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(1) (a) (i) 1) a)Cc -2( -Ct ):` ` `  "5@^2CRdd$CCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CC!CCPRCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYYzYzYzYddddddPdCdCCCdNdz8zRdddCRoNoNNF2[dCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCdddddd@B@XE"5@^.=K\\!==\g.=.3\\\\\\\\\\33gggQzzpf=Gpfzfpp=3=V\=Q\Q\Q=\\33\3\\\\=G3\\\\QX%Xc.====IK=\\QQQQQzzQpQpQpQpQ=3=3=3=3\\\\\\\\\\Q\\\\\f\\QQzQzQzQpQpQpQ\\\\\\I\=\===\G\p3pK\\\z=zKfGfGN@.S\=Q\\\\\39\7\7==QQ\==\\=Q=7t=eeeegoo.Ijg2Z\\yeCpj`vZefeloPpPj`e~~tro.=K\\!==\g.=.3\\\\\\\\\\33gggQzzpf=Gpfzfpp=3=V\=Q\Q\Q=\\33\3\\\\=G3\\\\QX%Xc=\Q\\=f===QQ@\=G=.=\\\\%\=3\g=\Ie77=jS.=79\Qzpppp====gf\QQQQQQzQQQQQ3333\\\\\\\e\\\\\\\"5@^.=f\\3==\i.=.3\\\\\\\\\\==iii\zzpG\zpfzz=3=j\=\fQfQ=\f3=f3f\ffQG=f\\\QH(H_.====IK=\f\\\\\QzQzQzQzQG3G3G3G3f\\\\ffff\\f\\\\pf\\\QQQzQzQzQ\\\\ffIfGfG=Gf\fz3zKff\QQfGfGN@.c\=\\\\\\7<\7\7==\\\==\\=\=7t=eeeeioo.Iji2Z\\yeCpj`vZefeloPpPj`e~~tro.=f\\3==\i.=.3\\\\\\\\\\==iii\zzpG\zpfzz=3=j\=\fQfQ=\f3=f3f\ffQG=f\\\QH(H_=\\\\=f===\\@\=G=.=\\\\(\=7\i=\Ie77=jc.=7<\\zzzzGGGGipf\\\\\\QQQQQ3333\f\\\\\e\ffff\f"5@^%-77\V%%7>%7777777777>>>1eOIIOC=OO%+OCbOO=OI=COOhOOC%%47%17171%777V7777%+77O77155<%%%%,-%77O1O1O1O1O1bII1C1C1C1C1%%%%O7O7O7O7O7O7O7O7O7O7O1O7O7O7O7O7=7O7O1O1I1I1I1C1C1C1O7O7OO7O7O7O7,7%7%%%7+O7CC-O7O7O7bOI%I-=+=+N&27%177777"SS7!TT7S!%%117n%%77ln%1n%!t%<<<<>mBBs,?>[N6Wms[77UUUH_%7777777777>>>1eOIIOC=OO%+OCbOO=OI=COOhOOC%%47%17171%777V7777%+77O77155%T7,OOOOOO=7111111I111117777777<7777777"5@^!)22SN!!28!2222222222888,\HCCH=8HH!'H=YHH8HC8=HH^HH=!!/2!,2,2,!222N2222!'22H22,006!!!!()!22H,H,H,H,H,YCC,=,=,=,=,!!!!H2H2H2H2H2H2H2H2H2H2H,H2H2H2H2H282H2H,H,C,C,C,=,=,=,H2H2HH2H2H2H2(2!2!!!2'H2==)H2H2H2YHC!C)8'8'N#-2!,22222KK2LL2K!!,,2d!!22bd!,d!t!77778c<       yO'  Zd Before the FEDERAL COMMUNICATIONS COMMISSION  yO'9Washington, D.C. 20554 ă  XX4#Xj\  P6G; DXP#  SA'#&J\  P6Q &P#In the Matter of hhCqpp)  S'` `  hhCqpp)  S'MCI TELECOMMUNICATIONS CORPORATION,pp)  S'WESTERN UNION INTERNATIONAL, INC.,pp)  S' and TELECOM*USA, INC.,hhCqpp) ` `  hhCqpp)  SQ'XComplainants, hhCqpp)(# ` `  hhCqpp)  S 'v.` `  hhCqpp) ` `  hhCqpp)  S 'PACIFIC TELEPHONE COMPANY, NEVADApp)File No. E965  S 'BELL TELEPHONE COMPANY;hhCqpp) ` `  hhCqpp)  S9'ILLINOIS BELL TELEPHONE COMPANY,qpp)File No. E966  S'INDIANA BELL TELEPHONE COMPANY, INC.,pp)  S'MICHIGAN BELL TELEPHONE COMPANY, OHIOpp)  S'BELL TELEPHONE COMPANY, WISCONSIN pp)  S'BELL, INC., d/b/a AMERITECH OPERATINGpp)  Sq'COMPANIES;` `  hhCqpp) ` `  hhCqpp)  S!'US WEST COMMUNICATIONS, INC., THE pp) File No. E967  S'MALHEUR HOME TELEPHONE COMPANY, ELpp)  S'PASO COUNTY TELEPHONE COMPANY;qpp) ` `  hhCqpp)  S'BELLSOUTH TELECOMMUNICATIONS, INC.;pp)File No. E968 ` `  hhCqpp)  S1'NEW YORK TELEPHONE COMPANY, NEW pp)File No. E969  S 'ENGLAND TELEPHONE AND TELEGRAPH pp)  S'COMPANY;` `  hhCqpp) ` `  hhCqpp)  S'SOUTHWESTERN BELL TELEPHONE COMPANY;pp)File No. E9610 ` `  hhCqpp "A,G)G)&"  S'BELL ATLANTICPENNSYLVANIA, INC., qpp)File No. E9611  S'BELL ATLANTICWASHINGTON, D.C.,INC.,pp)  S'BELL ATLANTICMARYLAND, INC.,qpp)  S'BELL ATLANTICVIRGINIA, INC.,hhCqpp)  S`'BELL ATLANTICWEST VIRGINIA, INC.,qpp)  S8'BELL ATLANTICDELAWARE, INC.,qpp)  S'BELL ATLANTICNEW JERSEY, INC., d/b/app)  S'BELL ATLANTIC TELEPHONE COMPANIES;pp) ` `  hhCqpp)  S'XDefendants hhCqpp)(#  SH '  S ' MEMORANDUM OPINION AND ORDER Đ\ b Adopted: August 25, 1997;  "#=I   "#=I Released: August 28, 1997\ By the Deputy Chief, Common Carrier Bureau:  S' AI. INTRODUCTION ă   S' e 1.` ` MCI Telecommunications Corporation and two of its affiliated companiesX01Í ÍX01ÍÍn yO'#]\  PCP#эXThe two affiliated companies are Western Union International, Inc. and Telecom*USA, Inc.(#Ƹ (together  xreferred to as MCI) have filed complaints against the abovecaptioned local exchange carriers (LECs)  S@' xDalleging that between 1988 and 1991, the defendant LECsc@Xn yO8' " #]\  PCP#эThe defendant LECs are: Pacific Telephone Company, Nevada Bell Telephone Company (Pacific  x Companies); Illinois Bell Telephone Company, Indiana Bell Telephone Company, Inc., Michigan Bell Telephone  x Company, Ohio Bell Telephone Company, Wisconsin Bell Inc., d/b/a Ameritech Operating Companies (Ameritech);  xb US West Communications, Inc., The Malheur Home Telephone Company, El Paso County Telephone Co (US West);  x BellSouth Telecommunications, Inc. (BellSouth); New York Telephone Company, New England Telephone and  x Telegraph Company (NYNEX); Southwestern Bell Telephone Company (Southwestern Bell); Bell Atlantic xD Pennsylvania, Inc., Bell AtlanticWashington, D.C., Inc., Bell AtlanticMaryland, Inc., Bell AtlanticVirginia, Inc.,  x Bell AtlanticWest Virginia, Inc., Bell AtlanticDelaware, Inc., Bell AtlanticNew Jersey, Inc., d/b/a Bell Atlantic Telephone Companies (Bell Atlantic). c improperly included lobbying expenses in their  xinterstate access rate determinations in violation of Section 201(b) of the Communications Act of 1934,  S' xcas amended (the "Act")t( n yO!'#]\  PCP#э 47 U.S.C.  201(b).t and Part 32 of the Commission's Rules, 47 C.F.R. Part 32.X01ÍÍX01ÍÍ n {OH#' "+ #]\  PCP#э See 47 C.F.R.  32.7370. Under this rule, BOCs must record lobbying costs in "Account 7370, Special  xH Charges," which includes "expenditures for the purpose of influencing public opinion with respect to the election or  x appointment of public officials; referenda, legislation, or ordinances . . . or approval, modification, or revocation of  x franchises, or for the purpose of influencing the decisions of public officials." Account 7370 also includes  xx advertising, gifts, honoraria, and political contributions, but does not include any expenditures which are directly"j&,''n&"  xH related to communications with and appearances before regulatory or other governmental bodies in connection with the reporting utility's existing or proposed operations. MCI further" ,''a"  S' x@contends that the initial price cap indices (PCIs) established by the LECs in November 1991 under the  S' xCommission's price cap regulatory scheme, n S' " ԍ#X\  P6G;P#Policies and Rules Concerning Rates for Dominant Carriers, CC Docket No. 87313, Report and Order and  {Op' x Second Notice of Proposed Rulemaking, FCC 8991, 4 FCC Rcd 2873 (1989) (Report and Order); Second Report  {O:' x and Order, CC Docket No. 87313, 5 FCC Rcd 6786 (1990) (Second Report and Order), Erratum, 5 FCC Rcd 7664  {O' x (Com. Car. Bur. 1990), modified on recon., 6 FCC Rcd 2637 (1991), aff'd sub nom. National Rural Telecom Ass'n  {O' x v. FCC, 988 F.2d 174 (D.C. Cir. 1993); Price Cap Performance Review for Local Exchange Carriers, CC Docket  {O 'No. 941, First Report and Order, FCC 95132 (rel. April 7, 1995) (Price Cap Performance Review). as well as the PCIs calculated by the defendants in subsequent  xyears, were inflated as a consequence of the defendants' improper treatment of lobbying expenses. MCI  xseeks an order declaring the defendants' interstate access rates unlawful due to improper inclusion of  xplobbying expenses and granting MCI monetary damages allegedly incurred as a consequence of the  xdefendants' unlawful actions. This Memorandum Opinion and Order resolves the threshold question raised  S' xby the LECs in their answers and motions to dismiss of whether the damages relief requested by MCI is  S' x&barred by the twoyear statute of limitations contained in Section 415(b) of the Act.