United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
———
Argued February 17, 2005 Decided May 13, 2005
No. 03-1147
SBC COMMUNICATIONS INC.,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
Z-TEL COMMUNICATIONS, INC., ET AL.,
INTERVENORS
———
On Petition for Review of an Order of the
Federal Communications Commission
———
Michael K. Kellogg argued the cause for petitioner. With
him on the briefs were Colin S. Stretch, James D. Ellis, Gary
L. Phillips, and Christopher Heimann.
Richard K. Welch, Counsel, Federal Communications
Commission, argued the cause for respondents. With him on
the brief were R. Hewitt Pate, Assistant Attorney General,
U.S. Department of Justice, Robert B. Nicholson and Steven J.
2
Mintz, Attorneys, John A. Rogovin, General Counsel, Federal
Communications Commission, John E. Ingle, Deputy
Associate General Counsel, and Suzanne M. Tetreault,
Counsel. Catherine G. O'Sullivan and Nancy C. Garrison,
Attorneys, U.S. Department of Justice, and Rodger D. Citron,
Counsel, Federal Communications Commission, entered
appearances.
Before: SENTELLE and ROBERTS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: SBC challenges a
Federal Communications Commission order finding that SBC
(through various affiliates) violated the terms of a
requirement, imposed as a condition to the FCC’s approval of
a merger between SBC and Ameritech, that SBC “offer”
intervenors Z-Tel and Core access to “shared transport” for
intraLATA toll call traffic. Because the FCC failed to address
the questions whether telecommunications carriers could
waive their right to shared transport under the merger order
and whether Z-Tel and Core had in fact waived that right, we
vacate the Commission’s order and remand to the
Commission for further proceedings.
* * *
Under the Telecommunications Act of 1996, Pub. L. No.
104-104, 110 Stat. 56, codified at 47 U.S.C. § 151 et seq. (the
“Act”), incumbent local exchange carriers (“ILECs”) are
required to allow new entrants, known as competitive local
exchange carriers (“CLECs”), to lease “unbundled network
3
elements” (“UNEs”) for use by the CLECs in providing
telephone service. See 47 U.S.C. § 251(c)(3). The terms and
conditions of this obligation to “unbundle” are set forth in
“interconnection agreements” (“ICAs”) negotiated between
the ILEC and CLEC or, if necessary, arbitrated by state
commissions. Id. at §§ 252(a), (b). The parties must submit
any interconnection agreement to the relevant state
commission for approval. Id. at § 252(e). Where an ILEC
provides a network element to one CLEC under a state-
approved agreement it must make that element available to
any other “requesting” CLEC. Id. at § 252(i). The Act also
makes clear that ILECs and CLECs may enter ICAs that differ
from the unbundling requirements of §§ 251(b) or (c). See id.
at § 252(a)(1).
The FCC has determined that the network elements
subject to the unbundling requirements include “shared
transport” facilities. See In the Matter of Implementation of
the Local Competition Provisions in the Telecommunications
Act of 1996, 11 FCC Rcd 15,499, 15,718, ¶ 440 (1996).
“Shared transport is defined as the transmission facilities
shared by more than one carrier, including the incumbent
LEC, between end office switches, between end office
switches and tandem switches, and between tandem switches
in the incumbent LEC network.” 47 C.F.R.
§ 51.319(d)(4)(i)(C) (2004).
The SBC-Ameritech merger required FCC approval, to be
granted only if the Commission found that the attendant
license transfers would serve “the public interest,
convenience, and necessity.” 47 U.S.C. § 310(d). The
Commission approved the merger subject to conditions aimed
at mitigating certain potential anticompetitive effects. See In
re Applications of Ameritech Corp. and SBC Communications
4
Inc., 14 FCC Rcd 14,712 (1999) (“Merger Order”), vacated in
part on other grounds, Ass’n of Communications Entrs. v.
FCC, 235 F.3d 662 (D.C. Cir. 2001). Among these was the
requirement that SBC and appropriate affiliates offer shared
transport access to CLECs in the states formerly served by
Ameritech, a condition imposed in response to Ameritech’s
prior reluctance to offer unbundled access to shared transport
services. See Merger Order, 14 FCC Rcd at 14,888 ¶ 425.
