**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-03-IH-0263       |
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| Qwest Corporation                | ) | NAL Acct. No. 200432080022   |
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| Apparent Liability for           | * | FRN No. 0001-6056-25         |
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NOTICE OF APPARENT LIABILITY

**FOR FORFEITURE**

**Adopted:** March 11, 2004 **Released:** March 12, 2004

By the Commission: Chairman Powell issuing a statement.

# introduction

1.  In this Notice of Apparent Liability for Forfeiture ("NAL") we find
    that Qwest Corporation ("Qwest")[^1] is apparently liable for
    willfully and repeatedly violating its statutory obligations in
    section 252(a)(1) of the Communications Act of 1934, as amended (the
    "Act")[^2] by failing to file 46 interconnection agreements with the
    Minnesota Public Utilities Commission ("Minnesota Commission") and
    Arizona Corporation Commission ("Arizona Commission") for approval
    under section 252.[^3] Based on our review of the facts and
    circumstances surrounding this matter, we find that Qwest is
    apparently liable for a total forfeiture of \$9 million.

2.  We propose a forfeiture of such size against Qwest because of
    Qwest's disregard for the filing requirements of section 252(a) of
    the Act and the Commission's orders and the potential
    anticompetitive effects of Qwest's conduct. Qwest's failure to
    comply with section 252(a) of the Act undermines the effectiveness
    of the Act and our rules by preventing competitive LECs (or "CLECs")
    from adopting interconnection terms otherwise available only to
    certain favored CLECs. Despite our clear and repeated instruction
    regarding the section 252(a) filing obligations, Qwest apparently
    withheld dozens of interconnection agreements from state commissions
    until it was ready to seek our approval to provide in-region,
    interLATA service for the relevant states.[^4] In Minnesota and
    Arizona, the last two states for which Qwest sought section 271
    approval, Qwest delayed filing 46 interconnection agreements until
    several years after the agreements were executed and months after
    filing similar agreements in other states. These agreements were
    filed long after we had clarified, and reiterated, the filing
    requirements of section 252(a)(1). Indeed, months after Qwest
    assured us that it had filed all of its previously unfiled
    interconnection agreements, Qwest filed an additional 53 agreements
    in six states, some of which date back to 1998.[^5]

3.  Qwest's actions are egregious because, according to Qwest documents,
    Qwest company policy since May 2002 explicitly requires filing such
    agreements with the state commissions, in compliance with section
    252(a). Rather than filing the agreements at issue here, however,
    Qwest withheld them apparently until it was ready to seek section
    271 approval from the Commission. As we discuss below, Qwest admits
    that its decision to file its 34 unfiled agreements in Minnesota
    "was influenced by the fact that it was preparing to file its
    application for 271 authority in Minnesota."[^6] Qwest further
    admits that the impetus for filing twelve previously unfiled
    agreements with the Arizona Commission was not to comply with the
    Act but rather because "\[b\]y May, Qwest was less concerned that
    such a filing might be treated as an admission of liability and
    result in material penalties."[^7] Qwest's cavalier attitude toward
    the Act's filing requirements shows a disregard for Congress's goals
    of opening local markets to competition and permitting
    interconnection on just, reasonable, and nondiscriminatory terms. As
    we have stated previously, we "consider any filing delays to be
    extremely serious."[^8] The forfeiture we propose here today
    reflects the gravity and scope of Qwest's apparent violations.

# background

4.  Section 252(a)(1) of the Communications Act requires incumbent LECs
    to negotiate interconnection agreements with CLECs.[^9] Once
    finalized, the agreements must be submitted to state commissions for
    approval under section 252(e).[^10] As we observed in the *Local
    Competition Order*,

    requiring filing of all interconnection agreements best promotes
    Congress's stated goals of opening up local markets to competition,
    and permitting interconnection on just, reasonable, and
    nondiscriminatory terms. State commissions should have the
    opportunity to review *all* agreements . . . to ensure that such
    agreements do not discriminate against third parties, and are not
    contrary to the public interest.[^11]

    After an interconnection agreement is approved by the state
    commission, other carriers may adopt the terms, conditions, and
    rates in the agreement pursuant to section 252(i).[^12]

5.  For more than two years, we and states throughout Qwest's region
    have examined whether Qwest has violated its statutory duty to file
    its interconnection agreements. This scrutiny began during the
    summer of 2001, when the Minnesota Department of Commerce
    ("Minnesota DOC") sought to determine if Qwest was engaging in
    anticompetitive conduct.[^13] On February 14, 2002, the Minnesota
    DOC filed a complaint with the Minnesota Commission claiming Qwest
    had violated state and federal law by not seeking section 252
    approval for eleven agreements between Qwest and competitive
    LECs.[^14] Soon thereafter, several other state commissions in
    Qwest's region, including the Arizona Commission, initiated similar
    investigations.[^15]

6.  As the state investigations proceeded, Qwest filed a petition with
    this Commission on April 23, 2002, seeking a declaratory ruling on
    what types of agreements between incumbent LECs and their
    competitors are subject to the mandatory filing and state commission
    approval requirements of section 252.[^16] Qwest argued that section
    252(a)(1) required filing and state approval only for a "schedule of
    itemized charges" and related service descriptions.[^17]

7.  Notwithstanding the position taken in its petition, in May 2002,
    Qwest informed the state commissions in its region of a new policy
    of filing all new "contracts, agreements, and letters of
    understanding" between Qwest and competitive LECs that "create
    obligations to meet the requirements of Section 251(b) or (c) on a
    going-forward basis."[^18] Qwest also announced the formation of a
    "new committee comprised of senior managers from Legal Affairs,
    Public Policy, Wholesale Business Development, Wholesale Service
    Delivery, and Network as well as a Policy and Law Regulatory
    Attorney" to review and determine whether Qwest must file particular
    agreements under section 252.[^19] According to Qwest, "\[t\]hrough
    the new committee process, and the broad standard it applies, Qwest
    is ensuring that it will file and obtain necessary PUC approval for
    all future negotiated agreements with CLECs."[^20]

8.  On August 1, 2002, this committee − referred to in Qwest documents
    as the "Wholesale Agreement Review Committee" − met via conference
    call. According to various drafts of the minutes of this meeting,
    the committee discussed the treatment of new agreements versus
    preexisting agreements.[^21] The minutes indicate that Qwest had
    decided to treat pre-existing unfiled agreements differently from
    new agreements. [^22] According to an early draft of the minutes,
    "\[p\]ast ancillary agreements are being handled by the litigation
    team. Going forward, all future ancillary agreements are to be filed
    with the respective state commission(s) out of an abundance of
    caution though they may be 'form contracts' not subject to
    \[section\] 252."[^23] The minutes also state: "Issue: do we need to
    go back and file old agreements handled by the litigation
    team?"[^24] Handwritten notes next to this question state:
    "Litigation to analyze."[^25] A subsequent draft of the meeting
    minutes deletes these references to the "litigation team."[^26]

9.  On August 20, 2002, as the Commission considered Qwest's
    applications for section 271 approval for nine of its fourteen
    in-region states, [^27] Qwest informed us of its May 2002 letters to
    the state commissions.[^28] Qwest indicated that pursuant to its May
    2002 policy, it would file all new agreements that include
    provisions creating on-going obligations that relate to Section
    251(b) or (c).[^29] Qwest did not, however, commit to file all such
    prior unfiled agreements for all states.[^30]

10. Soon thereafter, in late September 2002, the Qwest Wholesale
    Agreement Review Committee provided Qwest employees with a "Training
    Outline for CLEC Agreements."[^31] Qwest told its employees that
    "\[s\]ection 252(a) of the Telecommunications Act requires that all
    agreements with CLECs in Qwest's fourteen state region relating to
    'interconnection, services or network elements' shall be filed with
    the state commissions for approval under Section 252(e)."[^32] The
    outline also gave nearly two dozen examples "of the types of
    agreements with CLECs in Qwest's fourteen-state region that need to
    be filed," including "services that are also reflected in the SGATs
    \[Statements of Generally Acceptable Terms\]."[^33]

11. On October 4, 2002, we ruled on Qwest's petition for a declaratory
    ruling.[^34] As noted above, notwithstanding its more recent
    statements, Qwest had argued in its petition that section 252(a)(1)
    required filing and state approval only for a "schedule of itemized
    charges" and related service descriptions.[^35] We rejected this
    "cramped reading" of section 252, noting that "on its face, section
    252(a)(1) does not further limit the types of agreements that
    carriers must submit to state commissions."[^36] Instead, we broadly
    construed section 252's use of the term "interconnection agreement,"
    holding that carriers must file with state commissions for review
    and approval under section 252 any "agreement that creates an
    ongoing obligation pertaining to resale, number portability, dialing
    parity, access to rights-of-way, reciprocal compensation,
    interconnection, unbundled network elements, or collocation . . .
    ."[^37]

12. Shortly after release of the *Declaratory Ruling,* on November 1,
    2002, the Minnesota Commission adopted in full a recommended
    decision by a Minnesota administrative law judge ("ALJ") that Qwest
    had committed 26 individual violations of the Act and Minnesota
    statutes by failing to file 26 distinct provisions found in twelve
    separate agreements with CLECs for interconnection, access to
    unbundled network elements ("UNEs") and/or access to services.[^38]
    After Qwest rejected a proposal for paying restitution to CLECs for
    the damage caused by the secret deals, the Minnesota Commission
    ordered Qwest to pay a \$26 million fine and undertake various
    compliance measures, including retroactive discounts to
    competitors.[^39] Qwest subsequently filed a complaint in federal
    district court challenging the Minnesota Commission's authority to
    impose such a penalty.[^40]

13. On December 23, 2002, we released the *Qwest 9-State 271 Order*,
    granting Qwest's section 271 applications for in-region interLATA
    service in nine of its fourteen in-region states.[^41] We discussed
    the various state investigations, including the Minnesota
    proceeding, and expressed concern about Qwest's failure to file its
    agreements with the states.[^42] Qwest assured us, however, that "in
    August 2002 Qwest filed with utility commissions in the application
    states all previously-unfiled contracts with CLECs that contained
    currently-effective going forward terms related to section 251(b)
    or (c) matters."[^43] Based on the record in that proceeding, we
    concluded that Qwest had filed all of its interconnection agreements
    with the relevant state commissions at issue in the proceeding, with
    one exception: an Internetwork Calling Name Delivery Service
    Agreement ("ICNAM")[^44] with Allegiance.[^45] We rejected Qwest's
    claim that, because the terms were available through Qwest's SGATs,
    it did not have to file this agreement in Colorado and
    Washington.[^46] We held that the ICNAM agreement "does not appear
    on its face to fall within the scope of the filing requirement
    exceptions set forth in the Commission's declaratory ruling, and
    accordingly, it likely should have been filed with the states."[^47]
    While we ultimately determined that Qwest's failure to file this
    agreement did not affect its section 271 application, we also noted
    that "failure to file this agreement ... could subject Qwest to
    federal and/or state enforcement action...."[^48]

14. Following the release of the *Qwest 9-State 271 Order*, Qwest filed
    ICNAM contracts in New Mexico on January 9 and January 10,
    2003;[^49] in Oregon on January 9, 2003;[^50] and in South Dakota on
    January 13, 2003.[^51] On January 14, 2003, Qwest filed a section
    271 application with the Commission for authorization to provide
    in-region, interLATA service in the states of New Mexico, Oregon,
    and South Dakota.[^52]

15. On March 25-26, 2003, more than four months after the *Declaratory
    Ruling*, Qwest sought the Minnesota Commission's section 252
    approval for 34 previously unfiled agreements, including four
    agreements that had been the subject of the Minnesota enforcement
    proceedings.[^53] On March 28, 2003, Qwest filed a section 271
    application with the Commission for authorization to provide
    in-region interLATA service in Minnesota.[^54] The Minnesota
    Commission subsequently found all 34 agreements, in whole or in
    part, constituted "interconnection agreements" under section
    252.[^55]

16. As noted above, the state of Arizona also investigated the Qwest
    unfiled agreements issue.[^56] On May 23, 2003, more than seven
    months after the *Declaratory Ruling*, Qwest filed twelve previously
    unfiled Arizona interconnection agreements with the Arizona
    Commission. In the cover letter accompanying each agreement, Qwest's
    counsel stated that the agreements reflected form, standard
    provisions that were available to CLECs on Qwest's website and SGATs
    and "very well may not be agreements subject to the filing
    requirement under the FCC's October 4, 2002 \[*Declaratory Ruling*\]
    Order; however, the FCC's subsequent order granting 271 relief to
    Qwest's 9-state application suggested the contrary."[^57] On
    September 4, 2003, Qwest filed a section 271 application with the
    Commission for authorization to provide in-region interLATA service
    in the state of Arizona.[^58]

17. While the Arizona Commission investigation was still ongoing, we
    granted Qwest's 271 application for Minnesota. In the *Qwest
    Minnesota 271 Order*, we did not decide whether Qwest had violated
    section 252(a) by delaying its filing of interconnection agreements
    with the Minnesota Commission. Nevertheless, we expressed grave
    concerns with Qwest's conduct:

    At the same time, we are seriously troubled by Qwest's decision to
    delay filing 34 agreements with the Minnesota Commission until March
    25-26, 2003, and refer this matter to the Enforcement Bureau for
    investigation and appropriate enforcement action. The Commission
    clarified the incumbent LECs' obligation to file interconnection
    agreements under section 252(a)(1) in a Declaratory Ruling on
    October 4, 2002, nearly six months before Qwest filed the Minnesota
    agreements. We note that Qwest has provided no explanation in the
    record for this delay in filing the interconnection agreements.
    Given that it had adequate notice of its legal obligations under
    section 252(a), we intend to review with careful scrutiny any
    explanation that Qwest may provide in the context of a potential
    enforcement action.[^59]

    That same day, the Enforcement Bureau issued an LOI to Qwest
    regarding the unfiled agreements issue. [^60] Shortly thereafter,
    Qwest filed 53 additional agreements dating back to 1996 in six of
    its in-region states.[^61] Qwest responded to the LOI on July 31,
    2003.

