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SEC LITIGATION RELEASE
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EXTRACTED KEY WORDS
COMMISSION IRU EXCHANGE REVENUE PFAU SECURITIES ACCOUNTING DISTRICT COURT AGREEMENTS VIOLATIONS EXCHANGE ACT CIVIL PENALTIES FIBER RECOGNITION MANAGEMENT PURCHASERS AMOUNT EXECUTION SALES IRU TRANSACTIONS SECRET PORT FINDINGS REPORTS ADMITTING DENYING CONSENTING ENTRY REQUIRING |
U.S. Securities and Exchange Commission
Litigation Release No. 18374 / September 29, 2003
Accounting and Auditing Enforcement Release No. 1878 / September 29, 2003
Civil Action No. 03-D-1925 (MJW) (D. Colo.)
Today, the Securities and Exchange Commission (the "Commission")
instituted, and simultaneously settled, a cease-and-desist proceeding
against Loren D. Pfau, a resident of Evergreen, Colorado and former
employee of Qwest Communications International, Inc. ("Qwest"). In
addition, the Commission filed a related action for civil penalties
against Pfau in the United States District Court for the District of
Colorado.
In the Order, (), the Commission found that in the final days of each
quarter from December 2000 through June 2001, Qwest used Indefeasible
Right of Use ("IRU") agreements to sell fiber-optic cable from its
telecommunications network as a means to meet aggressive revenue
targets. An IRU is an irrevocable right to use a specific amount of
fiber for a specified time period. Qwest accounted for IRUs as
sales-type leases and recognized nearly the entire amount of the IRU
revenue "up-front" at the time of contract execution, rather than over
the life of the IRU agreement. Qwest employees and management commonly
referred to IRU sales as "gap fillers," in other words, a means to
make up the shortfall between the aggressive revenue projections as
publicly announced by Qwest and the actual revenue earned.
Specifically, the Commission found that in three IRU transactions
executed between December 2000 and June 2001, Pfau, then a Qwest sales
manager, along with Qwest senior management, provided secret side
agreements allowing the purchasers of fiber-optic cable to exchange
(or "port") the fiber purchased for different fiber at a later date.
The explicit purpose of making the side agreements secret was to
conceal from Qwest's accountants and outside auditors the purchasers'
ability to port, since such exchange rights would have defeated, under
generally accepted accounting principles, the up-front revenue
recognition sought by Qwest. According to the Commission's findings,
Qwest improperly recognized from the three IRU transactions $26.6
million of revenue in the first and second quarters of 2001. As a
result, Qwest's quarterly reports for the first and second quarters of
2001, and its annual report for 2001, contained materially false
information.
Without admitting or denying the findings in the Commission's Order,
Pfau has agreed to settle the Commission's claims by consenting to the
entry of an administrative order requiring him to cease and desist
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