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Federal Communications Commission
Washington, D.C. 20554
In the matter of )
SBC Communications Inc. ) File No. EB-00-IH-0326a
Apparent Liability for ) NAL/Acct. No. 200132080015
) FRN Numbers 0004-3051-24
ORDER ON REVIEW
Adopted: February 21, 2002 Released: February 25,
By the Commission:
1. In this Order, we affirm the May 24, 2001 Order of
Forfeiture1 issued by the Enforcement Bureau (``Bureau'') finding
that SBC Communications Inc. (``SBC'') willfully and repeatedly
violated section 51.321(h) of the Commission's rules,2 which
requires incumbent local exchange carriers (``ILECs'') promptly
to post on their Internet site notice of premises that have run
out of collocation space. We reduce the amount of the forfeiture
from ninety-four thousand, five hundred dollars ($94,500) to
eighty-four thousand dollars ($84,000). Therefore, we grant
SBC's June 25, 2001 Application for Review in so far as it
requests a modification of the forfeiture amount and deny SBC's
Application for Review in all other respects.
2. SBC is an ILEC that provides local telephone service in
13 states: Arkansas, Kansas, Missouri, Oklahoma, Texas,
California, Nevada, Illinois, Michigan, Indiana, Ohio, Wisconsin,
and Connecticut.3 At the end of 2000, SBC served more than 61
million local exchange access lines in its 13-state regions.4
SBC also provides intraLATA toll service, long distance,
wireless, Internet access, international, cable, security
monitoring, and directory publishing services.5 In 2000, SBC had
total operating revenues of more than $51 billion.6 On October
8, 1999, SBC completed a merger with Ameritech Corp.
3. The Commission's order approving the merger application
of Ameritech and SBC required SBC to submit an audit report to
the Commission regarding its compliance with the Commission's
collocation rules for the period October 8, 1999 through June 8,
2000.8 SBC submitted that report on August 8, 2000.9 It
included an assessment of SBC's compliance with 47 C.F.R. §
51.321(h), which provides that ``[t]he incumbent LEC must
maintain a publicly available document, posted for viewing on the
incumbent LEC's publicly available Internet site, indicating
all [collocation] premises that are full, and must update such a
document within ten days of the date at which a premises runs out
of physical collocation space.''10 The audit report revealed
potential violations of this requirement.11
4. In response to a letter from the Bureau, SBC submitted
further information concerning collocation posting.12 The
documents revealed additional potential violations of section
51.321(h). On January 18, 2001, the Bureau issued a Notice of
Apparent Liability (``NAL'')13 finding that SBC apparently had
violated the Commission's collocation rules14 and the
SBC/Ameritech Merger Order,15 and finding SBC apparently liable
for a forfeiture in the amount of ninety-four thousand, five
hundred dollars ($94,500). Because SBC had requested
confidential treatment of all its submissions to the Bureau, the
Bureau omitted from the NAL details of the nature and scope of
SBC's violations. Following SBC's complaints about these
omissions in its response to the NAL,16 the Bureau sent a
confidential letter to counsel for SBC on March 9, 2001,
providing details concerning the central offices at issue in the
NAL and the calculation of the forfeiture amount.17 At the
Bureau's invitation, SBC submitted a supplemental response to the
NAL on April 10, 2001.18 The Bureau issued the Forfeiture Order
on May 24, 2001.
5. On November 14, 2001, SBC agreed to waive confidential
treatment for some information, including the number and
name/location of the offices that were the subject of the
Forfeiture Order and SBC's Application for Review.19 Throughout
this proceeding, SBC has conceded that it violated Internet
posting requirements for three central offices, including
Satellite Hills, Nevada; Chesterfield, Missouri; and
Indianapolis, Indiana.20 The Bureau determined in the Forfeiture
Order that SBC violated section 51.321(h) with respect to the
following additional SBC central offices:
