our conclusion that the Texas PUC found that SBC was
obligated to continue offering shared transport for intraLATA
4. Moreover, we note that the Texas Arbitration Award
specifically states that ``[t]he use of the common transport UNE,
or any other UNE, for that matter, cannot be limited in any way
by the type of traffic that passes through it.''26 This ruling
further undermines SBC's argument that its Texas offering allowed
it to restrict the use of shared transport for intraLATA toll
5. Regardless, the Texas Arbitration Award makes clear
that SBC had been offering shared transport for intraLATA toll
for some time prior to August 1999 pursuant to its
interconnection agreements, and that it sought to stop doing so
in April 1999 on the grounds that the implementation of federal
dialing parity rules somehow eliminated its obligation to do
so.27 The Texas Arbitration Award explicitly rejected SBC's
dialing parity argument, which necessarily means that the earlier
obligation remained in place on August 27, 1999.28 In any event,
on August 27, 1999, SBC was in fact offering shared transport for
CLECs to use for intraLATA toll service.29 Therefore, even if we
assume arguendo that before the Texas Arbitration Award SBC held
a good faith belief that paragraph 56 of the merger conditions
did not encompass intraLATA toll traffic, that belief was
unreasonable after the Texas PUC decision. Paragraph 56
expressly links SBC's obligations in the Ameritech states to its
service offerings in Texas, and the Texas Arbitration Award
confirmed with clarity that shared transport for intraLATA toll
traffic was within the scope of those service offerings. That
simple fact alone triggered SBC's paragraph 56 obligation to
offer shared transport for intraLATA toll service to CLECs in the
6. SBC's effort to inject a confused interpretation of the
Texas PUC orders into an otherwise clear picture of the company's
obligations is unpersuasive. It does not alter our conclusion
that SBC was offering shared transport for intraLATA toll calls
in Texas on August 27, 1999, and that it was therefore
subsequently obliged to do the same in the Ameritech region.
2. The shared transport obligation contained in the
paragraph 56 merger condition includes shared
transport for intraLATA toll service.
7. Paragraph 56 of the merger conditions does not impose
or permit any restriction on the type of services for which CLECs
may use shared transport. SBC argues in its response to the
NAL, as it did in previous pleadings, that the paragraph 56
merger condition does not apply to intraLATA toll traffic,
because ``SBC's understanding [is] that the Merger Conditions'
shared-transport obligation is a purely local one.''30
Similarly, SBC asserts that the general shared transport
obligation that we established in the UNE Remand Order applies
only when the CLEC intends to provide a local service.31 SBC
seemingly cites to every use of the word ``local'' in Commission
orders addressing shared transport to argue that the Commission's
use of this word in various contexts indicates its intent to
limit any shared transport obligation to ``local'' traffic,
which, according to SBC, does not include intraLATA toll.32 As
we did in the NAL,33 we find these arguments to be without merit.
We incorporate our reasoning and conclusion there,34 but also
take this opportunity to address SBC's argument in more detail.
8. Paragraph 56 requires SBC to offer shared transport in
the former Ameritech states under similar or more favorable
conditions than those SBC offered in Texas. This language is
inclusive and contains no exclusions. It does not in any way
limit the purposes for which a CLEC may use shared transport.35
SBC places great weight on the argument that the paragraph 56
shared transport obligation is limited by what SBC asserts is the
view that we expressed elsewhere that CLECs may only use shared
transport for local service. IntraLATA toll, SBC contends, is
not a local service and does not affect local competition.36 But
neither the text of paragraph 56 nor the Act and our rules
provide for or permit SBC to limit CLECs' use of the shared
transport UNE, and the references SBC cites elsewhere that use
the word ``local'' in reference to traffic, switches, and markets
are beside the point.
9. The broad swath of paragraph 56 comports with section
251(c)(3) of the Act, which requires incumbent LECs to provide
nondiscriminatory access to network elements, ``to any requesting
carrier for the provision of a telecommunications service.''37
In implementing section 251(d)(2) and (c)(3), we identified the
network elements ¾ that is, the physical facilities and their
``features, functions and capabilities'' ¾ that the incumbent LEC
must provide to the requesting carrier, not the purposes for
which a CLEC may use those facilities.38 Specifically, rule
51.319(d) defines shared transport as ``transmission facilities
shared by more than one carrier, including the incumbent LEC,
between end office switches, between end office switches and
tandem switches, and between tandem switches, in the incumbent
LEC network.''39 This definition requires incumbent LECs to
provide these shared transport facilities ``to any requesting
telecommunications carrier . . . for the provision of a
telecommunications service.''40 It contains no limitation on the
type of telecommunications service that the requesting carrier
may provide, and therefore it contains no limitation on use of
these facilities to transport intraLATA toll traffic.41 A
``telecommunications carrier'' includes a carrier who provides
intraLATA toll service, and ``telecommunications service''
includes intraLATA toll service.42 Thus, rule 51.319(d) makes
clear that any requesting telecommunications carrier may use the
shared transport UNE for any ``telecommunications service'' it
chooses to provide ¾ including intraLATA toll service.43 Indeed,
as we stated in the NAL, as a general matter, the Commission's
rules explicitly prohibit use restrictions on UNEs.44
10. Because of the clarity of the language of paragraph 56
and of the Act and rules, we need look no further to determine
SBC's obligation. Because we find that there is no limitation on
SBC's shared transport obligation, SBC's arguments about the
nature of intraLATA toll traffic are irrelevant. It matters not
whether intraLATA toll is properly characterized as being
inherently local in nature or whether competition in intraLATA
toll affects competition in local markets. However, we note that
SBC overreaches in attempting to characterize various statements
in our orders as being indicative of a view that shared transport
cannot extend to intraLATA toll because the ``local'' nature of
that obligation is necessarily exclusive of intraLATA toll
service.45 Nothing in the passages to which SBC cites supports
that view.46 Indeed, we have made statements in other
circumstances that establish our view that intraLATA toll traffic
does affect local competition.47 For these reasons, we reject
any implication that we have expressed differing views at
different times about whether the shared transport obligation
extends to use of the UNE for intraLATA toll. To the extent SBC
relies on such a suggestion in support of its argument that
paragraph 56 lacked sufficient clarity to provide adequate notice
of its obligation, we reject that notion.48 In any event, as we
explained above, the plain and unambiguous language of paragraph
56 renders these other statements irrelevant.
