**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-00-IH-0432       |
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**ORDER OF FORFEITURE**

**Adopted:** March 14, 2001 **Released:** March 15, 2001

By the Chief, Enforcement Bureau:

# INTRODUCTION

1.  In this Order, we find that SBC Communications, Inc. ("SBC")
    willfully and repeatedly violated certain of the conditions imposed
    when the Commission approved the merger application of Ameritech
    Corp. ("Ameritech") and SBC.[^1] Based on the facts and
    circumstances before us and after considering SBC's response to our
    Notice of Apparent Liability ("NAL") in this matter, we conclude
    that SBC is liable for a forfeiture of eighty eight thousand dollars
    (\$88,000.00).

# BACKGROUND

2.  In the NAL,[^2] we found that, in seven of its in-region states and
    for a period of up to 13 months, it appeared that SBC willfully or
    repeatedly failed to report certain performance data in accordance
    with the published Business Rules[^3] adopted in the
    Carrier-to-Carrier Performance Plan[^4] that the Commission directed
    SBC to undertake as part of the merger conditions adopted in the
    *SBC/Ameritech Merger Order.*[^5] We based our findings in the NAL
    on the underlying data in SBC's monthly filings with the Commission,
    the deficiencies in those filings noted in the independent audit
    report[^6] regarding SBC's compliance with the merger conditions,
    and the statements made by SBC in its Assertion on Compliance[^7]
    accompanying the audit report. Based on our review of the facts,
    circumstances, and policy implications surrounding these apparent
    violations, we found that SBC was apparently liable for a forfeiture
    of eighty eight thousand dollars (\$88,000) for 11 of the 13
    apparent violations that SBC committed.[^8]

3.  SBC, in its Assertion on Compliance, did 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.[^9] Nevertheless, in its January 19,
    2001 Response to the NAL, SBC contests the Bureau's finding of
    apparent liability on the basis that: 1) the Bureau's allegations
    have factual, interpretive, and legal errors; and 2) SBC is in
    substantial compliance with the reporting requirements in the Merger
    Conditions. In addition, SBC argues that the forfeiture is
    unwarranted and that we improperly determined the amount of the
    forfeiture. Except where we confirm two factual errors that do not
    affect the number of violations at issue, we find none of SBC's
    arguments to be persuasive.

    **III. DISCUSSION**

## The Apparent Violations

### Factual Accuracy of the Allegations

4.  After a careful review of SBC's Response to each allegation,[^10] we
    find that, on the whole, the data SBC submitted in its monthly
    filings, the statements SBC made in its Assertion on Compliance, and
    the findings in the audit report together serve to refute SBC's
    argument that the Bureau's allegations are largely inaccurate.[^11]
    As an overarching observation, we also note that SBC fails to
    provide any supporting documentation for the majority of its
    assertions concerning the defects in the Bureau's allegations.[^12]
    Furthermore, we think it very significant that all the violations in
    the NAL were also noted in the auditor's report and were confirmed
    by SBC in its Assertion.[^13]

5.  As an initial matter, however, the Bureau acknowledges that the NAL
    includes two factual errors that do not affect the number of
    violations. First, the NAL inaccurately stated the appropriate time
    frame for SBC's use of a benchmark of 86,400 seconds in PM 2.[^14]
    Our review of SBC's monthly data submissions shows that SBC
    committed this violation for only three months from April 17, 2000,
    until June 20, 2000, rather than for six months from November 1,
    1999, until April 17, 2000.[^15] The Bureau also acknowledges that
    the NAL incorrectly stated that SBC violated PM 19 in the Pacific
    Bell region by failing to include any relevant Z-scores in the data
    that it posted on the SBC website.[^16] As noted in the audit report
    and SBC's data submission, this violation actually occurred in the
    Nevada Bell region.[^17] Although the evidence still shows that SBC
    failed to follow the Business Rules on both of these points, we will
    not consider these two issues in assessing the forfeiture.

