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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
)
In the Matter of ) File No. EB-
02-IH-0674
)
) Acct. No.
200332080012
)
Qwest Communications )
International Inc. ) FRN No.
0003605953
)
ORDER
Adopted: May 5, 2003 Released: May
7, 2003
By the Commission:
1. The Commission has been conducting an
investigation into possible violations by Qwest
Communications International Inc. (``Qwest'') of sections
271(a) and 272(g)(2) of the Communications Act of 1934, as
amended, and of the Merger Order issued by the Commission in
Memorandum Opinion and Order, Qwest Communications
International Inc. And U S WEST, Inc.; Applications for
Transfer of Control of Domestic and International Sections
214 and 310 Authorizations and Applications to Transfer
Control of a Submarine Cable Landing License, 15 FCC Red
11909 (2000) (``Merger Order''), by providing, marketing, or
selling, in-region interLATA services prior to receiving
authority pursuant to section 271.1
2. The Commission and Qwest have negotiated the terms
of a Consent Decree that would terminate the Commission'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. 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 Qwest possesses the basic qualifications,
including its character qualifications, to hold or obtain any
FCC licenses or authorizations.
5. Accordingly, IT IS ORDERED, pursuant to sections
4(i) and 4(j) of the Communications Act of 1934, as amended,
47 U.S.C. §§ 154(i) and 154(j) that the Consent Decree,
incorporated by reference in and attached to this order, is
hereby ADOPTED.
6. IT IS FURTHER ORDERED that the Secretary SHALL SIGN
the Consent Decree on behalf of the Commission.
7. IT IS FURTHER ORDERED that the above captioned
investigation IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554
In the Matter of ) File No. EB-02-IH-0674
)
) Acct. No. 200332080012
)
Qwest Communications )
International Inc. ) FRN No. 0003605953
)
CONSENT DECREE
I. Introduction
1. The Federal Communications Commission
(``Commission'') and Qwest Communications International
Inc. (``Qwest'') enter into this consent decree
(``Consent Decree'') for the purpose of terminating an
informal investigation by the Commission's Enforcement
Bureau (``Bureau'') into whether Qwest provided,
marketed, or sold in-region, interLATA services prior
to receiving authority pursuant to section 271 of the
Communications Act of 1934, as amended (``the Act''),
and/or in violation of sections 271(a) and 272(g) of
the Act, and in violation of the Merger Order issued by
the Commission in Memorandum Opinion and Order, Qwest
Communications International Inc. And U S WEST, Inc.;
Applications for Transfer of Control of Domestic and
International Sections 214 and 310 Authorizations and
Applications to Transfer Control of a Submarine Cable
Landing License, 15 FCC Red 11909 (2000) (``Merger
Order'').2
2. 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. and any subsidiaries.
d.``Parties'' means Qwest and the Commission.
e.``Adopting Order'' means an Order of the
Commission adopting the terms and conditions of
this Consent Decree.
f.``Effective Date'' means the date on which the
Commission releases the Adopting Order.
g.``Investigation'' means the investigation
initiated by the Commission regarding the matters
discussed in paragraph 6 below, concerning Qwest's
conduct during the period from June 30, 2000 to
the Effective Date of this Consent Decree.
I. BACKGROUND
3. On June 26, 2000, the Commission approved the
transfer of licenses and lines from U S WEST, Inc.
(``U S WEST'') to Qwest Communications International
Inc. in connection with the merger of the two
companies.3 Qwest agreed to discontinue or divest to
an unaffiliated carrier (``acquiring carrier'') certain
in-region interLATA services provided in the former U S
WEST region prior to the close of the merger to avoid
violations of section 271 of the Act as a result of the
merger.4 These services included all private lines
with an end point in-region, 1+ switched interLATA
service originating and 8XX interLATA service
terminating in-region, and in-region interLATA operator
and calling card services.5 Qwest's commitments were
set forth in its Divestiture Plan, dated April 14,
2000, and filed with the Commission on that date in the
Merger docket.6 The Commission approved the merger of
U S WEST and Qwest in the Merger Order, based on the
entire record before it.7
4. The Merger Order required Qwest to engage an
independent auditor to examine Qwest's compliance with
section 271 as set forth in its Divestiture Plan.