11. For these reasons, and for the reasons we articulated
in the NAL, SBC's overly restrictive interpretation of the
paragraph 56 shared transport obligation as being exclusive of
shared transport for intraLATA toll service is unreasonable.
3. The Merger Conditions' paragraph 56 shared
transport obligation is unaffected by the
Commission's UNE Remand Order.
6. The paragraph 56 merger condition is ``subject to . . . the
terms of any future Commission orders regarding the obligation to
provide unbundled local switching and shared transport.'' SBC
argues again, as it did before the NAL, that the Commission's UNE
Remand Order is a ``future Commission order,'' that it does not
require SBC to provide shared transport for intraLATA toll, and
that it therefore eliminated any merger condition requirement to
offer shared transport for intraLATA toll. We reject this
argument for several reasons, some of which we stated previously
in the NAL, and incorporate here.49
7. As an initial matter, the shared transport rules that we
adopted in the UNE Remand Order plainly require unbundling of
shared transport for use with intraLATA toll traffic. As we
explained above, the language of the Act and of the UNE Remand
Order and our rules is clearly and unambiguously inclusive and
does not permit SBC to make exclusions based on the services for
which a requesting carrier might use a UNE.50 Therefore,
paragraph 56 is fully consistent with the UNE Remand Order.
8. Moreover, although we adhere to our view that the earlier
adopted UNE Remand Order was not a ``future'' order,51 that
finding is not essential to our ruling here. Regardless of the
relationship of that Order's release, adoption, and effective
date to the effective date of the Merger Conditions,52 it only
supports and does not in any way undermine the enforceability of
SBC's obligation pursuant to paragraph 56 to provide shared
transport for intraLATA toll service. The paragraph 56
obligation is ``subject to'' the terms of a future Commission
order, which can only mean that the shared transport obligation
of paragraph 56 will remain in place until the merger condition
sunset date, unless the terms of another order directly
contravene it. We have issued no such order. Moreover,
paragraph 56 expressly provides its own merger condition sunset
date,53 stating that this obligation shall remain in effect
unless and until either the Commission were to find in the UNE
Remand proceeding that SBC is not required to provide shared
transport, or a court were to issue a final non-appealable order
to that effect.54 Neither of those events has occurred.55
Therefore, SBC's arguments about the impact of the UNE Remand
Order on the paragraph 56 obligation are unavailing.
B. SBC Did Not Substantially Comply with the Paragraph 56
12. SBC argues that section 503(b) of the Act does not
support a forfeiture here because any requirement that SBC offer
shared transport for intraLATA toll calls was ``tangential to the
primary purpose of the condition,'' and thus, SBC did not fail
substantially to comply with the paragraph 56 merger condition.56
We recognize that in adopting paragraph 56 we focused on
requiring SBC to reverse Ameritech's practice of refusing to
offer any shared transport whatsoever, a practice that was
contrary to our local competition rules. The fact that SBC
instead chose to refuse to offer only a subset of shared
transport does not render its violation insubstantial. For those
CLECs seeking intraLATA toll shared transport, SBC's refusal to
offer it was anti-competitive and thus significant. Accordingly,
we find that SBC failed substantially to comply with paragraph
C. SBC's Actions Were Willful and Repeated.
9. Pursuant to section 503(b)(1) of the Act, any person that
willfully or repeatedly fails to comply substantially with the
terms and conditions of any license, permit, certificate, or
other instrument or authorization issued by the Commission, shall
be liable to the United States for a forfeiture penalty.57 It
has long been established that the word ``willfully,'' as
employed in section 503(b) of the Act, does not require a
demonstration that a party knew it was acting unlawfully,58 but
only that it knew it was committing the acts in question
consciously and deliberately, and that the acts were not
accidental. SBC does not contest the NAL's tentative conclusion
that it intentionally and affirmatively refused to offer shared
transport for intraLATA toll in the five former Ameritech states.
