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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-00-IH-0113
) Acct. No. X32080012
GTE Service Corporation )
1. The Federal Communications Commission (the ``FCC'' or
the ``Commission'') and GTE Service Corporation (``GTE'' or the
``Company'') hereby enter into this Consent Decree for the
purpose of terminating an informal investigation by Commission
staff into whether GTE violated section 251(c)(6) of the
Communications Act of 1934, as amended, and section 51.323(k) of
the Commission's rules. The investigation focused on whether GTE
had failed to offer cageless collocation arrangements as part of
its physical collocation offering during the period June 1, 1999
through August 1, 1999.
2. Section 251 of the Communications Act imposes on GTE,
as an incumbent local exchange carrier (``ILEC''), several
obligations designed to promote competition in local telephone
markets. Among these obligations is the duty, in Section
251(c)(6), to provide, ``on rates, terms, and conditions that are
just, reasonable, and nondiscriminatory, for physical collocation
of equipment necessary for interconnection or access to unbundled
network elements.''1 The Commission first adopted rules to
implement Section 251(c)(6) in the Local Competition Order issued
on August 8, 1996.2 On March 31, 1999, the Commission
strengthened these collocation rules in the Advanced Services
First Report and Order.3
3. The Advanced Services Order required ILECs to offer
three alternative physical collocation arrangements, in addition
to the arrangements described in the Local Competition Order.4
These alternative arrangements include, among other things,
cageless collocation, whereby a competitive local exchange
carrier (``CLEC'') obtains physical collocation space without a
cage. The Commission codified the alternative collocation
requirements at Section 51.323(k) of its rules. Section
51.323(k) became effective on June 1, 1999.5
4. Following the release of the Advanced Services Order,
CLECs applied for cageless collocation arrangements in various
GTE central offices nationwide. In late 1999, the Enforcement
Bureau (``Bureau'') received information that GTE had denied and
placed in a hold status until August 1, 1999 requests made by
CLECs to collocate using a cageless arrangement, asserting that
it could not implement the requirements of the Advanced Services
Order until that time.
5. The Enforcement Bureau commenced an informal
investigation into these matters on February 25, 2000. In
responses submitted to the Enforcement Bureau, GTE stated that
from June 1, 1999 to August 1, 1999, it had denied and placed in
a ``hold status,'' 51 cageless collocation requests submitted by
CLECs. Thus, implementation of the requirements of Section
51.323(k) did not occur until August 1, 1999, two months after
the June 1, 1999 effective date of these rules. GTE asserts that
it took that long to develop the operational requirements to
implement the order and takes the position that it reasonably
construed the ``as soon as possible'' language contained in
paragraph 40 of the Advanced Services Order, to permit
implementation after the effective date of the rules.
6. On June 16, 2000, the Commission adopted and released
the Merger Order granting applications seeking approval to
transfer control of certain licenses and authorizations in
connection with a proposed merger between GTE and Bell Atlantic
Corporation.6 The conditions in the Merger Order require, among
other things, that GTE provision collocation arrangements subject
to a 95% on-time performance standard. The Merger Order
provides that, in the event GTE fails to meet the performance
requirements during specified time periods after 270 days
following the merger closing date, it will be required to make
voluntary payments to the United States Treasury.
7. As a matter of corporate policy, GTE represents that it
is committed to full compliance with the Commission's
interconnection and collocation requirements as effective and
further represents that the Company opposes noncompliance with
such competitive provisions by any telecommunications carrier.
8. For purposes of this Consent Decree, the following
definitions shall apply:
(a) The ``FCC'' or the ``Commission'' means the
Federal Communications Commission and all divisions of the
Commission, including the Enforcement Bureau.
(b) ``GTE'' or ``the Company'' means GTE Service
Corporation, its ILEC operating telephone companies in the
GTE States, as defined in subsection (j) below, and any
successors or assigns of GTE Service Corporation or its
ILEC operating telephone companies.
(c) ``Parties'' means GTE and the Commission.
(d) ``Order'' or ``Adopting Order'' means an order of
the Commission adopting this Consent Decree.
(e) ``Final Order'' means an order that is no longer
subject to administrative or judicial reconsideration,
review, appeal or stay.
(f) ``Merger Order'' means the Commission order
consenting to the transfer of control of authorizations
and licenses, in connection with the merger between GTE
Service Corporation and Bell Atlantic Corporation adopted
and released by the Commission on June 16, 2000 (CC Docket
(g) ``Relevant Period'' means the period from June 1,
1999 through August 1, 1999.