~Xn yO:' " #]\  PCP#э47 U.S.C.  415(b). This section provides, in pertinent part, that "[a]ll complaints against carriers for the  xx recovery of damages not based on overcharges shall be filed with the Commission within two years from the time the cause of action accrues . . . ."~ For the reasons discussed below, we find that MCI's complaints are barred, in part, by Section 415.  S'  à  Sp'CII. BACKGROUND ă  S ' e 2.` ` MCI and other IXCs use defendants' interstate access service to secure necessary  xinterconnection with their customers. Prior to January 1, 1991, interstate access rates were under rateof x}return regulation whereby LECs were allowed to set rates to cover their "revenue requirements," as  xxdetermined by the reasonable and necessary costs of providing interstate access service, plus a prescribed  S ' x7rate of return on invested capital.9& n {O' " #]\  PCP#э#X\  P6G;P#See Authorized Rates of Return for the Interstate Services of AT&T Communications and Exchange  {O' xp Telephone Carriers, 58 Rad. Reg. (P&F) 2d 1647 (1985)), recon., 59 Rad. Reg. (P&F) 2d 1592 (1986), recon.  {O' x denied, 2 FCC Rcd 190 (1987), rev'd in part on other grounds sub nom., American Tel. & Tel. Co. v. FCC, 836 F.2d 1386 (D.C. Cir. 1988).9 In CC Docket No. 87313, the Commission replaced its rateofreturn  xxregulatory scheme with "price cap" regulation, an "incentivebased" system designed to reward companies  xthat become more productive and efficient, while ensuring that productivity and efficiency gains are shared  S' xwith ratepayers.n {Oh!'#]\  PCP##]\  PCP#эSee supra note 5.Ĝ Under price cap regulation, a ceiling, or cap, is set on the prices, subject to an annual  S' xadjustment that ensures prices will drop in real, inflationadjusted terms. Rn {O#'#]\  PCP##]\  PCP#эXSecond Report and Order, 5 FCC Rcd at 6787.(#Ƹ Initial price cap indices, or  xPCIs, were developed by the LECs in 1991 based on their projected interstate access revenue requirements" ,''^"  S' xfor the period July 1, 1990 through June 30, 1991." n yOh' " #]\  PCP#эThe PCI contains three components the measure of inflation, the productivity offset, and specific  {O0'exogenous factors. Second Report and Order, 5 FCC Rcd at 6792." Pursuant to the Commission's price cap orders, PCIs  xhave been adjusted annually based on a measure of inflation that reflects productivity gains and price  xZchanges in the national economy, minus an "XFactor," which is a number that reflects the amount by  xIwhich the growth in the telephone carriers' unit costs have historically been lower than the level of  S`'inflation for the national economy. `" {O"' " #]\  PCgP#эPrice Cap Performance Review at para. 99. Pursuant to new Commission rules promulgated as a result  {O' x of the Telecommunications Act of 1996, tariffs are filed to take effect on 7 15 days' notice. See  47 C.F.R.   xk 61.33. The tariffs at issue here, however, are governed by the old rules which required annual access tariff filings  {O~ ' xZ for price cap LECs to be filed to take effect on July 1 on at least 90 days' notice. See 47 C.F.R.  69.3(h) which  xQ provides, in part, that "[l]ocal exchange carriers subject to price cap regulation . . . shall file with this Commission  xg a price cap tariff for access service for an annual period . . . . [S]uch tariffs shall be filed to provide a minimum  x of 90 days' notice with a scheduled effective date of July 1." Annual access tariff filings have occurred in April  x of each year since 1991 except for 1995 when the deadline for filing was extended to May 9, 1995, to be effective  {Oh' x August 1, 1995. See Cost Support Material to be Filed with 1995 Annual Access Tariffs, Revisions to Tariff Review Plan for Price Cap Companies, 10 FCC Rcd. 5720, 5723 (Com. Car. Bur. 1995).   S' e  3.` ` Several events relevant to our consideration of the defendants' statute of limitations claim  xDoccurred between February 1990 and November 25, 1995, the date MCI filed the instant complaints with  xQthe Commission. On February 23, 1990, Donald F. Evans, then Director of Technical Regulatory Affairs  x<for MCI, wrote to the Chief, Common Carrier Bureau, purporting to "bring to [the Bureau Chief's]  xattention" what Evans described as a practice by the RBOCs of including lobbying expenses in their  SH ' xratemaking.T H  {O' " #]\  PCgP#э#X\  P6G;gP#See Letter from Donald F. Evans to Richard M. Firestone, Chief, Common Carrier Bureau, dated February  {Ot'23, 1990 (hereinafter referred to as "February 1990 Evans Letter").T In the letter, Evans "strongly encourage[d] the FCC to conduct audits designed to determine  S ' xthe source of the millions of dollars that the RBOCs are spending on their lobbying efforts . . . ."i  {O'#]\  PCgP#эXId.(#i The  xletter went on to request that "[s]hould these audits uncover unlawful or unjust and unreasonable practices  x. . . [MCI] would also strongly encourage that the FCC take actions similar to those it did in its most  S 'recent audit which concluded that interstate ratepayers had been harmed."[Z  {O' "} #]\  PCgP#эId. (referring to an unspecified audit by the Commission which, according to Evans, "determined that two  x^ regulated telephone companies were extracting unjust and unreasonable monies from interstate ratepayers . . . .)" [  xAt some point between February and June 1990, the Bureau's Accounting and Audits Division did in fact  S0'initiate inquiries concerning the RBOCs' treatment of lobbying expenses.0 {O#' " #]\  PCgP#э See Annual 1990 Access Tariff Filings, 5 FCC Rcd 4177, 4234 (Com.Car.Bur. 1990) (hereinafter 1990  {Ol$'Access Tariff Order).   S' e 4.` ` On June 21, 1990, in an action apparently unrelated to Evans' request for an audit, the".,''"  S' xBureau, in reviewing the annual 1990 access tariff filings,p {Oh'#]\  PCgP#эId.