We thus find that SBC's behavior was willful.59
D. Forfeiture Amount
10. SBC's willful and repeated failure to comply with the
SBC/Ameritech Merger Order justifies a substantial forfeiture in
this case.60 Section 503(b)(2)(B) of the Act authorizes the
Commission to assess a forfeiture of up to $120,000 for each
violation, or each day of a continuing violation, up to a
statutory maximum of $1,200,000 for a single act or failure to
act.61 In determining the appropriate forfeiture amount, we
consider the factors set forth in section 503(b)(2)(D) of the
Act, including ``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.''62
11. We impose a forfeiture of $6,000,000, the amount initially
proposed in the NAL. This figure represents the statutory
maximum for five continuing violations lasting at least ten days
each during the period prior to the NAL. We find that SBC's
conduct represents five separate and distinct violations of the
Merger Conditions, one for each state in which it refused to
offer shared transport to requesting carriers for intraLATA toll
12. SBC argues that the amount of the forfeiture is excessive,
but we find that it is fully justified. SBC has repeatedly
violated the clear terms of the merger condition. In state after
state, throughout the Ameritech region, SBC forced competing
carriers to expend time and resources in state proceedings trying
to obtain what SBC was already obligated to offer, causing delays
in the availability of shared transport. Thus, the potential
competitive impact of SBC's violations is substantial, and
warrants a significant penalty. In addition, the Commission has
made clear that it will take into account a violator's ability to
pay in determining the amount of a forfeiture so that forfeitures
against ``large or highly profitable entities are not considered
merely an affordable cost of doing business.''63 In 2001, SBC
had total operating revenues of nearly $46 billion.64 For a
company of this size, a $6,000,000 forfeiture is not excessive.
Indeed, a smaller forfeiture would lack adequate deterrent
13. SBC makes a variety of specific arguments about the
forfeiture amount, none of which we find persuasive. SBC
complains that the NAL did not apply a base forfeiture amount,
and asserts that ``[t]he NAL's failure to rely on [the
forfeiture] guidelines, or at least to explain its deviation from
them, is unlawful.''65 First, we note that the forfeiture
guidelines contain no base amount for the violation at issue
here; thus there was no base amount to apply. In any event, the
Commission has discretion to depart from the guidelines where
appropriate,66 and we explained fully the basis for the proposed
forfeiture in the NAL.
14. SBC also argues that the maximum forfeiture in this case is
$1.2 million, i.e., the statutory maximum for a single continuing
violation.67 SBC's reasoning is that paragraph 56 creates a
single obligation,68 that it complied with that obligation by the
single act of deploying an AIN-based shared transport solution
throughout its region, and that if it imposed any unwarranted
limitation on its shared transport offering, it did so only once
when it first made shared transport available in the Ameritech
region.69 We reject SBC's characterization of the facts. The
merger conditions obligate SBC to ``offer shared transport . . .
within the Ameritech States under terms and conditions, other
than rate structure and price, that are substantially similar to
(or more favorable than) the most favorable terms'' offered in
Texas on August 27, 1999. The record shows that at least five
times, once in each of the Ameritech states, a competing carrier
requested the use of shared transport to route intraLATA toll
traffic.70 Each of those requests obligated SBC to offer shared
transport in compliance with the merger condition. In each of
those instances, SBC refused to offer the requested UNE. Thus,
each of those instances constituted a separate, continuing
violation of the merger conditions. By SBC's theory, having once
refused to make available shared transport on the required terms,
it could continue to refuse all requests with impunity and suffer
no further consequences. We will not adopt such a skewed
15. Finally, SBC asserts that the forfeiture amount is excessive
because intraLATA toll is ``far afield from the central purpose
of paragraph 56,'' and because the amount fails to recognize that
SBC complied with some portion of the shared transport merger
conditions.71 We find neither of these points persuasive.
First, as indicated above, we believe that SBC's violations did
relate to local competition. In addition, as discussed above in
rejecting SBC's argument that it has ``substantially'' complied
with the conditions, we do not find it reasonable to focus on the
``proportion'' of the condition that has been violated, but
rather on the scope and potential impact of SBC's violations.
The fact that SBC may have properly offered shared transport for
local non-toll traffic does not mitigate its refusal to offer
shared transport for intraLATA traffic.
16. For all of the reasons we have discussed above, we find that
SBC's conduct justifies the forfeiture amount that we proposed in
the NAL. We therefore affirm the $6,000,000 forfeiture amount
IV. ORDERING CLAUSES
17. Accordingly, IT IS ORDERED THAT, pursuant to section 503(b)
of the Act,72 and section 1.80 of the Commission's rules,73 SBC
Communications SHALL FORFEIT to the United States Government the
sum of six million dollars ($6,000,000.00) for willfully and
repeatedly violating the Commission's merger conditions in the
SBC/Ameritech Merger Order.
18. IT IS FURTHER ORDERED that payment shall be made in the
manner provided for in section 1.80 of the Commission's rules
within thirty (30) days of release of this order.74 If the
forfeiture is not paid within the period specified, the case will
be referred to the Department of Justice for collection pursuant
to section 504(a) of the Act.75
19. IT IS FURTHER ORDERED that a copy of this Order of
Forfeiture shall be sent by Certified Mail/Return Receipt
Requested to SBC Communications, c/o Michelle Thomas, Executive
Director - Federal Regulatory, 1401 I Street, N.W., Suite 1100,
Washington, D.C. 20005.
Federal Communications Commission
Marlene H. Dortch
1 Applications of Ameritech Corp., Transferor, and SBC
Communications, Inc., Transferee, For Consent to Transfer Control
of Corporations Holding Commission Licenses and Lines Pursuant to
Sections 214 and 310(d) of the Communications Act and Parts 5,
22, 24, 25, 63, 90, 95, and 101 of the Commission's Rules,
Memorandum Opinion and Order, 14 FCC Rcd 14712 (1999)
(``SBC/Ameritech Merger Order''), reversed in part on other
grounds, Association of Communications Enterprises v. FCC, 235
F.3d 662 (D.C. Cir. 2001).
