**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | File No. EB-00-IH-0326a      |
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| SBC Communications Inc.          | ** | NAL/Acct. No. 200132080015   |
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| Apparent Liability for           | *  | FRN Numbers 0004-3051-24     |
| Forfeiture                       | *) |                              |
|                                  | ** | 0004-3335-71                 |
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|                                  | *  | 0005-1937-01                 |
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**ORDER ON REVIEW**

**Adopted: February 21, 2002 Released: February 25, 2002**

**By the Commission:**

# INTRODUCTION

1.  In this Order, we affirm the May 24, 2001 Order of Forfeiture[^1]
    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.

# 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. ("Ameritech").[^7]

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 rules[^14] 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:

Anaheim, California

Brentwood, California

Calabasas, California

Carlsbad, California

Clayton, California

Fallbrook, California

Fremont, California

Half Moon Bay, California

Modesto, California

Milpitas, California

Orange, California

Pedley, California

Riverside, California

Rocklin, California

San Juan Capistrano, California

San Jose, California

Tehacapi, California

Valley Center, California

Yorba Linda, California

Elk Grove, Illinois

Kildare, Illinois

Lake Zurich, Illinois

Orland Park, Illinois

Round Rock, Texas.

# 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
    rules.

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 repeatedly[^26] 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
    space."[^31]

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. OSHRC*[^36] 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 rule.

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)'s[^58] 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 appropriate.[^62]

    **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 Statement*[^64]
    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 SBC[^73] "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).

# 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 12^th^ 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. 20005.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton

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
    NAL").

[^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 Letter").

[^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
    Commission).

[^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 York.").

[^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 271.

[^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
    omitted).

[^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.