Specifically, that condition provided:
Within 12 months of the Merger Closing Date (but
subject to state commission approval and the terms of any
future Commission orders regarding the obligation to
provide unbundled local switching and shared transport),
SBC/Ameritech shall offer shared transport in the
SBC/Ameritech Service Area within the Ameritech States
under terms and conditions, other than rate structure and
price, that are substantially similar to (or more favorable
than) the most favorable terms SBC/Ameritech offers to
telecommunications carriers in Texas as of August 27,
1999. Subject to state commission approval and the terms
of any future Commission orders regarding the obligation
to provide unbundled local switching and shared
transport, SBC/Ameritech shall continue to make this
offer, at a minimum, until the earlier of (i) the date the
Commission issues a final order in its UNE remand
proceeding . . . finding that shared transport is not
required to be provided by SBC/Ameritech in the relevant
geographic area, or (ii) the date of a final, non-appealable
judicial decision providing that shared transport is not
required to be provided by SBC/Ameritech in the relevant
geographic area.
5
Merger Order, 14 FCC Rcd at 15,023-24, App. C ¶ 56
(emphasis added).
SBC interpreted the Merger Order to require that it
provide shared transport in the former Ameritech states—
Illinois, Indiana, Michigan, Ohio and Wisconsin—only for
local exchange service, not for “intraLATA toll service.”
LATAs (Local Access and Transport Areas) are service areas
within which the Bell Operating companies were permitted to
operate and provide telephone service. See United States v.
Western Elec. Co., 569 F. Supp. 990, 993-94 (D.D.C. 1983).
IntraLATA service is what consumers generally know as local
service; intraLATA “toll” calls, however, encompass those
long-distance calls that do not travel beyond the borders of a
single LATA. See SBC Communications Inc. v. FCC, 138
F.3d 410, 412 n.1 (D.C. Cir. 1998).
The Commission initiated a proceeding with a notice of
apparent liability, and went on to find that SBC had “failed to
offer shared transport” for intraLATA toll service in the five
former Ameritech states, and that this failure violated ¶ 56 of
the merger conditions. In the Matter of SBC Communications,
Inc., 17 FCC Rcd 19,923, 19,923-24, ¶¶ 1-2 (2002)
(“Forfeiture Order”). As authorized by 47 U.S.C.
§ 503(b)(2)(B) and 47 C.F.R. § 1.80(b)(2), (b)(5) (2002), the
Commission imposed on SBC the statutory maximum fine of
$1.2 million for each of the five states, for a total of $6
million. See Forfeiture Order, 17 FCC Rcd at 19,934-37,
¶¶ 22-27. SBC petitioned for review, and we upheld the
Commission. SBC Communications, Inc. v. FCC, 373 F.3d
140, 151-52 (D.C. Cir. 2004) (“SBC I”).
In August 2001 two CLECs, Z-Tel Communications and
CoreComm Communications, Inc., filed a joint complaint
6
with the FCC under 47 U.S.C. § 208, alleging that nine SBC
affiliates had improperly refused to allow them to use shared
transport to complete intraLATA toll calls in violation of the
Act, the FCC’s implementing rules, and the Merger Order.
With regard to eight states outside the former Ameritech
region the FCC denied the complaint. In the Matter of
CoreComm Communications, Inc. et al. v. SBC
Communications Inc. et al., 18 FCC Rcd 7568, 7578-82, ¶¶
26-35 (2003) (“Liability Order”). For seven states the matter
turned on circumstances of no great relevance here. As to
California, the Commission found no violation because Z-Tel
(Core was irrelevant because it had no agreement with Pacific
Bell and never attempted to negotiate one) had voluntarily
exercised its right under § 252(i) to opt-in to an existing ICA
that did not permit the use of shared transport for intraLATA
toll traffic. Id. at 7579-81, ¶ 29. Notwithstanding SBC’s
obligation to make shared transport access available for
intraLATA toll traffic under § 251(c)(3) and the
Commission’s rules, see id. at 7581, ¶ 30, the Commission
found no violation because “the obligations created by section
251 and our rules are effectuated through the process
established in section 252—that is, by reaching agreement
through negotiation, arbitration, or opt-in,” id., and in
California Z-Tel had sought to negotiate an amendment to the
(in this respect) narrower pre-existing ICA without, as
required, “comply[ing] with [the] modification or change of
law provisions” in the ICA, id.