Qwest has done so, and two such audits have been
conducted under the supervision of the Commission.
5. On April 16, 2001 and September 7, 2001, Arthur
Andersen (``AA'') filed audit reports addressing
Qwest's compliance with the Merger Order for the period
June 30, 2000 through December 31, 2000, and on March
11, 2002 AA filed an audit report for the period
January 1, 2001 through December 31, 2001. AA also
filed letters with the Commission related to the audit
reports on June 8, 2001 and June 3, 2002 (collectively,
``the AA Audit Reports''). Although the independent
auditor concluded that Qwest complied in all material
respects with the Merger Orders, the independent
auditor also identified certain instances of mis-
branding and mis-billing of the acquiring carrier's
private lines services and Internet global service
provider (``GSP'') services, and facts concerning
Qwest's retention of certain revenues received in the
billing process for these services as set-off for
amounts that Qwest asserted it was owed by the
acquiring carrier. These instances are described in
the AA Audit Reports. The AA Audit Reports also noted
that Qwest had sold Indefeasible Rights-of-Use
(``IRUs''). Qwest responded to these reports at the
time, and also has responded to letters of inquiry or
other questions from the staff of the Enforcement
Bureau related to these matters in connection with EB-
01-IH-376 and EB-02-IH-0674, as well as CC Docket No.
99-272 and the merger audit proceedings generally.
Qwest has described corrective action that has been
taken with respect to the matters identified in the AA
Audit Reports. Qwest also has asserted that its IRU
transactions identified by AA do not violate Section
271.
6. Following these audit reports, the Bureau began its
Investigation of Qwest's compliance with the Merger
Order and Sections 271 and 272 of the Act (``the
Investigation'') prior to receiving section 271
authority. In particular, the Bureau issued Letters of
Inquiry (``LOIs'') on May 24, 2001, August 7, 2002,
October 16, 2002, November 26, 2002, and December 23,
2003.8 Qwest responded to the Bureau's LOIs on June
14, 2001, September 11, 2002, October 29, 2002,
December 11, 2002, December 23, 2002, January 10, 2003,
January 15, 2003, January 21, 2003, January 24 2003,
January 31, 2003, February 3, 2003, and February 11,
2003.9 In addition, AT&T Corp. (``AT&T''), the
Competitive Telecommunications Association
(``CompTel''), and WorldCom, Inc. (``WorldCom'')
submitted information to the Bureau in response to the
AA Audit Reports.10 Touch America submitted related
information to the Bureau.11 Qwest voluntarily
disclosed certain issues regarding provisioning of in-
region interLATA services and related matters,
including advertising of in-region interLATA
services.12 The Bureau's Investigation included, among
other things, the following matters arising from its
review of this collective record:
1.a. Private Line Provisioning: On December 3, 2002,
Qwest disclosed that earlier that year it had
provisioned four in-region interLATA private line
services to Cable and Wireless, USA, Inc.13 On March
7, 2003, Qwest identified additional in-region
interLATA private line services that Qwest had found
it had provided for some period after the Merger.14
1.b. Dark Fiber Leases: On December 3, 2002, Qwest
disclosed that it had failed to terminate two in-
region interLATA dark fiber leases as of the Merger.
1.c. Private Line Billing and Branding: The AA Audit
Reports noted certain instances in which Qwest billed
and branded non-metered services (e.g., private line
services) provided by the acquiring carrier as Qwest
services. Qwest asserted that it retained some of
the associated revenues as set-off for other amounts
due it from the acquiring carrier.