(h) ``Collocation Inquiry'' means the enforcement
action initiated by the Bureau's February 25, 2000 letter
of inquiry regarding GTE's response to collocation
(i) ``Effective Date'' means the date on which the
Commission releases the Adopting Order.
(j) The term ``GTE States'' shall mean Alabama,
California, the Commonwealth of the Northern Marianas
Islands, Florida, Hawaii, Idaho, Illinois, Indiana,
Kentucky, Michigan, Missouri, Nevada, North Carolina,
Ohio, Oregon, Pennsylvania, South Carolina, Texas,
Virginia, Washington, and Wisconsin, but shall not include
the service areas of Bell Atlantic-Delaware, Inc., Bell
Atlantic-Washington, D.C., Inc., Bell Atlantic-Maryland,
Inc., Bell Atlantic-New Jersey, Inc., Bell Atlantic-
Pennsylvania, Inc., Bell Atlantic-Virginia, Inc., Bell
Atlantic-West Virginia, Inc., New York Telephone Company,
New England Telephone and Telegraph Company where those
companies operated as ILECs as of January 27, 2000.
9. GTE and the Commission agree that this Consent Decree
does not constitute either an adjudication of the merits or a
factual or legal finding or determination regarding any
compliance or noncompliance by GTE with the requirements of the
Communications Act, including Section 251 thereof, and the
Commission's implementing rules, arising out of any alleged
actions or failures with respect to requests for collocation
during the Relevant Period. The Parties agree that this Consent
Decree is for settlement purposes only and that by agreeing to
this Consent Decree, the Company does not admit any
noncompliance, violation or liability associated with or arising
from such actions or failures, including any actions or failures
described in the February 25, 2000 letters, in any follow-up
correspondence and meetings between GTE and the FCC concerning
GTE's response to collocation requests, or in any formal or
informal complaints, ex parte communications or other information
received by the Commission on or before the effective date of the
Consent Decree. Indeed, GTE expressly denies any such
noncompliance, violation or liability.
10. In express reliance on the covenants and
representations contained herein, the Commission agrees to
terminate the Collocation Inquiry at such time as the Commission
releases an Order adopting this Consent Decree.
11. The parties agree and acknowledge that this
Consent Decree shall constitute a final settlement between GTE
and the Commission of the Collocation Inquiry. In consideration
of the termination of this Inquiry in accordance with the terms
of this Consent Decree, GTE agrees to the terms, conditions and
procedures contained herein.
12. GTE admits the jurisdiction of the Commission to
adopt this Consent Decree.
13. Notwithstanding any provision in the Merger Order
(or any of its appendices) pertaining to GTE's obligation to make
voluntary payments thereunder, GTE shall be obligated under this
Consent Decree to make voluntary payments for failure to meet, in
the GTE States, the collocation performance standards set forth
in Metrics No. NP-2-01 and NP-2-05 of Attachment A-2b to Appendix
D of the Merger Order consistent in all other respects with the
provisions of the Merger Order (and its appendices), except that
(a) the beginning date on which GTE's performance shall be used
to determine its obligation to make voluntary payments under this
Consent Decree shall commence 180 days after the merger closing
date, and (b) for purposes of this Consent Decree only, a
``Performance Plan Year'' is the first twelve full calendar
months that begin after the 180th day after the merger closing
date. In light of GTE's continuing obligation to make voluntary
payments under the Merger Order, GTE shall not be obligated to
make voluntary payments under this Consent Decree for failure to
meet the collocation performance standards for the same months
for which it becomes obligated to make voluntary payments under
the Merger Order, and GTE's obligation to make voluntary payments
under this Consent Decree shall terminate at the conclusion of
the first Performance Plan Year (as defined in this Paragraph).
Any voluntary payments made pursuant to this Consent Decree shall
not be counted toward the annual caps set forth in Attachment A-6
to Appendix D of the Merger Order. Voluntary payments made
pursuant to this paragraph of the Consent Decree shall be subject
to total caps of one-fourth of the annual caps for year 1 for the
GTE States, as set forth in Attachment A-6, and to monthly caps
of one-twelfth of the annual caps for year 1 for the GTE States.
Nothing in this Consent Decree is intended to have any effect on
GTE's obligation to make voluntary payments under the Merger
14. GTE agrees to make a voluntary contribution to the
United States Treasury in the amount of two million, seven
hundred thousand dollars ($2,700,000) within 10 calendar days
after the Order adopting this Consent Decree becomes a Final
Order. Payment should be made by check or money order drawn to
the order of the Federal Communications Commission. Reference
should be made on the check or money order to ``Acct No.
