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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
) File No. EB-00-IH-0432
SBC Communications, Inc. )
) NAL/Acct. No. 200132080011
Apparent Liability for Forfeiture )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 19, 2000 Released: December 20,
2000
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(NAL), we find that SBC Communications, Inc. (SBC) has apparently
violated certain of the conditions that the Commission imposed
pursuant to its approval of the merger application of Ameritech
Corp. (Ameritech) and SBC.1 In particular, it appears that, in
seven of its in-region states and for a period of up to 13
months, SBC2 failed to report certain performance data in
accordance with the published Business Rules adopted in the
Carrier-to-Carrier Performance Plan that SBC agreed to undertake
as part of the merger conditions adopted in the SBC/Ameritech
Merger Order.
2. The Carrier-to-Carrier Performance Plan is central to
achieving the public interest goals enumerated in the
SBC/Ameritech Merger Order, including that of ensuring open local
markets by monitoring the quality of SBC's service to other
telecommunications carriers.3 The Commission adopted the
Performance Plan as a means to ensure that ``SBC/Ameritech's
service to telecommunications carriers will not deteriorate as a
result of the merger and the larger firm's increased incentive
and ability to discriminate and to stimulate the merged entity to
adopt `best practices' that clearly favor public rather than
private interests....''4 Based upon our review of the facts and
circumstances surrounding this matter, we find that SBC is
apparently liable for a forfeiture in the amount of eighty eight
thousand dollars ($88,000.00).
II. BACKGROUND
3. SBC is an incumbent local exchange carrier (ILEC) that
provides local telephone service in 13 states, including
Arkansas, Kansas, Missouri, Oklahoma, Texas, California, Nevada,
Illinois, Michigan, Indiana, Ohio, Wisconsin, and Connecticut.
At the end of 1999, SBC served nearly 60 million local exchange
access lines in its 13-state region, and served customers in 23
countries.5 SBC also provides in-region interLATA, wireless,
Internet access, out-of-region interLATA, cable and wireless
television, security monitoring, and directory publishing
services.6 In 1999, SBC had total operating revenues of more
than $49 billion.7
4. In the SBC/Ameritech Merger Order, the Commission
concluded that the merger of SBC and Ameritech posed significant
public interest harms that were not mitigated by the proposed
transaction's potential public interest benefits.8 The
Commission, however, also found that the voluntary conditions
submitted by the Applicants, and as modified by the Commission,
would alter the public interest balance by mitigating
substantially the potential public interest harms while providing
additional public interest benefits.9 The Commission explained
that these merger conditions were designed to accomplish five
primary public interest goals: (a) promoting equitable and
efficient advanced services deployment; (b) ensuring open local
markets; (c) fostering out-of-territory competition; (d)
improving residential phone service; and (e) ensuring compliance
with and enforcement of the conditions.10 These conditions would
remain in effect for 36 months after release of the SBC/Ameritech
Merger Order.11
5. The Carrier-to-Carrier Performance Plan is part of the
package of conditions designed to foster the public interest goal
of opening local markets to competition by ensuring that SBC's
service to competitors does not deteriorate as a result of the
merger.12 The Performance Plan requires SBC to file with the
Commission and each of the relevant state commissions, on a
monthly basis, performance data reflecting 20 different
categories for each of SBC's 13 in-region states.13 The data in
the 20 categories reflect SBC's performance in responding to
requests for facilities and services from its rivals, as well as
its end-user customers.14 The Business Rules accompanying the
Carrier-to-Carrier Performance Plan describe the specific data
requirements and measurement standards for each performance
measurement.15 This condition also requires that SBC make
voluntary incentive payments to the U.S. Treasury in the event
that it fails to meet designated performance thresholds.16 The
merger conditions also require SBC to retain an independent
auditor to provide a thorough and systematic review of SBC's
compliance with the conditions and to determine the sufficiency
of its internal controls.17 The Commission approved SBC's
retention of Ernst and Young, LLC as its independent auditor.18
6. On August 31, 2000, Ernst and Young submitted its
attestation report regarding SBC's compliance with the
Commission's merger conditions from October 8, 1999 through
December 31, 1999.19 The independent auditor's report is
confined to the statements made by SBC in its assertion, in the
accompanying Report of Management on Compliance with the Merger
Conditions, that it had complied with the merger conditions set
forth in the SBC/Ameritech Merger Order, except as noted therein,
and had corrected the noted deficiencies.20 The auditor's
report, along with the underlying data in SBC's monthly filings,
revealed numerous instances of SBC's failure to comply with the
requirements of the Carrier-to-Carrier Performance Plan through
the submission of inaccurate performance data.21 In particular,
the record shows that, in submitting data for 13 of the
performance measurements for Texas, Oklahoma, Kansas, Missouri,
Arkansas, California, and Nevada, SBC continuously used incorrect
benchmarks and disaggregation levels, and also excluded key data
for a period of up to 13 months.22
7. The performance measurements at issue in this NAL
concern: Percent Firm Order Confirmations (FOCs) Returned Within
``X'' Hours (PM 1); Average Response Time for OSS Pre-Order
Interfaces (PM 2); Order Process Percent Flow Through (PM 3);
Percent SWBT Caused Missed Due Dates (PM 4); Average Delay Days
for SWBT Caused Missed Due Dates (PM 7); Average Response Time
for Loop Qualification Information (PM 9); Mean Time to Restore
(PM 12); Trouble Report Date (PM 13); Average Trunk Restoration
Interval (PM 14); Percent Trunk Blockage (PM 15); Percent Missed
Collocation Due Dates (PM 17); Billing Timeliness (PM 18); and
OSS Interface Availability (PM 19).