1.d. GSP Billing and Branding: The AA Audit Reports
noted certain instances in which Qwest billed and
branded GSP services provided by the acquiring
carrier as Qwest services, and other instances where
Qwest failed to include a charge for the GSP service
provided by the acquiring carrier. Qwest asserted
that it retained some of the associated revenues as
set-off for other amounts due it from the acquiring
carrier.
1.e. Indefeasible Rights-of-Use: The AA Audit
Reports noted that Qwest had sold Indefeasible
Rights-of-Use (``IRUs''). These IRUs were either
``lit,'' for which Qwest supplied the electronics
necessary for transmission, or ``dark,'' for which
Qwest's customer supplied such electronics. On
December 3, 2002, Qwest submitted a letter to the
Bureau disclosing certain record-keeping and
administrative errors in its provision of lit IRU
capacity and divestiture of services to the acquiring
carrier. Moreover, Qwest states that these IRUs were
sold by Qwest Communications Corporation, an
affiliate that Qwest states is presently not
qualified as a Section 272 affiliate pursuant to
Section 272(b) of the Act and the Commission's
implementing rules and orders.
1.f. Calling Cards: The AA Audit Reports noted
certain instances in which Qwest misidentified
revenues otherwise due the acquiring carrier in
connection with the in-region use of prepaid calling
cards sold in conjunction with the acquiring carrier,
where the acquiring carrier provided the in-region
interLATA service. Qwest asserted that it retained
those revenues as set off for other amounts due it
from the acquiring carrier. On March 7, 2003, Qwest
identified certain networking matters, including 8XX
transport, related to operator services provided by
the acquiring carrier.
1.g. Advertising of interLATA Services: On April 10,
2003, Qwest disclosed that on April 7-8, 2003,
certain television advertisements for in-region,
interLATA services had run in states for which Qwest
had not yet had a section 271 application granted.
Qwest asserted that the advertisements had been
broadcast in those states through an error by its
advertising agency, and contrary to Qwest's
instructions.
II. AGREEMENT
7. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between
Qwest and the Commission of the Investigation. In
consideration for the termination of this Investigation
in accordance with the terms of this Consent Decree,
Qwest agrees to the terms, conditions, and procedures
contained herein. Qwest agrees that the Commission has
jurisdiction over the matters contained in this Consent
Decree and the authority to enter into and adopt this
Consent Decree.
8. Qwest admits that, with respect to the following
matters, Qwest violated the Qwest/U S WEST Merger
Order by not terminating, suitably modifying or
divesting by the close of the merger (June 30, 2000)
the following services provided to the following
customers:
a. Two leases of dark fiber: one to Timing
Solutions Corp. in Arizona and one to MEANS, Inc. in
Minnesota.
b. Six private line services: one DS3 to Electric
Lightwave, Inc. between Medford, OR, and Portland,
OR; four DS3s to Triumph Communications each of them
having one end point in Denver, CO, with the other
end points in Chicago, IL, Kansas City, MO, Los
Angeles, CA, and Sacramento, CA; and one DS3 to
Teleglobe USA Inc. between Seattle, WA, and Los
Angeles, CA.
9. Qwest further admits that its provision of four
optical level private line services to Cable & Wireless
USA, Inc. in March 2002 constituted a violation of
Section 271: three circuits between Englewood, CO and
each of Colorado Springs, CO, Kansas City, MO, and
Chicago, IL; and one circuit between Minneapolis, MN
and Chicago, IL.
10. Qwest maintains that its failure to terminate,
suitably modify or divest the dark fiber leases and
private line services identified in paragraph 8(a) and
(b) above by June 30, 2000 and its provision of private
line services to Cable & Wireless USA, Inc. identified
in paragraph 9 above were inadvertent and the result of
record-keeping and administrative errors.
