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                           Before the
                FEDERAL COMMUNICATIONS COMMISSION
                     Washington, D.C.  20554

In the Matter of                )
                                )
Cavalier Telephone, LLC,        )
                                )
     Complainant,               )
                                )
          v.                    )  File No. PA-99-005
                                )
Virginia Electric and Power Company     )
d/b/a Virginia Power,           )
                                )
     Respondent.                   )
                                )

                              ORDER

     Adopted:  December 2, 2002              Released:  December 
3, 2002

By the Chief, Enforcement Bureau:

                       I.     INTRODUCTION

1.   This Order resolves several outstanding proceedings in a 
  long-running, multi-forum dispute between Cavalier Telephone, 
  LLC (``Cavalier'') and Virginia Electric and Power Company 
  (``Dominion'').  The parties indicate that they have settled 
  all the issues in dispute in their various proceedings and 
  have filed several joint motions as part of their settlement.  
  In this Order, we grant the parties' joint motion to withdraw 
  two applications for review filed by Dominion, and a joint 
  motion to withdraw a motion for immediate affirmance and 
  enforcement of a Cable Services Bureau order1 addressing a 
  complaint Cavalier filed against Dominion pursuant to section 
  224 of the Communications Act of 1934, as amended (``Act'').2  
  We also grant, in a separate order, a joint motion to dismiss 
  another complaint Cavalier filed against Dominion on April 1, 
  2002.3  Finally, as part of their global settlement and 
  dismissal of pending proceedings, the parties have also 
  jointly moved to vacate the June 7 Bureau Order.  Based on the 
  particular circumstances present here, we grant the joint 
  motion to vacate as well.
                       II.     BACKGROUND

2.   Dominion provides electric and telecommunications services 
  in Virginia.4  Cavalier is a facilities-based competitive 
  local exchange carrier (``LEC'') that, at the time this 
  dispute arose, was constructing a fiber optic network in 
  Richmond, Tidewater and Northern Virginia, with the intent to 
  offer local telephone service, high-speed Internet access and 
  Internet caller identification in these areas.5  As part of 
  its network construction, Cavalier sought to attach equipment 
  to Dominion's poles.6  This effort spawned multiple 
  adjudications.

3.   Because the parties' settlement and requested vacatur 
  resolves the multiple proceedings that remain between the two 
  parties, it is important to understand the general nature of 
  these proceedings.  Thus, set forth below is a summary of the 
  various proceedings between Cavalier and Dominion, including 
  Commission proceedings, federal and state court actions, 
  appellate proceedings, arbitration proceedings, and 
  mediations.

4.   The Commission Complaint.  On November 30, 1999, Cavalier 
  filed a complaint (``Complaint'') against Dominion pursuant to 
  the Commission's pole attachment complaint procedures alleging 
  that ``it has been effectively denied access to poles owned by 
  [Dominion].''7  Specifically, Cavalier sought an order 
  compelling Dominion to grant Cavalier access to all support 
  structures and right-of-ways, cease engaging in or imposing 
  unreasonable and discriminatory terms, conditions, and 
  practices for access to Dominion's poles, and to refund to 
  Cavalier ``excessive rental and other administrative, 
  engineering, and make-ready fees.''8  In addition, Cavalier 
  argued that Dominion had imposed an unlawful pole attachment 
  rate, and requested that the rate be reduced to the maximum 
  rate permitted pursuant to the Commission's pole attachment 
  rate formula.9  

5.   The June 7 Bureau Order.  In the June 7 Bureau Order, the 
  Cable Services Bureau largely granted the Complaint.  The 
  Cable Services Bureau deferred consideration of the pole 
  attachment rate issue, however, and ordered Dominion to 
  provide additional information that would enable the Cable 
  Services Bureau to calculate the appropriate pole attachment 
  fee.10

6.   The September 18 Bureau Order.  On September 18, 2000, the 
  Cable Services Bureau released an order addressing the 
  reasonableness of Dominion's pole attachment rate.11  The 
  Cable Services Bureau determined that the rates charged by 
  Dominion were unjust and unreasonable, and ordered Dominion to 
  reimburse Cavalier for charges over a certain amount beginning 
  the date the Complaint was filed, November 30, 1999.12