1. Anaheim, California
2. Brentwood, California
3. Calabasas, California
4. Carlsbad, California
5. Clayton, California
6. Fallbrook, California
7. Fremont, California
8. Half Moon Bay, California
9. Modesto, California
10. Milpitas, California
11. Orange, California
12. Pedley, California
13. Riverside, California
14. Rocklin, California
15. San Juan Capistrano, California
16. San Jose, California
17. Tehacapi, California
18. Valley Center, California
19. Yorba Linda, California
20. Elk Grove, Illinois
21. Kildare, Illinois
22. Lake Zurich, Illinois
23. Orland Park, Illinois
24. Round Rock, Texas.
6. Under section 503(b) of the Act, any person who is
determined by the Commission to have failed willfully or
repeatedly 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.21 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 no such forfeiture penalty should be imposed.22
The Commission will then issue a forfeiture if it finds by a
preponderance of the evidence that the person has violated the
Act or a Commission rule.23 As set forth in detail below, we
conclude that, based on this standard, the Bureau properly
imposed a forfeiture on SBC for violations of the Commission's
7. The issue presented by our review of the Bureau's
Forfeiture Order is whether the Bureau properly determined that
SBC violated the Commission's collocation posting rule that
requires SBC to post on its publicly available Internet site the
name of each premises that has no collocation space available
within ten days of when the premises ``runs out'' of space.24
Based upon our review of SBC's Application for Review and the
record in this matter,25 we affirm the Bureau's decision in this
case as to liability and as to the methodology for calculating
the forfeiture amount. We find that, based on the untimely
postings of the offices identified in paragraph 5 above, SBC
willfully and repeatedly26 violated the Commission's collocation
rules.27 However, we modify the forfeiture amount because we
credit SBC's assertion that it did not fully understand the basis
of its liability until more than one year after SBC cured three
of the 27 posting violations.
A. The Collocation Posting Requirement
8. The timing requirement of our collocation posting rule
is clear from the text of the regulation. An ILEC must post on
its publicly available Internet site the name of each of its
premises that has no physical collocation space available
``within ten days of the date at which a premises runs out of
physical collocation space.''28 This requirement is not
ambiguous. A premises ``runs out'' of space when space is no
longer available. The ILEC then has ten days to post that
information on its Internet site. Based on this plain meaning,
the Bureau properly rejected SBC's defense of its collocation
9. SBC argues that the collocation posting rule can be
read to allow an ILEC to post notice of an exhausted premises not
within ten days of its space becoming unavailable, but at some
subsequent and indeterminate time, within ten days of whenever
the ILEC might deny a CLEC application for collocation on the
basis of lack of space. Section 51.321(h) cannot be read to
support SBC's interpretation. Contrary to SBC's assertions, the
posting obligation is not even arguably triggered by any event
other than the exhaustion of available space. We decline,
therefore, to validate SBC's ``policy . . . to treat as the
triggering event the determination that an office had no
additional space for collocation''29 because that determination
is made only ``when an ILEC tries, but fails, to accommodate a
collocation application.''30 As the Bureau stated in the
Forfeiture Order, ``SBC's denial of a collocation application is
not the event that causes a premise to run out of space. Indeed,
the denial makes clear that the premise already had run out of
10. Moreover, in this case and under these circumstances,
the evidence of industry practice in this record cannot be used
to create ambiguity where none otherwise exists.32 SBC argues
that the collocation posting rule is ambiguous because it
conflicts with SBC's understanding of industry standards among
the ILECs.33 As an initial matter, we need not turn to industry
standards where a rule is clear on its face. But, in any event,
we cannot rely on ILEC industry practice to inform our
enforcement of collocation obligations because the Commission has
previously determined that ``incumbent LECs have the incentive
and capability to impede competition by reducing the amount of
space available for collocation by competitors.''34
11. The lack of weight we attribute to industry practice in
this case is not in tension with the cases that SBC cites in
support of its argument.35 Spancrete Northeast Inc. v. OSHRC36
and other federal cases like it have interpreted provisions of
the Occupational Safety and Health Act and its implementing
regulations. In assessing whether an employer complied with a
duty that it provide a workplace ``free from recognized hazards''
and a duty that it ensure employees wear ``appropriate''