# discussion

## Qwest Apparently Willfully and Repeatedly Failed to File Its Interconnection Agreements in Minnesota and Arizona

18. Under section 503(b)(1) of the Act, any person who is determined by
    the Commission to have willfully or repeatedly failed 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.[^62] 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.[^63] The Commission will then
    issue a forfeiture if it finds by a preponderance of the evidence
    that the person has willfully or repeatedly violated the Act or a
    Commission rule.[^64] As we set forth in greater detail below, we
    conclude under this standard that Qwest is liable for a \$9 million
    forfeiture for 46 apparent violations of section 252(a)(1) of the
    Act.

### The Commission Has Established Clear Standards Under Section 252(a)(1) of the Act

19. The fundamental issue in this case is whether Qwest apparently
    willfully or repeatedly violated the Act by delaying its filing of
    the Minnesota and Arizona interconnection agreements. The filing
    requirement is in section 252(a)(1) of the Act, which states:

    Upon receiving a request for interconnection, services, or network
    elements pursuant to section 251, an incumbent local exchange
    carrier may negotiate and enter into a binding agreement with the
    requesting telecommunications carrier or carriers without regard to
    the standards set forth in subsections (b) and (c) of section 251.
    The agreement shall include a detailed schedule of itemized charges
    for interconnection and each service or network element included in
    the agreement. The agreement . . . shall be submitted to the State
    commission under subsection (e) of this section.[^65]

20. Once submitted, if an interconnection agreement is approved by the
    state commission, other carriers may also adopt the terms and
    conditions or the rates in the agreement pursuant to section
    252(i).[^66] Through this mechanism, competitive carriers avoid the
    delay and expense of negotiating new agreements with the incumbent
    LEC and then awaiting state commission approval. Absent such a
    mechanism, "the nondiscriminatory, pro-competition purpose of
    section 252(i) would be defeated . . . ."[^67]

21. We have historically given a broad construction to section
    252(a)(1). As noted above, in the *Local Competition Order,* we
    found that

    requiring filing of all interconnection agreements best promotes
    Congress's stated goals of opening up local markets to competition,
    and permitting interconnection on just, reasonable, and
    nondiscriminatory terms. State commissions should have the
    opportunity to review *all* agreements . . . to ensure that such
    agreements do not discriminate against third parties, and are not
    contrary to the public interest.[^68]

    In that same order, we applied this broad construction in adopting
    the "pick and choose" construction of section 252(i), under which
    CLECs may adopt parts of interconnection agreements with incumbent
    LECs, rather than adopting those agreements in their entirety.[^69]

22. Although section 252(a)(1) is explicit in its filing requirements,
    the *Declaratory Ruling* provided certainty to those requirements by
    stating that any "agreement that creates an ongoing obligation
    pertaining to resale, number portability, dialing parity, access to
    rights-of-way, reciprocal compensation, interconnection, unbundled
    network elements, or collocation is an interconnection agreement
    that must be filed pursuant to section 252(a)(1)."[^70] We further
    stated:

    This interpretation, which directly flows from the language of the
    Act, is consistent with the pro-competitive, deregulatory framework
    set forth in the Act. This standard recognizes the statutory balance
    between the rights of competitive LECs to obtain interconnection
    terms pursuant to section 252(i) and removing unnecessary regulatory
    impairments to commercial relations between incumbent and
    competitive LECs . . . . Indeed, on its face, section 252(a)(1) does
    not further limit the types of agreements that carriers must submit
    to state commissions.[^71]

23. The *Declaratory Ruling* noted some reasonable but narrow exceptions
    to the general rule that any agreement relating to the duties
    outlined in sections 251(b) and (c) falls within section 252(a)'s
    filing requirement. Such exceptions, however, flow from the general
    standard of ongoing obligations. Specifically, we found that
    agreements addressing dispute resolution and escalation provisions
    relating to the obligations set forth in sections 251(b) and (c) do
    not have to be filed if the information is generally available to
    carriers.[^72] We stated that settlement agreements that simply
    provide for backward-looking consideration that do not affect an
    incumbent LEC's ongoing obligations relating to section 251 do not
    need to be filed.[^73] In addition, we found that forms completed by
    carriers to obtain service pursuant to terms and conditions of a
    underlying interconnection agreement do not constitute either an
    amendment to that agreement or a new interconnection agreement that
    must be filed under section 252.[^74] Finally, we held that
    agreements with bankrupt competitors that are entered into at the
    direction of a bankruptcy court and that do not otherwise change the
    terms and conditions of the underlying interconnection agreement are
    not themselves interconnection agreements or amendments to
    interconnection agreements that must be filed under section
    252(a).[^75]

24. As discussed above, we again dealt with the filing requirements of
    section 252(a)(1) in the *Qwest 9-State 271 Order.* There we
    referred to the *Declaratory Ruling* in concluding that all but one
    of the twelve agreements brought to our attention "need not be filed
    with state commissions under the standards enunciated in the
    Commission's declaratory ruling."[^76] With regard to that one
    agreement, we stated that Qwest likely should have filed an ICNAM
    agreement, even though Qwest claimed that the *Declaratory Ruling*
    did not require that filing because the agreement was a "form
    agreement" the terms of which were available through SGATs in two
    states. [^77] We reiterated this finding in the *Qwest 3-State
    Order*.[^78]

### Qwest Withheld Interconnection Agreements from the Minnesota and Arizona Commissions in Apparent Willful and Repeated Violation of Section 252(a)(1)

25. By January 14, 2003, when Qwest filed its three-state application
    with the Commission, Qwest had filed previously unfiled agreements
    in twelve of the fourteen states in its region either pursuant to
    state commission order, in accordance with the Qwest August 20
    Letter − in which Qwest announced that it would file "all such
    agreements that include provisions creating on-going obligations
    that relate to Section 251(b) or (c) which have not been terminated
    or superseded by agreement, commission order, or otherwise" − or
    following the Commission's rulings regarding unfiled agreements in
    the *Declaratory Ruling* and the *Qwest 9-State 271 Order.*[^79]
    Despite Qwest's pronouncements that it was complying with section
    252 with respect to new agreements, Qwest did not file the unfiled
    Minnesota and Arizona agreements until several months later, filing
    34 agreements with the Minnesota Commission on March 25 and 26, 2003
    and filing twelve agreements with the Arizona Commission on May 23,
    2003.[^80]

26. Qwest executed the Minnesota agreements with various CLECs between
    1997 and 2002.[^81] The Minnesota Commission approved all 34
    agreements, in whole or in part, pursuant to section 252(e) of the
    Act.[^82] The Arizona agreements date from 1998 to 2001.[^83] As
    noted above, all twelve Arizona agreements were approved by
    operation of law pursuant to section 252(e).[^84] As a general
    matter, many of the Minnesota and Arizona agreements are the same
    types of agreements that Qwest filed earlier in other states, [^85]
    and meet the standards Qwest described to its employees in its
    September 2002 Training Outline for CLEC Agreements.[^86] Indeed,
    seven of these agreements are ICNAM agreements, which we explicitly
    declared "likely should have been filed" in the *Qwest 9-State
    Order.* [^87]

27. Qwest raises several arguments to support its delayed filing of the
    46 agreements at issue here. As an initial matter, however, we
    emphasize Qwest's inconsistent approach towards the filing of its
    interconnection agreements -- an inconsistency that underscores the
    egregious nature of Qwest's actions at issue here. While Qwest
    argues that the Minnesota and Arizona agreements are not
    interconnection agreements subject to the requirements of section
    252(a)(1), the carrier's documents indicate that Qwest has taken a
    different approach towards the same or similar types of previously
    unfiled interconnection agreements in the states for which it was
    seeking section 271 approval and for new agreements.

28. As discussed above, as early as May 2002, Qwest claimed a policy of
    "broadly filing all contracts, agreements, or letters of
    understanding between Qwest Corporation and CLECs that create
    obligations to meet the requirements of Section 251(b) or (c) on a
    going forward basis."[^88] On August 21 and August 22, 2002, Qwest
    submitted previously unfiled agreements with the state commissions
    in all nine states for which it was seeking section 271 approval at
    the time.[^89] Accordingly, with respect to selected states, *i.e*.,
    those with section 271 applications pending before this Commission,
    Qwest claimed to have identified and submitted all its previously
    unfiled agreements in August 2002*.* In addition, following the
    release of the *Qwest 9-State 271 Order*, Qwest filed ICNAM
    contracts in New Mexico on January 9 and January 10, 2003;[^90] in
    Oregon on January 9, 2003;[^91] and in South Dakota on January 13,
    2003.[^92] Shortly thereafter, on January 14, 2003, Qwest filed a
    section 271 application with the Commission for authorization to
    provide in-region, interLATA service in those three states.[^93]
    Qwest's treatment of interconnection agreements depended on when the
    agreement was executed, and for the pre-May 2002 agreements, on
    whether a section 271 application was imminent. Because Qwest only
    filed the previously unfiled agreements as the date approached for
    its section 271 applications in a particular state, we believe these
    filings were not made "out of an abundance of caution," as Qwest
    suggests. With respect to Minnesota and Arizona, Qwest took no
    action to file its pre-existing unfiled agreements until it was
    preparing to file its section 271 application with this Commission.

29. Citing the *Declaratory Ruling*, Qwest argues that many of the
    Minnesota and Arizona agreements at issue here are "form" agreements
    for ordering services available through its SGATs, and as such did
    not warrant filing under section 252(a).[^94] Contrary to Qwest's
    assertions, however, the *Declaratory Ruling* does not contain a
    filing exception for form or standardized agreements. While the
    *Declaratory Ruling* stated that section 252(a) did not require the
    filing of ordering forms completed by carriers pursuant to an
    underlying agreement, it did not create an exception for "form"
    interconnection agreements. Specifically, the Commission stated that
    "forms completed by carriers to obtain services pursuant to terms
    and conditions set forth in an interconnection agreement do not
    constitute either an amendment to that interconnection agreement or
    a new interconnection agreement that must be filed under section
    252(a)(1)."[^95]

30. This language nowhere suggests that an interconnection agreement
    memorialized by way of a standardized contractual form is not
    required to be filed pursuant to section 252(a)(1). Indeed, we
    rejected this argument in the *Qwest 9-State 271 Order* with respect
    to an ICNAM agreement between Qwest and Allegiance. In response to
    CLEC criticism that the ICNAM agreement and others should have been
    filed under section 252(a), Qwest referred to the *Declaratory
    Ruling's* language exempting ordering forms from section 252(a)'s
    requirement.[^96] In rejecting this argument, we held that Qwest
    "likely should have" filed the ICNAM agreement with the Colorado and
    Washington state commissions, despite its alleged "form" status and
    Qwest's allegation that its terms were available through Qwest's
    SGATs for those states.[^97]

31. Moreover, Qwest's alleged "form interconnection agreement" exemption
    is the veritable exception that swallows the rule, since virtually
    all terms and conditions of interconnection could be reduced to such
    a form or standardized agreement. Additionally, any such "form"
    agreement in use by Qwest today could be revised tomorrow.[^98]
    Unless such agreements are made available to other carriers via the
    process outlined in section 252, Qwest's competitors would not be
    able to opt into these agreements pursuant to section 252(i) because
    they would be unaware of the previous agreements' existence, not to
    mention the specific terms and conditions. The *Declaratory Ruling*
    ensures that the agreement terms are memorialized in a public
    document, subject to state approval, which permits other carriers to
    opt into the terms of the agreement under section 252(i). Under
    Qwest's interpretation, there would be no publicly available
    document. Furthermore, as noted above, Qwest's internal policy
    conflicts with this argument. Qwest's September 2002 "Training
    Outline for CLEC Agreements" explicitly states that "services that
    are also reflected in the SGATs" are among "the types of agreements
    with CLECs in Qwest's fourteen-state region that need to be
    filed."[^99]

32. Qwest further contends that "the \[*Declaratory*\] *Ruling* states
    that if information on service offerings is generally available to
    CLECs, such as through posting on a website, agreements covering
    these matters need not be filed."[^100] Once again, Qwest misreads
    our order. In rejecting Qwest's argument that "dispute resolution
    and escalation provisions" are *per se* outside the scope of section
    252(a)(1), we held "\[u\]nless this information is generally
    available to carriers (*e.g.,* made available on an incumbent LEC's
    wholesale website), we find that agreements addressing dispute
    resolution and escalation provisions relating to the obligations set
    forth in sections 251(b) and (c) are appropriately deemed
    interconnection agreements."[^101] This exception is for contact
    lists and procedures for escalation, posted on websites and
    available to all carriers. This exception does not apply to "service
    offerings," as Qwest contends. At no point did we create a general
    "web-posting exception" to section 252(a). As with Qwest's asserted
    "form agreement" exception to section 252(a)(1), a "web-posting
    exception" would render that provision meaningless, since CLECs
    could not rely on a website to contain all agreements on a permanent
    basis. Moreover, unlike the terms of an SGAT, web-posted materials
    are not subject to state commission review, further undermining the
    congressionally established mechanisms of section 252(e).[^102]

33. Qwest contends that it had no legal obligation to "rush out and file
    any and all contracts with CLECs that might arguably be deemed
    interconnection agreements under the \[*Declaratory*\]
    *Ruling.*"[^103] Qwest takes the position that until a state
    commission tells Qwest that a certain agreement must be filed, Qwest
    has no obligation to file the agreement.[^104] We emphatically
    disagree. The statute clearly contradicts Qwest's argument. Under
    section 252(a)(1), LECs must file interconnection agreements with
    state commissions for approval. In the *Declaratory Ruling*, the
    Commission clarified the types of agreements that must be filed. Any
    interconnection agreement filed and approved by the state commission
    under section 252 must be made available to any other requesting
    carrier upon the same terms and conditions, in accordance with
    section 252(i). Section 252(a)(1) does not condition filing on a
    state commission first telling a carrier that a certain agreement
    (which has not yet been seen) must be filed.