2 SBC refers to SBC Communications, Inc. and all its
affiliates, including its incumbent LECs.
3 Throughout this Order, we refer to the states located
in Ameritech's territory prior to Ameritech's merger with SBC as
``the former Ameritech states.'' These states are: Illinois,
Indiana, Michigan, Ohio, and Wisconsin. See SBC/Ameritech Merger
Order, 14 FCC Rcd at 14719, ¶ 6.
4 SBC Communications, Inc., Apparent Liability for
Forfeiture, Notice of Apparent Liability for Forfeiture, 17 FCC
Rcd 1397 (2002) (``NAL'').
5 As we explain below, see infra ¶ 23, we find that SBC
has committed a separate and distinct violation of this
requirement in each of the five former Ameritech states. Each
violation is subject to the statutory maximum forfeiture of
$1,200,000, resulting in an overall forfeiture of $6,000,000.
6 SBC/Ameritech Merger Order, 14 FCC Rcd at 15023-24,
Appendix C, ¶ 56 (``paragraph 56 merger condition'' or simply
``paragraph 56''). In its entirety, paragraph 56 states:
Within 12 months of the Merger Closing Date (but
subject to state commission approval and the terms
of any future Commission orders regarding the
obligation to provide unbundled local switching
and shared transport), SBC/Ameritech shall offer
shared transport in the SBC/Ameritech Service Area
within the Ameritech States under terms and
conditions, other than rate structure and price,
that are substantially similar to (or more
favorable than) the most favorable terms
SBC/Ameritech offers to telecommunications
carriers in Texas as of August 27, 1999. Subject
to state commission approval and the terms of any
future Commission orders regarding the obligation
to provide unbundled local switching and shared
transport, SBC/Ameritech shall continue to make
this offer, at a minimum, until the earlier of (i)
the date the Commission issues a final order in
its UNE remand proceeding in CC Docket No. 96-98
finding that shared transport is not required to
be provided by SBC/Ameritech in the relevant
geographic area, or (ii) the date of a final, non-
appealable judicial decision providing that shared
transport is not required to be provided by
SBC/Ameritech in the relevant geographic area.
SBC/Ameritech Merger Order, 14 FCC Rcd at 15023-24, Appendix C, ¶
7 NAL, 17 FCC Rcd at 1399, ¶ 7.
8 NAL, 17 FCC Rcd at 1406, ¶ 22.
9 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(a).
10 47 U.S.C. § 503(b)(4); 47 C.F.R. § 1.80(f).
11 See, e.g., SBC Communications, Inc., Apparent Liability
for Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4
(2002); Tuscola Broadcasting Co., Memorandum Opinion and Order,
76 FCC 2d 367, 371 (1980) (applying preponderance of the evidence
standard in reviewing Bureau level forfeiture order). Cf. 47
U.S.C. § 312(d) (assigning burden of proof in certain types of
hearings to Commission).
12 SBC Communications, Inc., Apparent Liability for
Forfeiture, Response of SBC Communications, Inc. to Notice of
Apparent Liability for Forfeiture, File No. EB-01-IH-0030 (filed
Mar. 5, 2002) (``SBC Response'').
13 Trinity Broadcasting of Florida v. FCC, 211 F.3d 618,
628 (D.C. Cir. 2000).
14 Id. at 628.
15 SBC/Ameritech Merger Order, 14 FCC Rcd at 15023-24,
Appendix C, ¶ 56.
16 SBC does not dispute that it was providing shared
transport to CLECs for intraLATA toll calls as of August 27,
1999. In earlier filings, however, SBC argued that it was not
``offering'' shared transport for intraLATA toll, because it only
allowed CLEC use of shared transport on that date because the
Texas Public Utility Commission had temporarily enjoined it from
refusing to provide this service. See NAL, 17 FCC Rcd at 1402-
03, ¶ 13. We rejected this contention in the NAL, and we adhere
to that ruling now. Id.
17 NAL, 17 FCC Rcd at 1402, ¶ 13 n.28. In the NAL, we
noted that (1) SBC's interconnection agreements in Texas
memorialized its obligation to offer shared transport for
intraLATA toll; (2) that obligation existed before, during, and
after August 1999; (3) SBC was in fact offering shared transport
for intraLATA toll before, during, and after August 1999 pursuant
to its interconnection agreements and a Texas PUC Interim Order;
and (4) the Texas PUC confirmed in a November 1999 ruling
resolving a dispute between SBC and two CLECs that SBC's
interconnection agreements obliged it to offer shared transport
for intraLATA toll before, during, and after August 1999. Id. ¶¶
7, 9, 11 (citing Birch Telecom of Texas, Ltd., LLP v.
Southwestern Bell Tel. Co., Order Issuing Interim Ruling Pending
Dispute Resolution, Docket Nos. 20745 & 20755 at 3 (Pub. Util.