protective equipment,37 federal courts have indeed adopted an
objective standard ``based on what a reasonable man familiar with
industry practices would have done.''38 But such a standard is
appropriate in that context only because those rules are ``so
general that due process requires some reference to
reasonableness and industry custom before liability is
imposed.''39 The clarity and precision of our collocation
posting rule stands in stark contrast to the rules at issue in
those cases. Therefore, SBC's citation to them does not
influence our determination that the Bureau properly determined
industry practice to be ``irrelevant'' in this case.40
12. In addition to the plain language of our collocation
posting rule, the purpose underlying the rule further belies
SBC's asserted interpretation. As stated in the order adopting
the rule, the purpose is to ensure that competitors do not
``expend significant resources in applying for collocation
space in an incumbent LEC's premises where no such space
exists.''41 Any posting that is triggered by a denial of an
application necessarily follows the applicant's expenditure of
resources to file the application. Specifically, the evidence in
this record suggests that CLECs were injured as a result of SBC's
conduct: in most of the instances of untimely posting that the
Bureau identified, a CLEC applied for collocation space only to
have SBC deny collocation because the space was full before the
CLEC even submitted its application.42 This injury is precisely
the one that the rule is intended to avoid.43 This anomalous
result further supports our conclusion, based on the plain
language of the rule, that the practice is not in accord with the
13. As to the goals of our broader collocation rules, we
are unpersuaded by SBC's assertion that our interpretation
conflicts with the ``goal of keeping offices open,''44 and that
SBC's practice serves that goal by allowing additional CLECs to
be ``squeezed-in.''45 An office is not open when all space is
consumed by space reservations and newly installed equipment.
And, if there is room to accommodate an additional CLEC, an
office is not exhausted. Our ruling here does not require that
offices be listed as closed when there is room to collocate
additional CLECs. It simply requires offices to be listed as
closed when space becomes unavailable for any reason, including
the reservation of space or installation or equipment. If such
offices subsequently become open, they should be taken off the
list of closed offices.
14. The Advanced Services Order does not support SBC's
interpretation. SBC argues that our adoption in that proceeding
of Sprint's collocation posting proposal establishes that we
intended this obligation to be triggered only by an ILEC's denial
of a CLEC collocation application.46 But contrary to SBC's
assertions, Sprint did not propose that collocation space
reporting requirements be triggered only by an application
denial, and we never suggested anything of the kind.47 Rather,
Sprint expressed discomfort with our tentative conclusion that
ILECs would be required to submit detailed reports about the
status of available collocation space to requesting CLECs.48 As
an alternative to that requirement, Sprint ``urge[d] that
instead, the ILECs be required simply to maintain a current,
publicly available list of offices where no space is
available.''49 Ultimately, we adopted Sprint's posting proposal
in addition to our own tentative conclusion that ILECs are
required to provide status reports to CLECs upon request.50
Therefore, an ILEC must report the status of its available
collocation space (1) in a report whenever a CLEC requests
information about that status, and (2) on its publicly available
Internet site when a location runs out of space. That we imposed
the first reporting requirement, which is obviously triggered by
an event other than an application denial, refutes SBC's
assertion that we were wedded to the idea that ILECs would be
overly burdened by obligations triggered by anything other than
15. We are similarly unpersuaded by SBC's assertion that
its position is supported by a sentence in a footnote in the
Advanced Services Order that merely acknowledges that Bell
Atlantic was generally making use of its Internet site to furnish
carriers with information on collocation space availability.52
SBC asserts that this reference ``makes clear that an ILEC could
restrict its posting to premises in which collocation had been
requested . . .'' because that was Bell Atlantic's practice at
that time.53 In view of all of the discussion above about the
clarity of the text of this rule and its purposes, this single
sentence reference in a footnote to a carrier's use of the
Internet to post space availability information cannot be read to
control the interpretation of the rule, regardless of whether or
not the carrier was posting the information only for offices in
which collocation had been requested. We did not take note of
that aspect of the Bell Atlantic's Internet posting, nor did we
attribute to it any significance.