` ` p ruled that five of the Regional Bell Operating  S' xCompanies (RBOCs)Z yO'#]\  PCgP#эXAmeritech, BellSouth, NYNEX, Pacific and Southwestern Bell. (#Ɯ had, inter alia, improperly included lobbying expenses in developing the revenue  S' xrequirements reflected in their 1990 access tariff filings.\ {O<' " #]\  PCgP#э1990 Access Tariff Filings Order, 5 FCC Rcd at 423334. The Bureau ruled that "although the BOCs are  x. entitled to engage in lobbying, the Commission's rules make it clear that associated expenses must be excluded from  {O'ratemaking." Id. The Bureau disallowed a pproximately $3.4  S'million of these expenses. {O8 '#]\  PCgP##]\  PCgP#эId. at 4243.ĝ  S:' e 95.` ` On September 14, 1990, Evans wrote a second letter to the Bureau Chief expressing  xconcern that the RBOCs "may be still charging ratepayers for their lobbying efforts in clear violation of  S' xthe Commission's rules."X01ÍÍX01ÍÍ% yO*' "_ #]\  PCgP#эLetter from Donald F. Evans to Richard M. Firestone, Chief, Common Carrier Bureau, dated September  {O'14, 1990 (hereinafter referred to as "September 1990 Evans Letter").% Referring specifically to earlier inquiries into the RBOCs' treatment of  S' x&lobbying expenses conducted by the Bureau's Accounting and Audits Division following the February  S' x31990 Evans Letter, Evans applauded the Bureau's earlier efforts and requested that the Bureau "initiate  Sv'another inquiry" concerning the RBOCs' treatment of lobbying expenses.iv  {O'#]\  PCgP#эXId.(#i  S& ' e d6.` ` On January 27, 1995, Evans wrote a third letter to the Chief, Common Carrier Bureau,-&  {OR' "" #]\  PCgP#эSee Letter from Donald F. Evans to Kathleen Wallman, Chief, Common Carrier Bureau, dated January 27,  {O'1995 (hereinafter referred to as the "January 1995 Evans Letter"). -ք  xin which Evans once again applauded the Bureau's efforts in 1990 to audit the RBOCs lobbying expenses  xbut further expressed the view that the "additional investigation and audits" MCI had requested in the  xQSeptember 1990 Evans Letter were necessary to address MCI's continuing concern that the RBOCs were  xincluding lobbying expenses in their regulated interstate expenses in violation of Part 32 of the  S^'Commission's rules.a^ {O'#]\  PCgP#эId.a  S' e ~7.` ` On October 25, 1995, the Bureau's Accounting and Audits Division released a "Summary  S' xof Audit Findings." The summary concluded that, with one exception, the BOCs had applied very narrow  xdefinitions of what constituted lobbying; misclassified the costs of lobbyingrelated clerical and staff  xsupport, travel, and overhead; and failed to record some of their lobbying costs in the proper account in  Sr' xxthe years 1988, 1989, 1990 and 1991.xrz {O%'#]\  PCgP#эSummary of Audit Findings.x The summary also concluded that "the BOCs [had] reduced their  xprice cap indices to the extent necessary to eliminate the effect their past accounting practices would have"J ,''"  S'had on future rates."a {Oh'#]\  PCgP#эId.a  S' e z8.` ` On November 29, 1995, MCI filed the instant formal complaints. Citing the Bureau's  S' xSummary of Audit Findings, MCI alleged that the defendant LECs' interstate access rates for 1988 and  xsubsequent years were unlawful because defendants had improperly included lobbying expenses in their  S:' xinterstate revenue requirements.:Z {O4'#]\  PCgP#э#X\  P6G;gP#See MCI Complaint at 6 (File No. E9605). MCI requested damages equal to all excessive interstate access charges  S' xpaid by MCI since the inception of the defendants' improper accounting practices for lobbying expenses. {O '#]\  PCgP##]\  PCgP#эX Id. at 9.(#Ɯ  xBell Atlantic filed a motion to dismiss MCI's complaint on February 12, 1996, arguing that MCI's claims,  S' x*filed in 1995, were barred under the twoyear statute of limitations contained in Section 415 of the Act.~ yO '#]\  PCgP#эBell Atlantic Motion to Dismiss (File No. E9611).  S' xBell Atlantic cited the February 1990 Evans Letter and the September 1990 Evans Letter as evidence that  xMMCI was aware of possible damages claims against the defendants for wrongful inclusion of lobbying  SL ' x<expenses as early as 1990.gL  {O'#]\  PCgP#эId. at 3.g On March 6, 1996, apparently in response to Bell Atlantic's motion to  S$ ' xdismiss, MCI amended its complaints to include the September 1990 Evans Letter. According to MCI,  S ' xMthe September 1990 Evans Letter constituted an "unsatisfied" informal complaint against the defendant  S ' xLECs pursuant to Sections 1.716 through 1.718 of the Commission's rules.  {O'#]\  PCgP#эXSee 47 C.F.R.  1.716 1.718. (#  yO' "R  Section 1.716 of the Commission's Rules provides that "[a]n informal complaint shall be in writing and  x^ should contain: (a) The name, address and telephone number of the complaint, (b) the name of the carrier against  x which the complaint is made, (c) a complete statement of the facts tending to show that such carrier did or omitted  x to do anything in contravention of the Communications Act, and (d) the specific relief of satisfaction sought." 47 C.F.R  1.716 (1990).  "E Section 1.717 of the Commission's Rules provides in part that "[t]he Commission will forward informal  x complaints to the appropriate carrier for investigation. The carrier will, within such time as may be prescribed,  xM advise the Commission in writing, with a copy to the complainant, of its satisfaction of the complaint or of its refusal or inability to do so . . . ." 47 C.F.R.  1.717 (1990).  " Section 1.718 provides, in part, that " [w]hen an informal complaint has not been satisfied . . . the  x@ complainant may file a formal complaint with the Commission . . . . Such filing will be deemed to relate back to the filing of the informal complaint." 47 C.F.R.  1.718 (1990). As such, MCI contended,  S ' xtthe September 1990 Evans Letter tolled the two year limitations period because the Commission's rules  S 'specifically authorize complainants to file formal complaints based on unsatisfied informal complaints.  {O%'#]\  PCgP#эSee MCI Amended Complaint at 6 (File No. E9605).  S:' e #9.` ` On April 12, 1996, the Bureau's Enforcement Division issued letter rulings that deferred":|,''"  xdiscovery in these proceedings pending a ruling on the statute of limitations issue. Following a status  xconference on October 17, 1996, the Enforcement Division granted a motion by MCI to introduce into  xthe record twelve letters previously filed by various individuals with the Commission, and handled by the  S' x}Enforcement Division's Informal Complaints and Public Inquiries Branch,  yO' " #]\  PCgP#эThe Informal Complaints and Public Inquiries Branch has been renamed and is now know as the "Consumer Protection Branch." concerning the rates or  S`' x*practices of common carriers.