11. Qwest agrees that it shall make a voluntary
contribution to the United States Treasury in the
amount of $6.5 million. This amount shall be paid
within 10 calendar days after the Commission order
adopting this Consent Decree becomes final. Qwest must
make this payment by check, wire transfer or money
order drawn to the order of the Federal Communications
Commission, and the check, wire transfer or money order
should refer to ``Acct. No. 200332080012'' and ``FRN
No. 0003605953.'' If Qwest makes this payment by check
or money order, it must mail the check or money order
to: Forfeiture Collection Section, Finance Branch,
Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois, 60673-7482. If Qwest makes this
payment by wire transfer, it must wire such payment in
accordance with Commission procedures for wire
transfers.
12. The Commission agrees that, based on the facts
developed in this Investigation and in the absence of
material new evidence related to this matter, it will
not use the facts developed in this Investigation
through the Effective 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 discussed in paragraph 6(a)
through 6(d) and 6(f) above. With respect to paragraph
6(e) above, the Commission agrees not to take any
future actions on its own motion in the absence of
material new evidence against Qwest for any violations
of sections 271 or 272 of the Act, or the Merger Order,
concerning lit IRUs, provided Qwest complies with
paragraph (d) of the attached Compliance Plan. The
Commission also agrees that, based on the facts
developed in the Investigation, and in the absence of
material new evidence related to this matter, it will
not use the facts developed in this Investigation
through the Effective 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 Qwest's 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 or its delegated authority 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 the Merger Order, or for any other type of alleged
misconduct, regardless of when such misconduct took
place. This Consent Decree does not affect the rights
of Qwest or Touch America in EB-02-MD-003 and EB-02-MD-
004, or the ability of the Commission to resolve those
complaint proceedings in the manner it deems
appropriate.15 With respect to those proceedings or
any other Section 208 complaints that may be filed
against Qwest, the Commission's adjudication of each
such complaint will be based solely on the record
developed in that proceeding.
14. In express reliance on the covenants and
representations contained herein, the Commission agrees
to terminate the Investigation. Qwest agrees to take
the actions described in the attached Compliance Plan.
15. In the event that Qwest is found by the Commission or
its delegated authority to have engaged in a violation
of the Act or the Merger Order subsequent to the
release of the Adopting Order, the Commission or its
delegated authority reserves the right to consider the
conduct described in paragraph 6 above in determining
an appropriate sanction. If such conduct is considered
by the Commission or its delegated authority in
determining an appropriate sanction, Qwest will not be
estopped from litigating the issues of whether such
conduct or the facts involved in such conduct actually
violated the Act or the Commission's rules, the merits
of Qwest's conduct, or the relevance or weight to be
given such conduct under section 1.80 of the
Commission's rules.
16. Qwest waives any rights it may have under any
provision of the Equal Access to Justice Act, 5 U.S.C.
§ 504.
17. 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.
18. If either Party (or the United States on behalf of
the Commission) brings a judicial action to enforce the
terms of the Adopting Order, neither Qwest nor the
Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Qwest and the
Commission will waive any statutory right to a trial de
novo with respect to any matter upon which the Adopting
Order is based, and shall consent to a judgment
incorporating the terms of this Consent Decree.
19. The Commission and Qwest agree that this Consent
Decree is for settlement purposes only and that it does
not constitute an admission, denial, adjudication on
the merits, or factual or legal determination
regarding any compliance or noncompliance with the law
or requirements of the Merger Order other than as
stated in paragraphs 8-9, above. Qwest does not admit
any noncompliance, violation, or liability associated
with or arising from any alleged actions or failures
other than as stated in paragraphs 8-9, above. Nothing
in this Consent Decree constitutes a waiver,
suspension, or modification of the Act or the
Commission's rules.
20. Qwest agrees that any violation of the Consent Decree
(including the attached Compliance Plan) or the
Adopting Order will constitute a separate violation of
a Commission order, entitling the Commission to
exercise any rights or remedies attendant to the
enforcement of a Commission order.
FEDERAL COMMUNICATIONS COMMISSION
__________ ___________
Marlene H. Dortch
Secretary R STEVEN DAVIS
Federal Communications
Commission Senior Vice President
Qwest Communications
International Inc.
