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REA states that it first alerted MCI about the calls  x{shortly after they started and that MCI failed to identify the source of the calls or to take  xcorrective action even after repeated requests. REA eventually discovered that the calls were  X - xoriginating from various AT&T locations across the country. ?G {O@-#C\  P6QP#э XxREA Application at 23; Bureau Order at 3306.(#Ɣ AT&T has since acknowledged  xLthat it did "unknowingly" place the calls to test MCI's 800 service for, among other things, call  X - xKsetup time, but that it intended to use only unassigned 800 numbers. L ?G yO-#C\  P6QP#Ѝ XxAT&T Brief (filed September 30, 1993) at 23. (#Ʊ The calls, which seriously  X-disrupted REA's business, continued through the end of November 1989. ?G {O-#C\  P6QP#эXxREA Application at 23; Bureau Order at 3306(#ƒ   ^Ԋx3. REA filed claims for damages and injunctive relief against both MCI and AT&T in  x=the Ocean County Superior Court of New Jersey on November 14, 1989. On April 21, 1992, the  xNew Jersey court, on MCI's motion and without ruling on the merits of the case, dismissed with  xprejudice REA's claim against MCI for lack of subject matter jurisdiction and stayed the claim  xagainst AT&T pending acceptance of jurisdiction by this Commission. The court stated that,"n ,^(^(JJ "  xshould the Commission reject jurisdiction over AT&T, REA could request that the stay of its  X-claims be lifted. H ? yOb-  #C\  P6QP#ЍXxThe relevant orders of the New Jersey court did not discuss the substance of its views on subject matter jurisdiction. Its initial order stated: (#   Xx[T]he plaintiff's negligence claims against defendant AT&T are hereby stayed pending the outcome of   submission to the F.C.C. . . . [and] either resolution by the F.C.C. or a determination by the F.C.C. that the   claims of the plaintiff are not within its jurisdiction . . . . [S]hould the F.C.C. reject jurisdiction stating that   kthe above claims are cognisable in a State Court, the plaintiff upon Notice of Motion may request the lift of this stay . . . . (#   XxReal Estate Market Place of New Jersey t/a Real Estate Alternative v. MCI and American Tel. & MCI and   AT&T (N.J.), Order Staying Action and Allowing Submission to Federal Communications Commission    (April 21, 1992) at 12 (Exhibit 6 of REA's Section 208 complaint). The court's amended order further   zstated that "[u]pon acceptance of jurisdiction by the FCC over the case against AT&T, [this] action shall   Nbe dismissed with prejudice as to AT&T. . . [O]nce jurisdiction is accepted, the state court matter [re   kAT&T] will be dismissed." REA v. MCI and AT&T (N.J.), Order Dismissing and Staying Action Pending    Submission to the Federal Communications Commission (June 1, 1992) at 2 (Exhibit 7 of REA's Section 208 complaint). (#Ʃ   Ox4. On November 4, 1992, almost three years after the last AT&T computergenerated  xphone call, REA filed formal complaints with the Commission, pursuant to Section 208 of the  X- xAct,} ? yO-#C\  P6QP#ЍXx47 U.S.C.  208.(#} against MCI and AT&T, alleging that they had violated Sections 201(a), 201(b), 202(a),  Xv- xand 203(c) of the Act. vh? {O-#C\  P6QP#ЍXxId. at 3606; 47 U.S.C.  201(a), 201(b), 202(a), 203(c).(#ƯX01Í ÍX01Í Í Without reaching the merits of REA's claims, the Bureau dismissed both  xformal complaints as untimely under the statute of limitations contained in Section 415 of the  XH- xAct, 47 U.S.C.  415.E H {O-  z#C\  P6QP#ЍXxId. at 3308. AT&T moved to dismiss on this ground as part of its answer. See AT&T Answer (filed Jan. 4, 1993) at 8. MCI filed a separate motion to dismiss on this ground on January 12, 1993. (#E The Bureau rejected REA's interpretation of the dates upon which its  xcauses of action accrued under Section 415 of the Act and rejected REA's argument that the  X - xequitable tolling doctrine should be applied to this case. T {O-#C\  P6QP#ЍXxBureau Order at 330708. (#Ɗ REA filed applications for review  X -pursuant to Section 1.115 of this Commission's rules.  yO!