The FCC granted the complaint, however, with respect to
the five states in the former Ameritech region. Paragraph 56
of the Merger Order obligated SBC to “offer” shared
transport for intraLATA toll. The Commission appeared to
7
assume (incorrectly) that SBC’s conduct in relation to Core
and Z-Tel rested on ICAs antedating the Merger Order:
To the extent that [SBC’s] existing agreements with the
Complainants did not make available shared transport for
intraLATA toll, the Merger Order required [SBC] to
agree to the necessary amendments to do so. When Core
and Z-Tel asked for this functionality, however, [SBC]
just said “no.”
Id. at 7577, ¶ 21 (emphasis added). Although “under section
252(a)(1), parties are free to negotiate terms that do not meet
the requirements of sections 251(b) and (c),” id. at 7577, ¶ 23,
the Commission held that “[e]ven if sections 251 and 252 did
not obligate Defendants to amend their agreements with Core
and Z-Tel to provide for shared transport for intraLATA toll
traffic, the Merger Order did.” Id. The Commission reasoned
that SBC’s contrary view “would run entirely counter to the
basic purpose of the paragraph 56 condition,” id. at 7577,
¶ 24, because “carriers who had been denied shared transport
previously [under ICAs antedating the Merger Order] would
be unable to amend their agreements to take advantage of a
merger condition specifically designed to remedy the
situation,” id. at 7578.
Although the Commission assumed that SBC was
standing on pre-Merger Order ICAs, SBC points out that Z-
Tel and Core had entered into or amended ICAs with SBC
after the Merger Order—ICAs that did not provide for shared
transport for intraLATA toll. According to SBC submissions
that appear uncontradicted, Z-Tel in Illinois had “opted-in” to
the “Illinois Base Agreement,” which did not provide this
functionality; that agreement was approved by the relevant
Illinois commission on August 9, 2000, long after issuance of
8
the Merger Order on October 8, 1999. See Decl. of Rhonda
Robinson ¶ 6 (Joint Appendix (“J.A.”) 56). In Indiana, Ohio,
and Wisconsin, Z-Tel did not seek the now disputed
functionality. See Revised Joint Statement ¶ 19 (J.A. 83).
And in Michigan, there was no ICA between Z-Tel and SBC.
Id. As for Core, it and SBC’s affiliates entered into ICAs in
Michigan, Illinois, and Ohio before the Merger Order, but
amended them after the order to respond to the merger
conditions; the amendments provided for shared transport for
intraLATA toll calls, but in an “interim” form that evidently
ceased to be available, see Decl. of Melvin Flowers ¶ 9-19
(J.A. 62-66), for reasons that do not appear clearly in the
record. In Indiana and Wisconsin, there were no ICAs
between Core and SBC. Id. at ¶¶ 5-7 (J.A. 61-62). For
Wisconsin, Core sought to adopt an existing ICA, but when
SBC’s affiliate sent the agreement to Core for its signature,
Core never returned a signed agreement. Id. at ¶ 6 (J.A. 61).
The record seems completely obscure on SBC-Core relations
in Indiana.
SBC argues that the Commission’s order is arbitrary and
capricious. It makes a broad argument that the Commission
was inconsistent in its treatment of the statutory obligation (in
California) and the ¶ 56 obligation. In California Z-Tel, and in
the Ameritech states both Z-Tel and Core, had evidently
entered into post-Merger Order ICAs that didn’t provide
shared transport access for intraLATA toll calls and had
sought to amend those ICAs—without following the ICAs’
provisions relating to contract modification or changes of law.
That was fatal to Z-Tel’s claims of statutory violation in
California. SBC argues that it should have had the same
effect on the ¶ 56 claims, on the principle that ¶ 56 was simply
“intended to create a substantive obligation, akin to an FCC
unbundling rule, that would be implemented through the 1996
9
Act’s procedural framework; it was not intended to be an end-
run around that framework.” Petitioner’s Br. at 16. SBC also
makes a narrower argument that the Commission reached its
conclusion on the basis of a complete misunderstanding,
thinking that the SBC affiliates held ILECs to the terms of
pre-Merger Order ICAs, whereas in fact they rested on post-
Merger Order ICAs whose failure to cover shared transport
for intraLATA toll service (to the extent true at all) resulted
from Z-Tel’s and Core’s waiver of their entitlements under the
Merger Order.