Comm'n of Texas, Apr. 26, 1999); Complaint of Birch Telecom of
Texas, LTD., L.L.P. and Alt Communications, L.L.C. Against
Southwestern Bell Telephone Company For Refusal to Provide
IntraLATA Equal Access Functionality, and Complaint of Sage
Telecom, Inc. Against Southwestern Bell Telephone Company For
Violating Unbundled Network Elements Provisions of the
Interconnection Agreement, Arbitration Award, Docket Nos. 20745
and 20755 (Pub. Util. Comm'n of Texas, Nov. 4, 1999) (``Texas
Arbitration Award''); Complaint Of Sage Telecom, Inc. Against
Southwestern Bell Telephone Company For Violating Unbundled
Network Elements Provisions Of The Interconnection Agreement,
Docket No. 20755, and Complaint Of Birch Telecom Of Texas, Ltd.,
L.L.P. And ALT Communications, L.L.C. Against Southwestern Bell
Telephone Company For Refusal To Provide IntraLATA Equal Access
Functionality, Order, Docket 20745 (Pub. Util. Comm'n of Texas,
Dec. 1, 1999) (approving the arbitration award)).
18 This case is wholly different from the cases to which
SBC cites and from other similar cases assessing the
constitutionality of agency actions involving deprivation of
property based on civil liability. Courts have found
administrative rules to be so unclear as to preclude forfeiture
or other similar action in a variety of circumstances, but not in
circumstances similar to those present in this case, where a rule
or order establishes clearly the obligations of the regulated
entity. See, e.g., Trinity Broadcasting of Florida v. FCC, 211
F.3d at 618 (where the FCC failed to provide a relevant
definition for a key regulatory term, regulated entity's reliance
on the FCC's prior interpretation of that term as it appeared in
a different but similar regulation was reasonable); General
Electric Co. v. EPA, 53 F.3d 1324 (D.C. Cir. 1995) (scope of
regulation was not clear when, among other things, the agency's
interpretation of a key term in the regulation was contrary to
its ordinary meaning; the regulation was ambiguous on its face as
to whether the conduct was prohibited; and different divisions of
the enforcing agency disagreed about the meaning of the
regulation); Rollins Environmental Services, Inc. v. EPA, 937
F.2d 649 (D.C. Cir. 1991) (although the EPA's interpretation of
the regulation was permissible, forfeiture was improper where the
regulation was ambiguous and significant disagreement existed
among EPA's various offices regarding the proper interpretation
of the language); Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th
Cir. 1976) (citations improper where, inter alia, there was
disagreement among OSHA compliance officers as to whether the
regulation applied to conduct at issue).
19 NAL, 17 FCC Rcd 1397 (2002).
20 NAL, 17 FCC Rcd at 1402-03, ¶¶ 11-13. The Arbitration
Award subsequently was approved by the Texas Commission on
December 1, 1999. See id. at 1402, ¶ 11.
21 SBC Response at 26-27.
22 SBC Response at 26 (citation omitted).
23 Texas Arbitration Award at 2-3, 5-7.
24 Texas Arbitration Award at 12-13.
25 See NAL, 17 FCC Rcd at 1403-04, ¶ 14 & n.34. SBC's
argument about how other state commissions might interpret the
language in its Texas interconnection agreements is irrelevant to
our analysis. See SBC Response at 27. The Texas PUC's ruling
confirmed that SBC was obliged to and did offer shared transport
for intraLATA toll in Texas during August, 1999. Paragraph 56
required SBC to do the same in the Ameritech region. SBC's focus
on how other state commissions might interpret the language from
the Texas interconnection agreements is entirely misplaced.
Paragraph 56 does not bind SBC to offer that particular contract
language in other states, but to fulfill the obligation embodied
in that language pursuant to which it must offer shared transport
in the former Ameritech states.
26 Texas Arbitration Award at 39. The term ``common''
transport as the Texas PUC used it in the Texas Arbitration Award
is synonymous with the term ``shared'' transport that we used in
the Merger Order. SBC does not argue to the contrary.
27 Texas Arbitration Award at 2-3.
28 Texas Arbitration Award at 14.
29 NAL, 17 FCC Rcd at 1400-01, ¶¶ 9-12.
30 SBC Response at 10. SBC submitted a series of
declarations signed by various SBC personnel who assert that
their understanding was that the purpose of the shared transport
merger condition was ``to permit CLECs in the Ameritech region to
use shared transport for local exchange and exchange access, not
for long-distance calling.'' SBC Response at 25 (emphasis in
original). These self-interested declarations, however, cannot
serve to contradict the plain language of the merger condition.
Our interpretation of that condition, set forth at paragraph 5
above, is entirely straightforward, and the language of the
condition admits no reasonable contrary interpretation.
31 Implementation of the Local Competition Provisions of
the Telecommunications Act of 1996, Third Report and Order and
Fourth Further Notice of Proposed Rulemaking, 15 FCC Rcd 3696
(1999) (``UNE Remand Order'').
32 See infra n.45.
33 17 FCC Rcd at 1404-05, ¶¶ 17-18.
34 NAL, 17 FCC Rcd 1397 (2002).
35 SBC argues that the Commission must have intended to
limit the shared transport requirement to local services, because
otherwise there would be ``no limitation at all on an incumbent
LEC's obligation to unbundle common transmission facilities.''
