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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-01-IH-0236
Verizon Communications, Inc. ) Acct. No. 200132080058
)
ORDER
Adopted: September 10, 2001 Released: September
14, 2001
By the Chief, Enforcement Bureau:
1. In this Order, we adopt a Consent Decree terminating an
investigation into possible violations by Verizon Communications,
Inc. (``Verizon'') of section 51.321(h) of the Commission's
rules, in connection with Verizon's posting of notice of
exhausted collocation space on its Internet website.
2. The Bureau and Verizon have negotiated the terms of a
Consent Decree that would terminate the staff's investigation. A
copy of the Consent Decree is attached hereto and is incorporated
by reference.
3. We have reviewed the terms of the Consent Decree and
evaluated the facts before us. In light of Verizon's commitment
to be bound by various requirements to help ensure its compliance
with section 51.321(h) of the Commission's rules, we believe that
the public interest would be served by approving the Consent
Decree and terminating the investigation.
4. Based on the record before us, and in the absence of
material new evidence relating to this matter, we conclude that
there are no substantial and material questions of fact as to
whether Verizon possesses the basic qualifications, including its
character qualifications, to hold or obtain any FCC licenses or
authorizations.
5. Accordingly, IT IS ORDERED, pursuant to section 4(i) of
the Communications Act, 47 U.S.C. § 154(i), and the authority
delegated by sections 0.111 and 0.311 of the Commission's rules,
47 C.F.R. §§ 0.111, 0.311, that the attached Consent Decree IS
ADOPTED.
6. IT IS FURTHER ORDERED that the Commission staff inquiry
into the matter described here IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-01-IH-0236
Verizon Communications, Inc. ) Acct No. 200132080058
)
CONSENT DECREE
7. The Enforcement Bureau of the Federal Communications
Commission (``FCC'' or ``Commission'') and Verizon
Communications, Inc. (``Verizon'') hereby enter into a Consent
Decree terminating an informal Bureau investigation into possible
violations of section 51.321(h) of the Commission's rules. The
investigation focused on whether Verizon had updated its Internet
website listing premises that have exhausted collocation space
``within ten days of the date at which a premises runs out of
physical collocation space.''1
Statement of Facts
8. In the Bell Atlantic/GTE Merger Order, the Commission
approved the merger of Bell Atlantic and GTE subject to certain
conditions designed to mitigate potential public interest harms
from the merger.2 One of those conditions was that Verizon
retain an independent auditor to develop and implement a
comprehensive audit of the merged company's compliance with the
Commission's collocation rules.3
9. On January 29, 2001, Verizon submitted its audit report
to the Commission regarding Verizon's compliance with the
Commission's collocation rules from July 1, 2000 through October
31, 2000.4 The auditor's report indicated that, in certain
instances during the audit period, Verizon failed to post
exhausted collocation space within 10 days of exhaustion.5
Additionally, the auditor's report noted that, in certain
instances during the audit period, Verizon denied collocation
applications for certain premises due to lack of space, yet did
not post such premises as being exhausted.6 Rather, Verizon
listed such premises as ``Pending Office Reevaluation,'' a term
the company defines internally to mean that ``the premise cannot
currently accommodate physical collocation but may be considered
for reconfiguration to permit additional physical collocation
space in the future.''7 Based on the Bureau's review of the
audit report, the Bureau commenced an investigation into whether
Verizon may have violated the Commission rule requiring the
timely posting of exhausted collocation space.8
10. The posting rule states that an incumbent local
exchange carrier (``ILEC'') must update its Internet website
listing of premises that have exhausted collocation space
``within ten days of the date at which a premises runs out of
physical collocation space.''9 The purpose of the posting rule
is to ensure that competitors do not ``expend[] significant
resources in applying for collocation space in an incumbent
ILEC's premises where no such space exists.''10 Information
provided by the auditors and Verizon indicates that there may
have been a number of instances in which Verizon updated its
website information more than 10 days after the date that space
for physical collocation became exhausted in those premises.11
Information submitted to the Bureau by Verizon indicates that in
some of these instances, competitive local exchange carriers may
have submitted collocation applications for space at these
premises, only to have the applications denied on the ground that
no space was available.12 Verizon does not agree that the
information provided by the auditors and Verizon prove that it
failed to meet the 10-day posting requirement.