34. Nor does Qwest's argument find any support in our *Declaratory
    Ruling* or other orders. Qwest's reliance on the statement in the
    *Declaratory Ruling* that "state commissions are well positioned to
    decide on a case-by-case basis whether a particular agreement is
    required to be filed" is misplaced.[^105] After an agreement is
    filed with a state commission, the commission may approve or reject
    that agreement. The state commission can advise the carrier whether
    a certain type of agreement is considered an interconnection
    agreement that requires filing in that state. [^106] Until an
    agreement is filed, however, the state commission would not be in a
    position to approve, reject, or determine whether a certain type of
    agreement does not require filing.[^107]

35. Moreover, Qwest has not even followed its asserted construction of
    section 252(a)(1). Qwest claims that it "appropriately deferred more
    formal filing of the four MN DOC contracts in that state until after
    the PUC at least issued its first order on remedies."[^108] But
    Qwest did not file the Minnesota agreements until March 25 and
    26, 2003. By that point, nearly five months had passed since the
    Minnesota Commission held that Qwest had violated section 252(a) by
    withholding the agreements in question,[^109] and more than seven
    months had passed since the initial ALJ finding to the same effect.
    [^110] We find that Qwest's timing appears to have had more to do
    with litigation strategy and its impending section 271 application
    (which it filed on March 28, 2003) than instructions from the
    Minnesota PUC. As noted above, Qwest internal documents refer to
    pre-existing unfiled interconnection agreements being handled by the
    "litigation team." Additionally, Qwest admits that its decision "was
    influenced by the fact that it was preparing to file its application
    for 271 authority in Minnesota," and that it had earlier followed
    the same procedure of filing previously unfiled agreements in
    connection with the three-state application.[^111]

36. Qwest also argues that it provided the Minnesota agreements to the
    Minnesota Commission in the context of the investigation.[^112]
    According to Qwest, its provision of these agreements to the
    Minnesota DOC investigative staff provided adequate notice to the
    Minnesota Commission of these agreements. Additionally, Qwest
    argues, the Minnesota DOC's decision not to include all 34
    agreements in its enforcement proceeding amounts to a finding that
    those agreements did not have to be filed under section 252. We
    disagree with Qwest's position. Qwest's compliance with
    investigative demands from the Minnesota Commission staff is
    irrelevant to its compliance with section 252. Section 252(e)(1) of
    the Act unambiguously states: "Any interconnection agreement adopted
    by negotiation or arbitration shall be submitted for approval to the
    State commission. A State commission to which an agreement is
    submitted shall approve or reject the agreement, with written
    findings as to any deficiencies."[^113] Until Qwest submitted the
    agreements to the state commission, the agreements did not have
    state approval and other CLECs did not have the opportunity to adopt
    those agreements. Providing interconnection agreements to state
    commission staff in an investigation does not satisfy the
    requirements of section 252.

37. Moreover, we note that Qwest's argument is belied by the Minnesota
    DOC's finding, adopted by the Minnesota Commission, with respect to
    each of the late-filed agreements, that "\[a\]lthough this agreement
    was not one of the agreements that the Department chose to use as
    part of its complaint, this should not suggest that Commission
    approval of this agreement is not necessary. The agreements selected
    by the Department were limited for the purposes of the contested
    case process in Docket No. P421/IC-02-197. It is the position of the
    Department that Qwest has always been obligated to file this
    agreement."[^114]

38. Regarding the Arizona agreements, Qwest again appears to concede
    that its litigation strategy − not its construction of the Act or
    our orders − controlled its decision to delay filing. Qwest contends
    that in light of the Arizona Commission investigation into the
    unfiled agreements the carrier "has been cautious about making
    filings that could be viewed as a concession."[^115] Qwest admits
    that in May 2003, it was negotiating a settlement with Arizona
    Commission staff and preparing to file its section 271 application
    with this Commission; therefore, it decided to file the twelve
    unfiled agreements in Arizona.[^116] In addition, Qwest's documents
    indicate that contemporaneously with filing the Arizona agreements
    on May 23, 2003, Qwest's counsel effectively conceded that the
    *Qwest 9-State 271 Order* required filing those agreements. In the
    cover letter attached to each of the twelve Arizona interconnection
    agreements filed on May 23, 2003, Qwest's counsel stated that each
    agreement reflects form, standard provisions that are available to
    CLECs through Qwest's website and the SGAT and "very well may not be
    agreements subject to the filing requirement under the FCC's October
    4, 2002 Order; however, the FCC's subsequent order granting 271
    relief to Qwest's 9-state application suggested the contrary."[^117]

39. We conclude that Qwest apparently failed to comply with section
    252(a)(1) of the Act regarding 34 interconnection agreements in
    Minnesota and twelve interconnection agreements in Arizona. Rather
    than promptly seeking state commission review of its agreements, as
    required under section 252(a)(1), Qwest apparently withheld nearly
    four dozen agreements to avoid the negative reaction that would
    accompany such a filing. Qwest apparently calculated that compliance
    with section 252(a)(1) only for pending application states would
    suffice to avoid our denial of its section 271 applications. Thus,
    during the nine-state application process, Qwest agreed to follow
    section 252 for new agreements, formed the Wholesale Contract Review
    Team, and filed previously unfiled agreements in the nine
    application states. Similarly, just before filing its three-state
    application, Qwest filed previously unfiled agreements in those
    states. Immediately prior to filing the Minnesota section 271
    application, Qwest filed the previously unfiled Minnesota
    agreements, and as Qwest was settling with the Arizona Commission,
    and prior to submitting the Arizona section 271 application, Qwest
    filed the previously unfiled Arizona agreements. Finally, shortly
    after receiving the Enforcement Bureau's LOI, Qwest filed an
    additional 53 agreements in six states − seven months after Qwest
    had assured us that it had filed "all previously-unfiled agreements"
    for those same jurisdictions.[^118]

40. We find that Qwest's apparent violations were willful and repeated,
    as described in section 503(b) of the Act. The Commission has
    previously held that "willful," as used in section 503(b), means the
    conscious and deliberate commission or omission of any act,
    irrespective of any intent to violate the law.[^119] Thus, even if
    the record did not contain ample evidence that Qwest knew that it
    was violating section 252(a)(1) by withholding the agreements, Qwest
    would be subject to a forfeiture. In addition, Qwest's actions were
    "repeated," as that term is used in section 503(b), since Qwest
    withheld more than 40 interconnection agreements from the state
    commissions of Arizona and Minnesota.[^120]

41. The Commission's *Declaratory Ruling* and the *Qwest 9-State 271
    Order* made clear our filing requirements. Qwest nevertheless
    apparently delayed filing the Minnesota and Arizona agreements,
    while at the same time filing similar unfiled agreements with the
    state commissions for which it had pending 271 applications before
    the Commission. During this time period, Qwest was also filing new
    agreements, in compliance with section 252(a) and the *Declaratory
    Ruling*. In pursuit of section 271 approval, Qwest repeatedly told
    this Commission that it had implemented new processes to ensure
    section 252 compliance with respect to new agreements in some
    states, but at the same time apparently intentionally withheld
    filing of dozens of agreements in Minnesota and Arizona. We conclude
    that Qwest apparently willfully and repeatedly violated section
    252(a)(1) of the Act by failing to timely file 46 interconnection
    agreements in Minnesota and Arizona.

## Proposed Action

42. Section 503(b)(2)(B) of the Act authorizes the Commission to assess
    a forfeiture of up to \$120,000 for each violation or each day of a
    continuing violation, up to a statutory maximum of \$1.2 million for
    a single act or failure to act.[^121] 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."[^122]

43. Qwest argues that it should not be subject to forfeiture for any
    violations of section 252(a) because "neither the Act itself, nor
    any FCC rule or order, sets forth with 'ascertainable certainty' any
    deadline by which an agreement subject to Section 252(a)(1)'s filing
    requirement must actually be filed with the state." [^123] Qwest's
    reliance on the notice requirement in *Trinity Broadcasting* is
    misplaced. With respect to notice of a filing deadline, Qwest
    overlooks the point that the filing requirement is part of the
    section 251 interconnection obligation, not a separate requirement
    with a separate deadline. Qwest, as an incumbent LEC, has certain
    interconnection obligations set forth in section 251.[^124]
    Agreements to provide the services listed in section 251 must be
    filed with the state commission for approval.[^125] Until the
    agreements are approved by the state commission, they are not valid
    interconnection agreements.[^126] Executing agreements with CLECs
    does not fulfill Qwest's section 251 obligations until the
    agreements are filed and approved. Thus, Qwest cannot meet its
    section 251 obligations without filing and obtaining approval of
    interconnection agreements. For Qwest to claim that it was not
    required to file agreements because neither the Act nor the
    Commission provided a specific deadline for filing ignores the fact
    that filing (and approval) of agreements is a prerequisite for a
    valid interconnection agreement.[^127] Furthermore, we note that
    interconnection agreements are only effective for a term, often
    three years. Under Qwest's logic, it could delay filing for an
    indefinite period of time. In fact, Qwest's failure to file
    agreements for the entire length of the agreement -- which appears
    to have happened with the expired Minnesota agreements -- could lead
    to a permanent alteration in the competitive landscape or a skewing
    of the market in favor of certain competitors.

44. In any event, we also find that Qwest had ample notice of the filing
    requirements under section 252(a)(1), but complied only selectively
    with these requirements. Qwest has been on notice of its potential
    violation of section 252(a)(1) since initiation of the Minnesota
    investigation into Qwest's unfiled agreements in 2001. While Qwest
    adopted in May 2002 a policy of filing all new interconnection
    agreements with CLECs, and created the Wholesale Agreement Review
    Committee to file new agreements,[^128] Qwest did not file its
    unfiled agreements in Minnesota or Arizona. Qwest then sought to
    clarify the filing requirements of section 252 by filing the Qwest
    Petition; but even after release of the *Declaratory Ruling,* Qwest
    still failed to file the Minnesota and Arizona unfiled agreements.
    Subsequently, we discussed the unfiled agreements issue in the
    *Qwest 9-State 271 Order,* in which we held that Qwest "likely
    should have filed" an ICNAM agreement even though the terms were
    available through Qwest's SGATs for the relevant jurisdictions, and
    that "failure to file this agreement ... could subject Qwest to
    federal and/or state enforcement action...."[^129] Qwest apparently
    took the Commission's instructions in the *Qwest 9-State 271 Order*
    seriously, but only with respect to the three states for which it
    intended to file 271 applications in the near future.[^130]

45. Qwest did not file the 34 Minnesota agreements until March 25 and
    26, 2003, more than three months after release of the *Qwest 9-State
    271 Order*, more than five months after release of the *Declaratory
    Ruling*, and more than ten months after implementing its May 2002
    policy of filing unfiled agreements. Qwest's conduct is more
    egregious with respect to the twelve Arizona agreements, which it
    did not file until May 23, 2003. Even if we assume that Qwest did
    not realize that the Minnesota and Arizona agreements should have
    been filed when the contracts were executed, by any reasonable
    measure Qwest should have filed those agreements shortly after
    October 4, 2002, under the guidance of the *Declaratory Ruling* and
    in keeping with its own internal policy of section 252(a)
    compliance, initiated in May 2002*.* As we held in the *SBC Michigan
    271 Order,* "incumbent LECs have had adequate notice of their legal
    obligations under section 252(a)" since the *Declaratory
    Ruling.*[^131]

46. As discussed above, these apparent violations merit a substantial
    forfeiture. In the *SBC Michigan 271 Order*, we noted that "if such
    proceedings find that this or other agreements should have been
    filed ... under section 252(a)(1), we would consider any filing
    delays to be extremely serious."[^132] Section 252(a)(1) is not just
    a filing requirement. Compliance with section 252(a)(1) is the first
    and strongest protection under the Act against discrimination by the
    incumbent LEC against its competitors.