__________ ___________
Date Date
ATTACHMENT
COMPLIANCE PLAN
Qwest's Compliance Plan consists of the following six parts:
(a) Not later than 45 days after entry of the
Adopting Order, Qwest will fully implement
supplemental changes to its order entry process
designed as further controls to prevent the
completion of an order for the provision of in-
region, interLATA private line services in either
Arizona or Minnesota until such time as the
Commission has granted a Qwest application for
Section 271 authority in the respective state. Qwest
will maintain these procedures until it receives
section 271 authorization in all of its in-region
states.
(b) Not later than 60 days after entry of the
Adopting Order, Qwest will provide refresher training
to Qwest Communications Corporation order entry
personnel on proper guidelines for the provision of
interLATA private line services.
(c) Qwest has performed an internal investigation
into its potential provisioning of in-region
interLATA services, the results of which are
reflected in the disclosures recited in the Consent
Decree. Qwest will submit the procedures and
nonprivileged work papers from that investigation to
the independent auditor for consideration in the
auditor's report. Qwest will continue to provide to
the independent auditor such further nonprivileged
information as the independent auditor may request
concerning Qwest's internal investigation and its
results.
(d) Absent prior written action by the Commission
after entry of the Adopting Order, Qwest will not
sell any lit IRUs, whether by exchange transaction or
otherwise, with an end point in either Arizona or
Minnesota until such time as the Commission has
granted a Qwest application for section 271 authority
in the respective state. If Qwest sells any lit IRUs
in states where it has received section 271
authorization, it will do so in compliance with
section 272.
(e) Qwest will assign one or more Vice Presidents to
oversee these measures and to ensure their
effectiveness.
(f) Qwest's independent auditor for the Merger Order
Audit will review Qwest's compliance with this
Compliance Plan as a part of the Merger Order Audit.
_________________________
1 See Letter from David H. Solomon, Chief, Enforcement
Bureau, Federal Communications Commission, to Lauren Belvin,
Qwest (May 24, 2001) (initial Letter of Inquiry).
2 See Letter from David H. Solomon, Chief, Enforcement
Bureau, Federal Communications Commission, to Lauren Belvin,
Qwest (May 24, 2001) (``Solomon May 24, 2001 Letter of
Inquiry'') (initial Letter of Inquiry).
3 Merger Order at 11932-3, ¶¶ 42-45.
4 Section 271 of the Communications Act of 1934, as amended
(the ``Act''), 47 U.S.C. § 271, prohibits a Bell operating
company (``BOC''), or its affiliate, from entering the in-
region, interLATA market, unless the BOC demonstrates that its
local market is open to competition in accordance with the
requirements of section 271. Merger Order at 11911 ¶ 19. See
also Memorandum Opinion and Order, Qwest Communications
International Inc. And U S WEST, Inc.; Applications for
Transfer of Control of Domestic and International Sections 214
and 310 Authorizations and Application to Transfer Control of a
Submarine Cable Landing License, 15 FCC Rcd 5376, 5384, ¶ 14
(2000) (``March Merger Order'').
5 Divestiture Compliance Report, Qwest Communications
International Inc., Qwest Communications International Inc. and
U S WEST, Inc.; Applications for Transfer of Control of
Domestic and International Sections 214 and 310 Authorizations
and Application to Transfer Control of a Submarine Cable
Landing License, CC Docket No. 99-272 (April 14, 2000)
(``Divestiture Compliance Report''), at 14. See also March
Merger Order, at 5384, ¶¶ 14-15.
6 Divestiture Compliance Report at 37-39.
7 Merger Order at 11932 ¶¶ 43-44.
8 See Solomon May 24, 2001 Letter of Inquiry; Letters from
Maureen F. Del Duca, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications
Commission, to Melissa Newman, Vice President - Federal
Regulatory, Qwest, and Robert McKenna, Associate General
Counsel, Qwest (Aug. 7, 2002, Oct. 16, 2002, Nov. 26, 2002,
Dec. 23, 2003).