-!`  {O ' " #]\  PCgP#эSee Letter to the parties in these proceedings from Milton Brown, Attorney, Formal Complaints and Investigations Branch, Enforcement Division, Common Carrier Bureau, FCC, dated December 30, 1996.- MCI had proposed to submit the letters as evidence to support its claim  S8' xthat, even though the September 1990 Evans Letter was not styled as an informal complaint, the  S' xCommission routinely treats such letters as informal complaints under its rules.,"z yO, ' " #]\  PCgP#эMCI Motion to Supplement Record and Response to Issues Raised at Status Conference at 4 (File Nos. E {O '9605 through E9611) (hereinafter referred to as Motion to Supplement)., The staff further directed  xhMCI to file additional documentation, along with a supporting affidavit, describing any other  xkcommunications between MCI representatives between February 1990 and October 1995 with the Bureau  xZor its Enforcement and Accounting Divisions pertaining to alleged misapplication of lobbying expenses  xby the defendant LECs. On January 8, 1997, MCI filed a "Response to Letter Ruling" stating that "other  xthan a "followup" letter from Evans to Kathleen Wallman, formerly Chief of the Bureau, dated January  x 27, 1995, MCI "does not have and is not aware" of any correspondence with the Bureau or Divisions  S ' x*within the Bureau concerning alleged misallocations of lobbying expenses by the defendant LECs.#  yOn'#]\  PCgP#эMCI Response to Letter Ruling at 1 (File Nos. E9605 through E9611). MCI also filed a "Declaration of Donald F. Evans" in which Evans makes the following representation:  XFollowing the September 14, 1990 complaint, I have no specific recollection of individual  ,conversations, meetings or communications with [Commission] personnel about the  \complaint or matters raised in the complaint, until my followup letter to Kathleen  `Wallman on January 27, 1995, except that I believe that at some point, Mr. Firestone  5informed me that the RBOCs' lobbying expense allocations were being audited or  investigated, and I later called on Ken Moran of the Accounting and Audits Division to  S'check on the status of such audit or investigation.a$d  {O'#]\  PCgP#эId.a   SB' e 5 10.` ` The defendant LECs responded with evidence and arguments to challenge MCI's  S' xcontention that the September 1990 Evans Letter was in fact an informal complaint which effectively  S' xtolled the twoyear limitations period on MCI's damages claims.%  {O"' "< #]\  PCgP#эSee Letter to counsel for the parties from Milton Brown, Attorney, Formal Complaints and Investigations Branch, Enforcement Division, Common Carrier Bureau, dated December 30, 1996. Both Southwestern Bell Telephone  xMCompany (SWBT) and BellSouth submitted copies of a March 24, 1989, letter from Donald J. Elardo,  xlAssociate Regulatory Counsel, MCI, to Kathie Kneff, Chief, Informal Complaints Branch, FCC,"P %,''"  S' xspecifically styled as an informal complaint.&&  yOh' " #]\  PCgP#эLetter from Johnathan W. Royston, SWBT, to Milton Brown, Attorney, Formal Complaints and  x^ Investigations Branch, Enforcement Division, Common Carrier Bureau, FCC, dated January 8, 1997 (File No. E96 x 10; Letter from M. Robert Sutherland, BellSouth, to Milton Brown, Attorney, Formal Complaints and Investigations Branch, Enforcement Division, Common Carrier Bureau, FCC, dated January 7, 1997 (File No. E968).& Ameritech submitted a copy of an October 30, 1996 letter  S' xfrom Frank Krogh, Appellate Counsel, MCI, to Milton Brown, Attorney, FCC, which, Ameritech  xtmaintains, "demonstrates how MCI styles and formats an informal complaint when MCI intends to file  S'one."E'X yO' "# #]\  PCgP#эLetter from Michael J. Karson, Ameritech, to Milton Brown, Attorney, Formal Complaints and  x^ Investigations Branch, Enforcement Division, Common Carrier Bureau, FCC, dated January 7, 1997 (File No. E966).E  S8'FIII. DISCUSSION ă  S' ` ` 1. Contentions  S' e d 11.` ` Defendants assert that MCI's complaints are barred by Section 415 of the Act(( {O' " #]\  PCgP#эPacific Bell and Nevada Bell Answer to Complaint at 6 (File No. E965); Ameritech Answer at 7 (File No.  {O' x E966); US West Answer at 3 (File No. E967); BellSouth Telecommunications, Inc. Answer at 5 (File No. E96 {O' x^ 8); NYNEX Answer at 3 (File No. E969); Southwestern Bell Telephone Company Answer and Motion to Dismiss  {Of'at 67, 9 (File No. E9610); Bell Atlantic Answer at 5 and Motion to Dismiss at 23 (File No. E9611).#x6X@`7 pX@#Ѿ because  xZthey are based on misconduct that allegedly occurred more than two years before MCI filed its formal  SH ' xcomplaint for damages in November 1995.<)H  {O' "R #]\  PCgP#эAmeritech Motion to Dismiss Based on the Statute of Limitations at 2 (File No. E9606); Bell Atlantic  {Or'Motion to Dismiss at 2 (File No. E9611).#x6X@`7 pX@#< The defendants contend that MCI has effectively conceded  xin its amended complaint that it was aware of potential damages claims against the defendants based on  S ' xIalleged misallocations of lobbying expenses at least as early as February 1990.*  {O'#]\  PCgP#эPacific Companies Motion to Dismiss on Statute of Limitations at 2 (File No. E9605). According to Bell  xAtlantic, MCI was aware of the manner in which the defendants accounted for expenses at least as early  S ' x}as February 1990 because it was Evans' February 1990 Evans Letter that triggered the audit by the  S ' xBureau's Accounting and Audits Division which led to the Bureau's October 1995 audit report.+  {O' " #]\  PCgP#э#X\  P6G;gP#Bell Atlantic Motion to Dismiss at 3 (File No. E9611); see Letter from Donald F. Evans, MCI, to Richard  yO'M. Firestone, Chief, Common Carrier Bureau, FCC (February 23, 1990).#x6X@`7 pX@#ч Bell  xAtlantic further submits that in 1990, MCI obtained from the Commission, through a Freedom of  xInformation Act (FOIA) request, data on classification of lobbying expenses that Bell Atlantic had  S ' xprovided the Bureau in response to the Bureau's April 24, 1990, request.,  {O#'#]\  PCgP#э#X\  P6G;gP#Bell Atlantic Motion to Dismiss at 3 (File No. E9611).#x6X@`7 pX@# NYNEX notes that in the  x Annual 1990 Access Tariff Filing proceeding, MCI filed a petition requesting that the Bureau disallow  xcertain claimed expenses on the grounds that the RBOCs were improperly including lobbying costs in",,''"  S' xinterstate access rates.