* * *
Standing. To satisfy Article III’s standing requirement, a
party must meet the well-known requirements of injury-in-
fact, causation and redressability. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992); see also
Rainbow/PUSH Coalition v. FCC, 330 F.3d 539, 542 (D.C.
Cir. 2003). According to the Commission, SBC sustained no
injury as a result of the Liability Order because the order
simply “echoes” the Commission’s holding in the Forfeiture
Order that SBC’s behavior had violated the merger condition
in the Ameritech states. And, it says, the Liability Order
imposed no additional harm on SBC beyond that in the
Forfeiture Order, as it added no burdens in addition to the $6
million forfeiture. Even though at one point Z-Tel and Core
could have taken advantage of the present order to seek
damages, those firms neglected to file a supplemental
complaint demanding damages within the Commission’s 60-
day time limit, see 47 C.F.R. § 1.722(e) (2003), and such
additional relief is therefore now barred.
10
The Commission’s theory is mistaken. Whereas the
Forfeiture Order found that CLECs generally had a right to
shared transport for intraLATA toll, see Forfeiture Order, 17
FCC Rcd at 19,933, ¶ 20, the Liability Order found that SBC
must supply the functionality to two particular CLECs
notwithstanding the terms of their ICAs, see Liability Order,
18 FCC Rcd at 7576-78, ¶¶ 20-25. Thus, the Liability Order
clarifies the Commission’s understanding of ¶ 56, as set out
both in that order and in the Forfeiture Order, and clarifies it
adversely to SBC. The Commission’s “echo” argument is at
best only a variant of its preclusion theory, to which we now
turn.
Issue and claim preclusion. Characterizing the present
issue as whether “the Commission acted unlawfully in holding
SBC liable for violating the paragraph 56 merger condition,”
Respondents’ Br. at 17, the Commission argues that this court
resolved that issue against SBC when it upheld the Forfeiture
Order in SBC I; the doctrine of issue preclusion, it says,
therefore bars SBC from raising the issue here.
Issue preclusion is not the doctrine the Commission is
groping for. It bars relitigation of an issue by a party “that has
actually litigated [the] issue.” Restatement (Second) of
Judgments at 6 (1982) (emphasis added). Here the issue is
SBC’s liability to two specific CLECs, revolving particularly
around the circumstances under which a CLEC can waive, or
inadequately assert, rights to the functionality. Had the
Forfeiture Order addressed SBC’s relations with those firms,
or the issue of inadequate CLEC assertion of entitlements,
issue preclusion might well be apropos. But it did not.
The Commission might, however, have a defense under
issue preclusion’s cousin, claim preclusion. It embodies the
11
principle “that a party who once has had a chance to litigate a
claim before an appropriate tribunal usually ought not to have
another chance to do so.” Restatement (Second) of Judgments
at 6 (1982) (emphasis added). It would not be completely
implausible for the Commission to argue that SBC should
have raised in the forfeiture proceedings the issues before us
now—relating to the procedures for enforcement and the
waivability of ¶ 56 entitlements.
We proceed to address the claim preclusion possibility, in
part because of the historic confusion about how the concepts
of claim and issue preclusion are applied, see, e.g., 16
WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND
PROCEDURE § 4414, at 349 & n.45 (2d ed. 2002), in part
because the two defenses have a somewhat jurisdictional
character: “As res judicata belongs to courts as well as to
litigants, even a party’s forfeiture of the right to assert it . . .
does not destroy a court’s ability to consider the issue sua
sponte.” Stanton v. D.C. Ct. of Appeals, 127 F.3d 72, 77
(D.C. Cir. 1997).
But the purpose of claim preclusion is to prevent
“litigation of matters that should have been raised in an earlier
suit.” Marrese v. American Academy of Orthopaedic
Surgeons, 470 U.S. 373, 376 n.1 (1985) (emphasis added); cf.