6.  In all other respects, we are not persuaded by SBC's arguments, and
    we find that the NAL accurately documented SBC's reporting
    violations. First, SBC challenges the NAL's statement that, for PM
    1, SBC had failed to report properly the time and date of receipt of
    firm order confirmations (FOCs) timely returned by using standard
    time, rather than military time.[^18] SBC contends that its errors
    would tend to understate, rather than overstate, the number of FOCs
    timely returned on those orders. Although this is true, it is also
    true that the NAL said that SBC had incorrectly reported dates as
    well, potentially overstating, on that basis, the percentage of FOCs
    timely received.[^19] Thus, we conclude that SBC did not correctly
    report PM 1, as set forth in the NAL, for a ten-month period from
    November 1, 1999, until August 31, 2000.

7.  Second, SBC disputes the NAL's finding that SBC failed, for PM 2, to
    properly disaggregate the data into the two categories of "CSR
    Summary 1-30 Lines" and "CSR 31 Lines or More." [^20] SBC maintains
    that it never included data for "CSR 31 Lines or More" within the
    calculations for "CSR Summary 1-30 Lines" for this performance
    measurement. SBC's data submissions from November 1999 through April
    2000, however, confirm our finding that SBC failed 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."[^21]

8.  Furthermore, we find SBC's contention that the Bureau used
    inaccurate time frames for the violations concerning performance
    measurements 1, 14, and 15 reflect SBC's lack of understanding that
    the time frame of the violations is based on the date of reporting
    inaccurate data to the Commission, and not the date on which SBC
    revised its data collection.[^22] For example, even though SBC
    corrected the incorrect data collection for PM 1 in January 2000, it
    did not submit the corrected January data to the Commission until
    February 20, 2000. Our proposed forfeiture related to the inaccurate
    report(s) received prior to the February correction. Our records
    confirm the accuracy of the reporting dates of the corrections of
    the noted violations in the NAL.[^23]

9.  SBC contests the NAL's finding that the company apparently violated
    PM 19 by excluding system outage data for OSS interface
    availability. SBC claims that the charge is unsubstantiated because
    the NAL does not specify the outages that occurred.[^24] But, both
    the audit report and SBC's assertion confirm that this deficiency
    occurred. Moreover, SBC's failure to track this data is the very
    reason that a more detailed description of the violation cannot be
    provided. We will not permit SBC to absolve itself of responsibility
    for admitted violations by arguing that the Bureau has not met its
    burden of establishing the very same violations.

    **2. Significance of the Violations**

10. SBC contends that several of the errors documented in the NAL
    violations are beyond the scope of the Commission's forfeiture
    authority because they are of a *de minimis* nature.[^25] First, we
    emphasize that SBC has not persuaded us that any such *de minimis*
    exemption exists. The cases SBC cites for this proposition cannot
    plausibly be read as the company suggests. Indeed, in *Hale
    Broadcasting*,[^26] the Commission expressly rejected the standard
    proposed by SBC.[^27] In any event, we do not agree that the
    violations at issue are *de minimis*. Because of the importance of
    ensuring the integrity of the entire scope of the Carrier-to-Carrier
    Performance Plan, we consider each component of the performance
    measurements to be significant. We also note that, consistent with
    applicable auditing standards,[^28] the independent auditor included
    in the audit report only those findings it considered to be
    material.[^29] Moreover, the NAL treated as a violation not each
    individual reporting error, but rather each report containing
    multiple errors. We do not accept that a report containing at least
    as many as 12 errors constitutes a *de minimis* violation.

11. SBC also argues that the allegation regarding PM 3 does not support
    a forfeiture because the requested data was purely diagnostic and
    not tied to the voluntary performance payments.[^30] We disagree.
    SBC is obliged to follow the Business Rules in their entirety and
    this obligation is not related to whether the data in question
    triggers a performance payment**.**

    **3. Business Rules**

12. SBC's argues that several of the documented errors should not be
    considered because of SBC's difference of opinion regarding the
    applicable Business Rules.[^31] We disagree. As we stated in the
    NAL, the Merger Conditions require the Commission's approval before
    any changes to the Business Rules may be implemented. SBC,
    therefore, was obliged to notify the Common Carrier Bureau and
    obtain its assent before modifying the implementation of these
    particular Business Rules.[^32] SBC was also given an opportunity to
    provide its input during the formulation of the Business Rules, and
    thus had ample opportunity to make any suggestions at that stage.
    SBC's failure to apply the Commission's Business Rules accurately
    after the Commission's release of the *SBC/Ameritech Merger Order*
    cannot be excused.