16. We also reject SBC's assertion that the Regulatory
Flexibility Analysis in the Advanced Services Order ``casts
further doubt on the existence of'' a requirement that ILECs
monitor their collocation floor space.54 As the Bureau stated in
the Forfeiture Order, ``the Internet-posting requirement simply
requires that ILECs make publicly accessible information about
the availability of collocation space in offices that they occupy
on a daily basis.''55 That SBC disagrees with our assessment of
the cost of compliance with our rule has no bearing on the
meaning of the rule.56
17. 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.''57 As we explain above, however, section
51.321(h)'s58 requirement that offices be posted when they ``run
out'' of space provides ample notice to carriers that they may
not ignore space exhaustion resulting from the reservation of
space or equipment installation.59 Moreover, SBC's practice so
distorts the rule as to undermine its purpose. We therefore
reject SBC's contention that section 51.321(h)60 is ambiguous and
its contention that the rule cannot operate to support the
imposition of a forfeiture on SBC for its past conduct.61 SBC
violated a clear rule, and the Bureau's Forfeiture Order was
B. Forfeiture Amount
18. Section 503(b)(1) of the Act states that any person
that willfully or repeatedly fails to comply with any provision
of the Act or any rule, regulation, or order issued by the
Commission shall be liable to the United States for a forfeiture
penalty.63 Section 503(b)(2)(D) of the Act and the Forfeiture
Policy Statement64 allow the Commission considerable flexibility
to determine the appropriate forfeiture.65 SBC objects to the
forfeiture amount on the basis that the Bureau (1) failed to
explain how the amount was calculated; (2) failed to apply the
Forfeiture Policy Statement; (3) relied on unpaid or
unadjudicated findings of liability against SBC; and (4) failed
to exclude violations prior to March 9, 2000. We hold that the
Bureau's methodology in calculating the forfeiture amount was
proper but we amend that forfeiture amount downward as described
in paragraph 22 below.
19. First, we find that the Bureau used a reasonable and
appropriate methodology in calculating the forfeiture penalty,
and it explained that method sufficiently. For the time period
relevant to this proceeding, section 503(b)(2)(B) of the Act
authorizes the Commission to assess a forfeiture of up to
$110,000 for each violation, or each day of a continuing
violation, up to a statutory maximum of $1,100,000 for a single
act or failure to act.66 In the NAL and the March 9, 2001 Letter
to SBC's counsel, the Bureau described the nature and scope of
the violations and its calculation of the forfeiture amount.
Specifically, the Bureau explained that it had considered ``the
nature, circumstances, extent and gravity of the violations, 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,''67 and it determined that each of the 27
violations described in paragraph 5 above warrants a forfeiture
amount of three thousand, five hundred dollars ($3,500).68 The
NAL and the March 9, 2001 Letter, therefore, sufficiently
explained the calculation and basis of the forfeiture amount to
SBC, identified the number of violations, and disclosed the base
20. Second, the Bureau properly followed the Communications
Act and the Forfeiture Policy Statement in calculating the
forfeiture amount.69 Although there is no base amount under the
Commission's forfeiture guidelines for failure to post exhaustion
of collocation space in a timely fashion, an analogous violation
is the ``[f]ailure to file required forms or information.'' The
base amount for such a violation is three thousand dollars
($3,000).70 Another analogous forfeiture amount in the
Commission's guidelines is for ``[v]iolation of public file
rule.'' The base amount for such a violation is ten thousand
dollars ($10,000).71 Because the violations here involve
important local competition requirements, the Bureau, in a
perfectly appropriate exercise of its discretion, imposed a base
amount not at the bottom of the range but between the two most
analogous violations for each violation here. The Forfeiture
Policy Statement permits an upward adjustment in the base
forfeiture amounts for ``large or highly profitable entities'' in
order ``to guarantee that forfeitures . . . are not considered
merely an affordable cost of doing business.''72 Accordingly, a
large and highly profitable company like SBC73 ``should expect .