8. Because the Commission's ability to detect potential
discriminatory conduct depends upon SBC's strict compliance with
the approved terms and conditions of the Carrier-to-Carrier
Performance Plan, failure to report the performance data in
accordance with the published Business Rules could compromise the
effectiveness of the merger conditions in ensuring open local
markets.23 The Carrier-to-Carrier Performance Plan is,
therefore, a key aspect of the Commission's oversight of SBC's
behavior towards it competitors.
III. DISCUSSION
A. Violations
9. Based on the facts set forth below, we find that SBC is
apparently liable for a forfeiture for willful and repeated
violation of the merger conditions adopted in the SBC/Ameritech
Merger Order. For a period of up to 13 months from November,
1999 through November, 2000, SBC apparently violated its
obligation to report accurately the data sought by the
performance measurements in the Carrier-to-Carrier Performance
Plan for Texas, Oklahoma, Kansas, Missouri, Arkansas, California,
and Nevada. We find that SBC's failure to report this
information accurately is willful and repeated. The term
``willful'' means that the violator knew it was taking the action
in question, irrespective of any intent to violate the
Commission's rules, and repeated means more than once.24
Furthermore, a continuing violation is "repeated" if it lasts
more than one day.25
10. SBC, in its Assertion on Compliance, does not dispute
that it gathered and reported the data sought by the specific
performance measurements discussed below in a manner contrary to
the Business Rules for those measurements.26 Although we are
aware that a few of the violations occurred as a result of SBC's
application of different standards, which were required by the
Texas and California business rules, SBC was, nevertheless,
obligated to seek the Commission's advice and approval before
modifying the Commission's Business Rules.27 The merger
conditions require that no changes be implemented until the
Common Carrier Bureau is notified and directs SBC to implement
such changes.28 Given the importance of maintaining the
integrity of the Carrier-to-Carrier Performance Plan, we cannot
excuse SBC's failure to diligently follow the Business Rules set
forth in the SBC/Ameritech Merger Order.
11. Consistent with the Commission's determination in the
SBC/Ameritech Merger Order that our monitoring of SBC's
performance through these measurements is a key tool in
offsetting or preventing some of the potential harmful effects of
that merger,29 we find SBC's lack of diligence in following the
Business Rules to be significant. One of the goals behind
establishing detailed Business Rules at the outset was to have
the Carrier-to-Carrier Performance Plan work in a self-executing
manner in order to ensure timely disclosure of accurate
performance data and submission of any required payments. This
would enable Commission staff to focus its resources on analyzing
the results of the data, rather than monitoring the gathering of
the data. SBC's failure to follow the Business Rules could lead
to inaccurate and unreliable results which would compromise the
Commission's ability to monitor effectively SBC's conduct towards
other carriers. For example, the use of less rigorous standards
than those required under the designated business rules could
mask material deficiencies in SBC's performance and ultimately
undermine the voluntary payment scheme established in the merger
conditions. The omission of key data could also lead to a
``muddying'' of the reported results. In addition, inaccurate
results will make it difficult for CLECs to determine
independently whether there are discrimination problems.
Therefore, we must insist on rigorous adherence to the Carrier-
to-Carrier Performance Plan.
