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 Federal  Communications  Commission  DA  02-  3584 
 Before  the  FEDERAL  COMMUNICATIONS  COMMISSION 
 Washington,  D.  C.  20554 
 In  the  Matter  of 
 EARTHLINK,  INC., 
 Complainant, 
 v. 
 SBC  COMMUNICATIONS,  INC,  PACIFIC  BELL  TELEPHONE  COMPANY, 
 SOUTHWESTERN  BELL  TELEPHONE  COMPANY, 
 SBC  ADVANCED  SOLUTIONS,  INC. 
 Defendants. 


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 File  No.  EB-  01-  MD-  014 


 ORDER 
 Adopted:  December  23,  2002  Released:  December  24,  2002 
 By  the  Deputy  Chief,  Market  Disputes  Resolution  Division,  Enforcement  Bureau: 
 1.  On  August  20,  2001,  EarthLink,  Inc.  (“  EarthLink”)  filed  a  formal  complaint  against  Defendants  SBC  Communications,  Inc.  (“  SBC”),  Pacific  Bell  Telephone  Company 
 (“  Pacific  Bell”),  Southwestern  Bell  Telephone  Company  (“  SWBT”),  and  SBC  Advanced  Solutions,  Inc.  (“  ASI”)  (collectively,  “Defendants”).  1  The  complaint  alleges  that  Defendants’ 
 provisioning  of  wholesale  ADSL  transport  service  to  EarthLink  was  unreasonable  under  section  201(  b)  of  the  Communications  Act  of  1934,  as  amended  (“  Act”)  and  unreasonably 
 discriminatory  under  section  202(  a)  of  the  Act.  2  It  also  alleges  that  Defendants’  provisioning  of  their  Operations  Support  Systems  for  ADSL  transport  service  was  unreasonable  under  section 
 201(  b)  and  unreasonably  discriminatory  under  section  202(  a).  3  It  further  alleges  that 


 1  EarthLink,  Inc.  v.  SBC  Communications,  Inc.,  Pacific  Bell  Telephone  Company,  Inc., 
 Southwestern  Bell  Telephone  Company,  SBC  Advanced  Solutions,  Inc.,  File  No.  EB-  01-  MD-  014  (filed  Aug.  20,  2001)  (“  Complaint”).  “ADSL”  refers  to  asymmetric  digital  subscriber  line  service,  a  service  that  uses  digital 


 subscriber  line  (“  DSL”)  technology. 
 2  Complaint  at  ¶¶  66-  84,  90-  99. 


 3  Id.  at  ¶¶  100-  16. 
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 Federal  Communications  Commission  DA  02-  3584 
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 Defendants’  inadequate  provisioning  of  ADSL  transport  service  reduced  and  impaired  the  quality  of  ADSL  service  available  to  EarthLink  and  its  subscribers  in  violation  of  section  214  of 
 the  Act,  that  Defendants’  discriminatorily  reduced  the  cost  of  acquiring  ADSL  transport  service  for  their  affiliate  in  violation  of  section  202(  a)  of  the  Act,  and  that  Defendants’  ADSL  transport 
 service  provisioning  violated  the  Commission’s  Computer  II  and  Computer  III  requirements.  4 
 2.  On  December  23,  2002,  the  parties  filed  a  Joint  Motion  For  Dismissal  of  Complaint  With  Prejudice,  in  which  they  state  that  they  have  reached  a  mutually-  acceptable 
 resolution  of  the  issues  alleged  in  the  complaint,  and  move  that  we  dismiss  the  complaint  with  prejudice.  5 


 3.  We  grant  the  parties’  joint  motion  to  dismiss  the  complaint,  with  prejudice.  We  find  that  dismissal  at  this  stage  is  appropriate,  and  will  serve  the  public  interest  by  promoting  the 
 private  resolution  of  disputes  and  by  eliminating  the  need  for  further  litigation  and  the  expenditure  of  additional  time  and  resources  of  the  parties  and  this  Commission. 


 4.  ACCORDINGLY,  IT  IS  ORDERED,  pursuant  to  sections  4(  i),  4(  j),  and  208  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.  §§  154(  i),  154(  j),  and  208,  and  sections 
 1.720-  1.736  of  the  Commission’s  rules,  47  C.  F.  R.  §§  1.720-  1.736,  and  authority  delegated  by  sections  0.111,  and  0.311  of  the  Commission’s  rules,  47  C.  F.  R.  §§  0.111,  0.311,  that  the  joint 
 motion  to  dismiss  with  prejudice  the  above-  captioned  complaint  filed  by  EarthLink,  Inc.  IS  GRANTED  in  its  entirety. 


 5.  IT  IS  FURTHER  ORDERED,  pursuant  to  sections  4(  i),  4(  j),  and  208  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.  §§  154(  i),  154(  j),  and  208,  and  sections 
 1.720-  1.736  of  the  Commission’s  rules,  47  C.  F.  R.  §§  1.720-  1.736,  and  authority  delegated  by  sections  0.111,  and  0.311  of  the  Commission’s  rules,  47  C.  F.  R.  §§  0.111,  0.311,  that 


 4  Id.  at  ¶¶  85-  89,  117-  21;  122-  36  (citing  Third  Computer  Inquiry,  Report  and  Order,  104  F.  C.  C.  2d 
 958  (1986)  (Computer  III)  (subsequent  citations  omitted);  Policy  and  Rules  Concerning  the  Interstate,  Interexchange  Marketplace;  Implementation  of  Section  254(  g)  of  the  Communications  Act  of  1934,  as  amended; 


 1998  Biennial  Regulatory  Review  –  Review  of  Customer  Premises  Equipment  and  Enhanced  Services  Unbundling  Rules  in  the  Interexchange,  Exchange  Access  and  Local  Exchange  Markets,  Report  and  Order,  16  FCC  Rcd  7418 
 (2001)). 
 5  Joint  Motion  For  Dismissal  of  Complaint  With  Prejudice,  File  No.  EB-  01-  MD-  014  (filed  Dec.  23, 
 2002). 
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 the  above-  captioned  complaint  IS  DISMISSED  WITH  PREJUDICE  in  its  entirety  and  the  proceeding  IS  TERMINATED. 
 FEDERAL  COMMUNICATIONS  COMMISSION 
 Radhika  V.  Karmarkar  Deputy  Chief 
 Market  Disputes  Resolution  Division  Enforcement  Bureau 
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