47. Indeed, the Minnesota Commission found that Qwest had discriminated
    against CLECs by failing to file interconnection agreements:

    In each of the twelve interconnection agreements cited by the
    Minnesota Department of Commerce, Qwest provided terms, condition,
    or rates to certain CLECs that were better than the terms, rates,
    and conditions that it made available to the other CLECs and, in
    fact, it kept those better terms, conditions, and rates a secret
    from the other CLECs. In so doing, Qwest unquestionably treated
    those select CLECs better than the other CLECs. In short, Qwest
    knowingly and intentionally discriminated against the other CLECs in
    violation of Section 251.[^133]

    Similarly, the Arizona Commission's proposed settlement with Qwest
    also reflects allegations that Qwest discriminated against CLECs by
    failing to file its interconnection agreements.[^134] Although we do
    not determine here whether Qwest engaged in unlawful discrimination
    with respect to the 46 agreements at issue in this proceeding, the
    potential for such discrimination underlies our concerns regarding
    Qwest's apparent violations of section 252(a)(1).[^135] Even if no
    such discrimination took place, Qwest may not ignore the
    requirements of the Act and our repeated instructions regarding
    section 252(a)(1).

48. Qwest ignored the potential for discrimination and competitive harm
    by withholding the agreements at issue here. Qwest concedes that it
    delayed filing the interconnection agreements at issue primarily
    because it wished to minimize any damage to its positions in state
    or federal regulatory proceedings. Qwest admits that its decision to
    file its agreements in Minnesota "was influenced by the fact that it
    was preparing to file its application for 271 authority in
    Minnesota."[^136] Similarly, Qwest admits that it "decided in May to
    proceed with filing of the 12 form contracts before the ACC
    \[Arizona Corporation Commission\]. By May, Qwest was less concerned
    that such a filing might be treated as an admission of liability and
    result in material penalties."[^137]

49. As noted above, pursuant to section 503(b)(2)(B), we may propose a
    forfeiture against a common carrier of no more than \$120,000 per
    violation or per day of a continuing violation, up to a maximum of
    \$1.2 million. In the Minnesota proceeding, after the state assessed
    a \$26 million penalty against Qwest, the carrier delayed filing
    until several days before submitting its application for section 271
    authority with this Commission. Similarly, the Minnesota penalty did
    not convince Qwest to file the Arizona agreements. Rather, Qwest
    took nearly three months to file the Arizona agreements, and did so
    not to comply with the law, but because it no longer feared that
    such a filing would compromise its litigation posture in the Arizona
    enforcement proceeding. Moreover, despite the Minnesota fine and the
    Arizona proposed settlement on the unfiled agreements at issue and
    having advised us that all unfiled agreements had been filed in the
    states covered by the nine and three-state section 271 applications,
    Qwest only recently filed an additional 53 agreements in six of
    those states. In order to deter future violations of this and other
    important market-opening obligations under the 1996 Act, we believe
    a substantial penalty is warranted.

50. Qwest delayed filing 46 agreements with the Arizona and Minnesota
    Commissions, in apparent violation of section 252(a)(1). Even if we
    assume that Qwest did not have clear notice of its obligations under
    section 252(a)(1) until release of the *Declaratory Ruling*, Qwest
    delayed filing the Minnesota and Arizona agreements for at least an
    additional five and seven months, respectively. Thus, Qwest's
    apparent violations of section 252(a)(1) are continuing
    violations,[^138] and we could potentially subject the carrier to a
    penalty of \$1.2 million per agreement, for a total proposed
    forfeiture of \$55.2 million. We find, however, that the maximum
    penalty for each unfiled agreement would be excessive under the
    circumstances.[^139] Therefore, based on the circumstances of this
    case, including pending penalties at the state commissions, we
    exercise our discretion to propose a total forfeiture of \$9 million
    for Qwest\'s 46 apparent violations of section 252(a)(1).

51. The Commission has made clear that it will take into account a
    violator\'s ability to pay in determining the amount of a forfeiture
    so that forfeitures against "large or highly profitable entities are
    not considered merely an affordable cost of doing business."[^140]
    In second quarter 2003, Qwest Communications International, Inc.
    (the parent company of Qwest Corporation) had total operating
    revenues of \$3.601 billion.[^141] For a company of this size, a \$9
    million forfeiture is not excessive. Indeed, a smaller forfeiture
    would lack adequate deterrent effect.

52. Therefore, based on the above discussion and pursuant to section
    503(b)(2) of the Act and our rules, we find that Qwest is apparently
    liable for each of its 46 apparent violations of section 252(a)(1)
    of the Act, for a total proposed forfeiture of \$9 million.

# Ordering Clauses

53. ACCORDINGLY, IT IS ORDERED THAT, pursuant to section 503(b) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 503(b), and
    section 1.80 of the Commission's rules, 47 C.F.R. § 1.80, that Qwest
    Corporation is hereby NOTIFIED of its APPARENT LIABILITY FOR A
    FORFEITURE in the amount of \$9 million for willfully and repeatedly
    violating the Act and the Commission's rules.

54. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
    Commission's rules, 47 C.F.R. § 1.80, within thirty days of the
    release date of this NOTICE OF APPARENT LIABILITY, Qwest Corporation
    SHALL PAY the full amount of the proposed forfeiture currently
    outstanding on that date or shall file a written statement seeking
    reduction or cancellation of the proposed forfeiture.

55. Payment of the forfeiture may be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission. Such remittance should be made to 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 and FRN No. 0001-6056-25.

56. The response, if any, to this NOTICE OF APPARENT LIABILITY must be
    mailed to William H. Davenport, Chief, Investigations and Hearings
    Division, Enforcement Bureau, Federal Communications Commission, 445
    12^th^ Street, S.W., Washington, D.C. 20554 and must include the
    NAL/Acct. No. referenced above.

57. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the petitioner
    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
    petitioner's current financial status. Any claim of inability to pay
    must specifically identify the basis for the claim by reference to
    the financial documentation submitted.

58. Requests for payment of the full amount of this NAL under an
    installment plan should be sent to Chief, Credit and Management
    Center, 445 12^th^ Street, S.W., Washington, D.C. 20554.[^142]

59. Under the Small Business Paperwork Relief Act of 2002, Pub.L.No.
    107-198, 116 Stat. 729 (June 28, 2002), the Commission is engaged in
    a two-year tracking process regarding the size of entities involved
    in forfeitures. If you qualify as a small entity and if you wish to
    be treated as a small entity for tracking purposes, please so
    certify to us within 30 days of this NAL, either in your response to
    the NAL or in a separate filing to be sent to the Investigations and
    Hearings Division, Enforcement Bureau, 445 12^th^ Street, S.W.,
    Washington, D.C. 20054. Your certification should indicate whether
    you, including your parent entity and its subsidiaries, meet one of
    the definitions set forth in the list in Appendix B of this NAL.
    This information will be used for tracking purposes only. Your
    response or failure to respond to this question will have no effect
    on your rights and responsibilities pursuant to section 503(b) of
    the Communications Act. If you have any questions regarding any of
    the information contained in Appendix B, please contact the
    Commission's Office of Communications Business Opportunities
    at (202) 418-0990.

60. IT IS FURTHER ORDERED that a copy of this NOTICE OF APPARENT
    LIABILITY AND ORDER shall be sent by certified mail, return receipt
    requested, to Qwest, 607 14^th^ Street NW, Suite 950, Washington,
    D.C. 20005.

    FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX A**

**Qwest agreements filed after LOI issued**

9/30/99 Transient Interim Signaling Capability Service agreement with
Aliant Cellular (Nebraska); 2/10/98 Custom Local Area Signaling Services
("CLASS") Network Interconnection Agreement with Aliant Midwest
(Nebraska); 4/20/01 Line Information Data Base ("LIDB") Storage
Agreement with Adelphia (Colorado); 7/12/01 Custom Local Area Signaling
Services ("CLASS") Network Interconnection agreement with Adelphia
(Colorado); 11/23/99 Internetwork Calling Name Delivery Service
("ICNAM") agreement with Allegiance (Colorado); 3/2/98 Transient Interim
Signaling Capability Service agreement with Qwest Wireless (Colorado);
3/7/00 Centralized Message Data System ("CMDS") Hosting and Message
Distribution for Co-Providers (In-Region with Operator Services)
agreement & Addendum with Eschelon (Colorado); 2/01/01 Centralized
Message Data System ("CMDS") Hosting and Message Distribution for
Co-Providers (In-Region with Operator Services) agreement with Integra
(Colorado); 3/31/98 Transient Interim Signaling Capability Service
agreement with CommNet (Iowa); 12/13/99 Transit Record Exchange
Agreement with Goldfield (Iowa); 2/11/98 Custom Local Area Signaling
Services ("CLASS") Network Interconnection Agreement with Aliant Midwest
(Iowa); 5/02/02 Transit Record Exchange Agreement to Co-Carriers
(Wireless Service Provider -- Transit Qwest -- CLEC) with Consolidated
Communications Networks (North Dakota); 5/02/02 Transit Record Exchange
Agreement to Co-Carriers (Wireline -- Transit Qwest -- CLEC) with
Consolidated Communications Networks (North Dakota); 1/18/00 Transient
Interim Signaling Capability Service Agreement with IdeaOne (North
Dakota); 2/1/01 Centralized Message Data System ("CMDS") Hosting and
In-Region Message Distribution for CLECs agreement & Addendum with
Integra Telecom of Minnesota and Integra Telecom of North Dakota (North
Dakota); 5/22/02 Transit Record Exchange Agreement to Co-Carriers
(Wireless Service Provider -- Transit Qwest -- CLEC) with Midcontinent
Communications (North Dakota); 5/22/02 Transit Record Exchange Agreement
to Co-Carriers (Wireline -- Transit Traffic -- CLEC) with Midcontinent
Communications (North Dakota); 1/5/01 Centralized Message Data System
("CMDS") Hosting and In-Region Message Distribution for Co-Providers
agreement & Addendum with Skyland Technologies (North Dakota); 1/18/00
Transit Record Exchange Agreement to Co-Carriers (Wireless Service
Provider -- Transit Qwest -- CLEC) with Val-ed Joint Venture (North
Dakota); 1/18/00 Transit Record Exchange Agreement to Co-Carriers
(Wireline -- Transit Traffic -- CLEC) with Val-ed Joint Venture (North
Dakota); 2/1/01 Centralized Message Data System ("CMDS") Hosting and
In-Region Message Distribution for CLECs agreement & Addendum with
Integra (Utah); 8/7/01 Custom Local Area Signaling Services ("CLASS")
Network Interconnection Agreement with FirstDigital (Utah); 8/7/01
Internetwork Calling Name Delivery Service ("ICNAM") agreement with
FirstDigital (Utah); 8/7/01 Line Information Data Base ("LIDB") Storage
Agreement with FirstDigital (Utah); 10/14/96 Basic and Enhanced 911
Emergency Communications Systems Agreement with NextLink (Utah);
10/14/96 Home Numbering Plan Area Directory Assistance Agreement with
NextLink (Utah); 1/25/02 Centralized Message Data System ("CMDS")
Hosting and In-Region Message Distribution for Co-Providers agreement
with Skyland Technologies (North Dakota); 1/25/02 Centralized Message
Data System ("CMDS") Hosting and In-Region Message Distribution for
CLECs agreement with Town of Eagle Mountain (Utah); 7/22/01 Custom Local
Area Signaling Services ("CLASS") Network Interconnection Agreement with
Town of Eagle Mountain (Utah); 1/11/02 Line Information Data Base
("LIDB") Storage Agreement with Town of Eagle Mountain (Utah); 4/20/01
Line Information Data Base ("LIDB") Storage Agreement with Adelphia
(Washington); 7/12/01 Custom Local Area Signaling Services ("CLASS")
Network Interconnection Agreement with Adelphia (Washington); 9/11/01
Custom Local Area Signaling Services ("CLASS") Network Interconnection
Agreement with Allegiance (Washington); 11/2/99 Internetwork Calling
Name Delivery Service ("ICNAM") agreement with Allegiance (Washington);
5/1/01 Internetwork Calling Name Delivery Service ("ICNAM") agreement
with Computer 5\* dba LocalTel (Washington); 5/1/01 Line Information
Data Base ("LIDB") Storage Agreement with Computer 5\* dba LocalTel
(Washington); 5/1/01 Custom Local Area Signaling Services ("CLASS")
Network Interconnection Agreement with Computer 5\* dba LocalTel
(Washington); 4/9/01 Transient Interim Signaling Capability Service
agreement with Computer 5\* dba LocalTel (Washington); 6/24/99 Custom
Local Area Signaling Services ("CLASS") Network Interconnection
Agreement with Focal (Washington); 2/8/00 Internetwork Calling Name
Delivery Service ("ICNAM") agreement with Focal (Washington); 2/8/00
Transient Interim Signaling Capability Service agreement with Focal
(Washington); 6/7/99 Custom Local Area Signaling Services ("CLASS")
Network Interconnection Agreement with Fox (Washington); 6/7/99
Internetwork Calling Name Delivery Service ("ICNAM") agreement with Fox
(Washington); 6/7/99 Centralized Message Data System ("CMDS") Hosting
and Message Distribution for Co-Providers agreement with Fox
(Washington); 6/7/99 Line Information Data Base ("LIDB") Storage
Agreement with Fox (Washington); 2/1/01 Centralized Message Data System
("CMDS") Hosting and Message Distribution for Co-Providers agreement &
Addendum with Integra (Washington); 2/8/00 Transient Interim Signaling
Capability Service agreement with Focal (Washington); 12/16/98 Transient
Interim Signaling Capability Service agreement with Qwest Wireless
(Washington); 9/15/99 Transit Record Exchange Agreement to Co-Carriers
(Wireline -- Transit Traffic -- CLEC) with International Telecom
(Washington). *See* Documents Q-PUB-001341 through Q-PUB-001740.