12. The record evidences the following specific apparent
violations by SBC of the Carrier-to-Carrier Performance Plan:
Apparent violations of PM 1 (Percent Firm Order
Confirmations (FOCs) Returned Within ``X'' Hours) by SBC:
· For ten months from November 1, 1999, until August 31,
2000, SBC apparently violated the Business Rules for
Performance Measurement 130 in the SWBT region by failing
to report correctly the percent of FOCs timely returned
by using the incorrect date, and standard (i.e., 2:00),
instead of military (i.e.,14:00), time.31 The use of
standard time masked whether the return of FOCs occurred
in the a.m. or p.m. and thereby potentially overstated
the percent of FOCs timely returned.
· For three months from December 1, 1999, until February
20, 2000, SBC apparently violated the Business Rules for
Performance Measurement 132 in the PacBell and Nevada
Bell regions by overstating the percent of FOCs timely
returned by excluding from the measurement the interval
of time from the receipt of a fax request to the time the
information was entered into the order entry system.33
Apparent violations of PM 2 (Average Response Time for OSS
Pre-Order Interfaces)34 by SBC:
· For six months from November 1, 1999, until April 17,
2000, SBC apparently violated the Business Rules for
Performance Measurement 2 in the SWBT region by
overstating its speed in assessing service availability
by using a benchmark of 86,400 seconds, instead of 5.5
seconds.35
· For six months from November 1, 1999, until April 17,
2000, SBC apparently violated the Business Rules for
Performance Measurement 2 in the SWBT region by failing
to report accurately the response time for requests for
customer service records by collecting the data into a
single category, instead of disaggregating the data into
two categories of ``CSR Summary 1-30 Lines'' and ``CSR 31
Lines or more,''36 thereby masking differences between
the categories.
Apparent violation of PM 3 (Order Process Percent Flow
Through)37 by SBC:
· For nine months from November 1, 1999, until July 20,
2000, SBC apparently violated the Business Rules for
Performance Measurement 3 in the SWBT region by failing
to
report accurately the percent of Mechanized Order
Generator (MOG) eligible orders that progress through
SBC's ordering system by disaggregating the data by OSS
interface, rather than by service type,38 thereby masking
potential problems occurring within different types of
services.
Apparent violations of PM 4 (Percent SWBT Caused Missed Due
Dates) by SBC:
· For six months from November 1, 1999, until April 20,
2000, SBC apparently violated the Business Rules for
Performance Measurement 4c39 in the SWBT region by
failing to report accurately the percent of missed due
dates for installation of UNEs by disaggregating the data
into two categories of field work and no field work,
instead of a single UNE category.40
· For eight months from November 1, 1999, until June 20,
2000, SBC apparently violated the Business Rules for
Performance Measurement 4c in the SWBT region by failing
to report accurately the percent of missed due dates for
installation of UNEs by excluding the data from two
categories.41
Apparent violation of PM 7 (Average Delay Days for SWBT
Caused Missed Due Dates) by SBC:
· For nine months from November 1, 1999, until July 20,
2000, SBC apparently violated the Business Rules for
Performance Measurement 7c42 in the SWBT region by
failing to report accurately the average number of delay
days on missed due dates for installation of UNEs by
excluding the data from two categories.43
Apparent violations of PM 9 (Average Response Time for Loop
Qualification Information) by SBC:
· For five months from December 1, 1999, until April 20,
2000, SBC apparently violated the Business Rules for
Performance Measurement 944 in the PacBell and Nevada
Bell regions by understating the average response time
for providing loop qualification information for ADSL by
excluding the data reflecting the time interval between
receipt of a request for loop information and the
submission of the request to the Outside Plant Engineer
handling this request.45
· For four months from November 1, 1999, until February 20,
2000, SBC apparently violated the Business Rules for
Performance Measurement 946 in the SWBT region by
understating the average response time for providing loop
qualification information for ADSL by excluding the data
reflecting the time interval between receipt of a request
for loop information and the submission of the request to
the Outside Plant Engineer handling this request.47
Apparent violations of PM 12 (Mean Time to Restore) by SBC:
· For eight months from November 1, 1999, until June 5,
2000, SBC apparently violated the Business Rules for
Performance Measurement 12b48 in the SWBT region by
failing to report accurately the mean time to restore
design service by disaggregating the data into categories
of dispatch and no dispatch, instead of a single category
for design service.49
· For eight months from November 1, 1999, until June 5,
2000, SBC apparently violated the Business Rules for
Performance Measurement 12c50 in the SWBT region by
failing to report accurately the mean time to restore UNE
by disaggregating the data into categories of dispatch
and no dispatch, instead of a single category for UNE
service.51
Apparent violation of PM 13 (Trouble Report Date) by SBC:
· For nine months from December 1, 1999, until August 31,
2000, SBC apparently violated the Business Rules for
Performance Measurement 13a52 in the Nevada Bell region
by failing to report accurately the frequency of customer
trouble reports by using an incorrect number of UNEs in
the denominator of the calculation of the trouble report
rate.53
Apparent violation of PM 14 (Average Trunk Restoration
Interval)54 by SBC:
· For ten months, from December 1, 1999, until September 8,
2000, SBC apparently violated the Business Rules for
Performance Measurement 14 in the PacBell region by
failing to report accurately the average trunk
restoration interval by disaggregating the data at a
statewide level, rather than by market region,55 thereby
masking potential problems occurring at the market region
level.