Yamaha Corp. of America v. U.S., 961 F.2d 245, 254 (D.C.
Cir. 1992) (holding that issue preclusion would be unfair if
applied “when the losing party clearly lacked any incentive to
litigate the point in the first trial”); Kremer v. Chemical Const.
Corp., 456 U.S. 461, 481 n.22 (1982) (explaining that the
unfairness concerns underlying issue preclusion doctrine
apply equally in the case of claim preclusion). Here, the
record offers little support for the Commission’s implicit
claim that SBC, defending itself against the claim that it had
12
an obligation generally under the Merger Order to provide
shared transport for intraLATA toll calls, should have been
expected to assert innocence in relation to individual CLECs
that may have waived or failed to assert proper demands for
that functionality. Nothing in the Forfeiture Order, or in what
the parties have placed before us, suggests that an attempt by
SBC to raise the issue of its specific relations with these two
firms would have made a particle of difference in the
outcome. Indeed, in calculating the $6 million forfeiture on
the basis of the number of states in the Ameritech region (a
maximum penalty of $1.2 million in each of the five states),
the Commission went out of its way to observe that for a
company of SBC’s size, “a $6,000,000 forfeiture is not
excessive” and “a smaller forfeiture would lack adequate
deterrent effect.” Forfeiture Order, 17 FCC Rcd at 19,935,
¶ 24.
The Commission had the burden of establishing the
defense, see Donovan v. Williams Enterprises, Inc., 744 F.2d
170, 178 (D.C. Cir. 1984), and it has failed to do so, possibly
because it never formulated the issue correctly. Compare
Stanton, 127 F.3d at 77 (noting, in addressing belatedly raised
preclusion issues, that “the relevant facts stand uncontroverted
in the record before us”).
Merits. Reaching the merits at last, we start with SBC’s
argument that because the merger conditions are not FCC
rules promulgated pursuant to notice and comment, but rather
are “akin to a consent decree” between SBC and the
Commission, the FCC’s interpretation of them is not entitled
to the deference ordinarily due an agency interpretation of its
rules under Thomas Jefferson University v. Shalala, 512 U.S.
504, 512 (1994). In fact our precedents, recognizing agency
authority to adjudicate issues and enter into settlements, treat
13
settlements between an agency and a private party as
equivalent to agency regulations for deference purposes. See
National Fuel Gas Supply Corp. v. FERC, 811 F.2d 1563,
1568-70 (D.C. Cir. 1987) (if the language of a settlement
agreement is ambiguous, the court will give deference to the
agency’s reading of it); see also MCI WorldCom Network
Services, Inc. v. FCC, 274 F.3d 542, 547-48 (D.C. Cir. 2001).
SBC’s primary substantive argument is that the Merger
Order incorporates the 1996 Act’s interconnection agreement
process, 47 U.S.C. § 252, so that CLECs must comply with
any existing ICAs’ modification and change of law provisions
in order to get the benefit of anу functionality that ¶ 56 newly
made available, as the Commission found was the case in
California for ordinary UNEs under § 251. To show that the
Merger Order clearly mandates this requirement, SBC
equates the words stating the ILECs’ duty to supply the
relevant UNEs (“offer” in the Merger Order and “provide” in
1996 Act). To support that equation, SBC rests heavily on our
conclusion in SBC I that the Merger Order’s requirement that
SBC “offer” the functionality was equivalent, in that context,
to “provid[ing]” it under § 251. See SBC I, 373 F.3d at 147.
But our discussion there simply rejected SBC’s creative
argument that SBC wasn’t “offer[ing]” shared transport for
intraLATA toll calls in Texas, the benchmark under the
Merger Order, because it was providing the service
involuntarily under the statute. Id. We never made an all-
purpose equation of the two terms.
SBC also argues that ¶ 56’s obvious gaps—especially the
explicit exception for “rate structure and price”—necessarily
mean that the § 252 process must apply. The Commission
doesn’t really respond on this point; indeed, its counsel
conceded at oral argument that the issue of price might
14
necessitate use of the negotiation and arbitration procedures
set forth in § 252. Oral Arg. Tape at 22:56-23:27. But we
don’t think that such a substantive gap—which the parties
might well have expected to be filled, for example, by states’
exercises of their powers to set UNE prices within the
TELRIC framework devised by the Commission, see AT&T v.