. . that the forfeiture amount set out in an [NAL]. . . may . . .
be above, or even well above, the relevant base amount.''74 We
find that the Bureau properly applied the Forfeiture Policy
Statement, and we find that a forfeiture of three thousand, five
hundred dollars ($3,500) per violation on a company of SBC's
resources for the types of violations at issue here is not
21. Third, SBC argues that in calculating the forfeiture
amount, the Bureau violated section 504(c) of the Act,75 which
prohibits reliance on notices of apparent liability that have not
been either paid or adjudicated in court.76 SBC points to a
footnote in the Forfeiture Order citing cases in which the
Commission found that SBC violated various FCC rules.77 Although
SBC is correct that some of the cases in that footnote involved
notices of apparent liability that had not been either paid or
adjudicated by a court as of the date of the Forfeiture Order,78
the Bureau did not improperly rely on them in calculating this
forfeiture. The Bureau's citation was for the limited purpose of
refuting SBC's position that its ``performance in general is
outstanding'' and ``its overall record of compliance with the
Commission's collocation and other rules is outstanding'' thus
justifying a downward adjustment of the forfeiture amount.79 The
Bureau's citation of these cases for the limited purpose of
rejecting a downward adjustment does not violate section 504(c).
Moreover, although reliance on the issuance of an NAL is
prohibited until the forfeiture has been paid or the person is
subject to a final court order to pay, reliance on the facts
underlying prior NALs under similar circumstances is
permissible.80 In any event, we need not and do not rely on
footnote 38 in the Forfeiture Order in rejecting SBC's argument
that the forfeiture amount is unreasonably high.
22. Finally, we will decrease the total amount of the
forfeiture. Because SBC had requested confidential treatment for
all information submitted to the Bureau in conjunction with this
proceeding, the NAL released on January 18, 2001 contained less
detail concerning the violations than is typically the case. SBC
did not agree until November 14, 2001, that the number and
name/location of the offices that are the subject of this
proceeding could be disclosed in publicly available documents.81
SBC argues that ``[t]he Bureau first provided SBC with notice of
the bulk of the violations . . . on March 9, 2001'' in the letter
from the Bureau to SBC's counsel identifying the central offices
that were not posted on SBC's Internet site in a timely
fashion.82 Consequently, SBC asserts, three posting violations
should not factor into the forfeiture amount because the statute
of limitations expired on those violations between the date of
the NAL and the date of the March 9, 2001 Letter. Without
deciding whether the statute of limitations was satisfied by the
issuance of the NAL,83 we credit SBC's assertion that it did not
fully understand the basis of its liability until the March 9,
2001 Letter. Therefore, the violations resulting from the late
posting of central offices in Round Rock, Texas; Riverside,
California; and Lake Zurich, Illinois, will not factor into the
forfeiture amount. Each violation had been assigned a forfeiture
of three thousand, five hundred ($3,500) for a total of ten
thousand, five hundred dollars ($10,500). The forfeiture amount
is therefore reduced by that amount resulting in a forfeiture
amount of eighty-four thousand dollars ($84,000).
IV. ORDERING CLAUSES
23. For the reasons discussed above, IT IS ORDERED that,
pursuant to sections 1, 4(i), 4(j), and 503(b) of the Act, as
amended, 47 U.S.C. §§ 151, 154(i), 154(j), and 503(b), the
Application for Review filed by SBC Communications Inc. IS
GRANTED as to its request for a modification of the forfeiture
amount and IS DENIED in all other respects.
24. IT IS FURTHER ORDERED THAT, pursuant to section 503(b)
of the Act, 47 U.S.C. § 503(b), and section 1.80 of the
Commission's Rules, 47 C.F.R. §1.80, SBC Communications Inc.
SHALL FORFEIT to the United States Government the sum of eighty-
four thousand dollars ($84,000) for willfully and repeatedly
violating the Commission's rules and orders requiring ILECs
promptly to post on the ILEC's Internet site notice of premises
that have run out of collocation space.
25. IT IS FURTHER ORDERED that payment shall be made in the
manner provided for in section 1.80 of the Commission's rules, 47
C.F.R. § 1.80, within 30 days of release of this Order. If the
forfeiture is not paid within the period specified, the case may
be referred to the Department of Justice for collection pursuant
to section 504(a) of the Act, 47 U.S.C. § 504(a). Payment may be
made by mailing a check or similar instrument, payable to the
order of the Federal Communications Commission, to the Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note the NAL/Acct. No.
200132080015 referenced above and FRN Numbers 0004-3051-24, 0004-
3335-71, and 0005-1937-01. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
26. IT IS FURTHER ORDERED that a copy of this Order on
Review shall be sent by Certified Mail/Return Receipt Requested
to SBC Communications Inc. c/o Caryn Moir, Vice President-Federal
Regulatory, 1401 I Street, N.W., Suite 1100, Washington, D.C.