Apparent violation of PM 15 (Percent Trunk Blockage)56 by
SBC:
· For nine months from December 1, 1999, until August 31,
2000, SBC apparently violated the Business Rules for
Performance Measurement 15 in the PacBell region by
failing to report accurately the percent of trunk
blockage by disaggregating the data at a statewide level,
rather than by market region,57 thereby masking potential
problems occurring at the market region level.
Apparent violations of PM 17 (Percent Missed Collocation Due
Dates)58 by SBC:
· For eight months from November 1, 1999, until June 5,
2000, SBC apparently violated the Business Rules for
Performance Measurement 17 in the SWBT region by failing
to report accurately the percent of missed collocation
due dates by disaggregating the data into additional
categories of collocation (caged initial; caged augments;
cageless initial; cageless augments; shared caged
initial; shared caged augments; virtual initial; and
virtual augments.), instead of limiting the
disaggregation to the categories of physical, virtual,
cageless, and additions.59
Apparent violation of PM 18 (Billing Timeliness)60 by SBC:
· For 13 months from November 1, 1999, until at least
November 20, 2000, SBC apparently violated the Business
Rules for Performance Measurement 18 in the SWBT region
by failing to report accurately billing timeliness by
excluding the billing information for all provisioned
UNEs.61
Apparent violations of PM 19 (OSS Interface Availability)62
by SBC:
· For nine months from December 1, 1999, until August 30,
2000, SBC apparently violated the Business Rules for
Performance Measurement 19 in the PacBell region by
region by failing to report accurately on their web site
the availability of OSS interface by failing to include
the Z-scores for this measurement.63
· For three months from December 1, 1999, until March 20,
2000, SBC apparently violated the Business Rules for
Performance Measurement 19 in the PacBell and Nevada Bell
regions by overstating OSS interface availability by
excluding system outage data.64
B. Forfeiture Amount
13. In light of SBC's apparent willful or repeated failure
to comply with the merger conditions in the SBC/Ameritech Merger
Order, we find that a forfeiture is warranted. 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.65 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 determining the appropriate
forfeiture amount, we consider the factors enumerated in section
503(b)(2)(D) of the Act, including ``the nature, circumstances,
extent and gravity of the violation, 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
14. SBC has submitted 13 monthly reports embodying one or
more of the apparent violations detailed above and thus has
committed 13 separate apparent violations of the SBC/Ameritech
Merger Order. While several of the apparent violations discussed
in this NAL clearly had the effect of casting SBC's performance
in a more favorable light, all of the apparent violations we have
discussed demonstrate that SBC repeatedly failed to implement the
Business Rules as adopted by the Commission. Because section
503(b)(6) of the Act limits the Commission's jurisdiction over
this cause of action to one year from the time the action
accrued, our forfeiture calculation does not include a penalty
for any violations that occurred during November and December of
1999. Therefore, for forfeiture purposes, SBC has committed 11
apparent violations of the SBC/Ameritech Merger Order.
15. Under the Commission's forfeiture guidelines, the base
forfeiture amount for failure to file required forms or
information is $3000 per violation.68 The Commission's rules,
however, explicitly provide that the Commission and its staff may
issue a higher or lower forfeiture than provided in the
guidelines, as permitted by statute. We believe that an upward
adjustment in the forfeiture amount is warranted in this case.