13. Furthermore, we take exception to SBC's repeated contention that its
    submission of data in a greater level of disaggregation than that
    specified by the Business Rules does not constitute a violation of
    the Business Rules because the Commission is free to reaggregate the
    data on its own.[^33] We reiterate that SBC is required to track and
    submit the performance data in the manner prescribed by the Business
    Rules. As we stated in the NAL, the very reason for the Commission's
    adoption of the Business Rules is to provide uniform reporting
    standards that would permit the Commission to focus its efforts on
    analyzing the results of the data, rather than monitoring the
    gathering of the data.[^34] The Business Rules also enable the
    Carrier-to-Carrier Performance Plan to work in a self-executing
    manner to ensure timely disclosure of accurate performance data and
    submission of any required payments.[^35]

## SBC's Compliance Under the Applicable Legal Standards

**1.** **Willful and Repeated**

14. Pointing to the Commission's statement in *Midwest Radio-Television*
    that "the policy factor which has been the main key to our actions"
    in the forfeiture area is "a demonstrated lack of concern or
    indifference on the part of the licensee for compliance with the Act
    or our Rules,"[^36] SBC asserts that the NAL has failed to establish
    that any noncompliance was willful because the Bureau has not
    demonstrated a lack of concern or indifference for compliance on
    SBC's part.[^37] Even assuming the continuing validity of this
    sentence from a case decided nearly 40 years ago, SBC's argument has
    no merit. The substantial number of violations documented in the NAL
    is not consistent with SBC's characterization of its performance as
    "characterized by extreme care and meticulousness."[^38] Thus, the
    violations themselves establish SBC's lack of diligence in following
    the Business Rules strictly. Moreover, SBC's claims that some of the
    violations were merely "scrivener's errors" or were inadvertent are
    insufficient to defeat the finding of willfulness.[^39] It has long
    been established that the word "willfully," as employed in section
    503(b) of the Act, does not require a demonstration that SBC knew
    that it was acting unlawfully. Section 503(b) requires only a
    finding that SBC knew it was doing the acts in question and that the
    acts were not accidental.[^40] We emphasize that the forfeiture is
    based on SBC's failure to file accurate reports, as opposed to the
    gathering of inaccurate data. The violations that SBC maintains are
    inadvertent cannot be excused as mere accidents, since SBC filed
    inaccurate reports for the performance measurements at issue
    multiple times over a period of several months. SBC's continued
    failure to correct such "accidents" over several months implies a
    willful lack of diligence in ensuring the accuracy of its reporting.

15. Similarly ineffectual is SBC's statement that the allegations upon
    which the NAL relies are insufficient to warrant a determination
    that SBC's noncompliance has been repeated.[^41] The fact that SBC
    repeatedly filed incorrect reports over a period of 13 months (only
    12 of which we address here) belies any suggestion that SBC's
    violations were not repeated.[^42]

    **2. Failure to Comply**

16. Because this forfeiture action concerns an alleged failure to comply
    with a condition of a license transfer authorization, SBC asserts
    that its behavior is governed only by the substantial compliance
    standard of section 503(b)(1)(A) of the Act,[^43] rather than the
    strict liability compliance standard within section
    503(b)(1)(B).[^44] SBC further maintains that the allegations in the
    NAL do not establish that SBC failed to substantially comply with
    the Merger Conditions.[^45] Because the record demonstrates
    substantial noncompliance by SBC, the Bureau's reference in the NAL
    to the section 503(b)(1)(B) standard does not affect the result
    here.