**APPENDIX B**

+--------------------------------+-------------------------------------+
| **FCC List of Small Entities** |                                     |
|                                |                                     |
| **As described below, a "small |                                     |
| entity" may be a small         |                                     |
| organization,**                |                                     |
|                                |                                     |
| **a small governmental         |                                     |
| jurisdiction, or a small       |                                     |
| business.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(1) Small Organization**     |                                     |
+--------------------------------+-------------------------------------+
| **Any not-for-profit           |                                     |
| enterprise that is             |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field.**                       |                                     |
+--------------------------------+-------------------------------------+
| **(2) Small Governmental       |                                     |
| Jurisdiction**                 |                                     |
+--------------------------------+-------------------------------------+
| **Governments of cities,       |                                     |
| counties, towns, townships,    |                                     |
| villages, school districts,    |                                     |
| or**                           |                                     |
|                                |                                     |
| **special districts, with a    |                                     |
| population of less than fifty  |                                     |
| thousand.**                    |                                     |
+--------------------------------+-------------------------------------+
| **(3) Small Business**         |                                     |
+--------------------------------+-------------------------------------+
| **Any business concern that is |                                     |
| independently owned and        |                                     |
| operated and**                 |                                     |
|                                |                                     |
| **is not dominant in its       |                                     |
| field, *and* meets the         |                                     |
| pertinent size criterion       |                                     |
| described below.**             |                                     |
+--------------------------------+-------------------------------------+
| **Industry Type**              | **Description of Small Business     |
|                                | Size Standards**                    |
+--------------------------------+-------------------------------------+
| ***Cable Services or           |                                     |
| Systems***                     |                                     |
+--------------------------------+-------------------------------------+
| Cable Systems                  | Special Size Standard --            |
|                                |                                     |
|                                | **Small Cable Company** has 400,000 |
|                                | Subscribers Nationwide or Fewer     |
+--------------------------------+-------------------------------------+
| Cable and Other Program        | \$12.5 Million in Annual Receipts   |
| Distribution                   | or Less                             |
+--------------------------------+-------------------------------------+
| Open Video Systems             |                                     |
+--------------------------------+-------------------------------------+
| ***Common Carrier Services and |                                     |
| Related Entities***            |                                     |
+--------------------------------+-------------------------------------+
| Wireline Carriers and Service  | 1,500 Employees or Fewer            |
| providers                      |                                     |
+--------------------------------+-------------------------------------+
| Local Exchange Carriers,       |                                     |
| Competitive Access Providers,  |                                     |
| Interexchange Carriers,        |                                     |
| Operator Service Providers,    |                                     |
| Payphone Providers, and        |                                     |
| Resellers                      |                                     |
+--------------------------------+-------------------------------------+
| **Note:** With the exception   |                                     |
| of Cable Systems, all size     |                                     |
| standards are expressed in     |                                     |
| either millions of dollars or  |                                     |
| number of employees and are    |                                     |
| generally the average annual   |                                     |
| receipts or the average        |                                     |
| employment of a firm.          |                                     |
| Directions for calculating     |                                     |
| average annual receipts and    |                                     |
| average employment of a firm   |                                     |
| can be found in                |                                     |
|                                |                                     |
| 13 CFR 121.104 and 13 CFR      |                                     |
| 121.106, respectively.         |                                     |
+--------------------------------+-------------------------------------+
| ***International Services***   |                                     |
+--------------------------------+-------------------------------------+
| International Broadcast        | \$12.5 Million in Annual Receipts   |
| Stations                       | or Less                             |
+--------------------------------+-------------------------------------+
| International Public Fixed     |                                     |
| Radio (Public and Control      |                                     |
| Stations)                      |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite                |                                     |
| Transmit/Receive Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Fixed Satellite Very Small     |                                     |
| Aperture Terminal Systems      |                                     |
+--------------------------------+-------------------------------------+
| Mobile Satellite Earth         |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Radio Determination Satellite  |                                     |
| Earth Stations                 |                                     |
+--------------------------------+-------------------------------------+
| Geostationary Space Stations   |                                     |
+--------------------------------+-------------------------------------+
| Non-Geostationary Space        |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| Direct Broadcast Satellites    |                                     |
+--------------------------------+-------------------------------------+
| Home Satellite Dish Service    |                                     |
+--------------------------------+-------------------------------------+
| ***Mass Media Services***      |                                     |
+--------------------------------+-------------------------------------+
| Television Services            | \$12 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Low Power Television Services  |                                     |
| and Television Translator      |                                     |
| Stations                       |                                     |
+--------------------------------+-------------------------------------+
| TV Auxiliary, Special          |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Radio Services                 | \$6 Million in Annual Receipts or   |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Radio Auxiliary, Special       |                                     |
| Broadcast and Other Program    |                                     |
| Distribution Services          |                                     |
+--------------------------------+-------------------------------------+
| Multipoint Distribution        | Auction Special Size Standard --    |
| Service                        |                                     |
|                                | **Small Business** is less than     |
|                                | \$40M in annual gross revenues for  |
|                                | three preceding years               |
+--------------------------------+-------------------------------------+
| ***Wireless and Commercial     |                                     |
| Mobile Services***             |                                     |
+--------------------------------+-------------------------------------+
| Cellular Licensees             | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase |                                     |
| I Licensees                    |                                     |
+--------------------------------+-------------------------------------+
| 220 MHz Radio Service -- Phase | Auction special size standard -     |
| II Licensees                   |                                     |
|                                | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and controlling          |
|                                | principals)                         |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and controlling          |
|                                | principals)                         |
+--------------------------------+-------------------------------------+
| 700 MHZ Guard Band Licensees   |                                     |
+--------------------------------+-------------------------------------+
| Private and Common Carrier     |                                     |
| Paging                         |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | 1,500 Employees or Fewer            |
| Communications Services        |                                     |
| (Blocks A, B, D, and E)        |                                     |
+--------------------------------+-------------------------------------+
| Broadband Personal             | Auction special size standard -     |
| Communications Services (Block |                                     |
| C)                             | **Small Business** is \$40M or less |
|                                | in annual gross revenues for three  |
|                                | previous calendar years             |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three calendar years  |
|                                | (includes affiliates and persons or |
|                                | entities that hold interest in such |
|                                | entity and their affiliates)        |
+--------------------------------+-------------------------------------+
| Broadband Personal             |                                     |
| Communications Services (Block |                                     |
| F)                             |                                     |
+--------------------------------+-------------------------------------+
| Narrowband Personal            |                                     |
| Communications Services        |                                     |
+--------------------------------+-------------------------------------+
| Rural Radiotelephone Service   | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Air-Ground Radiotelephone      |                                     |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| 800 MHz Specialized Mobile     | Auction special size standard -     |
| Radio                          |                                     |
|                                | **Small Business** is \$15M or less |
|                                | average annual gross revenues for   |
|                                | three preceding calendar years      |
+--------------------------------+-------------------------------------+
| 900 MHz Specialized Mobile     |                                     |
| Radio                          |                                     |
+--------------------------------+-------------------------------------+
| Private Land Mobile Radio      | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| Amateur Radio Service          | N/A                                 |
+--------------------------------+-------------------------------------+
| Aviation and Marine Radio      | 1,500 Employees or Fewer            |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Fixed Microwave Services       |                                     |
+--------------------------------+-------------------------------------+
| Public Safety Radio Services   | **Small Business** is 1,500         |
|                                | employees or less                   |
|                                |                                     |
|                                | **Small Government Entities** has   |
|                                | population of less than 50,000      |
|                                | persons                             |
+--------------------------------+-------------------------------------+
| Wireless Telephony and Paging  | 1,500 Employees or Fewer            |
| and Messaging                  |                                     |
+--------------------------------+-------------------------------------+
| Personal Radio Services        | N/A                                 |
+--------------------------------+-------------------------------------+
| Offshore Radiotelephone        | 1,500 Employees or Fewer            |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Wireless Communications        | **Small Business** is \$40M or less |
| Services                       | average annual gross revenues for   |
|                                | three preceding years               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three years           |
+--------------------------------+-------------------------------------+
| 39 GHz Service                 |                                     |
+--------------------------------+-------------------------------------+
| Multipoint Distribution        | Auction special size standard       |
| Service                        | (1996) --                           |
|                                |                                     |
|                                | **Small Business** is \$40M or less |
|                                | average annual gross revenues for   |
|                                | three preceding calendar years      |
|                                |                                     |
|                                | Prior to Auction --                 |
|                                |                                     |
|                                | **Small Business** has annual       |
|                                | revenue of \$12.5M or less          |
+--------------------------------+-------------------------------------+
| Multichannel Multipoint        | \$12.5 Million in Annual Receipts   |
| Distribution Service           | or Less                             |
+--------------------------------+-------------------------------------+
| Instructional Television Fixed |                                     |
| Service                        |                                     |
+--------------------------------+-------------------------------------+
| Local Multipoint Distribution  | Auction special size standard       |
| Service                        | (1998) --                           |
|                                |                                     |
|                                | **Small Business** is \$40M or less |
|                                | average annual gross revenues for   |
|                                | three preceding years               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$15M or less for |
|                                | the preceding three years           |
+--------------------------------+-------------------------------------+
| 218-219 MHZ Service            | First Auction special size standard |
|                                | (1994) --                           |
|                                |                                     |
|                                | **Small Business** is an entity     |
|                                | that, together with its affiliates, |
|                                | has no more than a \$6M net worth   |
|                                | and, after federal income taxes     |
|                                | (excluding carryover losses) has no |
|                                | more than \$2M in annual profits    |
|                                | each year for the previous two      |
|                                | years                               |
|                                |                                     |
|                                | New Standard --                     |
|                                |                                     |
|                                | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
+--------------------------------+-------------------------------------+
| Satellite Master Antenna       | \$12.5 Million in Annual Receipts   |
| Television Systems             | or Less                             |
+--------------------------------+-------------------------------------+
| 24 GHz -- Incumbent Licensees  | 1,500 Employees or Fewer            |
+--------------------------------+-------------------------------------+
| 24 GHz -- Future Licensees     | **Small Business** is average gross |
|                                | revenues of \$15M or less for the   |
|                                | preceding three years (includes     |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
|                                |                                     |
|                                | **Very Small Business** is average  |
|                                | gross revenues of \$3M or less for  |
|                                | the preceding three years (includes |
|                                | affiliates and persons or entities  |
|                                | that hold interest in such entity   |
|                                | and their affiliates)               |
+--------------------------------+-------------------------------------+
| ***Miscellaneous***            |                                     |
+--------------------------------+-------------------------------------+
| On-Line Information Services   | \$18 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Radio and Television           | 750 Employees or Fewer              |
| Broadcasting and Wireless      |                                     |
| Communications Equipment       |                                     |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Audio and Video Equipment      |                                     |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Telephone Apparatus            | 1,000 Employees or Fewer            |
| Manufacturers (Except          |                                     |
| Cellular)                      |                                     |
+--------------------------------+-------------------------------------+
| Medical Implant Device         | 500 Employees or Fewer              |
| Manufacturers                  |                                     |
+--------------------------------+-------------------------------------+
| Hospitals                      | \$29 Million in Annual Receipts or  |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Nursing Homes                  | \$11.5 Million in Annual Receipts   |
|                                | or Less                             |
+--------------------------------+-------------------------------------+
| Hotels and Motels              | \$6 Million in Annual Receipts or   |
|                                | Less                                |
+--------------------------------+-------------------------------------+
| Tower Owners                   | (See Lessee's Type of Business)     |
+--------------------------------+-------------------------------------+

**STATEMENT OF CHAIRMAN MICHAEL POWELL**

*Re: In the Matter of Qwest Corporation Apparent Liability for
Forfeiture*

Today we release a Notice of Apparent Liability for Forfeiture against
Qwest, containing the largest proposed forfeiture in the Commission's
history. We propose a forfeiture of this size, \$9 million, due to
Qwest's apparent non-compliance with the pro-competitive requirements of
section 252 of the Communications Act and Commission orders.

I would like to emphasize that our action complements state enforcement
actions in Minnesota and Arizona. This action sends a clear message,
along with the complementary state actions, that violations of the key
pro-competitive provisions of the Act will not be tolerated.

[^1]: Qwest Corporation, an incumbent local exchange carrier ("LEC")
    that provides local telephone service in 14 midwestern and western
    states, was formerly US West, Inc. (one of the original Regional
    Bell Operating Companies). *See Qwest Communications International
    Inc. and US West, Inc., Applications for Transfer of Control of
    Domestic and International Sections 214 and 310 Authorizations and
    Application to Transfer Control of a Submarine Cable Landing
    License*, CC Docket 99-272, Memorandum Opinion and Order, 15 FCC Rcd
    5376 (2000); Memorandum Opinion and Order, 15 FCC Rcd 11909 (2000).
    References to Qwest include its predecessor, US West, Inc.

[^2]: 47 U.S.C. § 252(a)(1).

[^3]: As discussed below, these agreements were executed several years
    earlier, but not filed with the state commissions pursuant to
    section 252(a)(1) of the Act until mid-2003. *See infra* nn.81 & 83.