- {Oh'#]\  PCgP#эNYNEX Motion to Dismiss at 3 (File No. E9609). SWBT asserts that members of the telecommunications industry, including MCI,  x7have been aware of the defendants' classification of lobbying costs since February 15, 1990, when Allnet  xCommunications Services, Inc. (Allnet) filed a formal complaint against SWBT alleging that SWBT had  S' xMimproperly included lobbying costs in its rate base..Z {O'#]\  PCgP#э#X\  P6G;gP#Southwestern Bell Answer and Motion to Dismiss at 3, 6 (File No. E9610).#x6X@`7 pX@# SWBT argues that the allegations raised by MCI  xpare substantially the same as those previously raised by Allnet in its complaint and publicized by the  S8'media in 1990./8 {O '#]\  PCgP#э#X\  P6G;gP#Id. at 6.#x6X@`7 pX@#ѵ  S' e  12.` ` MCI maintains that its damages claims are preserved under Section 415 by the September  S' x1990 Evans Letter which, MCI asserts, constitutes an informal complaint under Section 208 of the Act  S' xZand the Commission's rules.0~ {O'#]\  PCgP#э#X\  P6G;gP#See MCI Amended Complaint at Exhibit A (File No. E9605). MCI concedes that the September 1990 Evans Letter is not specifically  xcaptioned or styled as an informal complaint but contends that the letter nevertheless satisfies all  SN ' xCommission criteria for treatment as an informal complaint.1N  {O'#]\  PCgP#э#X\  P6G;gP#See MCI Amended Complaint at 6 (File No. E9605).Ľ According to MCI, the letter alleged that  xdefendants were improperly including lobbying expenses in their interstate access charges, and specifically  S ' xrequested that the Commission take corrective action.2  {O@'#]\  PCgP#э#X\  P6G;gP#Id.Ĉ MCI asserts that the Evans Letter meets the  xcriteria for an informal complaint under Section 1.716 because it: (a) identifies MCI as the complainant;  x(b) identifies the defendants as the carriers against which the complaint was being made; (c) provides a  xdetailed statement of the facts tending to show the defendants were improperly charging ratepayers for  xlobbying expenses; and (d) describes the specific relief sought that defendants be required to exclude  S6' xmisclassified lobbying expenses from their revenue requirements.364  {O '#]\  PCgP#э#X\  P6G;gP#See MCI Opposition to Motion to Dismiss at 3 (File Nos. E965, E9610). #x6X@`7 pX@# MCI argues that the Bureau's failure  S' x<to forward the September 1990 Evans Letter to the defendants did not alter the letter's status as an  xinformal complaint. MCI maintains that the Bureau's failure to serve the letter on the defendants also  x"explains why the defendants have not advised the Commission of their satisfaction of the informal  S' xcomplaint, or their refusal or inability to do so as required by Section 1.7174   yO' "E #]\  PCgP#эSection 1.717 of the Commission's Rules provides in part that "[t]he Commission will forward informal  x complaints to the appropriate carrier for investigation. The carrier will, within such time as may be prescribed,  xM advise the Commission in writing, with a copy to the complainant, of its satisfaction of the complaint or of its refusal or inability to do so . . . ." 47 C.F.R.  1.717 (1990). of the Commission's Rules.5 {O#'#]\  PCgP#э#X\  P6G;gP#See MCI Opposition to Motions to Dismiss and to Defer Answers to Interrogatories at 4 (File No. E9611).  xFinally, MCI characterizes the letter sent by Donald Evans to the Bureau on January 27, 1995, as simply"p @5,''"  S'a followup to the September 14, 1990 Evans Letter.6 {Oh'#]\  PCgP#э#X\  P6G;gP#Id. at 3.  S' e  13.` ` The defendants dispute MCI's contention that the September 1990 Evans Letter constitutes  x}an informal complaint under the Commission's rules and argue that Section 415 of the Act compels  Sb' xtdismissal of MCI's damages claims, at least in part.7PbZ {O\' "p #]\  PCgP#эPacific Bell and Nevada Bell Answer to Amended Complaint at 6 and Motion to Dismiss Based on Statute  {O&' x of Limitations, Motion for a Briefing Schedule and Ruling Thereon, and Motion for Stay of Discovery (File No. E {O' x 965); Ameritech Amended Answer at 8 and Motion to Dismiss Based on the Statute of Limitations and Motion for  {O ' x a Briefing Schedule and Ruling Thereon (File No. E966); US West Answer of US West to Amended Complaint  {O ' x at 3 (File No. E967); BellSouth Telecommunications, Inc. Motion to Dismiss and Motion to Defer Discovery at  {ON ' xg 16 (File No. E968); NYNEX Motion to Dismiss 28 (File No. E969); Southwestern Bell Telephone Company  {O ' x Amended Answer and Amended Motion to Dismiss at 610, 13 (File No. E9610); Bell Atlantic Answer to Amended  {O 'Complaint at 67 and Motion to Dismiss Amended Complaint (File No. E9611). #x6X@`7 pX@# The defendants characterize the September 1990  S<' x7Evans Letter as a request by MCI that the Bureau's Accounting and Audits Division conduct an audit into  S' xthe defendants' treatment of lobbying expenses in their ratemaking practices.8^r  {O(' " #]\  PCgP#э#X\  P6G;gP#BellSouth Motion to Dismiss and Motion to Defer Discovery at 23 (File No. E9608); Southwestern Bell  {O' x^ Telephone Co. Amended Answer and Amended Motion to Dismiss at 7 (File No. E9610); Bell Atlantic Motion to  {O'Dismiss Amended Complaint at 6.#x6X@`7 pX@# BellSouth notes that the  x8letter was referred to the Accounting and Audits Division per MCI's request, as opposed to the  S' x7Enforcement Division, which is responsible for processing Section 208 complaints.9  {O'#]\  PCgP#э#X\  P6G;gP#BellSouth Motion to Dismiss and Motion to Defer Discovery at 23 (File No. E9608).#x6X@`7 pX@# Defendants further  xtargue that the letter does not state that it is an informal complaint, nor does it cite to either Section 208  Sv' xof the Communications Act or to Section 1.716 of the Commission's Rules.:^v* {O@' " #]\  PCgP#э#X\  P6G;gP#BellSouth Motion to Dismiss and Motion to Defer Discovery at 3 (File No. E9608); Southwestern Bell  {O ' x^ Telephone Co. Amended Answer and Amended Motion to Dismiss at 8 (File No. E9610); Bell Atlantic Motion to  {O'Dismiss Amended Complaint at 6.#x6X@`7 pX@# Moreover, defendants argue  xthat the letter was not treated by the Commission as an informal complaint because it was not forwarded  xto defendants as such, and defendants were not required to respond to the letter as contemplated under  S ' xSection 1.717 of the Rules.;^ P {O' "  #]\  PCgP#э#X\  P6G;gP#See, e.g., BellSouth Motion to Dismiss and Motion to Defer Discovery at 3 (File No. E9608);  {O' x Southwestern Bell Telephone Co. Amended Answer and Amended Motion to Dismiss at 78 (File No. E9610); Bell  {O'Atlantic Motion to Dismiss Amended Complaint at 5.