Terms of Settlement
11. For the purposes of this Consent Decree the following
definitions shall apply:
(a) ``Commission'' or ``FCC'' means the Federal
Communications Commission;
(b) ``Bureau'' means the Enforcement Bureau of the
Federal Communications Commission;
(c) ``Verizon'' means Verizon Communications, Inc. and
any subsidiaries, including its incumbent LEC
operating telephone companies, and any successors or
assigns of Verizon Communications, Inc. or its
incumbent LEC operating telephone companies;
(d) ``Parties'' means Verizon Communications, Inc.,
and the Bureau;
(e) ``Adopting Order'' means an Order of the Bureau
adopting the terms and conditions of this Consent
Decree;
(f) ``Effective Date'' means the date on which the
Bureau releases the Adopting Order; and,
(g) ``Inquiry'' means the investigation initiated by
the Bureau's April 5, 2001 letter of inquiry
regarding Verizon's compliance with 47 C.F.R. §
51.321(h).
12. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in an Adopting
Order of the Bureau.
13. The Parties agree that this Consent Decree shall become
effective on the date on which the Bureau releases the Adopting
Order. Upon release, the Adopting Order and this Consent Decree
shall have the same force and effect as any other Order of the
Commission and any violation of the terms of this Consent Decree
shall constitute a violation of a Commission Order entitling the
Commission to exercise any and all rights and to seek any and all
remedies authorized by law for the enforcement of a Commission
Order.
14. Verizon admits the jurisdiction of the Commission for
purposes of this Consent Decree and the Adopting Order.
15. The parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between Verizon and
the Bureau of the Inquiry. In consideration for the termination
by the Bureau of its investigation into whether Verizon has
violated section 51.321(h) of the Commission's rules, 47 C.F.R. §
51.321(h), and in accordance with the terms of this Consent
Decree, Verizon agrees to the terms set forth herein.
16. Verizon agrees to initiate the following remedial
actions, no later than 30 days from the effective date of this
Consent Decree, to help ensure its compliance with section
51.321(h) of the Commission's rules: (1) adopt new methods and
procedures to clearly indicate that a grant of an application for
collocation space, or any other event that makes unavailable the
last remaining usable physical collocation space, triggers the
ten-day time period within which Verizon must post notice of
exhaustion of space for physical collocation; (2) establish a
centralized point of control to monitor and record Verizon's
compliance with the posting requirements of section 51.321(h);
and (3) eliminate the use of the phrase ``Pending Office
Reevaluation'' on Verizon's Internet site that lists facilities
with exhausted physical collocation space. Verizon agrees to
continue to comply with each of these remedial actions for the
entire time period in which the Internet posting requirement in
section 51.321(h) of the Commission's rules remains in effect in
its current form. Additionally, Verizon agrees to provide
remedial refresher training on the posting requirements of
section 51.321(h) to all personnel responsible for Internet
posting regarding collocation space exhaustion, such training to
take place within 12 months from the effective date of this
Consent Decree.
17. Verizon shall make a voluntary contribution to the
United States Treasury in the total amount of $77,000 (seventy-
seven thousand dollars). This amount shall be paid within 30
days of the date on which the order adopting this Consent Decree
becomes final. Such contribution shall be made, without further
protest or recourse, by certified check, cashiers check, or money
order drawn to the order of the Federal Communications
Commission, and shall be mailed to the Forfeiture Collection
Section, Finance Branch, Federal Communications Commission, P.O.
Box 73482, Chicago, Illinois 60673-7482. Reference should be
made on the check or money order to ``Acct. No. 200132080058.''
18. While this Consent Decree is in effect, Verizon agrees
to maintain and make available to the Bureau within 21 days of
the receipt of a specific written request from the Bureau,
business records demonstrating compliance with the terms and
provisions of this Consent Decree. This requirement will begin
forty-five 45 days after the effective date of this Consent
Decree and will expire twenty-four (24) months later.