SBC Response at 13. By way of example, SBC contends that under
such a reading, Sprint would have to unbundle all of its long-
distance facilities throughout any state in which it is an
incumbent LEC. Id. SBC is mistaken, however; the unrestricted
nature of the shared transport obligation does not lead to such a
scenario. Although paragraph 56 does not restrict the use of the
shared transport UNE to intra LATA services, as a practical
matter shared transport is not generally available for interLATA,
interexchange traffic. Incumbent LECs are not required to
provide shared transport between incumbent LEC switches and
serving wire centers, which is how an incumbent LEC typically
routes interLATA, interexchange traffic in its network. See 1997
Shared Transport Order, 12 FCC Rcd at 12478, ¶ 29; Access Charge
Reform, Fifth Report and Order and Further Notice of Proposed
Rulemaking, 14 FCC Rcd 14221, 14226-27, ¶¶ 8-10 (1999). In
addition, Commission rules generally prohibit an incumbent LEC
from jointly owning interexchange transmission facilities with
its long distance affiliate. See, e.g., 47 C.F.R. §
64.1903(a)(2) (stating that incumbent independent LECs may not
jointly own transmission facilities with their in-region,
interexchange services affiliates). An incumbent LEC's long
distance network must be independent from its local networks,
and, therefore, as a practical matter, competitive LECs cannot
use the shared transport UNE to transit traffic beyond the LATA
36 SBC Response at 10-16, 19-25.
37 47 U.S.C. § 251(c)(3). This provision was codified
almost verbatim at section 51.307(a) of the Commission's rules,
47 C.F.R. § 51.307(a).
38 See 47 U.S.C. § 153(29) (a ``network element'' is ``a
facility or equipment used in the provision of a
telecommunications service . . . .'').
39 47 C.F.R. § 51.319(d)(iii) (emphasis added). Rule
51.319 was promulgated in the UNE Remand Order, 15 FCC Rcd at
40 47 C.F.R. § 51.319(d) (emphasis added).
41 See UNE Remand Order, 15 FCC Rcd at 3864, ¶ 374
(finding a requesting carrier's ability ``to provide the
services it seeks to offer'' would be impaired without access to
shared transport); id. at 3842, ¶ 321 (same).
42 See 47 U.S.C. § 153(43) (defining
``telecommunications'' as ``the transmission, between or among
points specified by the user, of information of the user's
choosing . . .''); 47 U.S.C. § 153(44) (defining
``telecommunications carrier'' as ``any provider of
telecommunications services''); and 47 U.S.C. § 153(46) (defining
``telecommunications service'' as ``the offering of
telecommunications . . .'').
43 See also 47 C.F.R. 51.307(a) (``An incumbent LEC shall
provide [UNEs], to a requesting telecommunications carrier for
the provision of a telecommunications service . . .'').
44 47 C.F.R. 51.309(a) (``[a]n incumbent LEC shall not
impose limitations, restrictions, or requirements on requests
for, or the use of, unbundled network elements that would impair
the ability of a requesting telecommunications carrier to offer a
telecommunications service in the manner the requesting
telecommunications carrier intends.'') Where we impose or permit
use restrictions on UNEs, we do so explicitly, as we did with our
rules limiting the use of enhanced extended links (``EELs'').
See Implementation of the Local Competition Provisions of the
Telecommunications Act of 1996, Supplemental Order, 15 FCC Rcd
1760 (1999); Implementation of the Local Competition Provisions
of the Telecommunications Act of 1996, Supplemental Order
Clarification, 15 FCC Rcd 9587 (2000). The Commission has not
adopted any restriction on the use of shared transport, and
therefore under rule 51.309(a) the requesting carrier may use the
shared transport UNE to provide intraLATA toll or any other
telecommunications service it seeks to provide.
45 SBC's overreaching in this regard extends to its
reliance on a California state commission decision as well. SBC
cites to a California state commission order that SBC says
adopted the position that ``[c]ompletion of end-user calls over
[the incumbent LEC's] intraLATA toll network is not part of the
shared transport UNE under the FCC's UNE Remand Order.'' SBC
Response at 21, citing Application of AT&T Communications of
California, Inc. (U 5002 C) et al., for arbitration of an
Interconnection Agreement with Pacific Bell Telephone Company
Pursuant to Section 252(b) of the Telecommunications Act of 1996,
Final Arbitrator's Report, A.00-01-022, at 118-19 (Cal. P.U.C.,
June 13, 2000). SBC's characterization of the California PUC's
holding in this proceeding is misleading and incorrect. Although
the arbitrator did adopt the incumbent's position on the
substantive issue in question, it was not on the grounds that SBC
suggests. In fact, consistent with our conclusion that SBC is
required to offer shared transport for routing intraLATA toll
calls, the California PUC held that AT&T was entitled to use
shared transport to route its intraLATA toll traffic over the
incumbent LEC's network, as long as it is used in combination
with unbundled switching. Specifically, the California PUC
concluded that, when a competing carrier purchases unbundled
switching from an incumbent LEC, ``that function, in combination
with shared transport, can be used to route . . . intraLATA toll
traffic.'' Therefore, even this state decision that SBC uses in
an effort to blur the clarity of paragraph 56 rejects SBC's
position that shared transport excludes intraLATA toll traffic.
46 SBC points to the Commission's statement that ``access
to transport facilities on a shared basis is particularly
important for stimulating initial competitive entry into the
local exchange market, because new entrants have not yet had an
opportunity to determine traffic volumes and routing patterns.''
Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, Interconnection between Local
Exchange Carriers and Commercial Mobile Radio Service Providers,
Third Order on Reconsideration and Further Notice of Proposed
Rulemaking, 12 FCC Rcd 12460, 12482, ¶ 35 (1997) (``1997 Shared
Transport Order''). SBC also quotes the Commission's statement
that ``the only carrier that would need shared transport
facilities would [be] one that was using an unbundled local
switch,'' and maintains that this statement, too, was meant to
limit the shared transport obligation to local traffic. SBC
Response at 12, citing 1997 Shared Transport Order at 12488, ¶ 47
n.127. According to SBC, these statements indicated the
Commission's intent to ``stimulate competition in the local
market,'' and thus to exclude intraLATA traffic from the shared
transport obligation. SBC Response at 12. The company also
relies on paragraph 56 itself, which applies to the obligation
``to provide unbundled local switching and shared transport.''