As explained above, inaccurate reporting of performance data may
compromise the effectiveness of the merger conditions in
promoting open local markets. Moreover, we are faced here with
noncompliance with a number of the reporting requirements in the
SBC/Ameritech Merger Order over an extended period of time.
Therefore, we will apply a forfeiture amount of $8000 to each of
the 11 violations described herein, and find SBC apparently
liable for a forfeiture amount in the amount of $88,000. We note
that our imposition of a proposed forfeiture in this proceeding
is independent of SBC's obligation to make voluntary payments for
failure to perform according to the benchmarks and other parity
guidelines set forth in Appendix C of the SBC/Ameritech Merger
Order. 69
IV. ORDERING CLAUSES
· 16. ACCORDINGLY, IT IS ORDERED THAT, pursuant to section
503(b) of the Act, 70 and section 1.80 of the Commission's
Rules, 71 SBC Communications is HEREBY NOTIFIED of its
APPARENT LIABILITY FOR FORFEITURE in the amount of eighty
eight thousand dollars ($88,000.00) for willfully or
repeatedly violating the Commission's merger conditions in the
SBC/Ameritech Merger Order.
·
17. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of
the Commission's Rules, within thirty (30) days of the release
date of this NOTICE OF APPARENT LIABILITY, SBC Communications
SHALL PAY to the United States the full amount of the proposed
forfeiture OR SHALL FILE a written statement showing why the
proposed forfeiture should not be imposed or should be reduced.
18. Payment of the forfeiture amount may be made by mailing
a check or similar instrument payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
``NAL/ Acct. No.'' referenced above.
19. The response, if any, must be mailed to Charles W.
Kelley, Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street S.W.,
Room 3-B443, Washington, D.C., 20554, and must include the
``NAL/Acct. No.'' referenced above.
20. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the respondent submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the respondent's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
provided.
21. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability shall be sent by Certified Mail/Return Receipt
Requested to SBC Communications, c/o Sandra L.Wagner, Vice
President-Federal Regulatory, 1401 I Street, N.W., Suite 1100,
Washington, D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 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,
14856 (1999) (``SBC/Ameritech Merger Order'')
2 SBC refers to SBC Communications, Inc. and all its
affilliates, including its incumbent LECs.
3 SBC/Ameritech Merger Order, 14 FCC Rcd 14856, 14867.
4 SBC/Ameritech Merger Order, 14 FCC Rcd 14867.
5
SBC 1999 Annual Report at 6.
6 SBC 1999 Annual Report at 4.
7 SBC 1999 Annual Report at 76.
8 SBC/Ameritech Merger Order, 14 FCC Rcd 14854.
9 SBC/Ameritech Merger Order, 14 FCC Rcd 14855.
10 SBC/Ameritech Merger Order, 14 FCC Rcd 14856.
11 SBC/Ameritech Merger Order, 14 FCC Rcd 14868.
12 SBC/Ameritech Merger Order, 14 FCC Rcd 14867.
13 See SBC/Ameritech Merger Order, 14 FCC Rcd 14867, Appendix C
at ¶ 24, and Attachment A at ¶ 13. The categories cover key
aspects of pre-ordering, ordering, provisioning, maintenance and
repair associated with UNEs, interconnection, and resold
services. Id. SBC is required to file this report on the 20th
of each month. The filing of performance data for the states in
the original Southwestern Bell Telephone (SWBT) region (Texas,
Oklahoma, Kansas, Missouri, and Arkansas) was required beginning
on November 1, 1999, for the months of August and September, on
November 20th for the month of October, and then on 20th of each
month thereafter for the previous month's data. The performance
data for the Pacific Bell (PacBell) and Nevada Bell states of
California and Nevada had to be filed beginning on December 1,
1999, for the months of September and October, on December 20th
for the month of November, and on the 20th of each subsequent
month. The Commission required SBC to file similar data for the
states in the Ameritech region (Illinois, Ohio, Wisconsin,
Indiana and Michigan) in two phases with the filing of the first
set commencing on January 6, 2000, and the second set starting on
March 6, 2000. The filing of performance data in the Southern
New England Telephone region of Connecticut began on October 8,
2000. The subsequent monthly reports for the Ameritech states
and Connecticut are also due on the 20th of each month. See
SBC/Ameritech Merger Order, Appendix C at ¶ 24.