X32080012.'' Such remittances must be mailed to: Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, IL 60673-7482.
15. The Commission agrees that, based on the facts
developed in the Collocation Inquiry and in the absence of
material new evidence related to this matter, it will not use the
facts developed in this Inquiry through the date of the Consent
Decree or the existence of this Consent Decree to institute, on
its own motion, any new proceeding, formal or informal, or take
any action on its own motion against GTE concerning the matters
that were the subject of the Collocation Inquiry. The Commission
also agrees that, based on the facts developed in the Collocation
Inquiry, and in the absence of material new evidence related to
this matter, it will not use the facts developed in this Inquiry
through the date of this Consent Decree or the existence of this
Consent Decree to institute on its own motion any proceeding,
formal or informal, or take any action on its own motion against
GTE with respect to its basic qualifications, including its
character qualifications, to be a Commission licensee or with
respect to compliance with the Commission's rules and policies.
Consistent with the foregoing, nothing in this Consent Decree
limits the Commission's authority to consider any complaint that
may be filed pursuant to section 208 or 251 of the Communications
Act, as amended, 47 U.S.C. §§ 208, 251, and to take any action in
response to such complaint.
16. GTE waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or
stay, or to otherwise challenge or contest the validity of this
Consent Decree and the Order adopting this Consent Decree,
provided the Order adopts the Consent Decree without change,
addition, or modification.
17. GTE and the Commission agree that the
effectiveness of this Consent Decree is expressly contingent upon
issuance of an Order that is consistent with the Consent Decree
and which adopts the Consent Decree without change, addition, or
18. In the event that this Consent Decree is rendered
invalid by any court of competent jurisdiction, it shall become
null and void and may not be used in any manner in any legal
19. If the Commission, or the United States on behalf
of the Commission, brings a judicial action to enforce the terms
of the Order adopting this Consent Decree, neither GTE nor the
Commission shall contest the validity of the Consent Decree or
Order, and the Company and the Commission will waive any
statutory right to a trial de novo with respect to any matter
upon which the Order is based, and shall consent to a judgment
incorporating the terms of this Consent Decree.
20. GTE waives any claims it may otherwise have under
the Equal Access to Justice Act, Title 5 U.S.C. § 504 and 47
C.F.R. § 1.1501, et seq.
21. Any violation of the Consent Decree or the Order
adopting this Consent Decree will constitute a separate violation
of a Commission order, entitling the Commission to exercise any
rights and remedies attendant to the enforcement of a Commission
22. The Parties also agree that any provision of the
Consent Decree that would require the Company to act in violation
of a rule or order adopted by the Commission will be superseded
by such Commission rule or order.
23. This Consent Decree may be signed in counterparts.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas, Secretary
GTE SERVICE CORPORATION
Geoffrey C. Gould, Senior Vice President-State
1 47 U.S.C. § 251(c)(6).
2 Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, CC Docket No. 96-98, First
Report and Order, 11 FCC Rcd 15499, 15782 ¶¶ 555-617 (1996)
(``Local Competition Order'') (subsequent history omitted).
3 Deployment of Wireline Services Offering Advanced
Telecommunications Capability, CC Docket No. 98-147, First
Report and Order and Further Notice of Proposed Rulemaking, 14
FCC Rcd 4761 (1999) (``Advanced Services Order'' or ``Order'')
(subsequent history omitted).
4 See Advanced Services Order ¶¶ 41, 42, 44. Prior to the
Advanced Services Order, ILECs were required to permit CLECs to
collocate using caged physical collocation arrangements or
virtual collocation arrangements. In a caged physical
arrangement, a CLEC leases, and has direct access to, caged
space at an ILEC premises for its equipment. In a virtual
collocation arrangement, a CLEC designates the type of equipment
to be placed at an ILEC premises, which the ILEC then installs
and maintains for the CLEC. See Advanced Services Order ¶ 19,
5 See 64 Fed. Reg. 23229 (1999). GTE does not agree that the
date by which it was required to comply is the same as the
6 Application of GTE Corp. and Bell Atlantic Corp. for
Consent to Transfer Control of Domestic and International
Sections 214 and 310 Authorizations and Application to Transfer
Control of a Submarine Cable Landing License, CC Docket No. 98-
184 (rel. June 16, 2000).