27. FEDERAL COMMUNICATIONS
30. William F. Caton
31. Acting Secretary
1 SBC Communications Inc., Order of Forfeiture, DA 01-1273, 16
FCC Rcd 10963 (2001) (``Forfeiture Order'').
2 47 C.F.R. § 51.321(h).
3 SBC 2000 Annual Report at 15.
4 Id. at 4.
5 Id. at 6-7.
6 Id. at 4.
7 See Id. at 12.
8 See 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, CC
Docket 98-141, Memorandum Opinion and Order, 14 FCC Rcd 14712,
14872, ¶ 387 (1999) (``SBC/Ameritech Merger Order'');
SBC/Ameritech Merger Order, Appendix C at ¶ 40.
9 See August 8, 2000 Letter from Marian Dyer, Vice-President, SBC
Telecommunications, Inc. to Magalie Salas, Secretary, Federal
Communications Commission; see also August 7, 2000 Report of
Management on Compliance with the FCC's Collocation Rules
(``Management's Assertion on Compliance''); see also August 7,
2000 Report of Independent Accountants, Ernst & Young LLP
(``Auditor's Report on Compliance'').
10 47 C.F.R. § 51.321(h).
11 Management's Assertion on Compliance at ¶ 7; Auditor's Report
on Compliance at 2.
12 See November 7, 2000 Letter from Marian Dyer, Vice President-
Federal Regulatory, SBC Telecommunications, Inc. to David
Solomon, Chief, Federal Communications Commission, Enforcement
Bureau (``SBC's November 7, 2000 Response''); December 18, 2000
Letter from Sandra L. Wagner, Vice President-Federal Regulatory,
SBC Telecommunications, Inc. to Elizabeth H. Valinoti, Federal
Communications Commission, Enforcement Bureau (``SBC's December
18, 2000 Response''); January 9, 2001 Letter from Sandra L.
Wagner, Vice-President, SBC Telecommunications, Inc. to Brad
Berry, Deputy Chief, Federal Communications Commission,
Enforcement Bureau (``SBC's January 9, 2001 Response'').
13 SBC Communications Inc., Notice of Apparent Liability for
Forfeiture, DA 01-128 (January 18, 2001).
14 See 47 C.F.R. § 51.321(h).
15 See SBC/Ameritech Merger Order, Appendix C at ¶ 37 (requiring
SBC/Ameritech provide collocation consistent with the
16 See Response of SBC Communications Inc. to Notice of Apparent
Liability for Forfeiture (February 20, 2001) (``SBC's Response to
17 See March 9, 2001 Letter from David H. Solomon, Chief, Federal
Communications Commission, Enforcement Bureau to Michael K.
Kellogg, Counsel for SBC Communications Inc. (``March 9, 2001
18 See Supplemental Response of SBC Communications Inc. to
Collocation-Posting Notice of Apparent Liability (April 10, 2001)
(``SBC's Supplemental Response to NAL'').
19 See November 16, 2001 Letter from Caryn D. Moir, Vice
President, Federal Regulatory, SBC Telecommunications, Inc. to
Suzanne Tetrault, Deputy Chief, Enforcement Bureau, Federal
Communications Commission (``November 16, 2001 Moir Letter'').
20 SBC's November 7, 2000 Response, attaching Sworn Statement of
Ross K. Ireland at Exhibit B.
21 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(a).
22 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
23 See, e.g., 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 hearings to
24 47 C.F.R. § 51.321(h).
25 The record includes the following documents and any
attachments thereto: SBC's November 7, 2000 Response, SBC's
December 18, 2000 Response, SBC's January 9, 2001 Response, SBC's
Response to NAL, SBC's Supplemental Response to NAL, the NAL, the
March 9, 2001 Letter, and the Forfeiture Order.