17. The Bureau has established that SBC willfully and repeatedly
    violated the Merger Conditions in 17 respects for up to 13 months.
    Thus, we conclude that SBC fails under the substantial compliance
    standard of section 503(b)(1)(A). It is not the Commission's
    practice to impose forfeitures for insubstantial noncompliance.

## Imposition of a Forfeiture

18. SBC contends that forfeiture is unjustified because it subsequently
    corrected the deficiencies.[^46] But, the fact that SBC's violations
    ceased does not eliminate its responsibility for the period during
    which they occurred. Moreover, we emphasize that SBC's obligation
    under the Merger Conditions to make voluntary incentive payments to
    the U.S. Treasury in the event it fails to meet designated
    performance thresholds is a separate enforcement mechanism.[^47]
    Therefore, the fact that the majority of the allegations at issue
    involve performance reporting that occurred only prior to the
    implementation of voluntary payments is irrelevant as to the
    assessment of a forfeiture.[^48]

19. Furthermore, we disagree with SBC's contention that the NAL failed
    to apply relevant mitigating factors and erred in imposing an upward
    adjustment to the base amount in the forfeiture guidelines.[^49] In
    assessing the mitigating factors that might be applied in this
    context,[^50] we concluded in the NAL that very little of SBC's
    conduct merited the application of a downward adjustment. The Bureau
    is not convinced that any of the factors that SBC asserts in its
    Response serve to mitigate its conduct.[^51] Because each violation
    could potentially compromise the integrity of the Carrier-to-Carrier
    Performance Plan, we reject SBC's characterization of the violations
    as minor. Moreover, although SBC makes much of its voluntary
    disclosure of some of the violations included in the NAL, we note
    that SBC was required to make such disclosures.[^52] With respect to
    SBC's argument that its history of compliance qualifies as a
    mitigating factor, we note that SBC has been found to violate the
    Act or our rules on several occasions in the past five years.[^53]

20. In addition, we reject SBC's argument that the NAL misapplied the
    relevant upward adjustment factors.[^54] An upward adjustment of the
    suggested forfeiture penalty is justified in this case because of
    the central role of the Carrier-to-Carrier Performance Plan in
    ensuring open local markets by monitoring the quality of SBC's
    service to other telecommunications carriers[^55] We disagree with
    SBC's contention that its deficiencies in performance reporting will
    not compromise the effectiveness of the Merger Conditions in
    ensuring open local markets.[^56] As we stated in the NAL,
    deficiencies such as 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.[^57]
    The omission of key data could also lead to a "muddying" of the
    reported results, which would make it difficult for CLECs to
    determine independently whether there are discrimination
    problems.[^58] We further emphasize that the forfeiture guidelines
    allow the Commission considerable flexibility to determine the
    appropriate forfeiture.[^59] These guidelines are not the
    strait-jacket that SBC portrays them to be.

21. An upward adjustment of the suggested forfeiture penalty for each
    violation is also justified in light of the number of SBC's
    violations of the reporting requirements in the *SBC/Ameritech
    Merger Order* over an extended period of time.[^60] Therefore, we
    find no basis for reducing the forfeiture against SBC. In addition,
    we note that, because SBC's forfeiture penalty is based on the
    number of months it submitted inaccurate reports, the inaccuracies
    in the NAL described in paragraph five above do not serve to reduce
    the proposed forfeiture in the NAL. In the each of the months at
    issue, SBC violated the Business Rules in other material respects,
    and the \$8000 proposed forfeiture for each of those months will
    stand.

# ORDERING CLAUSES

22. ACCORDINGLY, IT IS ORDERED THAT, pursuant to section 503(b) of the
    Act, [^61] and section 1.80 of the Commission's Rules, [^62] SBC
    Communications SHALL FORFEIT to the United States Government the sum
    of eighty eight thousand dollars (\$88,000.00) for willfully or
    repeatedly violating the Commission's merger conditions in the
    *SBC/Ameritech Merger Order*.