Iowa Utils. Bd., 525 U.S. 366, 384-85 (1999); see also 47
U.S.C. § 252(c)(1)—makes it by any means clear that ¶ 56
contemplated wholesale importation of the statute’s
procedures.
At oral argument SBC somewhat amplified its suggestion
that ¶ 56 had only substantive significance and implicitly
relied on the procedures of § 252. It pointed out that the
Commission’s unbundling rules had been vacated at the time
of the Merger Order, so that no unbundling requirement
formally existed. Oral Arg. Tape at 7:25-8:49. At its best,
however, this argument would only mean that a purely
substantive reading of ¶ 56 would still achieve a material
Commission goal. That would not be inconsistent with ¶ 56’s
also imposing on SBC a more affirmative procedural duty
than does § 252. That is especially true in light of ¶ 56’s
command that SBC “continue to make this offer [of shared
transport]” available. Accordingly, we find the provision
ambiguous, and the Commission’s reading—in the sense of
rejecting wholesale incorporation of § 252—not unreasonable.
On the question whether the two complaining CLECs
waived their entitlement to shared transport for intraLATA
toll calls, the Commission is on far weaker footing. Its order
said that ¶ 56 “required [SBC] to agree to the necessary
amendments.” Liability Order, 18 FCC Rcd at 7576-77, ¶ 21.
SBC admits that it didn’t affirmatively extend offers to Z-Tel
and Core for access to shared transport for intraLATA toll
15
calls. Oral Arg. Tape at 9:42-10:55. But it argues that Z-Tel
and Core waived their right to that functionality by voluntarily
entering into or amending ICAs (that didn’t provide it) after
the Merger Order. See “Defendants [sic] Legal Analysis,”
filed October 10, 2001, at 9-14 (J.A. 48-53); see also supra at
6-7.
Although the Commission’s order didn’t address the issue
of waiver, it conceded at oral argument that the requirement to
“offer” shared transport is potentially waivable. Oral Arg.
Tape at 18:04-20:59. The concession is in tune with
§ 252(a)(1), which explicitly allows “binding agreement[s]”
between ILECs and CLECs for provision of network elements
“without regard” to the standards of §§ 251(b) & (c).
Here the Commission order’s only allusion to SBC’s
waiver argument was at best a glancing blow:
To the extent that [SBC’s] existing agreements with the
Complainants did not make available shared transport for
intraLATA toll, the Merger Order required [SBC] to
agree to the necessary amendments to do so. When Core
and Z-Tel asked for this functionality, however, [SBC]
just said “no.”
Liability Order, 18 FCC Rcd at 7577, ¶ 21.
By referring to the ICAs in question as “existing
agreements,” the Commission revealed an assumption
contrary to the facts as SBC developed them in the record: in
reality the agreements SBC invoked seem to have postdated
the Merger Order. Further, the Commission never responded
to SBC’s basic concept that the complainants had voluntarily
abandoned their ¶ 56 entitlements to shared transport for
intraLATA toll calls. Thus the Commission has never
16
interpreted the exact scope of the duty. Did it oblige SBC to
take aggressive steps to alert CLECs to the possibility, as the
fast food seller might ask, “And you want fries with that?”
Indeed, when SBC filed interrogatories aimed at creating a
record on the negotiation of the post-Merger Order ICAs
(Interrogatory 3), Z-Tel and Core refused to respond on the
ground that the subject was irrelevant, see Complainant’s [sic]
Objections to Interrogatories at 3-4 (J.A. 70-71), and the
Commission upheld that refusal, see October 31, 2001 Letter
from the Commission’s Enforcement Bureau, to Michael B.
Hazzard, Counsel for Complainants, and Christopher M.
Heimann, Counsel for Defendants (J.A. 75-77). We cannot
rule on the Commission’s interpretation of the Liability Order
until it elucidates the scope of the duties imposed. See SEC v.
Chenery Corp., 332 U.S. 194, 196-97 (1947).
We vacate the order and remand for further proceedings
in which the Commission may develop (and apply) its
interpretation of the conditions under which CLECs may
waive the ¶ 56 entitlement.
So ordered.