-  #C\  P6QP#ЍXx47 C.F.R.  1.115. Under Section 1.115 of the Commission's Rules, an application for review must   demonstrate that the order under review is in conflict with statute, regulation, case precedent, or established   Commission Policy . . . involves a question of law or policy which has not previously been resolved by the   lCommission, involves application of a precedent or policy which should be overturned or revised, . . .   [involves] an erroneous finding as to an important or material question of fact [or] [involves] a prejudicial procedural error. (# " ^,^(^(JJ! "Ԍ X- III. DISCUSSION ĐTP  X- A. Procedural Errors.  X- x1. Contentions of the Parties.  X-  Xv-  0x5. REA. In the Bureau Order, the Bureau stated that REA did not address anywhere in  x=its main and reply briefs in September and October 1993, the statute of limitations defense that  XJ- xAT&T had raised in its answer of January 4, 1993.FJ {O -  #C\  P6QP#ЍXxBureau Order at 330607, citing REA Application at 6. In the background section of its order, the Bureau   /referred to AT&T's motion to dismiss in its of answer of January 4, 1993, and noted that, "having had a   >full opportunity to do so, REA declined to address AT&T's statute of limitations defense anywhere in its  {O -  >pleadings." Bureau Order at 3306 n. 9 (citing REA Brief, File No. E93009 (filed Sept. 30, 1993); REA   \Reply Brief, File No. E93009 (filed September 30, 1993)). In the discussion section, immediately after   jstating its overall conclusion that MCI's and AT&T's statute of limitations motions were granted, the Bureau  {Ow-  again noted that "REA did not reply to AT&T's claim that the complaint against it was untimely." Id. at 3307.(# REA now argues that the Bureau erred in  xits reliance on this conclusion because REA did in fact respond in detail to the statute of  x limitations contentions in its "Reply, Opposition and Answer" filed on February 3, 1993, in  X - xresponse to AT&T's answer and MCI's answer and counterclaim.:  {O-  #C\  P6QP#ЍXxSee Reply, Opposition, and Answer filed by Michael J. Valenti and Real Estate Marketplace of New Jersey t/a Real Estate Alternative on February 3, 1993, at 59. (#: REA claims that the Bureau  xdid not consider REA's arguments on this critical decisional point and that the Bureau's findings  X -are therefore based on an erroneous set of facts. 0  yO-#C\  P6QP#ЍXxREA Application at 6.(#  X -  x6. REA also contends that the Bureau Order failed to address the issue of subject matter  X- xjurisdiction raised by the New Jersey Superior Court.y  {O-#C\  P6QP#ЍXxId. at 7.(#y According to REA, the Bureau should  X}- xyhave explicitly decided that issue before any of the statute of limitations questions. Moreover,  xREA asserts that it cannot ask the New Jersey Superior Court to lift its stay regarding AT&T  XO-unless the Commission decides the jurisdiction issue.sOR  {OR -#C\  P6QP#ЍXxId.(#s  X!-  x7. AT&T. Concerning REA's first claim that the Bureau believed that REA did not  xKrespond to AT&T's statute of limitations defense, AT&T does not dispute that REA did address  xthe limitations question as to both defendants in its Reply, Opposition and Answer of February  x3, 1993. AT&T argues, however, that the Bureau only intended to say that the issue was not",^(^(JJ"  X- xidiscussed in REA's briefs and that the Bureau did consider these very arguments in its decision. yOy-#C\  P6QP#ЍXxAT&T Opposition at 23.(#Ɓ  X-  X-  x8. Regarding REA's second argument that the Bureau Order should have affirmatively  xconsidered subject matter jurisdiction, AT&T responds that, while the Bureau did not explicitly  xassert jurisdiction in this case, it implicitly accepted jurisdiction by deciding the statute of  X-limitations issues.yX {O-#C\  P6QP#ЍXxId. at 3.(#y   Xa-x2. Decision  X3-  x9. REA is correct in stating that the Bureau's belief that REA had not responded to  X - xiAT&T's statute of limitations defense "anywhere in its pleadings"  {O-#C\  P6QP#ЍXxBureau Order at 3306 n.9.(#Ɖ is unfounded because REA's  xconsolidated Reply, Opposition and Answer of February 3, 1993, did so. We believe, however,  xjthat even if the Bureau's belief was incorrect and should not have been one of the bases for its  xultimate conclusion, this does not constitute reversible error. REA had the opportunity to  xadvance all its arguments on the limitations issue in both its pleadings and briefs, and it discussed  x{all specific arguments against it, virtually all of which were raised by MCI, in detail. The  X- xBureau Order addressed all of these contentions quite thoroughly.