23. IT IS FURTHER ORDERED that payment shall be made in the manner
    provided for in section 1.80 of the Commission's rules within 30
    days of release of this order. If the forfeiture is not paid within
    the period specified, the case will be referred to the Department of
    Justice for collection pursuant to section 504(a) of the Act.

24. IT IS FURTHER ORDERED that a copy of this Order of Forfeiture 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 {#chief-enforcement-bureau .unnumbered}

[^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 Communications, Inc., *Notice of Apparent Liability for
    Forfeiture*, DA 00-2858 (Dec. 20, 2000).

[^3]: The Business Rules accompanying the Carrier-to-Carrier Performance
    Plan describe the specific data requirements and measurement
    standards for each performance measurement. *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)."

[^4]: 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 and 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. *See SBC/Ameritech Merger
    Order*, 14 FCC Rcd 14867, Appendix C at ¶ 24, and Attachment A at ¶
    13.

[^5]: NAL at ¶¶ 1, 9.

[^6]: *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 from October 8, 1999 through December 31,
    1999.

[^7]: *See* Aug. 31, 2000 Report of Management on Compliance with the
    Merger Conditions (*Management's Assertion on Compliance*).

[^8]: NAL at ¶ 14. 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 did not
    include a penalty for any violations that occurred during November
    and December of 1999.

[^9]: *Management's Assertion on Compliance* at 1, 3, and Attachment A.

[^10]: SBC Exhibit A, SBC's Response to Specific Allegations/
    Declaration of Gwen S. Johnson and William R. Dysart.

[^11]: Response at 8.

[^12]: *See, e.g.* Response at A-3 (PM 2), A-10 (PM 14), and A-11 (PM
    15).

[^13]: *Management's Assertion on Compliance* at 1, 3, and Attachment A.

[^14]: SBC Exhibit A at A-3 (PM 2). *See* NAL at ¶ 12.

[^15]: *See* SBC Monthly Performance Data Submission, April 20, 2000;
    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.

[^16]: SBC Exhibit A at A-12 (PM 19). 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.

[^17]: *See* *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.

[^18]: SBC Exhibit A at A-1 (PM 1).

[^19]: NAL at ¶ 12. In its Response, SBC has not responded to this
    aspect of the alleged violation. *See* SBC Exhibit A at A-1, 2.

[^20]: SBC Exhibit A at A-3 (PM 2).

[^21]: *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.

[^22]: *See* SBC Exhibit A at A-2 (PM 1), A-10 (PM 14) and A-11 (PM 15).

[^23]: *See* *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 (PM 1);
    *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 (PM 14); *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 (PM 15).

[^24]: Response at 9; SBC Exhibit A at A-13 (PM 19).

[^25]: Response at 9. *See* *also* SBC Exhibit A at A-6 (PM 4c), A-7 (PM
    7c) and A-10 (PM 13).

[^26]: 79 FCC 2d 169 (1980).

[^27]: *See* *Hale Broadcasting* *Corporation*, 79 FCC 2d at 171-172.
    Moreover, in the other cases cited, *CRC Broadcasting*, 15 FCC Rcd
    6697 (1999) and *John Meister,* 9 FCC Rcd 90 (1993), there is no
    discussion of whether a *"de minimis"* violation can support a
    forfeiture.

[^28]: A material finding is one that would cause a reasonable person to
    change their judgement of management's assertion. *See* Statement of
    Financial Accounting Concepts (Financial Accounting Standards Board
    1980); *see also* compliance attestation for financial audits,
    Statement of Standards for Attestation Engagements No. 3, § 54
    (American Inst. of Certified Pub. Accountants 1993).

[^29]: *See* Auditor's Report on Compliance at 2.

[^30]: SBC Exhibit A at A-4 (PM 3).

[^31]: *See* SBC Exhibit A at A-3 (NAL at ¶ 12; PM 3), A-4, 5 (NAL at ¶
    12; PM 4c), A-7 (NAL at ¶ 12; PM 7c), A-7, 8 (NAL at ¶ 12; PM 9),
    A-8, 9 (NAL at ¶ 12; PMs 12b and 12c), A-10 (NAL at ¶ 12; PM 14),
    A-11 (NAL at ¶ 12; PM 15), A-11, 12 (NAL at ¶ 12; PM 17).