14 SBC/Ameritech Merger Order, 14 FCC Rcd 14867.
15 See SBC/Ameritech Merger Order, Appendix C, Attachments A-
2a, , ``SBC/Ameritech Performance Measurements Business Rules
(except California and Nevada),'' and A-2b, ``SBC/Ameritech
Performance Measurements Business Rules (California and
Nevada).'' The applicable business rules for performance
measures in all states except for California and Nevada are those
developed in a Texas collaborative process involving SBC's
application for in-region, interLATA authorization. The
performance measures in California and Nevada are reported using
rules that were developed in a collaborative process in
California. SBC/Ameritech Merger Order at ¶ 379.
16 See SBC/Ameritech Merger Order, Appendix C, Attachment A-3,
``Calculation of Parity and Benchmark Performance and Voluntary
Payments,'' and Attachment A-4, ``Voluntary Payments for
Performance Measurements.'' The amount of the payments varies
according to the level and significance of discrimination
detected. SBC/Ameritech Merger Order, 14 FCC Rcd 14867. SBC is
required to make its first payments to the U.S. Treasury for
failing to meet the performance thresholds during the months of
August, September, and October of 2000 no later than December 20,
2000. The reported data form the basis for calculating the
payments.
17 SBC/Ameritech Merger Order, Appendix C at ¶ 67.
18 See Aug. 24, 1999 Letter from Robert C. Atkinson, Deputy
Chief, Common Carrier Bureau, to Charles Foster, Group President,
SBC.
19 See Aug. 31, 2000 Report of Independent Auditors, Ernst &
Young, LLP (Auditor's Report on Compliance). This report only
covered SBC's conduct in Texas, Oklahoma, Kansas, Missouri, and
Arkansas, California and Nevada.
20 See Aug. 31, 2000 Report of Management on Compliance with
the Merger Conditions (Management's Assertion on Compliance). In
its statement, SBC stated that it had corrected some of the
deficiencies by the time of the release of the auditor's report
and had scheduled correction of other deficiencies prospectively.
Although the independent auditor has not provided us with
confirmation of the implementation of any corrections to date,
the Common Carrier Bureau has been able to confirm corrections of
deficiencies in the use of incorrect benchmarks and
disaggregation levels from SBC's monthly filings. The monthly
filings, however, do not inform us whether the deficiencies
involving the exclusion of data have been corrected. We are
relying on SBC's representations in its statement regarding the
date of correction of the deficiencies involving the exclusion of
data.
21 Auditor's Report on Compliance at 2. See also SBC's
Initial, Monthly, and Interim Performance Data Submissions, Nov.
1, 1999, through Nov. 20, 2000.
22 See Management's Assertion on Compliance, Attachment A.
Although the Auditor's Report only covered SBC's performance in
1999, the attached Management's Assertion on Compliance covers
SBC's correction of the deficiencies through August, 2000.
23 SBC/Ameritech Merger Order, 14 FCC Rcd 14867, 14868.
24 See Southern California Broadcasting Co., 6 FCC Rcd 4387,
4388 (1991); see also Hale Broadcasting Corp., 79 FCC 2d 169, 171
(1980).
25 Southern California Broadcasting Co., 6 FCC Rcd 4388.
26 Management's Assertion on Compliance at 1, 3, and Attachment
A.
27 Management's Assertion on Compliance, Attachment A at 13, ¶
e; 14, ¶ a; 15, ¶ b; 16, ¶¶ g and h. See also June 5, 2000
Letter from Chris Jines, Executive Director, Federal Regulatory,
SBC, to Carol Mattey, Deputy Chief, Common Carrier Bureau. The
Commission subsequently incorporated some aspects of the Texas
Business Rules on May 1, 2000. See May 30, 2000 Letter from
Carol Mattey, Deputy Chief, Common Carrier Bureau, to Marian
Dyer, Vice President-Federal Regulatory, SBC.
28 See SBC/Ameritech Merger Order, Appendix C, Attachment A at
¶ 4. See also May 30, 2000 Letter from Carol Mattey, Deputy
Chief, Common Carrier Bureau, to Marian Dyer, Vice President-
Federal Regulatory, SBC.
29 SBC/Ameritech Merger Order, 14 FCC Rcd 14868.
30 This performance measurement measures the percent of FOCs
returned within a specific time frame from receipt of a complete
and accurate service request to return of confirmation to CLEC.
SBC/Ameritech Merger Order, Appendix C, Attachment A-2a at A-12.
31 Management's Assertion on Compliance, Attachment A at 15, ¶
d. See also SBC Initial Performance Data Submission, Nov. 1,
1999; Aug. 31, 2000 letter and attached Interim Performance Data
Submission, Aug. 31, 2000, from Chris Jines, Executive Director,
Federal Regulatory, SBC, to Mark Stone, FCC.