7.   The Applications for Review and Motion for Immediate 
  Affirmance.  On July 7, 2000, Dominion filed an Application 
  for Review of the June 7 Bureau Order, in which Dominion 
  lodged multiple grounds for reversing the Cable Services 
  Bureau's June 7 Bureau Order.13  Further, on October 18, 2000, 
  Dominion filed an Application for Review of the September 18 
  Bureau Order14 requesting that the Commission reverse the 
  September 18 Bureau Order.  Cavalier opposed Dominion's 
  Applications for Review.15  Further, on February 20, 2001, 
  Cavalier filed a motion requesting that the Commission affirm 
  and enforce the June 7 Bureau Order.16  Cavalier's motion 
  asserted that Dominion refused to comply with the June 7 
  Bureau Order, and that continued noncompliance would cause 
  Cavalier irreparable harm.

8.   Related Proceedings.  On the same day that Cavalier filed 
  its Motion for Immediate Affirmance and Enforcement at the 
  Commission, Cavalier also petitioned the United States 
  District Court for the Eastern District of Virginia for the 
  enforcement of the June 7 Bureau Order.17  Cavalier maintained 
  that Dominion had not complied with the June 7 Bureau Order 
  and sought an injunction requiring certain actions by 
  Dominion.18  The court issued a temporary restraining order 
  against Dominion on February 23, 2001, and a preliminary 
  injunction on April 13, 2001, granting in part and denying in 
  part the relief sought by Cavalier.19

9.   Both parties appealed the district court's order to the 
  United States Court of Appeals for the Fourth Circuit.20  On 
  August 30, 2002, the Fourth Circuit reversed and remanded the 
  case to the district court with instructions to dismiss the 
  complaint on the ground that Cavalier had failed to exhaust 
  its administrative remedies.21  The Court of Appeals 
  subsequently denied Cavalier's petition for rehearing, and 
  also denied Cavalier's motion to stay issuance of the mandate 
  pending application to the United States Supreme Court for a 
  writ of certiorari.22

10.  The dispute between the parties also spread into an 
  alternative dispute resolution forum.  On February 26, 2002, 
  the parties participated in a day-long mediation of some of 
  their outstanding claims.23  The mediation was unsuccessful, 
  and Dominion then filed with the American Arbitration 
  Association (``AAA'') a Demand for Arbitration of alleged 
  outstanding payments due it by Cavalier.24  After litigating 
  the arbitrability of the matter, the AAA concluded that it had 
  jurisdiction to arbitrate the matter and would do so, but 
  stayed the arbitration pending resolution of yet another pole 
  attachment complaint Cavalier filed with the Commission on 
  April 1, 2002.25  That pole attachment complaint alleges, 
  among other things, that Dominion's attempt to compel 
  arbitration before the AAA violated the June 7 Bureau Order 
  and thereby created an unjust and unreasonable term and 
  condition of attachment in violation of section 224 of the 
  Act.26

11.  Apparently not satisfied with their attempts to obtain 
  relief at the Commission, in federal court, and in 
  arbitration, the parties initiated proceedings in yet another 
  venue  state court.  On April 12, 2002, Dominion filed a 
  Motion to Compel Arbitration in the Circuit Court for the City 
  of Richmond, Virginia, pursuant to the Uniform Arbitration 
  Act.27  Cavalier removed the Motion to Compel Arbitration to 
  the United States District Court for the Eastern District of 
  Virginia, and Dominion filed a Motion to Remand.28  By order 
  dated May 21, 2002, the federal district court remanded the 
  Motion to Compel Arbitration to the state court.29  Following 
  remand, the Circuit Court for the City of Richmond entered an 
  order on June 12, 2002, requiring the parties to arbitrate.30  
  Cavalier filed a Notice of Appeal to the Virginia Supreme 
  Court, but later dismissed the Appeal.31

12.  On April 29, 2002, Cavalier filed a ``Motion to Lift Stay 
  and for Contempt'' in the United States District Court for the 
  Eastern District of Virginia, claiming that Dominion's demand 
  for arbitration filed with the AAA and its motion to compel 
  arbitration in state court conflicted with the federal court's 
  orders enforcing the June 7 Bureau Order.32  The district 
  court denied Cavalier's motion in an opinion and order entered 
  June 11, 2002.33  Cavalier filed a Motion to Alter or Amend 
  the district court's judgment pursuant to Rule 59(e) of the 
  Federal Rules of Civil Procedure, which the district court 
  also denied.34

13.  On June 30, 2002, the parties participated in mediation at 
  the Commission in an attempt to resolve the disputes at issue 
  in the cases pending before the Commission.35  The mediation 
  was unsuccessful.