#x6X@`7 pX@# With respect to "form" requirements for informal complaints contained in  S ' xthe Commission's rules, defendants further state that the September 1990 Evans Letter does not satisfy  xthose requirements because it does not name the carrier against which the complaint is made as required  S 'by Section 1.717(b) and does not specifically request damages as required by section 1.717(d).=<l v {O#' " #]\  PCgP#э#X\  P6G;gP#BellSouth Motion to Dismiss and Motion to Defer Discovery at 3 (File No. E9608); Southwestern Bell  Oh$4 x Telephone Co. Amended Answer and Amended Motion to Dismiss at ii (File No. E9610);#x6X@`7 pX@# # X\  P6G;gP#Bell Atlantic Motion  {O@%'to Dismiss Amended Complaint at 5.#x6X@`7 pX@#= "` <,''+"Ԍ S' ` ` 2. Discussion  S' e   14.` ` MCI's complaints against the defendant LECs have three related components, each of  xwhich forms a separate basis for a damages claim governed by the time limitations contained in Section  x415 of the Act. First, MCI contends that the defendants improperly included lobbying expenses in their  S8' x}rate base determinations as reflected in the Bureau's Summary of Audits Finding for the years 1988  xMthrough 1991. Second, MCI asserts that defendants' initial PCIs in 1991 were unlawfully inflated as a  xIconsequence of the unlawful inclusion of the lobbying expenses in earlier rate base determinations.  xtFinally, MCI claims the defendants' PCIs in subsequent years have been similarly inflated as a result of  S'the defendants' original misapplication of lobbying expenses.i= yO '#]\  PCgP#эComplaint at 56.i  SJ ' e 15.` ` In examining each of these components, we note generally that Section 415 of the Act  x}serves as a procedural and substantive bar to the Commission's consideration of complaints against  xcommon carriers seeking the recovery of damages in certain instances. Section 415(b), the provision upon  x which the defendants base their motions to dismiss, provides that complaints seeking the recovery of  xdamages not based on overcharges must be filed within two years from the time the cause of action  xaccrues and not thereafter unless certain conditions specified in Section 415(d), which are not applicable  SZ' x&here, are met.>ZX yOR'#]\  PCgP##]\  PCgP#эX47 U.S.C.  415(b),(d).(#Ʀ The statute is not discretionary and the lapse of time beyond the twoyear limitations  S2' xxperiod not only bars the remedy but extinguishes the liability.?&2 {O' " #]\  PCgP##]\  PCgP#э#X\  P6G;gP#See Armstrong Utilities, Inc. v. General Telephone Co. of Pennsylvania, 25 FCC 2d 385 (1970); cf Ä  {O' x Midstate Co., v. Pennsylvania R. Co., 320 U.S. 356, 36364 (1943); Kansas City So. R. Co. v. Wolf, 201 U.S. 133  x (1923). The Commission and the courts have strictly construed Section 415 and exceptions to its application have  {O'been confined to narrow circumstances. Id; see also Thornwell Barnes Co. v. Illinois Bell, 1 FCC 2d 1247 (1967). The U.S. Court of Appeals for the District  S ' xtof Columbia Circuit recently addressed the application of Section 415(b) in US Sprint Communications  S' xCo. v. FCC.@ {OZ'#]\  PCgP#э#X\  P6G;gP#US Sprint Communications Co. v. FCC, 76 F.3d 1221 (D.C. Cir. 1996) (US Sprint).#x6X@`7 pX@# The court recognized the "discoveryofinjury" rule as the general rule of accrual, that is,  x"a cause of action accrues and the limitations period begins to run when `the plaintiff discovers, or with  S'due diligence should have discovered, the injury that is the basis of the action.'"+A h  {O' " #]\  PCgP#э#X\  P6G;gP#Id. at 1226 (quoting Connors v. Hallmark & Son Coal Co., 935 F.2d 336, 34142 (D.C. Cir. 1991) . The  x court upheld a decision by the Commission which dismissed as untimely two complaints filed against AT&T Corp.  xD in 1987 for damages based on alleged excessive rates charged by AT&T as early as 1982. The complainants had  x7 alleged that they were unaware of possible claims against AT&T based on the 1982 rates until May 29, 1986, the  x; date the Bureau released a decision in an unrelated complaint proceeding finding AT&T's 1982 rates unlawful under  x* Section 201(b) of the Act. The court, citing the Commission's finding that there was sufficient publicly available  xM information about AT&T's rate making practices in the 1982 time frame, held that complainants had sufficient  x "inquiry notice" of possible defects in AT&T's rates long before the Bureau issued its decision in the unrelated  {O#'complaint proceeding. See US Sprint, 76 F.3d at 1231.#x6X@`7 pX@#+  SF' e  16.` ` With regard to each of the damages components contained in its complaints, MCI does  xnot dispute the defendants' basic contention that the points of accrual for such damages claims under" <A,''"  xSection 415(b) are the dates on which the defendant LECs charged MCI rates, first under rateofreturn  xQregulation and then under price cap regulation, that were allegedly improperly based on lobbying expenses  xthat should have been excluded from the ratebase pursuant to Commission rules and orders. For example,  xQMCI does not contend that it was unaware of, and could not have discovered through the exercise of due  xMdiligence, possible damages claims against the defendants for improper inclusion of lobbying expenses  xin the 19901992 time frame; nor would we find such a claim plausible under the facts of this case. The  xthree Evans' letters, along with MCI's petition to reject the defendants 1990 annual access tariff filings,  xremove any doubt that MCI was aware of possible defects in the defendants' 19881991 rates possibly  xstemming from the wrongful inclusion of lobbying expenses and that those defects were carried over to  xthe defendants' PCIs for 1991 and subsequent years long before it filed the instant complaints in  Sp' x@November 1995. The question we must decide is whether, as MCI claims, the September 1990 Evans  SJ ' xLetter effectively satisfied its obligation to file its claims for monetary damages against the defendant  S$ 'LECs within the prescribed twoyear limitations period.B$  {O ' "V #]\  PCgP#э#X\  P6G;gP#We note that MCI does not explain why it views the September 1990 Evans Letter, but not the February  {OV ' x^ 1990 Evans Letter, as an informal complaint, particularly since the September 1990 Evans Letter is, on its face, a  {O ' x^ followup to the February 1990 Evans Letter in which MCI first raised concerns regarding the RBOCs' treatment  {O' xQ of lobbying expenses. In any event, we have examined the September 1990 Evans Letter in conjunction with the  {O' x earlier February 1990 Evans Letter and the subsequent January 1995 Evans Letter, in considering whether MCI has  X~4satisfied its obligation to bring its claim for money damages within the prescribed twoyear limitation period#Xj\  P6G;W XP#.  