[^32]: NAL at ¶ 10. *See also* June 5, 2000 Letter from Chris Jines,
    Executive Director, Federal Regulatory, SBC, to Carol Mattey, Deputy
    Chief, Common Carrier Bureau.

[^33]: SBC Exhibit A at A-4 (PM 4c); A-8 (PMs 12b and 12c).

[^34]: NAL at ¶ 11.

[^35]: NAL at ¶ 11.

[^36]: *See* *Midwest Radio-Television Inc.,* Memorandum Opinion and
    Order, 45 FCC 1137, 1141 (1963).

[^37]: Response at 14, 15.

[^38]: Response at 14.

[^39]: SBC Exhibit A at A-6 (PM 4c); A-10 (PM 14).

[^40]: *ConQuest Operator Services Corp*., Order of Forfeiture, FCC
    99-194, at ¶ 15 n.41 (rel. July 26, 1999); *Target Telecom., Inc*.,
    Order of Forfeiture, 13 FCC Rcd 4456, 4458 (1998); *Southern
    California Broadcasting Co.,* Memorandum Opinion and Order, 6 FCC
    Rcd 4387, 4387-88 (1991).

[^41]: Response at 15.

[^42]: *See Southern California Broadcasting Co*., 6 FCC Rcd 4387, 4388
    (1991); *see also Hale Broadcasting Corp*., 79 FCC 2d 169, 171
    (1980).

[^43]: 47 U.S.C. § 503(b)(1)(A). This provision states in relevant part
    that any person who is determined by the Commission, in accordance
    with paragraph (3) or (4) of subsection (b), to have- "willfully or
    repeatedly failed to comply substantially with the terms and
    conditions of any license, permit, certificate, or other instrument
    or authorization issued by the Commission" shall be liable to the
    United States for a forfeiture penalty.

[^44]: 47 U.S.C. § 503(b)(1)(B). This provision imposes a forfeiture
    penalty when a person is found to have "willfully or repeatedly
    failed to comply with any of the provisions of this Act or of any
    rule, regulation, or order issued by the Commission under this Act
    or under any treaty, convention, or other agreement to which the
    United States is a party and which is binding upon the United
    States;"...

[^45]: Response at 8.

[^46]: Response at 13.

[^47]: *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.

[^48]: Response at 13. SBC is incorrect in stating that only one of the
    violations at issue in the NAL continued beyond the 270-day period
    that SBC was not required to make voluntary payments. SBC failed to
    correct six deficiencies, involving PMs 1, 13, 14, 15, 18, and 19,
    during the time it was also required 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*.

[^49]: Response at 16-18.

[^50]: NAL at ¶ 13.

[^51]: Response at 16, 17.

[^52]: *See* 47 U.S.C. § 220(e).

[^53]: *See, e.g. 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); *AT&T
    Corp., MCI Telecommunications Corp., et al. v. Bell
    Atlantic-Pennsylvania, et al.*, Memorandum Opinion and Order, 14 FCC
    Rcd 556 (1998); *recon. denied* 15 FCC Rcd 7467 (2000*); review
    denied* 15 FCC Rcd 16,124 (2000); *Southwestern Bell Telephone Co*.,
    Memorandum Opinion and Order on Reconsideration, 13 FCC Rcd 6964
    (1998*); AT&T Corp. International Telecharge v. Southwestern Bell
    Telephone Co.*, Memorandum Opinion and Order, 11 FCC Rcd 10061
    (1996).

[^54]: Response at 17.

[^55]: NAL at ¶ 15.

[^56]: Response at 12.

[^57]: NAL at ¶ 11.

[^58]: NAL at ¶ 11.

[^59]: 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).

[^60]: NAL at ¶ 15.

[^61]: 47 U.S.C. § 503(b).

[^62]: 47 C.F.R. § 1.80.