[^4]: In the 1996 amendments to the Act, Congress required Bell
    Operating Companies ("BOCs") to demonstrate compliance with certain
    market-opening requirements in section 271 of the Act before
    providing in-region, interLATA service. *See* 47 U.S.C. §
    271(d)(2)(A), (B). On June 13, 2002, Qwest Communications
    International Inc. filed section 271 multi-state applications for
    authorization to provide in-region, interLATA service in Colorado,
    Idaho, Iowa, Nebraska, and North Dakota ("Qwest I"); and on July 12,
    2002, for Montana, Utah, Washington, and Wyoming ("Qwest II"). Many
    of the *ex parte* letters and other documents cited in this NAL were
    filed in one or both of those dockets. At times, herein, Qwest
    Communications International Inc. and Qwest Communications
    Corporation are referred to as "Qwest."

[^5]: *See* *infra* para. 17 & n.61.

[^6]: Qwest Memo at 12. The Qwest Memo was part of Qwest's response to
    the Bureau's letter of inquiry. *See* *infra* n.21.

[^7]: Qwest Memo at 13.

[^8]: *See Application by SBC Communications Inc., Michigan Bell
    Telephone Company, and Southwestern Bell Communications Services,
    Inc. for Authorization to Provide In-Region, InterLATA Services in
    Michigan*, WC Docket No. 03-138, Memorandum Opinion and Order, 18
    FCC Rcd 19024, 19123, ¶ 180 (2003) ("*SBC Michigan 271 Order*"). In
    the *SBC Michigan 271 Order*, we said that incumbent LECs had
    adequate notice of their legal obligations under section 252(a) and
    that we would consider appropriate enforcement action when carriers
    fail to meet these obligations. *Id.*

[^9]: 47 U.S.C. § 252(a)(1).

[^10]: 47 U.S.C. § 252(e).

[^11]: *Implementation of the Local Competition Provisions in the
    Telecommunications Act of 1996*, First Report and Order, 11 FCC Rcd
    15499, 15583, ¶ 167 (1996) (subsequent history omitted, emphasis in
    original) ("*Local Competition Order*").

[^12]: 47 U.S.C. § 252(i). *See also* 47 C.F.R. § 51.809(a). One of the
    key purposes of the section 252(a) filing requirement is that
    carriers will know which interconnection agreements (and terms) are
    available under section 252(i).

[^13]: *See* Findings of Fact, Conclusions, Recommendation and
    Memorandum, Minn. Docket No. P-421/C-02-197 at 10 (Sept. 20, 2002).

[^14]: *Id.*

[^15]: For a summary of the state investigations into unfiled agreements
    in the first nine application states, see *Application by Qwest
    Communications International, Inc. for Authorization to Provide
    In-Region, InterLATA Services in the States of Colorado, Idaho,
    Iowa, Montana, Nebraska, North Dakota, Utah, Washington and
    Wyoming,* WC Docket No. 02-314, Memorandum Opinion and Order, 17 FCC
    Rcd 26303, 26559-66, ¶¶ 460-471 (2002) ("*Qwest 9-State 271
    Order*"). For a summary of the state investigations into unfiled
    agreements in New Mexico, Oregon, and South Dakota, see *Application
    by Qwest Communications International, Inc. for Authorization to
    Provide In-Region, InterLATA Services in New Mexico, Oregon and
    South Dakota,* WC Docket No. 03-11, Memorandum Opinion and Order, 18
    FCC Rcd 7325, 7397-400, ¶¶ 127-131 (2003) ("*Qwest 3-State 271
    Order*").

    More recently, the Washington Utilities and Transportation
    Commission ("Washington Commission") initiated an enforcement
    proceeding against Qwest and thirteen CLECs, alleging, *inter alia,*
    that Qwest and the other carriers had not filed all their
    interconnection agreements for state review; that Qwest had given
    certain carriers an undue or unreasonable preference; that Qwest had
    discriminated against carriers; and that carriers had agreed not to
    oppose Qwest positions in various proceedings. *See Washington
    Utilities and Transportation Commission, v. Advanced Telecom Group,
    Inc., et al.*, Complaint and Notice of Prehearing Conference (Sept.
    8, 2003), Docket No. UT-033011, filed Aug. 13, 2003. The Washington
    Commission also issued an order regarding section 252(e)(1) filing
    requirements. *See Washington Utilities and Transportation
    Commission, v. Advanced Telecom Group, Inc., et al.*, Order Granting
    Commission Staff's Motion for Partial Summary Determination;
    Granting in Part and Denying in Part the Motions to Dismiss and for
    Summary Determination of Qwest, ATG, AT&T/TCG, Eschelon, Fairpoint,
    Global Crossing, Integra, MCI, McLeodUSA, SBC, and XO (Feb. 12,
    2004). In addition, the staff of the Colorado Public Utilities
    Commission submitted initial comments in Docket No. 02I-572T, "In
    the Matter of the Investigation into Unfiled Agreements Executed by
    Qwest Corporation," (Feb. 27, 2004), recommending, *inter alia*,
    that the Colorado Commission conduct a hearing on Qwest's willful
    and intentional violations of state and federal law.

[^16]: Qwest Communications International Inc. Petition for Declaratory
    Ruling on the Scope of the Duty to File and Obtain Prior Approval of
    Negotiated Contractual Arrangements under Section 252(a)(1), WC
    Docket No. 02-89 (filed Apr. 23, 2002) ("Qwest Petition").

[^17]: Qwest Petition at 6.

[^18]: *See* Letter from Peter A. Rohrbach, Mace J. Rosenstein, Yaron
    Dori, Attorneys for Qwest, to Marlene H. Dortch, Secretary, Federal
    Communications Commission, WC Docket No. 02-148 (filed Aug. 13,
    2002) (including letters to the commissions of Colorado, Idaho,
    Iowa, Nebraska, and North Dakota − the Qwest I application states −
    and the Larry Brotherson Qwest I Reply Declaration ("Brotherson
    Declaration")). Qwest's letters to the state commissions provided
    that: (1) Qwest would file all agreements with CLECs that create
    obligations to meet the requirements of section 251(b) or (c) on a
    going forward basis and (2) Qwest was forming a committee to review
    such agreements with CLECs and make the necessary filings. *See*
    Documents Q-PUB-000449 through Q-PUB-000477. The Commission sought
    comment on Qwest's proposal. *See* "Comments Requested in Connection
    with Qwest's Section 271 Application for Colorado, Idaho, Iowa,
    Nebraska, and North Dakota," *Public Notice*, 17 FCC Rcd 16234
    (2002).

[^19]: Brotherson Declaration at ¶ 7; Letter from Melissa E. Newman,
    Vice President -- Federal Regulatory, Qwest, to Marlene H. Dortch,
    Secretary, Federal Communications Commission, WC Dockets 02-148 and
    02-189, at 2 (filed Aug. 20, 2002) ("Qwest August 20 Letter").

[^20]: Brotherson Declaration at ¶ 9.

[^21]: These drafts of the minutes were provided to the Commission in
    response to a letter of inquiry from the Enforcement Bureau. *See*
    Letter from William H. Davenport, Deputy Division Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, to Sharon J. Devine, Qwest Communications
    International, Inc., dated June 26, 2003 ("LOI"). The LOI response
    contained a letter from Sharon J. Devine, Qwest Communications
    International, Inc. to William H. Davenport, Deputy Division Chief,
    Investigations and Hearings Division, Enforcement Bureau, Federal
    Communications Commission, dated July 31, 2003 ("Qwest July 31
    Letter"); a Confidentiality Request, seeking confidential treatment
    of the LOI response; a memorandum ("Qwest Memo"); declarations from
    R. Steven Davis, Todd Lundy, Dan Hult, and Larry Christensen; a
    lengthy privilege log; and three boxes of documents. The
    declarations were all properly notarized, with the exception of the
    Christensen declaration which was signed by the declarant two days
    *after* the notarization. Qwest's request for confidential treatment
    was denied by the Enforcement Bureau. *See Qwest Communications
    International, Inc*., DA 03-3521 (Enf. Bur. rel. Nov. 4, 2003).
    Subsequently, Qwest narrowed the range of documents for which it
    claimed confidential treatment; the documents cited herein are no
    longer deemed confidential by Qwest. *See* *Qwest Communications
    International, Inc.* File No. EB-03-IH-0500, Application for Review
    in Part (filed Nov. 12, 2003).

[^22]: Qwest apparently recognizes this inconsistency. In Qwest's
    response to the Bureau's LOI, Declarant Todd Lundy states: "it is
    Qwest's understanding that agreements relating to operator services
    and directory assistance do not have to be filed." Lundy Declaration
    at 14. Nevertheless, Lundy continues, the "Wholesale Contract Review
    Committee out of an abundance of caution has directed the filing of
    these types of operator services and directory assistance agreements
    executed since the committee's formation in June of 2002." *Id. See
    also* Qwest Wholesale Agreement Review Committee Settlement Tracking
    Sheet, which provides that agreements for directory assistance list
    information should be filed. Documents Q-CONF-000933, 000936,
    000939, 000942, 000948, 000954, 000960, 000966. Several of the
    unfiled Arizona agreements were for directory assistance.

[^23]: Document Q-CONF-003506.

[^24]: *Id.*

[^25]: Document Q-CONF-000909.

[^26]: Document Q-CONF-004082.

[^27]: On September 10, 2002, Qwest withdrew its Qwest I and Qwest II
    pending section 271 applications. Ten days later, Qwest filed a
    single application with the Commission for authorization to provide
    in-region, interLATA service in all of the nine states covered in
    the previous section 271 applications. The Commission granted
    Qwest's nine-state 271 application on December 23, 2002. *See Qwest
    9-State 271 Order*, 17 FCC Rcd 26303.

[^28]: Qwest August 20 Letter at 2. *See* *supra* n.18 (describing the
    letters).

[^29]: Qwest August 20 Letter at 2.

[^30]: *Id.* at 1-4. Qwest stated that it would file agreements with
    CLECs for approval by state commissions in the Qwest II states to
    supplement the plan announced in its reply comments in the Qwest I
    proceeding, WC Docket No. 02-148. *Id.* at 1.

[^31]: Documents Q-CONF-002147 through Q-CONF-002149.

[^32]: Document Q-CONF-002148.

[^33]: *Id.* An SGAT contains interconnection terms and conditions
    available to CLECs operating in that state. *See* 47 U.S.C. §
    252(f)(1). The submission or approval of an SGAT does not relieve a
    BOC of its duty to negotiate the terms and conditions of an
    agreement under section 251. 47 U.S.C. § 252(f)(5).

[^34]: *Qwest Communications International Inc. Petition for Declaratory
    Ruling on the Scope of the Duty to File and Obtain Prior Approval of
    Negotiated Contractual Arrangements under Section 252(a)(1)*, WC
    Docket No. 02-89, Memorandum Opinion and Order, 17 FCC Rcd 19337
    (2002) ("*Declaratory Ruling*").

[^35]: Qwest Petition at 6.

[^36]: *Declaratory Ruling,* 17 FCC Rcd at 19340-41, ¶ 8.

[^37]: *Id*. (emphasis omitted).

[^38]: *See* Order Adopting ALJ's Report and Establishing Comment Period
    Regarding Remedies, Minn. Docket No. P-421/C-02-197 (Nov. 1, 2002).
    Among other things, the ALJ found five different public interest
    implications arising from the unfiled agreements: (1) Qwest's
    attempt to subvert the "pick and choose" provisions of the Act; (2)
    Qwest's attempt to prohibit CLECs from participating in section 271
    proceedings; (3) Qwest's attempt to prohibit CLECs from
    participating in the Qwest/US West merger proceeding; (4) Qwest's
    attempt to prevent disclosure of negative performance information in
    the section 271 proceeding; and (5) Qwest's attempt to have a CLEC
    become an advocate for Qwest in various proceedings, at Qwest's
    request. *See* Findings of Fact, Conclusions, Recommendation and
    Memorandum, Minn. Docket No. P-421/C-02-197 (Sept. 20, 2002) at 48.

[^39]: On February 28, 2003, the Minnesota Commission issued an Order
    Assessing Penalties, Minnesota Docket No. P-421/C-02-197 (Feb. 28,
    2003). After considering petitions for reconsideration, the
    Minnesota Commission issued, on its own motion, modifications to the
    February 28, 2003 Penalties Order. *See* Order after Reconsideration
    on Own Motion, Minn. Docket No. P-421/C-02-197 (Apr. 30, 2003).

[^40]: *See Qwest Corporation v. Minnesota Public Utilities Commission,
    et at., Complaint for Declaratory Judgment and Injunctive Relief to
    Prevent Enforcement of Public Utilities Commission Orders*, Civ.
    File No. 03-3476, D. MN. (filed June 19, 2003).

[^41]: *See Qwest 9-State 271 Order*, 17 FCC Rcd 26303.

[^42]: *See id.* at 26553-77, ¶¶ 453-486.

[^43]: Letter from Melissa E. Newman, Vice President -- Federal
    Regulatory, Qwest, to Marlene H. Dortch, Secretary, Federal
    Communications Commission, WC Docket No. 02-314, at 1 (filed Dec.
    13, 2002) ("Qwest December 13 Letter").

[^44]: Calling Name Delivery ("CNAM") allows a subscriber to receive the
    calling party name information and date and time of the call on a
    specialized display device before the call is answered. The calling
    party name is retrieved from a database accessible by the
    terminating central office switch, using non-call-associated
    signaling. *See* Telcordia Notes on the Networks, Network
    Architecture and Services, SR-2275, Issue 4, § 14.3 "CLASS Features"
    (Oct. 2000).