We find that it did not.  S ' e 17.` ` We cannot accept MCI's claim that the September 1990 Evans Letter constituted an  xinformal complaint for purposes of Sections 1.716 through 1.718 of the Commission's rules, particularly  S ' xMwhen that letter is read in conjunction with the earlier February 1990 Evans Letter and the subsequent  S ' xgJanuary 1995 Evans Letter. There is no indication in either of the three letters that MCI was, by filing  xthe letters, seeking private relief in the form of monetary damages, relief that can only be obtained from  xthe Commission within the parameters established by Sections 206 209 of the Act and Sections 1.711  xthrough 1.735 of the Commission's rules. Neither of the letters reference the Commission's authority under  xSections 206209 of the Act; nor do they contain a request, or even suggestion, by MCI that the  xCommission invoke its complaint procedures to determine damages that might be owed to MCI. To the  xDcontrary, the specific action requested by Evans was an audit. We credit the defendants' claim, and MCI  xMdoes not contend otherwise, that in other instances in which MCI filed letters with the Commission as  SJ' xD"informal complaints," it has specifically captioned and styled the letters as such. See Letter from Donald  x^J. Elardo, Associate Regulatory Counsel, MCI, to Kathie Kneff, Chief, Informal Complaints Branch, dated March 24, 1989.  S' e J18.` ` MCI's assertion that, because the Bureau has previously treated certain letters addressed  xto the Commission as informal complaints under the rules even though not specifically styled as such by  S\' xthe submitting parties, the September 1990 Evans Letter must be afforded the same treatment, is  S6' xunavailing. C6k yOA"' "V #]\  PCgP#эWe are unpersuaded by the letters submitted by MCI to support its claims that the Commission routinely  {O #' x treats letters such as the September 1990 Evans Letter as informal complaints. See Motion to Supplement at Exhibits  x A through L. These letters are from consumers who have little, if any, familiarity with the Commission's rules or  x! practices. Their complaints reached the Consumer Protection Branch of the Enforcement Division, and were treated  x^ by the Bureau as informal complaints and served in the manner contemplated under Sections 1.716 through 1.718  x of the Commission's rules. Most of the letters are from individuals complaining about various 900 number services. "+&B,''*&"  {O' x See e.g., Letter from Lina De Haas to Kathy Kneff, Chief, Informal Complaints Branch, FCC, dated March 14, 1990,  {OZ' x} Motion to Supplement at Exhibit A; Letter from Michael J. Borelli to FCC dated March 20, 1990, Motion to  {O$' xD Supplement at Exhibit B; Letter from Paul Nieman to FCC dated March 14, 1990, Motion to Supplement at Exhibit  {O' x C; Letter from Richard Hannon to FCC dated March 19, 1990, Motion to Supplement at Exhibit D. The other letters  x are likewise from consumers and pertain to such matters as long distance rates charged to foreign calling cards,  xQ unauthorized telephone calls being charged to credit cards, and unauthorized telephone calls listed on consumer  {OH' x@ telephone bills. See e.g., Letter from Harold Cammy to Enforcement Division, FCC, dated November 21, 1995,  {O' xp Motion to Supplement at Exhibit K; Letter from Mrs. Daniel Alfieri to FCC, dated June 19, 1990, Motion to  {O' xZ Supplement at Exhibit E; Letter from Sandra Hutch to FCC, dated October 10, 1995. The only letter not from a  {O' x& consumer is one from a distributor for a reseller. See Letter from Fran Silbert, Area Director for NCN, to FCC, dated July 5, 1990, Motion to Supplement at Exhibit G. The Bureau receives tens of thousands of letters each year concerning various matters and"6 8 C,''="  S' xrequesting various actions that fall within the Bureau's delegated responsibilities.D8  {O '#]\  PCgP#эXSee generally 47 C.F.R.  0.291. (#Ə The treatment or  xhandling accorded such letters varies widely depending on their subject matter. In reviewing the facts and  S' x*circumstances surrounding the three Evans letters, two facts become clear: (1) MCI did not consider the  S' xSeptember 1990 Evans Letter to be a complaint for damages at the time it was filed; and (2) the Bureau  Sb' xdid not treat the letter as a damages complaint. In the February 1990 Evans Letter, MCI specifically  xrequested that the Bureau "audit" the lobbying expenses of the RBOCs for possible violations of Part 32  xof the Commission's rules, a function customarily performed by the Bureau's Accounting and Audits  S' xDivision. The September 1990 Evans Letter applauds actions taken by the Bureau's Accounting and  S' xkAudits Division following the February 1990 Evans Letter and requests that the Bureau repeat its previous  S' xkefforts to address continuing unlawful practices by the RBOCs. Similarly, the January 1995 Evans Letter  xpexpressed MCI's ongoing concern about the RBOCs' lobbying expenses and, once again, requested  x"additional investigations and audits to determine if the RBOCs were further violating the FCC's Part  S* ' x32."|E*  {O'#]\  PCgP#эSee January 1995 Evans Letter.| Neither the February 1990 Evans Letter, the September 1990 Evans Letter, nor the January 1995  S ' xEvans Letter were served on any of the defendant LECs as informal complaints in the manner  xcontemplated under Sections 1.716 through 1.718 of the rules; nor would it appear that the Bureau had  x/any cause to, given the nature and substance of the three letters and their handling by the Bureau's  xAccounting and Audits Division. The three Evans letters reflect that MCI was fully aware of the nature  x"of the Bureau's handling of its request for action concerning the defendants' treatment of lobbying  xexpenses. MCI could have, at any time after the February 1990 and September 1990 Evans letters, filed  xclaims for damages with the Commission based on the allegations in those letters if those were its  x7intentions. At the very least, MCI could have acted to put the Bureau, and the defendant LECs, on notice  xthat it viewed the February 1990 and September 1990 Evans letters as informal complaints that might  S' x&entitle MCI to monetary damages to the extent the alleged violations were ultimately proven.F\  {O!' "I #]\  PCgP#э#X\  P6G;gP#Were MCI's characterization of the September 1990 Evans Letter correct, the Commission would have to  xD treat virtually every letter or written correspondence to any Commission