9 See Letter from Sharon J. Devine, Associate General
Counsel, Qwest, to David H. Solomon, Chief, Enforcement Bureau,
Federal Communications Commission (June 14, 2001); Letters from
Sharon J. Devine, Associate General Counsel, Qwest, to Maureen
F. Del Duca, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission
(Sept. 11, 2002, Oct. 29, 2002, Dec. 11, 2002, Dec. 23, 2002,
Jan. 10, 2003, Jan. 15, 2003, Jan. 21, 2003, Jan. 24, 2003,
Jan. 31, 2003, Feb. 3, 2003, and Feb. 11, 2003).
10 See Letter from Lisa B. Smith, Senior Policy Counsel,
WorldCom, Inc., to David Solomon, Chief, Enforcement Bureau,
FCC, CC Docket No. 99-272 (May 14, 2001); Letter from Jonathan
D. Lee, Vice President, CompTel, to David Solomon, Chief,
Enforcement Bureau, FCC, CC Docket No. 99-272 (May 16, 2001);
Letter from Aryeh S. Friedman, Senior Attorney, AT&T Corp., to
David Solomon, Chief, Enforcement Bureau, FCC, CC Docket No.
99-272 (Jul. 18, 2001); Letter from David Lawson, Outside
Counsel for AT&T Corp., to Marlene H. Dortch, Secretary, FCC,
CC Docket No. 99-272 (May 2, 2002).
11 See Letter from Charles H. Helein and Jonathan S.
Marashlian, Counsel for Touch America, Inc., to Maureen F. Del
Duca, Deputy Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission (Sept.
20, 2002); Application of Touch America, Inc. for Admission of
Relevant Discovery Produced in Related Proceedings (Sept. 25,
2002); Letter from Charles H. Helein and Jonathan S.
Marashlian, Counsel for Touch America, Inc., to Maureen F. Del
Duca, Deputy Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission (Oct. 9,
2002); Letter from Charles H. Helein and Jonathan S.
Marashlian, Counsel for Touch America, Inc., to Maureen F. Del
Duca, Deputy Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission (Jan. 6,
2003); Application of Touch America, Inc. for Admission of
Relevant Evidence Produced in Related Proceedings (Jan. 9,
2003); Letter from Charles H. Helein and Jonathan S.
Marashlian, Counsel for Touch America, Inc., to Mark Stone,
Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission (Jan. 17, 2003).
12 See Letter from Sharon Devine, Associate General Counsel,
Qwest, to Michelle Carey, Chief, Competition Policy Division,
Wireline Competition Bureau, and Anthony Dale, Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission (Dec. 3, 2002); Letter from
Sharon Devine, Associate General Counsel, Qwest, to Maureen F.
Del Duca, Chief, and Anthony Dale, Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau,
Federal Communications Commission (March 7, 2003); Letter from
Melissa Newman, Vice President-Federal Regulatory, Qwest, to
Maureen F. Del Duca, Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission
(April 10, 2003).
13 Qwest subsequently provided additional information
regarding these matters at the request of the Bureau. Qwest's
responses included correspondence dated January 10, 15, and 31,
and February 3 and 11, 2003.
14 Qwest provided further information in correspondence
dated March 11, 2003 and in response to questions from the
staff.
15 Because of the nexus between the formal complaints and the
Investigation, the Bureau treated the Investigation as a
restricted proceeding under section 1.1208 of the Commission's
rules, 47 C.F.R. § 1.1208. As a result, the Bureau included
Touch America in correspondence between Qwest and the
Commission. Pursuant to section 1.1204(a)(10) of the
Commission's rules, 47 C.F.R. § 1.1204(a)(10), the Commission
and Qwest conducted bi-lateral settlement discussions. All of
the information provided by Qwest during those settlement
discussions ``relat[ed] to how a proceeding should or could be
settled, as opposed to new information regarding the merits.''
See 47 C.F.R. 1204(a)(10)(ii).