14.  The Current Motions.  On November 6, 2002, the parties 
  reported to the Commission that they had reached a global 
  settlement of all the issues between them.36  As part of that 
  settlement, the parties jointly filed three motions in this 
  proceeding: a joint motion to vacate the June 7 Bureau Order; 
  a joint motion to withdraw the Applications for Review of the 
  June 7 Bureau Order and the September 18 Bureau Order;37 and a 
  joint motion to withdraw the Motion for Immediate Affirmance 
  and Enforcement of the June 7 Bureau Order.38  In addition, 
  the parties filed a joint request to dismiss the complaint in 
  Cavalier II.39  The parties further indicate that settlement 
  will also result in dismissal of all other proceedings between 
  the parties in federal and state court and in arbitration.40

                       III.     DISCUSSION

A.   We Grant the Motion to Vacate the June 7 Bureau Order.

15.  In connection with settlement of their multi-forum dispute, 
  the parties have jointly requested that we vacate the June 7 
  Bureau Order.  The parties state that vacatur of this order 
  ``is a lynchpin to the global settlement'' of their long-
  running dispute.41  Specifically, the parties argue that the 
  June 7 Bureau Order failed to clarify the rights and 
  obligations of the parties, and that ``competing 
  interpretations'' of certain portions of the June 7 Bureau 
  Order ``have engendered a series of new disputes,'' and 
  generally ``muddl[ed] the parties' relationship and cloud[ed] 
  their operations.''42  The parties maintain that ``vacatur 
  will allow the parties to implement a settlement that will 
  resolve, with certainty, their myriad issues, free of the 
  future threat and burden of litigating the interpretation and 
  application'' of the June 7 Bureau Order.43  The parties 
  indicate that, absent the global settlement and vacatur, ``the 
  Commission should anticipate a third pole attachment complaint 
  filed by Cavalier, as well as subsequent Applications for 
  review, and appeals to the federal court of appeals,'' that 
  challenge the new pole attachment rates imposed by Dominion.44

16.  Although rare, the Commission previously has vacated orders 
  in connection with approval of a settlement agreement.45  
  Consistent with the Supreme Court's decision in U.S. Bancorp 
  Mortgage Company v. Bonner Mall Partnership,46 however, the 
  Commission has stated that it will not routinely vacate orders 
  in connection with settlements, but will do so only where 
  ``the parties make a showing of some special circumstances 
  beyond the mere fact that the case has been settled.''47  In 
  making this determination, the Commission considers the public 
  interest in maintaining any precedential effect of the order 
  in question.48

17.  We find that, under the unique circumstances presented here, 
  vacatur of the June 7 Bureau Order is in the public interest, 
  because it will bring to an end the multiple and related 
  lawsuits burdening the dockets of the Commission, the courts, 
  and an alternative dispute resolution forum.  As described 
  above, the global settlement between the parties would dispose 
  of several Commission proceedings, including two Applications 
  for Review and a Motion for Immediate Affirmance in this 
  action, as well as a separate but related complaint proceeding 
  between the parties.  The settlement will also bring to an end 
  existing proceedings in other venues as well.  Moreover, as 
  evidenced by the scope of the litigation between the parties 
  to date,49 both the Commission and the courts are faced with 
  the prospect of future litigation between the parties on these 
  and related issues.50  In addition to resolving the numerous 
  existing proceedings, the settlement and requested vacatur 
  promise to stave off the undoubtedly complex and time-
  consuming litigation between the parties that would otherwise 
  inevitably occur.  

18.  In our view, the resolution of these myriad legal actions, 
  both those now pending and those anticipated to be filed, 
  which would otherwise require the expenditure of substantial 
  time and resources of both the Commission and the courts, 
  constitutes ``special circumstances'' necessary to warrant 
  vacatur of the June 7 Bureau Order.  As the history of the 
  parties' disputes makes clear, this is not a case in which two 
  parties to a single complaint proceeding seek vacatur of an 
  order as part of settlement of a single proceeding.  