office that raised a question regarding a  x practice of a common carrier as a claim for damages in applying Section 415 of the Act. Such a result would be  x^ inconsistent with Section 415 as well as the rules and procedures established by the Commission for considering  {O$'damages claims filed against common carriers. See 47 C.F.R.  1.720 et seq. Under  xMthese circumstances, it would be contrary to the policies underlying the statute of limitations to permit  SN' xMCI, years after the fact, to transform the September 1990 Evans Letter into an informal complaint for"N F,''"  x@purposes of pursuing monetary damages claims against the defendant LECs that could have been filed  xwith the Commission within two years from the time MCI was assessed the charges that form the basis  S'of such claims.GZ {O' "V #]\  PCgP#эSee Bunker Ramo Corp., 31 FCC 2d 449, 453 (1971) (a statute of limitation is a statute of repose, designed  x to protect a potential defendant against stale and vexatious claims by ending the possibility of litigation after a reasonable period of time has elapsed).  S`' e ~19.` ` MCI faults the Bureau for not serving the September 1990 Evans Letter on the defendant  xgLECs pursuant to the procedures for handling informal complaints specified in Sections 1.716 through  S' x*1.718 of the rules.H {O '#]\  PCgP#эXMCI Opposition to Motions to Dismiss and to Defer Discovery at 3 (File Nos. E9606 , E9608, E9609).(# This failure, according to MCI, explains why the defendant LECs were never called  xon to satisfy the complaint as specified under Section 1.717 of the rules, but does not alter the fact that  S' xthe letter properly constituted an informal complaint.iI| {O '#]\  PCgP#эXId.(#i The logic of this argument fails. The Evans letters  xIspecifically requested the Bureau to initiate "audits," of the defendant LECs' lobbying expenses, the  Sr' xZprecise action taken by the Bureau as reflected in its Summary of Audit Finding. Given the specificity  x3and level of detail in the three Evans letters, and the diligence exhibited by Evans regarding the subject  S$ ' xxmatter of the letters, MCI's contention that the Bureau failed to properly handle the September 1990 Evans  S 'Letter as a claim for damages strains credulity.J   {O' " #]\  PCgP#эEven were we to accept MCI's claim that the September 1990 Evans Letter properly constituted an informal  x complaint against the defendant LECs based on their alleged improper accounting of lobbying expenses, we would  x still be left with a question of timeliness under Section 415(b) of the Act. The Commission has never specifically  xD addressed the question of whether a Section 208 complainant who timely alleges a violation by a common carrier  x but fails to specify a damages claim in the original complaint can nevertheless make a request for damages beyond  {O' x the twoyear limitations period. We need not reach this issue here, however, given our conclusion that theÄ  {O^' x September 1990 Evans Letter did not constitute an informal complaint for purposes of Section 208 of the Act and  xx Sections 1.716 1.718 of the rules. Section 1.716 of the rules pertaining to the form of informal complaints requires that the complaint clearly identify "the specific relief or satisfaction sought." 47 C.F.R.  1.716.  S ' e #20.` ` For the foregoing reasons we find that Section 415(b) of the Act bars MCI's claims for  xdamages to the extent such claims are based on misconduct that allegedly occurred more than two years  xprior to November 29, 1995, the date MCI filed the instant formal complaints. Accordingly, the first two  xkcomponents of MCI's complaints that the defendants' 19881991 rates and the rates assessed under the  xMdefendants initial price cap indices have been unjust and unreasonable under Section 201(b) of the Act  xdue to improper lobbying expenses are untimely under Section 415(b) and will be dismissed. With  xrespect to the third component of the complaints, however, MCI may properly pursue claims based on  x&allegations that, for the two year period immediately preceding its November 29, 1995, complaint, the  xdefendants' PCIs produced unlawful rates because of the defendant LECs' treatment of lobbying expenses.  x@As is customary in Section 208 proceedings, MCI will have the burden of establishing both a violation"HJ,''"  S' xof the Act by the defendant LECs and actual damages.}K( {Oh' "V #]\  PCgP#эSee, e.g., Amendment of Rules Concerning Procedures to be Followed When Formal Complaints are Filed  {O2' x Against Common Carriers, 8 FCC Rcd 2614, 261617 (1993); Connecticut Office of Consumer Counsel v. AT&T  {O' x Communications, 4 FCC Rcd 8130, 8133 (1989), aff'd sub nom. Connecticut Office of Consumer Counsel v. FCC,  {O'915 F.2d 75 (2d Cir. 1990), cert. denied, 111 S. Ct. 1310 (1991); see generally, 47 C.F.R.  1.7201.735.} The Chief, Formal Complaints and Investigations  xQBranch, is hereby directed to establish a schedule for further proceedings on MCI's complaints consistent with this Memorandum Opinion and Order.  S' DIV. CONCLUSION  S' e  21.` ` For the reasons stated above, we conclude that MCI's complaints are barred by the statute  x*of limitations contained in Section 415(b) of the Act to the extent that they seek the recovery of damages  xbased on causes of actions that accrued more than two years prior to November 29, 1995, the date MCI  xfiled its Section 208 complaints. Consistent with this conclusion, the Chief, Formal Complaints and  x Investigations Branch, shall establish a schedule for further proceedings on MCI's surviving damages  SH 'claims.  S '  S '-V. ORDERING CLAUSES ă  S ' e 22.` ` ACCORDINGLY, IT IS ORDERED, pursuant to Sections 1, 4(i), 4(j), and 208 of the  xCommunications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 154(j), 208, and the authority  xdelegated in Sections 0.91 and 0.291 of the Commission's rules, 47 C.F.R.  0.91, 0.291, that the abovecaptioned complaints filed by MCI ARE DENIED to the extent specified herein.  S' e 23.` ` IT IS FURTHER ORDERED that the Motions to Dismiss filed by Pacific Bell and Nevada  x}Bell, Ameritech, BellSouth, NYNEX, Southwestern Bell Telephone Company, and Bell Atlantic ARE GRANTED to the extent specified herein. "@K,''"  S' e 24.` ` IT IS FURTHER ORDERED that the Chief, Formal Complaints and Investigations  xBranch, is directed to establish a schedule for further proceedings on MCI's complaints consistent with the rulings herein. ` `  hhCqFEDERAL COMMUNICATIONS COMMISSION ` `  hhCqMary Beth Richards  Sp'` `  hhCqDeputy Chief, Common Carrier Bureau#XP\  P6QW XP#