32 This performance measurement measures the average time from
receipt of a service request to return of a FOC/Local Service
Confirmation (LSC). SBC/Ameritech Merger Order, Appendix C,
Attachment A-2b at A-52.
33 Management's Assertion on Compliance, Attachment A at 16, ¶
f. See also SBC Initial Performance Data Submission, Dec. 1,
1999; SBC Monthly Performance Data Submission, Feb. 20, 2000.
34 This performance measurement measures the average response
time in seconds from the SWBT side of the Remote Access Facility
(RAF) and return for pre-order interfaces (Verigate, DataGate and
EDI where the pre-order functionality is integrated) by function.
SBC/Ameritech Merger Order, Appendix C, Attachment A-2a at A-15.
35 Management's Assertion on Compliance, Attachment A at 13, ¶
b. See also SBC Initial Performance Data Submission, Nov. 1,
1999; SBC Interim Performance Data Submission, April 17, 2000.
36 Management's Assertion on Compliance, Attachment A at 13, ¶
c. See also SBC Initial Performance Data Submission, Nov. 1,
1999; SBC Interim Performance Data Submission, April 17, 2000.
37 This performance measurement measures the percent of orders
or LSRs from entry to distribution that progress through SWBT
ordering systems. SBC/Ameritech Merger Order, Appendix C,
Attachment A-2a at A-17.
38 Management's Assertion on Compliance, Attachment A at 13, ¶
d. See also SBC Initial Performance Data Submission, Nov. 1,
1999; June 20, 2000 letter and attached Interim Performance Data
Submission, June 20, 2000, from Chris Jines, Executive Director,
Federal Regulatory, SBC, to Anthony Dale, FCC.
39 This performance measurement measures the percent of UNEs
(8db loops are measured at an order level) where installations
are not completed by the negotiated due date. SBC/Ameritech
Merger Order, Appendix C, Attachment A-2a at A-20.
40 Management's Assertion on Compliance, Attachment A at 13, ¶
e. See also SBC Initial Performance Data Submission, Nov. 1,
1999; SBC Monthly Performance Data Submission, April 20, 2000.
41 Management's Assertion on Compliance, Attachment A at 15, ¶
c. See also SBC Initial Performance Data Submission, Nov. 1,
1999; SBC Monthly Performance Data Submission, July 20, 2000.
42 This performance measurement measures the average calendar
days from due date to completion date on company missed UNEs (8db
loops are measured at an order level). SBC/Ameritech Merger
Order, Appendix C, Attachment A-2a at A-31.
43 Management's Assertion on Compliance, Attachment A at 15, ¶
c. See also SBC Initial Performance Data Submission, Nov. 1,
1999; SBC Monthly Performance Data Submission, July 20, 2000.
44 This performance measurement measures the average time
required to provide loop qualification information to ADSL.
SBC/Ameritech Merger Order, Appendix C, Attachment A-2b at A-84.
45 Management's Assertion on Compliance, Attachment A at 16, ¶
g. See also SBC Initial Performance Data Submission, Dec. 1,
1999; SBC Monthly Performance Data Submission, April 20, 2000.
46 This performance measurement measures the average time
required to provide loop qualification for ADSL. SBC/Ameritech
Merger Order, Appendix C, Attachment A-2a at A-33.
47 Management's Assertion on Compliance, Attachment A at 14, ¶
a. See also SBC Initial Performance Data Submission, Nov. 1,
1999; SBC Monthly Performance Data Submission, Feb. 20, 2000.
48 This performance measurement measures the average duration
of network customer trouble reports for design service from the
receipt of the customer trouble report to the time that the
trouble report is cleared. SBC/Ameritech Merger Order, Appendix
C, Attachment A-2a at A-40.
49 Management's Assertion on Compliance, Attachment A at 13, ¶
e. See also SBC Initial Performance Data Submission, Nov. 1,
1999; June 5, 2000 letter and attached Interim Performance Data
Submission, June 5, 2000, from Chris Jines, Executive Director,
Federal Regulatory, SBC, to Carol E. Mattey, FCC.
50 This performance measurement measures the average duration
of network customer trouble reports for UNEs from the receipt of
the customer trouble report to the time the trouble report is
cleared excluding no access and delayed maintenance.