19. In express reliance on the covenants and
representations in this Consent Decree, the Bureau agrees to
terminate the inquiry without any finding of liability on the
part of Verizon.
20. The Bureau agrees that, based on the facts developed in
the 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 Verizon concerning the matters that were the
subject of the Inquiry. The Bureau also agrees that, based on
the facts developed in the 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 Verizon 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.
21. Nothing in this Consent Decree shall prevent the
Commission from adjudicating complaints filed pursuant to section
208 of the Communications Act, as amended, 47 U.S.C. § 208,
against Verizon or its affiliates for alleged violations of
section 51.321(h) of the Commission's rules, or for any other
type of alleged misconduct, regardless of when such misconduct
took place. If any such complaint is made, the Commission's
adjudication of that complaint will be based solely on the record
developed in that proceeding. Nothing in this Consent Decree
shall prevent the Commission from instituting new investigations
or enforcement proceedings against Verizon pursuant to sections
4(i), 403 and 503 of the Communications Act in the event of any
alleged future misconduct.
22. Verizon 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.
23. Verizon waives any rights it may have under any
provision of the Equal Access to Justice Act, 5 U.S.C. § 504.
24. In the event that this Consent Decree is rendered
invalid by any court of competent jurisdiction, this Consent
Decree shall become null and void and may not be used in any
manner in any legal proceeding.
25. If either Party (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 Verizon nor the
Commission shall contest the validity of the Consent Decree or
Order, and Verizon 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.
26. The Bureau and Verizon agree that this Consent Decree
does not constitute either an adjudication on the merits or a
factual or legal finding or determination regarding any
compliance or noncompliance with the requirements of the
Communications Act, including section 251 thereof, and the
Commission's implementing rules, including section 51.321(h).
The parties agree that this Consent Decree is for settlement
purposes only and that by agreeing to this Consent Decree,
Verizon does not admit any liability for violating Commission
rules in connection with the matters that are the subject of this
Consent Decree. Indeed, Verizon expressly denies any such
noncompliance, violation, or liability.
27. The Parties agree that any provision of the Consent
Decree that would require Verizon to act in violation of a rule
or order adopted by the Commission will be superseded by such
Commission rule or order.
28. This Consent Decree may be signed in counterparts.
For the Enforcement Bureau, For Verizon
Communications, Inc.
Federal Communications Commission
________________________________
________________________________
David H. Solomon Virginia Ruesterholz
Chief Senior Vice President,
Wholesale Services
_______________________________
________________________________
Date Date
_________________________
1 47 C.F.R. § 51.321(h).
2 See Application of GTE Corporation, Transferor, and Bell
Atlantic Corporation, Transferee, 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 98-184, Memorandum Opinion and Order, 15 FCC
Rcd 14032, 14143 (2000) (``Bell Atlantic/GTE Merger Order'').
3 Id. at 14170; see also Bell Atlantic/GTE Merger Order,
Appendix D at ¶ 27. The audit covered the period from July 1,
2000 through October 31, 2000.
4 See January 29, 2001 letter from Mark E. Gaumond, Arthur
Anderson, LLP, to Magalie Roman Salas, Secretary, Federal
Communications Commission; see also January 29, 2001 Report of
Independent Accountants (``Auditor's Report on Compliance''); see
also January 29, 2001 Report of Management on Compliance with the
FCC's Collocation Rules.
5 See Auditor's Report on Compliance at 2.
6 Id.
7 Id.
8 47 C.F.R. § 51.321(h); see also Bell Atlantic/GTE Merger
Order, Appendix D at ¶ 27.
9 47 C.F.R. § 51.321(h).
10 See 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 (1999) (``Advanced Services Order'').
11 See Auditor's Report on Compliance at 2; see also May 7, 2001
letter from Joseph DiBella, Regulatory Counsel, Verizon
Communications, Inc., to Elizabeth H. Valinoti, Attorney, Federal
Communications Commission, Enforcement Bureau, Attachments A, B
(``May 7, 2001 DiBella Letter'').
12 See May 7, 2001 DiBella Letter, Response to FCC Questions at
1, 3.