SBC Response at 11, quoting SBC/Ameritech Merger Order, 14 FCC
Rcd at 15023-24, Appendix C, ¶ 56. None of the statements SBC
cites contradicts the plain meaning of our rules regarding the
obligation to provide the shared transport UNE, or, for that
matter, even addresses the nature or scope of the shared
transport obligation. Moreover, SBC's repeated citation to the
use of the term ``local'' in reference to the ``switch'' seems to
imply a limitation on the Commission's rules providing for broad
use of the switching UNE. To the contrary, when we use the word
``local'' in conjunction with the word ``switch,'' the former is
a term descriptive of the physical switching facility itself and
not the services for which a carrier may use the switch. As we
concluded in the NAL, and as we explain in the instant Order,
neither paragraph 56 nor the Commission's rules limit the use of
the shared transport UNE to a particular type of
telecommunications service. In addition, despite SBC's
assertions to the contrary, and as we note in the following
footnote, we have previously stated that intraLATA toll service
affects competition in the local market.
47 In the order denying Ameritech's section 271
application for the state of Michigan, we addressed allegations
that Ameritech was refusing to provide intraLATA toll service to
CLEC customers, and we emphasized our ``concerns that
discontinuing or refusing to offer intraLATA toll service to
customers that elect to switch to another local service offer may
threaten a competing LEC's ability to compete effectively in the
local market and thus may be inconsistent with the procompetitive
goals of the 1996 Act.'' Application of Ameritech Michigan
Pursuant to Section 271 of the Communications Act of 1934, as
amended, to Provide In-Region, InterLATA Services in Michigan,
Memorandum Opinion and Order, 12 FCC Rcd 20543, 20738-40, ¶¶ 377-
378 (1997). See also id. at 20738, ¶ 377 (expressing ``concerns
that Ameritech is effectively stifling competition in the local
exchange market by refusing to provide intraLATA toll service to
competing LEC customers'') (emphasis added).
48 SBC Response at 8-9, 33 (citing Trinity Broadcasting
of Florida v. FCC, 211 F.3d at 618; General Electric Co. v. EPA,
53 F.3d at 1328).
49 NAL, 17 FCC Rcd at 1405, ¶ 18.
50 See supra ¶¶ 13-14.
51 NAL, 17 FCC Rcd at 1404-05, ¶ 17.
52 SBC response at 16-17.
53 The merger condition sunset provision of general
applicability provides for independent sunsets for particular
conditions. SBC/Ameritech Merger Order, 14 FCC Rcd at 14858, ¶
359. The paragraph 56 shared transport obligation sunset
provision is conditioned on the events we describe in text,
rather than on a particular date.
54 SBC/Ameritech Merger Order, 14 FCC Rcd at 15023-24,
Appendix C, ¶ 56.
55 The recent D.C. Circuit Court decision in United States
Telecom Association, et al. v. FCC, et al., 290 F.3d 415 (2002),
does not undermine our analysis. The court did not vacate the
UNE Remand Order.
56 47 U.S.C. § 503(b)(1)(A). Specifically, section
503(b)(1) states, in pertinent part: ``[a]ny person who [has]
willfully or repeatedly failed to comply substantially with the
terms and conditions of any license, permit, certificate, or
other instrument or authorization issued by the Commission . . .
shall be liable to the United States for a forfeiture penalty.''
57 47 U.S.C. § 503(b)(1)(A); see also 47 C.F.R. §
58 See, e.g., 47 U.S.C. § 312(f)(1) (defining willful as
``the conscious and deliberate commission or omission of [any]
act, irrespective of any intent to violate any provision of this
Act or any rule or regulation of the Commission''); Southern
California Broadcasting Company, 6 FCC Rcd 4387, 4388 (1991)
(discussing legislative history of section 312(f)(1) and its
applicability to section 503(b) forfeiture proceedings);
Liability of Chesapeake Broadcasting Corp., Licensee of AM Radio
Station WASA, Havre de Grace, MD, for a Forfeiture, Memorandum
Opinion and Order, 2 FCC Rcd 252, 253, ¶¶ 9-10 (1987) (stating
that, in the forfeiture context, willfulness is not ``an intent
to deceive the Commission or to violate the Act or the Rules.'').
59 The Commission may also assess a forfeiture for
violations that are merely repeated, and not willful. See, e.g.,
Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
Apparent Liability for Montary Forfeiture, 16 FCC Rcd 1359 (2001)
(issuing a Notice of Apparent Liability for, inter alia, a cable
television operator's repeated signal leakage). ``Repeated''
merely means that the act was committed or omitted more than
once, or if it lasts more than one day. Southern California
Broadcasting Co., Licensee, Radio Station KIEV(AM) Glendale,
California, 6 FCC Rcd 4387, 4388, ¶ 5 (1991); Callais
Cablevision, Inc., Grand Isle, Louisiana, Notice of Apparent
Liability for Monetary Forfeiture, 16 FCC Rcd at 1362, ¶ 9. In
this case, SBC refused to comply with multiple requests for
shared transport to route intraLATA calls in each of the former
Ameritech states, and for more than one day on each occasion.