[^45]: *See Qwest 9-State 271 Order*, 17 FCC Rcd at 26571-72, ¶ 478
    n.1746. In the nine-state proceeding, AT&T alleged that twelve
    unfiled agreements should have been filed under section 252. *Id.*
    After reviewing the agreements, we concluded that all but the ICNAM
    agreement had been filed, terminated, superseded, or were not
    related to the duties imposed under section 251 of the Act. *Id.*

[^46]: *Id.* The *Declaratory Ruling* does not create such an exception,
    but provides that any "agreement that creates an ongoing obligation
    pertaining to resale, number portability, dialing parity, access to
    rights-of-way, reciprocal compensation, interconnection, unbundled
    network elements, or collocation is an interconnection agreement
    that must be filed pursuant to section 252(a)(1)." *Declaratory
    Ruling,* 17 FCC Rcd at 19340-41, ¶ 8 (emphasis omitted).

[^47]: *See Qwest 9-State 271 Order*, 17 FCC Rcd at 26571-72, ¶ 478
    n.1746. This was also reiterated in the *Qwest 3-State 271 Order*,
    18 FCC Rcd at 7397, ¶ 126.

[^48]: *Qwest 9-State 271 Order*, 17 FCC Rcd at 26571-72, ¶ 478 n.1746.

[^49]: These three agreements were approved by the New Mexico
    Commission, as were four of the five agreements filed by Qwest on
    September 9, 2002. *See Qwest 3-State 271 Order,* 18 FCC Rcd at
    7398-99, ¶ 129.

[^50]: The Oregon Commission approved the three agreements filed on
    January 9, 2003, as well as sixteen agreements filed on September 4,
    2002. *See id.,* 18 FCC Rcd at 7399, ¶ 130.

[^51]: The South Dakota Commission approved the eight agreements filed
    on January 13, 2003, as well as the four agreements filed on
    September 24, 2002. *See id.,* 18 FCC Rcd at 7399-400, ¶ 131.

[^52]: The three-state application was granted on April 15, 2003.

[^53]: Letter from Melissa E. Newman, Vice President − Federal
    Regulatory, Qwest, to Marlene H. Dortch, Secretary, Federal
    Communications Commission, WC Docket No. 03-90, at 1 (filed May 23,
    2003) (including a summary of the agreements).

[^54]: The Minnesota 271 application was granted on June 26, 2003. *See
    Application by Qwest Communications International Inc. for
    Authorization to Provide In-Region, InterLATA Services in
    Minnesota,* WC Docket No. 03-90, Memorandum Opinion and Order, 18
    FCC Rcd 13323 (2003) ("*Qwest Minnesota 271 Order*"). We note that
    the Minnesota commissioners did not reach a consensus on whether the
    Commission should approve Qwest's application. The Chair recommended
    approval; however, the remaining three voting commissioners
    recommended denial. *See* Minnesota Comments in WC Docket No. 03-90
    at 18.

[^55]: On June 12, 2003, the Minnesota Commission approved thirteen of
    the agreements and approved in part and rejected in part the other
    21 previously unfiled agreements. *See* Letter from Melissa E.
    Newman, Vice President -- Federal Regulatory, Qwest to Marlene H.
    Dortch, Secretary, Federal Communications Commission, WC Docket No.
    03-90 (filed June 20, 2003).

[^56]: Qwest and the Arizona Commission staff proposed to settle the
    Arizona investigation. Under the terms of the consent decree, which
    also included other matters, Qwest agreed to make a total of more
    than \$20 million in payments and CLEC credits. We note that this
    consent decree remains under review by the Arizona Commission. We
    further note that the reviewing ALJ recommended denial because the
    settlement was too lenient. *See In re Qwest Corporation's
    Compliance with Section 252(e) of the Telecommunications Act of
    1996*, Arizona Corporation Commission Docket No. RT-00000F-02-0271;
    *In re US West Communications, Inc.'s Compliance with Section 271 of
    the Communications Act of 1996*, Arizona Corporation Commission
    Docket No. T-00000A-97-0238; *Arizona Corporation Commission v.
    Qwest Corporation*, Arizona Corporation Commission Docket No.
    T01051B-02-0871, Opinion and Order (filed Dec. 2, 2003).

[^57]: *See, e.g.,* Letter from Timothy Berg, Fennemore Craig Law
    Offices, to Docket Control, Arizona Corporation Commission, filed
    May 23, 2003 (Document Q-PUB-000436).

[^58]: We note that the Arizona Commission did not reach a unanimous
    conclusion on whether we should approve Qwest's 271 application;
    Qwest's application was found to be in the public interest by a vote
    of three to two. *See* Evaluation of the Arizona Corporation
    Commission in WC Docket No. 03-194 at 23.

[^59]: *Qwest Minnesota 271 Order*, 18 FCC Rcd at 13371, ¶ 93 (citations
    omitted).

[^60]: *See supra* n.21.

[^61]: *See* Lundy Declaration at 15-20. These agreements are listed in
    Appendix A.

[^62]: 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); s*ee also* 47
    U.S.C. § 503(b)(1)(D) (forfeitures for violation of 14 U.S.C. §
    1464). Section 312(f)(1) of the Act defines willful as "the
    conscious and deliberate commission or omission of \[any\] act,
    irrespective of any intent to violate" the law. 47 U.S.C. §
    312(f)(1). The legislative history to section 312(f)(1) of the Act
    indicates that this definition of willful applies to both sections
    312 and 503(b) of the Act, H.R. Rep. No. 97-765, 97^th^ Cong. 2d
    Sess. 51 (1982), and the Commission has so interpreted the term in
    the section 503(b) context. *See, e.g., Application for Review of
    Southern California Broadcasting Co.*, Memorandum Opinion and Order,
    6 FCC Rcd 4387, 4388 (1991) ("*Southern California Broadcasting*").
    The Commission may also assess a forfeiture for violations that are
    merely repeated, and not willful. *See, e.g.,* *Callais Cablevision,
    Inc., Grand Isle, Louisiana*, Notice of Apparent Liability for
    Monetary Forfeiture, 16 FCC Rcd 1359 (2001) ("*Callais
    Cablevision*") (issuing a Notice of Apparent Liability for, *inter
    alia*, a cable television operator's repeated signal leakage).
    "Repeated" means that the act was committed or omitted more than
    once, or lasts more than one day. *Southern California
    Broadcasting,* 6 FCC Rcd at 4388, ¶ 5; *Callais Cablevision.,* 16
    FCC Rcd at 1362, ¶ 9.

[^63]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).

[^64]: *See, e.g., SBC Communications, Inc*., *Apparent Liability for
    Forfeiture,* Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4 (2002).

[^65]: 47 U.S.C. § 252(a)(1). In addition, section 252(e)(1) of the Act
    states:

    > Any interconnection agreement adopted by negotiation or
    > arbitration shall be submitted for approval to the State
    > commission. A State commission to which an agreement is submitted
    > shall approve or reject the agreement, with written findings as to
    > any deficiencies.

    47 U.S.C. § 252(e)(1).

[^66]: 47 U.S.C. § 252(i). *See also* section 51.809(a) of the
    Commission's rules, 47 C.F.R. § 51.809(a), which provides:

    > An incumbent LEC shall make available without unreasonable delay
    > to any requesting telecommunications carrier any individual
    > interconnection, service, or network element arrangement contained
    > in any agreement to which it is a party that is approved by a
    > state commission pursuant to section 252 of the Act, upon the same
    > rates, terms, and conditions as those provided in the agreement.
    > An incumbent LEC may not limit the availability of any individual
    > interconnection, service, or network element only to those
    > requesting carriers serving a comparable class of subscribers or
    > providing the same service (i.e., local, access, or interexchange)
    > as the original party to the agreement.

    47 C.F.R. § 51.809(a).

[^67]: *Local Competition Order*, 11 FCC Rcd at 16141, ¶ 1321.

[^68]: *Id.* at 15583-84, ¶ 167 (emphasis in original).

[^69]: *Id*. at 16137-42, ¶¶ 1309-23.

[^70]: *Declaratory Ruling,* 17 FCC Rcd at 19340-41, ¶ 8 (emphasis
    omitted). The sentence quoted in the text is a summary of the
    interconnection obligations listed in section 251 of the Act. 47
    U.S.C. § 251. With respect to directory assistance, listed under
    "dialing parity" in section 251(b)(3), we concluded earlier that
    LECs must provide nondiscriminatory access to local directory
    assistance databases at nondiscriminatory and reasonable rates. *See
    Provision of Directory Listing Information under the
    Telecommunications Act of 1934, as amended*, First Report and Order,
    16 FCC Rcd 2736, 2752, ¶ 35 (2001). We also stated that
    "\[c\]arriers have an obligation to provide nondiscriminatory access
    to that data, and that, to carry out that obligation, section 252
    creates a mechanism for public disclosure of the rates, terms, and
    conditions contained in interconnection agreements. Carriers and
    competitive \[directory assistance\] providers should then be able
    to opt into those rates and terms. Thus, in order to make this
    nondiscrimination requirement meaningful, we would expect carriers
    to comply with section 252 and make rates, terms, and conditions
    data available to requesting parties in a timely manner." *Id*. at
    2752, ¶ 36.

[^71]: *Declaratory Ruling,* 17 FCC Rcd at 19340-41, ¶ 8.

[^72]: *Id.* at 19341, ¶ 9.

[^73]: *Id.* at 19342-43, ¶ 12.

[^74]: *Id*. at 19343, ¶ 13.

[^75]: *Id.* at 19343, ¶ 14. In addition, we recently held that to the
    extent that the *Declaratory Ruling* requires an agreement
    pertaining solely to wireline-to-wireless porting to be filed as an
    interconnection agreement with a state commission pursuant to
    sections 251 and 252 of the Act, we forbear from those requirements.
    *See Telephone Number Portability, CTIA Petitions for Declaratory
    Ruling on Wireline-Wireless Porting Issues*, CC Docket No. 95-116,
    Memorandum Opinion and Order and Further Notice of Proposed
    Rulemaking, 18 FCC Rcd 23697, 23711-12, ¶¶ 35-37 (2003).

[^76]: *Qwest 9-State 271 Order,* 17 FCC Rcd at 26571-72, ¶ 478 n.1746.

[^77]: *Id.*

[^78]: *See Qwest 3-State 271 Order,* 18 FCC Rcd at 7397, ¶ 126.

[^79]: In addition, Qwest filed 53 unfiled agreements after receipt of
    the LOI. *See supra* n.61.

[^80]: On September 4, 2003, Qwest filed an application for
    authorization to provide in-region, interLATA service in the state
    of Arizona.

[^81]: The Minnesota agreements filed on March 25 and 26, 2003, consist
    of the following: June 9, 2000 ICNAM agreement with Allegiance;
    December 27, 2001 Facility Decommissioning Reimbursement agreement
    with AT&T; December 22, 1999 agreement for CMDS hosting and message
    distribution for co-providers (in-region with operator services)
    with Cady & addendum to agreement for CMDS hosting and message
    distribution for co-providers with Cady; November 15, 2001 Facility
    Decommissioning Reimbursement agreement with DSLnet Communications;
    March 1, 2002 settlement agreement with Eschelon; July 13, 2001
    billing settlement agreement with Global Crossing; October 3, 2001
    Facility Decommissioning Reimbursement agreement with Hickory Tech;
    January 15, 2000 Transient Interim Signaling Capability Service
    Agreement with IdeaOne; August 6, 1999 LIDB storage agreement with
    InfoTel; July 9, 1999 ICNAM agreement with InfoTel; September 29,
    2000 ICNAM agreement with MainStreet; May 1, 2000 settlement
    agreement with McLeod; April 28, 2000 billing settlement agreement
    with McLeod; October 26, 2000 confidential agreement with McLeod;
    June 29, 2001 business escalation agreement with MCI; June 29, 2001
    billing settlement agreement with MCI; December 27, 2001 Facility
    Decommissioning Reimbursement agreement with MCI; October 13, 1999
    8XX Database Query Service agreement with MediaOne; October 13, 1999
    ICNAM agreement with MediaOne; October 13, 1999 LIDB storage
    agreement with MediaOne; November 5, 1997 ICNAM agreement with OCI;
    October 22, 1997 agreement for CMDS hosting and in-region message
    distribution for alternately billed messages for co-providers (with
    operator services) with OCI & addendum; October 22, 1997 Physical
    Collocation Agreement with OCI; January 8, 2001 Transit Record
    Exchange Agreement to Co-Carriers (Wireline-Transit Qwest-CLEC) with
    Otter Tail; January 8, 2001 Transit Record Exchange Agreement to
    Co-Carriers (WSP-Transit Qwest-CLEC) with Otter Tail; June 1, 2000
    settlement with SBC; October 5, 2001 Facility Decommissioning
    Reimbursement agreement with SBC; April 18, 2000 confidential
    stipulation for Toll Services and OSS with Small Minnesota CLECs;
    July 14, 1999 letter with US Link/InfoTel re/ extended area service;
    November 14, 2000 ICNAM agreement with Val-ed Joint Venture; January
    18, 2000 Transit Record Exchange Agreement to Co-Carriers
    (WSP-Transit USW-CLEC) with Val-ed Joint Venture; January 18, 2000
    Transit Record Exchange Agreement to Co-Carriers (Wireline-Transit
    USW-CLEC) with Val-ed Joint Venture; December 31, 2001 billing
    settlement agreement with XO. Documents Q-PUB-001087 through
    Q-PUB-001339.