19.  We conclude that the opportunity to resolve these numerous 
  proceedings in multiple fora outweighs our general interest in 
  preserving the June 7 Bureau Order.  Accordingly, we grant the 
  parties' joint motion to vacate the June 7 Bureau Order.  We 
  wish to emphasize, however, that our decision to vacate the 
  June 7 Bureau Order does not reflect any disagreement with or 
  reconsideration of any of the findings or conclusions 
  contained in the June 7 Bureau Order.

B.   We Grant the Motion to Withdraw the Applications For Review 
     of the June 7 Bureau Order and the September 18 Bureau 
     Order. 

20.  As part of their global settlement and requested vacatur, 
  the parties jointly moved to withdraw Dominion's Application 
  for Review of the June 7 Bureau Order, as well as Dominion's 
  Application for Review of the September 18 Bureau Order.51  
  The parties maintain that they ``have agreed to negotiate in 
  good faith a pole attachment agreement that the parties 
  believe will provide mutually agreeable stability in the 
  working relationship between the two companies.''52  
  Therefore, and in conjunction with their joint motion to 
  vacate, the parties move that we dismiss the Applications for 
  Review without prejudice.53  

21.  We grant the parties' Motion to Withdraw the Applications 
  for Review, without prejudice.  We find that withdrawal of the 
  Applications for Review at this stage is appropriate, and will 
  serve the public interest by promoting the private resolution 
  of disputes and by eliminating the need for further litigation 
  and the expenditure of additional time and resources of the 
  parties and this Commission.

C.   We Grant the Motion to Withdraw the Motion for Immediate 
     Affirmance and Enforcement of the June 7 Bureau Order. 
     
22.  Also as part of their global settlement and requested 
  vacatur, the parties jointly moved to withdraw Cavalier's 
  Motion for Immediate Affirmance and Enforcement of the June 7 
  Bureau Order.54  For the same reasons set forth above, we 
  grant the parties' Motion to Withdraw the Motion for Immediate 
  Affirmance and Enforcement of the June 7 Bureau Order, without 
  prejudice.  We find that withdrawal of this motion at this 
  stage is appropriate, and will serve the public interest by 
  promoting the private resolution of disputes and by 
  eliminating the need for further litigation and the 
  expenditure of additional time and resources of the parties 
  and this Commission.55
     
                    IV.     ORDERING  CLAUSES

23.  ACCORDINGLY, IT IS ORDERED, pursuant to sections 1, 4(i), 
  4(j), and 224 of the Communications Act of 1934, as amended, 
  47 U.S.C.  151, 154(i), and 224, and section 1.1415 of the 
  Commission's rules, 47 C.F.R.  1.1415, and authority 
  delegated by sections 0.111, and 0.311 of the Commission's 
  rules, 47 C.F.R.  0.111, 0.311, that the Order and Request 
  for Information issued by the Cable Services Bureau on June 7, 
  2000 in the above-captioned proceeding, Cavalier Telephone, 
  LLC v. Virginia Electric and Power Company, Order and Request 
  for Information, 15 FCC Rcd 9563 (Cable Serv. Bur. 2000), IS 
  VACATED in its entirety.

24.  IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j), 
  and 224 of the Communications Act of 1934, as amended, 47 
  U.S.C.  151, 154(i), and 224, and section 1.1415 of the 
  Commission's rules, 47 C.F.R.  1.1415, and authority 
  delegated by sections 0.111, and 0.311 of the Commission's 
  rules, 47 C.F.R.  0.111, 0.311, that the parties' Consent 
  Motion to Withdraw Applications for Review of June 7, 2000 and 
  September 18, 2000 Orders of the Cable Services Bureau without 
  prejudice in the above-captioned proceeding IS GRANTED in its 
  entirety.

25.  IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j), 
  and 224 of the Communications Act of 1934, as amended, 47 
  U.S.C.  151, 154(i), and 224, and section 1.1415 of the 
  Commission's rules, 47 C.F.R.  1.1415, and authority 
  delegated by sections 0.111, and 0.311 of the Commission's 
  rules, 47 C.F.R.  0.111, 0.311, that the parties' Consent 
  Motion for Leave to Withdraw Motion for Immediate Affirmance 
  and Enforcement of June 7, 2000 Order of the Cable Services 
  Bureau without prejudice in the above-captioned proceeding IS 
  GRANTED in its entirety.

