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                           Before the
                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
Forfeiture                       )
                                )    FRN Numbers 0004-3051-24
                                )                             0-
                                )    004-3335-71

                         ORDER ON REVIEW

   Adopted:  February 21, 2002          Released:  February 25, 

By the Commission:

                        I.   INTRODUCTION

     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.

                         II.  BACKGROUND

     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 public[]ly 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.


                      III.      DISCUSSION

     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 
posting practices.

     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 
application denials.51

     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 
forfeiture amount.

     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 
unreasonably high.

     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, 
D.C. 20554.84

     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 
Commission's rules). 
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.
33 Id.
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.
47 Id.
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.