26 A party ``willfully'' violates the Commission's rules when it
knows it is taking the action in question, irrespective of any
intent to violate the Commission's rules, and repeated means more
than once. See Southern California Broadcasting Co., Licensee,
Radio Station KIEV(AM) Glendale, California, Memorandum Opinion
and Order, 6 FCC Rcd 4387, 4387-88, ¶ 5 (1991); see also
Liability of Hale Broadcasting Corp. Licensee of Radio Station
WMTS Murfreesboro, Tennessee, Memorandum Opinion and Order, 79
FCC 2d 169, 171, ¶ 5 (1980).
27 See 47 C.F.R. § 51.321(h).
28 47 C.F.R. § 51.321(h) (emphasis added); see also In the Matter
of Deployment of Wireline Services Offering Advanced
Telecommunications Capability, CC Docket 98-147, First Report and
Order and Further Notice of Proposed Rulemaking, 14 FCC Rcd 4761,
4793, ¶ 58 (1999) (``Advanced Services Order'') (``incumbent
LECs must maintain a publicly available document, posted for
viewing on the Internet, indicating all premises that are full,
and must update such a document within ten days of the date at
which a premises runs out of physical collocation space.'').
29 Application for Review at 3 (emphasis in the original).
30 Application for Review at i.
31 Forfeiture Order at 10964-65, ¶ 6. SBC argues that the
Bureau's letter of inquiry (``LOI'') reveals a latent ambiguity
in the rule because the Bureau sought information on the
completion of prior collocations, rather than seeking information
on requests for prior collocations. Application for Review at 9.
But nothing in the language of the LOI indicates that the Bureau
ever interpreted the posting requirement to be triggered by
anything other than exhaustion of available space, and nothing in
SBC's argument on this point blurs the distinct conflict of SBC's
policy and practices with our rule.
32 See Application for Review at 7.
34 Advanced Services Order at 4791-92, ¶ 56.
35 Application for Review at 7 (citing Spancrete Northeast Inc.
v. OSHRC, 905 F.2d 589, 593-94 (2d Cir. 1990)).
36 905 F.2d at 618.
37 Spancrete, 905 F.2d at 593 (citing 29 U.S.C. § 654(a)(1) and
29 C.F.R. § 1926.28(a)) (emphasis added).
38 Spancrete, 905 F.2d at 593.
39 Id. at 594.
40 Forfeiture Order at 10967, ¶ 13.
41 See Advanced Services Order at 4793, ¶ 56.
42 SBC's January 9, 2001 Response, Exhibit A.
43 See Advanced Services Order at 4793, ¶ 56.
44 Application for Review at 5 (emphasis in the original).
45 Id. at 10.
46 See Application for Review at 10-11.
48 Application for Review, Attachment 8 (In the Matter of
Deployment of Wireline Services Offering Advanced
Telecommunications Services, CC Docket No. 98-147, Comments
Sprint Corporation (September 25, 1998)) (``Sprint Comments'') at
18 (citing Notice of Proposed Rulemaking at ¶147).
49 Sprint Comments at 18 (emphasis added). As the Bureau stated
in the Forfeiture Order, Sprint states that the Internet posting
would be ``current,'' indicating a need to track current space
availability. Forfeiture Order at 10965, ¶ 7.
50 See 47 C.F.R. § 51.323(h). See also Sprint Comments at 18
(citing Notice of Proposed Rulemaking at ¶147).
51 SBC overlooks this first reporting requirement despite the
fact that Sprint addresses it in the paragraph on which SBC
relies for this argument, see Application for Review at 11
(citing Sprint Comments at 18), and despite its inclusion in the
same subsection of the collocation rules as the posting
requirement. See 47 C.F.R. § 51.323(h).
52 Advanced Services Order at 4793, ¶ 58 n.143 (``We note that
Bell Atlantic already makes information available on an Internet
website concerning space availability in its offices in New
53 Application for Review at 12.
54 Application for Review at 12-13.
55 Forfeiture Order at 10965, ¶ 8.
56 We adopt the Bureau's rejection of SBC's position that the
U.S. Office of Management and Budget has not approved the
requirements of section 51.321(h) under the Paperwork Reduction
Act. See Forfeiture Order at 10966, ¶ 9; Application for Review
at 13-14. The Commission has already obtained such approval.
OMB No. 3060-0848.
57 Trinity Broadcasting of Florida v. FCC, 211 F.3d 618, 628 (DC
Cir. 2000), cited in Application for Review at 14.