26.  IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j), 
  and 224 of the Communications Act of 1934, as amended, 47 
  U.S.C.  151, 154(i), and 224, and section 1.1415 of the 
  Commission's rules, 47 C.F.R.  1.1415, and authority 
  delegated by sections 0.111, and 0.311 of the Commission's 
  rules, 47 C.F.R.  0.111, 0.311, that Cavalier's Motion for 
  Leave to File Motion for Immediate Affirmance and Enforcement 
  of Bureau Order, filed February 20, 2001, IS DISMISSED as 
  moot.
27.  IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j), 
  and 224 of the Communications Act of 1934, as amended, 47 
  U.S.C.  151, 154(i), 154(j), and 224, and section 1.1415 of 
  the Commission's rules, 47 C.F.R.  1.1415, and authority 
  delegated by sections 0.111, and 0.311 of the Commission's 
  rules, 47 C.F.R.  0.111, 0.311, that the above-captioned 
  complaint proceeding IS TERMINATED.


                              FEDERAL COMMUNICATIONS COMMISSION  


                              David H. Solomon
                              Chief, Enforcement Bureau
_________________________

1         Cavalier Telephone, LLC v. Virginia Electric and Power 
Company, Order and Request for Information, 15 FCC Rcd 9563 
(Cable Serv. Bur. 2000) (``June 7 Bureau Order'').
2         47 U.S.C.  224 (``Pole Attachment Act'').
3         Cavalier Telephone, LLC v. Virginia Electric and Power 
Company, Order, File No. EB-02-MD-005 (MDRD-Enf. Bur. rel. 
December 3, 2002).
4         June 7 Bureau Order at 9567,  8-9.  
5         Id. at 9566-67,  8.
6         Id. at 9567,  9.
7         Id. at 9567,  9.  Absent regulation by a particular 
state, the Commission must regulate the rates, terms, and 
conditions for attachments by a cable television system or 
telecommunications service provider to poles, ducts, conduits, 
and rights-of-way owned or controlled by utilities.  47 U.S.C.  
224(b), (c).  To this end, the Commission has established 
procedures to resolve complaints regarding the rates, terms, and 
conditions relating to pole attachments.  See 47 C.F.R.  1.1401 
et seq.
8         June 7 Bureau Order at 9567,  9.  
9         Id. at 9567,  9.
10        June 7 Bureau Order, 15 FCC Rcd at 9573-4, 9578,  21, 
33-34.
11        Cavalier Telephone, LLC v. Virginia Electric and Power 
Company, Order, 15 FCC Rcd 17962 (Cable Serv. Bur. 2000) 
(``September 18 Bureau Order'').
12        September 18 Bureau Order, 15 FCC Rcd at 17963-4,  4.
13        Cavalier Telephone, LLC v. Virginia Electric and Power 
Company, Application for Review of Virginia Electric and Power 
Company, PA File No. 99-005 (filed July 7, 2000).
14        Cavalier Telephone, LLC v. Virginia Electric and Power 
Company, Application for Review of Virginia Electric and Power 
Company, PA File No. 99-005 (filed October 18, 2000).
15        Cavalier Telephone, LLC v. Virginia Electric and Power 
Company, Opposition to Application for Review, PA File No. 99-005 
(filed July 24, 2000); Cavalier Telephone, LLC v. Virginia 
Electric and Power Company, Opposition to Application for Review, 
PA File No. 99-005 (filed November 2, 2000).
16        Cavalier Telephone, LLC v. Virginia Electric and Power 
Company, Motion for Immediate Affirmance and Enforcement of 
Bureau Order, PA File No. 99-005 (filed February 20, 2001). 
17        Cavalier Telephone, LLC v. Virginia Electric and Power 
Company, Joint Motion to Vacate, PA File No. 99-005 (filed 
November 6, 2002) at 2-3 (``Motion for Vacatur'').
18        Id. at 3.