Thus, the acts addressed here were repeated as well as willful,
and support a forfeiture on those grounds as well.
60 NAL, 17 FCC Rcd at 1405-06, ¶ 20.
61 47 U.S.C. § 503(b)(2)(B); see also 47 C.F.R. §
1.80(b)(2); see also Amendment of Section 1.80(b) of the
Commission's Rules, Adjustment of Forfeiture Maxima to Reflect
Inflation, Order, 15 FCC Rcd 18221 (2000).
62 47 U.S.C. § 503(b)(2)(D); see also The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
17100 (1997) (``Forfeiture Policy Statement''); recon. denied 15
FCC Rcd 303 (1999); 47 C.F.R. § 1.80(b)(4).
63 Forfeiture Policy Statement, 12 FCC Rcd at 17099-100.
64 SBC 2001 Annual Report at 4.
65 SBC Response at 31.
66 Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, Report and Order, 12 FCC Rcd 17087, 17101, ¶ 29
67 SBC Response at 31-32.
68 SBC describes its obligation as simply ``to provide
AIN-based shared transport throughout the Ameritech region by
October 8, 2000.'' SBC Response at 32. SBC substantially
understates the extent of its obligation. Nothing in the
SBC/Ameritech Merger Order indicates that SBC's only obligation
was to implement an AIN-based system. SBC is obligated to
provide shared transport under terms and conditions - all terms
and conditions (except for pricing) substantially similar to or
better than those it offered in Texas.
69 SBC Response at 32.
70 The records of proceedings in each of the five
Ameritech states document these requests, as well as SBC's
refusal to honor them. See, e.g., Investigation Into Tariff
Providing Unbundled Local Switching With Shared Transport, Order,
Case No. 00-0700 (Ill. Commerce Comm., Nov. 1, 2000), Exhibit
1(v) to Sworn Statement of Deborah A. Golden (``Golden
Exhibit''), submitted with Letter from Sandra L. Wagner, SBC
Telecommunications, Inc., to Warren Firschein, Attorney, Market
Disputes Resolution Division, Enforcement Bureau, FCC, dated May
2, 2001 (``SBC May 2 Response'') (investigating an Illinois Bell
Telephone Company tariff on the issue of whether Ameritech's
restrictions on the shared transport offering are appropriate,
and specifically whether shared transport should be available for
use by CLECs in transporting their intraLATA toll traffic); AT&T
Communications of Indiana, Inc. TCG Indianapolis Petition for
Arbitration of Interconnection Rates, Terms and Conditions and
Related Arrangements with Indiana Bell Telephone Company, Inc.
d/b/a Ameritech Indiana Pursuant to Section 252(b) of the
Telecommunications Act of 1996, Ameritech Indiana's Submission of
Proposed Order, Cause No. 40571-INT-03 at 69-71 (Ind. Util. Reg.
Comm'n, filed Oct. 10, 2000), Golden Exhibit 1(b) of SBC May 2
Response (proposed ruling that Ameritech should be permitted to
prohibit AT&T's use of shared transport for intraLATA toll
traffic); AT&T Communications, Inc.'s Petition for Arbitration of
Interconnection Rates, Terms, and Conditions, and Related
Arrangements with Ameritech Ohio, Ameritech Ohio's Response to
AT&T's Petition for Arbitration, Case No. 00-1188-TP-ARB at 19
(Pub. Util. Comm'n of Ohio, filed July 25, 2000), Golden Exhibit
1(k) of SBC May 2 Response (arguing that AT&T should not be
permitted to use shared transport for intraLATA toll traffic;
Application of Ameritech Michigan for Approval of a Shared
Transport Cost Study and Resolution of Disputed Issues Related to
Shared Transport, Ameritech Michigan's Reply Brief, Case No. U-
12622 (Mich. Pub. Serv. Comm'n, filed December 28, 2000)
(defending a tariff filing that prohibited use of shared
transport for intraLATA toll service); Ameritech Michigan's
Exceptions to the Proposal for Decision at 4-8 (filed February
12, 2001), Golden Exhibit 1(h) of SBC May 2 Response (arguing
that the Merger Order does not require Ameritech to allow the use
of shared transport for intraLATA toll service); Petition for
Arbitration to Establish an Interconnection Agreement Between Two
AT&T Subsidiaries, AT&T Communications of Wisconsin, Inc. and TCG
Milwaukee, and Wisconsin Bell, Inc. (d/b/a Ameritech Wisconsin),
Ameritech Wisconsin's Initial Post-Hearing Brief, Docket No. 05-
MA-120 at 74 (Pub. Serv. Comm'n of Wisconsin, filed September 22,
2000), Golden Exhibit 1(o) of SBC May 2 Response (arguing that
Ameritech may prohibit AT&T's use of shared transport for
intraLATA toll traffic).
71 SBC reminds us that it deployed an Advanced Intelligent
Network-based shared transport product as required by the
SBC/Ameritech Merger Order, and concludes that ``[t]he
Commission's resort to the statutory maximum is thus wholly out
of proportion to what SBC is alleged to have done wrong, and
fails entirely to acknowledge what it has done right.'' SBC
Response at 32. However, the mere act of compliance with one
portion of the law does not insulate SBC from the consequences of
significant noncompliance with a different portion of the law.
Regulated entities must comply with all requirements, and should
expect significant enforcement action where, as here, there is
72 47 U.S.C. § 503(b).
73 47 C.F.R. § 1.80.
75 47 U.S.C. § 504(a).