[^82]: *See supra* n.55*.*

[^83]: The Arizona agreements consist of the following: March 23, 2000
    ICNAM agreement with Allegiance; June 29, 2000 directory assistance
    agreement with Allegiance; July 12, 2001 Custom Local Area Signaling
    Services agreement with Adelphia; July 14, 1999 directory assistance
    agreement with Frontier; July 14, 1999 operator services agreement
    with Frontier; March 14, 2001 operator services agreement with
    Ionex; March 14, 2001 directory assistance agreement with Ionex;
    April 20, 2001 LIDB storage agreement with Adelphia; October 4, 1999
    operator services agreement with OnePoint; October 4, 1999 directory
    assistance agreement with OnePoint; December 16, 1998 Transient
    Interim Signaling Capability Service Agreement with US West
    Wireless; and February 26, 1999 operator services agreement with
    Winstar Wireless. Documents Q-PUB-000318 through Q-PUB-000447.

[^84]: *See* *Application by Qwest Communications International Inc. for
    Authorization to Provide In-Region, InterLATA Services in Arizona*,
    WC Docket No. 03-194, Memorandum Opinion and Order, 18 FCC Rcd
    25504, 25534, ¶ 55 n.205 (2003); Qwest Memo at 13. *See also* Qwest
    Application, WC Docket No. 03-194, at 124 (explaining that these
    agreements "have been approved by the Arizona Commission by
    operation of law.")

[^85]: *See* Lundy Declaration at 6-11, listing the states in which the
    terms of 32 of the Minnesota unfiled agreements were also available.

[^86]: *See, e.g.*, Qwest "Training Outline for CLEC Agreements."
    Documents Q-CONF-002147 through Q-CONF-002149.

[^87]: *See Qwest 9-State 271 Order*, 17 FCC Rcd at 26571-72, ¶ 478
    n.1746; *Qwest 3-State 271 Order*, 18 FCC Rcd at 7397, ¶ 126.

[^88]: Qwest August 20 Letter at 2.

[^89]: Qwest August 20 Letter. In Iowa, Qwest filed its previously
    unfiled agreements on July 29, 2002, pursuant to an order from the
    Iowa Board. The Colorado Commission reviewed sixteen agreements,
    found that all sixteen met the definition of interconnection
    agreements, and approved two of the sixteen agreements, and rejected
    twelve due to provisions that "violate the public policy" and two as
    incomplete. *See Qwest 9-State 271 Order*, 17 FCC Rcd at 26559-60, ¶
    461. The Idaho Commission approved all seven agreements. *See id.*
    at 26560-61, ¶ 463. The Iowa Board concluded, in its own
    investigation of Qwest's unfiled agreements, that Qwest had violated
    section 252, as well as a state rule, by failing to file the
    agreements with the Board. *See id*. at 26561-62, ¶ 464-65. Pursuant
    to the Iowa Board's order, Qwest filed fourteen agreements, which
    were subsequently approved. *Id.* The Montana Commission approved
    four agreements and denied three agreements. *See id.* at 26563, ¶
    466. The Nebraska Commission approved the ten agreements that Qwest
    filed. *See id*. at 26563-64, ¶ 467. North Dakota approved the three
    agreements Qwest filed. *Id.* at 26564, ¶ 468. The Utah Commission
    approved the eleven agreements Qwest filed, by operation of law.
    *Id*. at 26564, ¶ 469. The Washington Commission approved the
    sixteen agreements Qwest filed. *Id*. at 26565, ¶ 470. The Wyoming
    Commission approved the four agreements Qwest filed. *Id*. at 26566,
    ¶ 471.

[^90]: These three agreements were approved by the New Mexico
    Commission, as were four of the five agreements filed by Qwest on
    September 9, 2002. *See Qwest 3-State 271 Order,* 18 FCC Rcd at
    7398-99, ¶ 129.

[^91]: The Oregon Commission approved the three agreements filed on
    January 9, 2003, as well as sixteen agreements filed on September 4,
    2002. *See id.,* 18 FCC Rcd at 7399, ¶ 130.

[^92]: The South Dakota Commission approved the eight agreements filed
    on January 13, 2003, as well as the four agreements filed on
    September 24, 2002. *See id.,* 18 FCC Rcd at 7399-400, ¶ 131.

[^93]: We granted the three-state application on April 15, 2003.

[^94]: Qwest July 31, 2003 Letter.

[^95]: *Declaratory Ruling*, 17 FCC Rcd at 19343, ¶ 13. *See, e.g.*,
    *Core Communications, Inc. v. Verizon Maryland, Inc*., Memorandum
    Opinion and Order, 18 FCC Rcd 7962, 7971, ¶ 24 (2003) (explaining
    that Core accepted the terms of Verizon's Maryland SGAT; Core and
    Verizon signed a schedule to the SGAT entitled "Request for
    Interconnection"; and, therefore, the Maryland SGAT served as the
    parties' interconnection agreement).

[^96]: *See* Qwest December 13 Letter at 2 & Attachment 1, at 1
    (attaching matrix of agreements with explanation as to why Qwest did
    not file each agreement; stating with respect to the Allegiance
    ICNAM agreement, "\[t\]he FCC's Declaratory Ruling held that order
    and contract forms 'completed by carriers to obtain service pursuant
    to terms and conditions set forth in an interconnection agreement do
    not constitute either an amendment to that interconnection agreement
    or a new interconnection agreement that must be filed under section
    252(a)(1)' . . . . "). Attachment 1, at 2 (quoting *Declaratory
    Ruling,* 17 FCC Rcd at 19343, ¶ 13).

[^97]: *Qwest 9-State 271 Order,* 17 FCC Rcd at 26571-73, ¶ 478 n.1746.

[^98]: *See, e.g.*, Qwest Memo at n.30 (explaining that the "form"
    contract for CMDS had changed in June 2003). We also note that a
    carrier's SGAT may change.

[^99]: Document Q-CONF-002148.

[^100]: Qwest July 31, 2003 Letter at 2-3.

[^101]: *Declaratory Ruling*, 17 FCC Rcd at 19341, ¶ 9.

[^102]: *See* 47 U.S.C. § 252(f).

[^103]: Qwest Memo at 4.

[^104]: Qwest Memo at 10.

[^105]: Qwest Memo at 10 (citing *Declaratory Ruling*, 17 FCC Rcd at
    19341-42, ¶ 10).

[^106]: *Declaratory Ruling,*17 FCC Rcd at 19341-42, ¶ 10.

[^107]: We also note that in the Qwest August 20 Letter, in which Qwest
    discussed filing the previously unfiled agreements in Colorado,
    Idaho, Nebraska, and North Dakota, Qwest asserted that the filings
    would be made to comply with the requirements of section 252. Qwest
    August 20 Letter at 1-2.

[^108]: Qwest Memo at 10.

[^109]: *See supra* n.38.

[^110]: *See* Findings of Fact, Conclusions, Recommendation and
    Memorandum, Minn. Docket No. P-421/C-02-197 (Sept. 20, 2002) at 52.

[^111]: Qwest Memo at 12.

[^112]: Qwest July 31, 2003 Letter at 2. We note that Qwest provided
    these agreements to the Minnesota DOC, not the Minnesota Commission
    per se. The Minnesota DOC is an independent arm of the Minnesota
    Commission, charged with representing "the broad public interest in
    all telecommunications matters before the \[Minnesota Commission\]."
    *See* Minnesota DOC website:
    http://www.state.mn.us/cgi-bin/portal/mn/jsp/content.do?subchannel=-536881735&programid=536884839&sc3=null&sc2=null&id=-536881351&agency=Commerce.

[^113]: 47 U.S.C. § 252(e)(1).

[^114]: *See, e.g*., Application for Approval of the March 26, 2003
    Amendment to the Interconnection Agreement between U.S. Link, Inc.
    and Qwest Corporation (Originally Approved in Docket No.
    P-465,421/M-97-1316); Incorporating the Ability to Use Local Tandem
    Functionality to Transport Calls to and from Extended Area Service
    (EAS) Calling Areas, Minnesota Public Utilities Commission Docket
    No. P-465,421/IC-03-456 (Jun. 12, 2003).

[^115]: Qwest Memo at 13.

[^116]: *Id.*

[^117]: *See, e.g.,* Letter from Timothy Berg, Fennemore Craig Law
    Offices, to Docket Control, Arizona Corporation Commission, filed
    May 23, 2003 (Document Q-PUB-000436).

[^118]: *See* Qwest December 13 Letter.

[^119]: *See, e.g., Southern California Broadcasting Co.*, 6 FCC Rcd at
    4388.

[^120]: *Southern California Broadcasting,* 6 FCC Rcd at 4388, ¶ 5;
    *Callais Cablevision.,* 16 FCC Rcd at 1362, ¶ 9.

[^121]: 47 U.S.C. § 503(b)(2)(B); *see also* 47 C.F.R. § 1.80(b)(2);
    *see also Amendment of Section 1.80(b) of the Commission's Rules,
    Adjustment of Forfeiture Maxima to Reflect Inflation,* Order, 15 FCC
    Rcd 18221 (2000).

[^122]: 47 U.S.C. § 503(b)(2)(B).

[^123]: Qwest Memo at 4 (quoting *Trinity Broadcasting Corp. v. FCC,*
    211 F.3d 618, 628 (D.C. Cir. 2000)).

[^124]: These obligations are, in brief: the duty to provide resale,
    number portability, dialing parity, access to rights-of-way; to
    establish reciprocal compensation; to negotiate in good faith the
    section 251 duties; to provide interconnection; to provide access to
    unbundled network elements; and to provide collocation. *See* 47
    U.S.C. § 251(b) & (c).

[^125]: 47 U.S.C. § 251(a), (e).

[^126]: *See Qwest 9-State 271 Order*, 17 FCC Rcd at 26569, ¶ 475
    (addressing the issue that an agreement is not an "interconnection
    agreement" until the state commission has made that determination).

[^127]: *See, e.g., AT&T Corporation Apparent Liability for Forfeiture*,
    Notice of Apparent Liability for Forfeiture, 18 FCC Rcd 23398,
    23402, ¶ 9 (2003) (explaining that AT&T did not comply with the
    requirement that it place consumers' names on the do-not-call list
    within a reasonable time; that AT&T's own policy of placing
    customers' names on the list within 30 days was the outer limit of
    reasonableness; and that AT&T apparently did not even meet this
    standard).

[^128]: *See* Qwest August 20 Letter at 2. The Qwest proposal is
    summarized at *Qwest 9-State 271 Order*, 17 FCC Rcd 26555-56, ¶ 457.
    Qwest's May 2002 policy also involved filing previously unfiled
    agreements for states that were subject to section 271 applications.
    *See id.* at 26569, n.1738. The fact that Qwest assured the
    Commission that it had filed or was filing previously unfiled
    interconnection agreements in application states does not justify
    its failure to file previously unfiled interconnection agreements in
    other states.

[^129]: *Id.* at 26571-72, ¶ 478 n.1746.

[^130]: *See supra* para. 14.

[^131]: *SBC Michigan 271 Order*, 18 FCC Rcd at 19122-23, ¶ 180.

[^132]: *Id.*

[^133]: Order Adopting ALJ's Report and Establishing Comment Period
    Regarding Remedies, Minnesota Docket No. P-421/C-02-197, at 5 (Nov.
    1, 2002).

[^134]: Specifically, the proposed settlement agreement contains an
    allegation that "Qwest violated section 252(e) of the
    Telecommunications Act by failing to file for Commission review and
    approval certain agreements with Competitive Local Exchange Carriers
    ("CLECs") operating in the state of Arizona" and an allegation that
    "Qwest improperly entered into settlement agreements with CLECs that
    resulted in nonparticipation by such CLECs in the Commission docket
    evaluating Qwest's application under Section 271 of the
    Telecommunications Act ...." *See* July 25, 2003 Settlement
    Agreement between Qwest Corporation and Arizona Corporation
    Commission. We note that this settlement has not been approved by
    the Arizona Commission. *See supra* n.56.

[^135]: *See SBC Communications, Inc. Apparent Liability for
    Forfeiture*, Forfeiture Order, 17 FCC Rcd 19923, 19935, ¶ 24 (2002)
    (assessing a significant penalty due to the potential competitive
    impact of SBC's violations).

[^136]: Qwest Memo at 12.

[^137]: Qwest Memo at 13.

[^138]: Our action today covers the twelve-month period prior to the
    release data of this NAL.

[^139]: *See* *Verizon Telephone Companies, Inc. Apparent Liability for
    Forfeiture*, Notice of Apparent Liability for Forfeiture, 18 FCC Rcd
    18796, 18803, ¶ 17 (2003) (explaining that we would not propose the
    maximum possible forfeiture because that would result in an
    excessive amount under the circumstances).

[^140]: *See Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines*,
    Report and Order, 12 FCC Rcd 17087, 17099-100, ¶ 24 (1997); *recon.
    denied*, 15 FCC Rcd 303 (1999).

[^141]: *See* "Qwest Communications Reports Second Quarter 2003 Net Loss
    Per Share of \$0.05; Financial Statements Essentially Complete,"
    Press Release, Sept. 3, 2003.

[^142]: *See* 47 C.F.R. § 1.1914.