19        Id. at 3, citing Cavalier Telephone, LLC v. Virginia 
Electric and Power Company, Civ. No. 3:01CV106 (E.D. Va., Feb. 
23, 2001).
20        Motion for Vacatur at 3.
21        Id., citing Cavalier Telephone, LLC v. Virginia 
Electric and Power Company, 303 F.3d 316 (4th Cir. 2002).
22        Motion for Vacatur at 3.
23        Id.
24        Id.
25        Id. at 3-4.  See Cavalier Telephone, LLC v. Virginia 
Electric and Power Company, Complaint, File No. EB-02-MD-005 
(filed Apr. 1, 2002) (``Cavalier II'').
26        Motion for Vacatur at 4.
27        Id.
28        Id.
29        Id., citing Virginia Electric and Power Company v. 
Cavalier Telephone, LLC, Civ. Act. No. 3:02cv246 (E.D. Va. May 
21, 2002).
30        Motion for Vacatur at 4, citing Virginia Electric and 
Power Company v. Cavalier Telephone, LLC, Case No. HS-624-3 
(Richmond Cir. Ct.).
31        Motion for Vacatur at 4.
32        Id.
33        Id. at 4-5, citing Cavalier Telephone, LLC v. Virginia 
Electric and Power Company, Civ. Act. No. 3:01cv106 (E.D. Va. 
June 11, 2002).
34        Motion for Vacatur at 5.
35        Id.
36        Id. at 2, 5.
37        Cavalier Telephone, LLC v. Virginia Electric and Power 
Company, Consent Motion to Withdraw Applications For Review of 
June 7, 2000 and September 18, 2000 Orders of the Cable Services 
Bureau, PA File No. 99-005 (filed November 6, 2002) (``Motion to 
Withdraw AFRs'').
38        Cavalier Telephone, LLC v. Virginia Electric and Power 
Company, Consent Motion for Leave to Withdraw Motion for 
Immediate Affirmance and Enforcement of June 7, 2000 Order of the 
Cable Services Bureau, PA File No. 99-005 (filed November 6, 
2002) (``Motion to Withdraw Affirmance Request'').
39        Cavalier Telephone, LLC v. Virginia Electric and Power 
Company, Joint Notice of Settlement and Motion to Dismiss, File 
No. EB-02-MD-005 (filed November 6, 2002).  This motion was 
granted in a separate order released simultaneously with this 
one.  See Cavalier Telephone, LLC v. Virginia Electric and Power 
Company, Order, File No. EB-02-MD-005 (MDRD-Enf. Bur. rel. 
December 3, 2002).
40        Motion for Vacatur at 2, 5, 8-9, 11.
41        Cavalier Telephone, LLC v. Virginia Electric and Power 
Company, Letter from Charles A. Zdebski, Counsel for Dominion, to 
Lisa B. Griffin, Deputy Chief, Market Disputes Resolution 
Division, Enforcement Bureau, FCC, File Nos. PA-99-005 and EB-02-
MD-005 (September 30, 2002).
42        Motion for Vacatur at 10.
43        Id. at 11.
44        Id. at 8.
45        See Applications of Crystal Communications, et al., 
Order, 12 FCC Rcd 2149 (1997) (``Crystal Communications''); 
Applications of Richard M. Carrus, et al., Order, 13 FCC Rcd 7049 
(Admin. Law Div.-OGC 1998);  GTE Telenet Comm. Corp. v. American 
Tel. & Tel. Co., Memorandum Opinion and Order, 1986 WL 292091 
(Com. Car. Bur. July 10, 1986).
46        513 U.S. 18 (1994).
47        Crystal Communications, 12 FCC Rcd at 2151,  6.
48        See, e.g., Aetna Casualty and Surety Co. v. Home 
Insurance Co., 882 F. Supp. 1355 (S.D.N.Y. 1995).
49        See paras. 7-14, supra.
50        See Motion for Vacatur at 8.  
51        Motion to Withdraw AFRs, supra n.35.
52        Id. at 2,  5.
53        Id. at 3.
54        Motion to Withdraw Affirmance Request, supra n.36.
55        In addition, we dismiss as moot Cavalier's Motion for 
Leave to File Motion for Immediate Affirmance and Enforcement of 
Bureau Order, PA File No. 99-005 (filed February 20, 2001).