SBC/Ameritech Merger Order, Appendix C, Attachment A-2a at A-41.
51 Management's Assertion on Compliance, Attachment A at 13, ¶
e. See also SBC Initial Performance Data Submission, Nov. 1,
1999; June 5, 2000 letter and attached Interim Performance Data
Submission, June 5, 2000, from Chris Jines, Executive Director,
Federal Regulatory, SBC, to Carol E. Mattey, FCC.
52 This performance measurement measures the total number of
network customer trouble reports for POTS received within a
calendar month per 100 access lines. SBC/Ameritech Merger Order,
Appendix C, Attachment A-2b at A-99.
53 Management's Assertion on Compliance, Attachment A at 14, ¶
i. See also SBC Initial Performance Data Submission, Dec. 1,
1999; Aug. 31, 2000 letter and attached Interim Performance Data
Submission, Aug. 31, 2000, from Chris Jines, Executive Director,
Federal Regulatory, SBC, to Mark Stone, FCC.
54 This performance measurement measures the average time to
restore service affecting new trunk groups. SBC/Ameritech Merger
Order, Appendix C, Attachment A-2b at A-104.
55 Management's Assertion on Compliance, Attachment A at 14, ¶
h. See also SBC Initial Performance Data Submission, Dec. 1,
1999; Sep. 8, 2000 letter and attached Interim Performance Data
Submission, Sep. 8, 2000, from Chris Jines, Executive Director,
Federal Regulatory, SBC, to Mark Stone, FCC.
56 This performance measurement measures the percent of calls
blocked on outgoing traffic from LEC end office to CLEC end
office and from LEC tandem to CLEC end office. SBC/Ameritech
Merger Order, Appendix C, Attachment A-2b at A-105.
57 Management's Assertion on Compliance, Attachment A at 14, ¶
g. See also SBC Initial Performance Data Submission, Dec. 1,
1999; Aug. 31, 2000 letter and attached Interim Performance Data
Submission, Aug. 31, 2000, from Chris Jines, Executive Director,
Federal Regulatory, SBC, to Mark Stone, FCC.
58 This performance measurement measures the percent of SWBT
caused missed due dates for collocation projects. SBC/Ameritech
Merger Order, Appendix C, Attachment A-2a at A-48.
59 Management's Assertion on Compliance, Attachment A at 13, ¶
e. See also SBC Initial Performance Data Submission, Nov. 1,
1999; June 5, 2000 letter and attached Interim Performance Data
Submission, June 5, 2000, from Chris Jines, Executive Director,
Federal Regulatory, SBC, to Carol E. Mattey, FCC.
60 This performance measurement measures the length of time
from the billing date to the time a wholesale bill is sent or
transmitted (made available) to the CLECs. SBC/Ameritech Merger
Order, Appendix C, Attachment A-2a at A-49.
61 Management's Assertion on Compliance, Attachment A at 15, ¶
b. See also SBC Initial Performance Data Submission, Nov. 1,
1999.
62 This performance measurement measures the percent of time
OSS interface is available compared to scheduled availability.
SBC/Ameritech Merger Order, Appendix C, Attachment A-2b at A-110.
63 Management's Assertion on Compliance, Attachment A at 14, ¶
m. See also SBC Initial Performance Data Submission, Dec. 1,
1999; SBC Monthly Performance Data Submission, August 30, 2000.
64 Management's Assertion on Compliance, Attachment A at 16, ¶
e. See also SBC Initial Performance Data Submission, Dec. 1,
1999; SBC Monthly Performance Data Submission, March 20, 2000.
65 47 U.S.C. §503(b)(1)(B); see also 47 C.F.R. § 1.80(a)(2).
66 47 U.S.C. § 503(b)(2)(B); see also 47 C.F.R § 1.80(b)(2).
67 47 U.S.C. § 503(b)(2)(D); see also The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the
Commission's Rules, 12 FCC Rcd 17087, 17100 (1997) (``Forfeiture
Policy Statement''); recon. denied 15 FCC Rcd 303 (1999); 47
C.F.R. § 1.80(b)(4).
68 Forfeiture Policy Statement, 12 FCC Rcd 17114.
69 See SBC/Ameritech Merger Order, Appendix C, Attachment A-3,
``Calculation of Parity and Benchmark Performance and Voluntary
Payments,'' and Attachment A-4, ``Voluntary Payments for
Performance Measurements.''
70 47 U.S.C. § 503(b).
71 47 C.F.R. § 1.80.