58 47 C.F.R. § 51.321(h).
59 Specifically, under SBC's interpretation of the rule it was
not required to consider the availability of collocation space
``every time space was reserved, or equipment installed, at a
central office,'' Application for Review at 4, but ``only when it
had a collocation application in hand, and when it appeared that
the application might be denied or partially denied due to lack
of space.'' Application for Review at 3-4.
60 47 C.F.R. § 51.321(h).
61 SBC appears to confuse this issue with the issue of
willfulness. See Application for Review at 15 (``This case is .
. . about whether the obligations the bureau seeks to enforce is
so clear . . . that SBC's failure to follow it can be considered
a `willful' violation of the Commission's rules.''). A finding
of willfulness merely requires a finding that the party had
knowledge of its actions, without regard to any intention to
violate the Commission's rules. See supra note 26. We agree
with the Bureau's determination that SBC willfully and repeatedly
failed to comply with the Commission's rules. Forfeiture Order
at 10966-67, ¶¶ 11-13.
62 Contrary to SBC's apparent assertions that the Commission's
approval of its section 271 applications, including a footnote
cross-referencing the Bureau's NAL, somehow precludes a finding
of a violation, see Application for Review at ii, 4-5, we do not
believe it was incumbent on the Commission to deny or defer
acting on SBC's applications pending the outcome of the
investigation of this matter. In any event, at this point,
having found SBC in violation of the rule, we see no need to
initiate on our own motion any enforcement action under section
63 47 U.S.C. §503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(2).
64 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997) (``Forfeiture Policy
Statement''); recon. denied, 15 FCC Rcd 303 (1999) (``Forfeiture
Policy Statement Reconsideration Order'').
65 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy
Statement, 12 FCC Rcd at 17100-01, ¶ 27; 47 C.F.R. § 1.80(b)(4).
66 47 U.S.C. § 503(b)(2)(B); see also 47 C.F.R § 1.80(b)(2).
67 See NAL at ¶ 9 quoting 47 U.S.C. § 503(b)(2)(D).
68 See March 9, 2001 Letter.
69 Application for Review at 17-18.
70 See Forfeiture Policy Statement at Appendix A, 17114; 47
C.F.R. § 1.80(b)(4).
71 See Forfeiture Policy Statement at Appendix A, 17113; 47
C.F.R. § 1.80(b)(4).
72 Forfeiture Policy Statement at 17099-100, ¶ 24.
73 See supra ¶ 2.
74 Forfeiture Policy Statement at 17099-100, ¶ 24.
75 47 U.S.C. § 504(c).
76 Application for Review at 18.
77 Forfeiture Order at 10968 n. 38.
78 Forfeiture Order at 10968 n. 38 (citing SBC Communications
Inc., Order of Forfeiture, DA 01-680 (March 15, 2001) (``March
15, 2001 Forfeiture Order'') and C.F. Communications Corp., et
al. v. Century Telephone of Wisconsin, Inc., et al., Memorandum
Opinion and Order on Remand, 15 FCC Rcd 8759 (2000), appeal
pending, Bell Atlantic, et al. v. FCC, No. 00-1207 (D.C. Cir.
filed May 15, 2000)). The Commission notes that the March 15,
2001 Forfeiture Order was paid by SBC on June 29, 2001, four days
after submission of the Application for Review on June 25, 2001.
79 Forfeiture Order at 10968, ¶ 15 (internal quotation marks
80 Forfeiture Policy Statement Reconsideration Order at 304, ¶ 4
(internal citation omitted) (Section 504(c) ``is not intended to
mean that the facts upon which a notice of forfeiture liability
against a licensee is based cannot be considered by the
Commission . . . with respect to the imposition of other
sanctions authorized by the Communications Act of 1934.'').
81 See November 16, 2001 Moir Letter.
82 Application for Review at 16.
83 47 U.S.C. § 503(b)(6)(B) (``No forfeiture penalty shall be
determined or imposed against any person . . . if the violation
charged occurred more than 1 year prior to the date of issuance
of the required notice or notice of apparent liability.'').
84 See 47 C.F.R. § 1.1914.