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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Qwest Communications ) File No. EB-01-IH-0393
International, Inc. )
) NAL/Acct. No. 200232080018
)
) FRN Number 0001-6056-25
)
)
CONSENT DECREE
1. The Enforcement Bureau (the ``Bureau'') of the Federal
Communications Commission (``FCC'' or ``Commission'') and Qwest
Communications International, Inc. (``Qwest'') 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 Qwest 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 On June 7,
2001 and March 15, 2002, the Bureau sent letters of inquiry to
Qwest seeking information on Qwest's space exhaustion posting
policy.2 Qwest submitted information in response to those
inquiries.3
2. 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.''4 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.''5 During the course
of an informal investigation by the Commission, the Bureau
obtained information from Qwest indicating that through June
2001, Qwest may not have properly posted notice of premises that
had run out of collocation space. Information obtained during
the investigation indicates that in some 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.
Terms of Settlement
3. 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) ``Qwest'' means Qwest Communications
International, Inc., Qwest Corporation, and any
subsidiaries that are incumbent local exchange
carriers, including its incumbent LEC operating
telephone companies, and any successors or assigns
of Qwest Corporation. or its incumbent LEC operating
telephone companies;
(d) ``Parties'' means Qwest 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 June 7, 2001 letter of inquiry
regarding Qwest's compliance with 47 C.F.R. §
51.321(h).
4. 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.
5. 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.
6. Qwest admits the jurisdiction of the Commission for
purposes of this Consent Decree and the Adopting Order.
7. The parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between Qwest and the
Bureau of the Inquiry. In consideration for the termination by
the Bureau of its investigation into whether Qwest 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, Qwest agrees to the terms set forth herein.
8. Qwest has adopted or agrees to initiate no later than
30 days from the effective date of this Consent Decree new
methods and procedures to help ensure its compliance with section
51.321(h) of the Commission's rules. First, Qwest's written
policy will explicitly acknowledge 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 Qwest must post notice of
exhaustion of space for physical collocation. Second, Qwest will
establish a centralized point of control to monitor and record
Qwest's compliance with the posting requirements of section
51.321(h). Third, Qwest agrees to continue to comply with 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. Finally, Qwest
agrees to provide remedial training on the posting requirements
of section 51.321(h) to all personnel responsible for Internet
posting within 30 days of the release of the Adopting Order in
this proceeding and to provide such training to any such new
personnel within 30 days of their being assigned such
responsibility.
9. Qwest shall make a voluntary contribution to the United
States Treasury in the total amount of $96,000 (ninety-six
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. 200232080018.''
10. Qwest will maintain business records and documents
sufficient to show (1) the date on which physical collocation
space becomes unavailable at any Qwest premises, (2) the
circumstance causing physical collocation space to become
unavailable at any Qwest premises, and (3) the date of public
posting of that information on Qwest's publicly available
Internet site. Qwest will also maintain business records
demonstrating compliance with the terms and provisions of this
Consent Decree. Qwest will make the information described in
this paragraph available to the Bureau within 21 days of the
receipt of a specific written request from the Bureau. This
requirement will begin thirty (30) days after the effective date
of the Adopting Order and will expire twenty-four (24) months
later.
11. 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 Qwest.
12. 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 Qwest 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 Qwest 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.
13. 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 Qwest 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 Qwest pursuant to sections
4(i), 403, and 503 of the Communications Act in the event of any
alleged future misconduct.
14. Qwest 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.
15. Qwest waives any rights it may have under any provision
of the Equal Access to Justice Act, 5 U.S.C. § 504.
16. 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.
17. 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 Qwest nor the
Commission shall contest the validity of the Consent Decree or
Order, and Qwest 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.
18. The Bureau and Qwest 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, Qwest
does not admit any liability for violating Commission rules in
connection with the matters that are the subject of this Consent
Decree. Qwest neither admits nor denies any such noncompliance,
violation, or liability.
19. The Parties agree that any provision of the Consent
Decree that would require Qwest to act in violation of a rule or
order adopted by the Commission will be superseded by such
Commission rule or order.
20. This Consent Decree may be signed in counterparts.
For the Enforcement Bureau, For Qwest
Corporation
Federal Communications Commission
________________________________
________________________________
David H. Solomon
Chief
_______________________________
________________________________
Date Date
_________________________
1 47 C.F.R. § 51.321(h).
2 See June 7, 2001 Letter from David H. Solomon, Chief,
Enforcement Bureau, Federal Communications Commission, to Lauren
Belvin, Vice President, Qwest; March 13, 2002 Letter from Maureen
F. Del Duca, Deputy Division Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission,
to Lauren Belvin, and Robert B. McKenna, Associate General
Counsel, Qwest Corporation, Inc.
3 See July 3, 2001 Letter from Robert B. McKenna to Charles W.
Kelley, Division Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, attaching
July 3, 2001 Declaration of Georganne Weidenbach, including
exhibits; see also April 12, 2002 Letter from Robert B. McKenna
to Hillary S. DeNigro, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, attaching
Affidavit of Laurel L. Burke, and responsive documents contained
in a binder and a box (collectively ``Qwest Responses'').
4 47 C.F.R. § 51.321(h).
5 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'').