| {O-#C\  P6QP#ЍXxId. at 330708.(# As will be discussed below, we find ample support in the record for the Bureau's conclusions.   x 10. On the question of subject matter jurisdiction, we conclude that the context clearly  xshows that the Bureau believed it had subject matter jurisdiction and was silent on the matter  xonly because: (1) jurisdiction was not contested by the parties by the end of the briefing cycle;  x(2) jurisdiction was, and is, very clear; and (3) the fact that the Bureau proceeded directly to the  xlogically secondary statute of limitations issues was a tacit acknowledgment of jurisdiction. On  xthe first point, REA's Section 208 complaint against AT&T specifically asserted AT&T's liability  xas a common carrier under Title II of the Communications Act, and included no request for a  X- xspecific ruling on jurisdiction. yOm -#C\  P6QP#ЍXxComplaints at 13, 1517 & Exhibits 67. (#Ɠ In response to a onesentence assertion in AT&T's answer that  X- xjREA had failed to state a claim under the Act,{ yO"-#C\  P6QP#ЍXxAT&T Answer at i.(#{ REA's main brief several months later included  xja twopage argument that the Commission does have jurisdiction over AT&T's alleged actions  xand that AT&T's conduct in the state action constituted a voluntary submission to such  XR- xKjurisdiction before the Commission.R.  yO1'-#C\  P6QP#ЍXxREA Main Brief at 1012.(#Ƃ AT&T's responsive brief did not contest this, arguing only"R ,^(^(JJ"  xthe question of damages. In short, the issue of subject matter jurisdiction was not posed to the Bureau in a way that demanded an explicit ruling.   x 11. Second, we believe that this Commission's subject matter jurisdiction over this  xproceeding under Title II of the Act is quite clear because both defendants were "common  X- xcarriers" as defined in Section 3(h) of the Act, yO-#C\  P6QP#ЍXx 47 U.S.C.  153(h) (now Section 3(10), 47 U.S.C.  153(10)).(#ƭ and the alleged actions and omissions of the  xdefendants were charges and practices for and in connection with tariffed interstate  xcommunication services within the meaning of Sections 201, 202, and 203 of the Act. Finally,  xthe fact that the Bureau proceeded to the statute of limitations issues, which are logically  xposterior to subject matter jurisdiction and are based on application of Section 415 of the Act, indicates the Bureau's tacit assumption that it indeed had subject matter jurisdiction.   ^x 12. The finding that this Commission has subject matter jurisdiction, however, raises  xManother issue concerning the effect this decision has on REA in the New Jersey state court  x\proceeding. REA argues in its application that it needs an explicit ruling from us in order to  xrequest the state court to lift the stay with respect to AT&T. The orders of the New Jersey court  xreferring the matter to us appear to assume that our jurisdiction is not only primary, but  xexclusive, and that the state suit against AT&T will be dismissed with prejudice upon our  Xb- x{affirmative assertion of jurisdiction.bX {Ok-  #C\  P6QP#ЍXxSee stay orders of April 21, 1992 and June 1, 1992, REA v. MCI and AT&T (N.J.), quoted in note 10,  {O5-supra. (# Our present order on REA's application for review  xconfirms both the Bureau's implicit finding that it had subject matter jurisdiction under Title II  xof the Act and the Bureau's explicit finding that REA's Section 208 claims were barred by the  xNstatute of limitations under Section 415 of the Act. We are not ruling, however, that our  x.affirmative Title II jurisdiction over the events alleged by REA must be to the exclusion of any  xtort or other claim that REA might have in a state court; that is a matter for the state court to decide.  X- B. Dates of Accrual.  X|-x1. Contentions of the Parties.  XN-  |x 13. REA. REA reiterates its argument below that the Commission's general statute of  xlimitations, Section 415(b) of the Act, began to run on the date of the last bill in May 1991.  xzUnder Section 415(b), "all complaints against carriers for recovery of damages not based on  x/overcharges shall be filed with the Commission within two years from the time the cause of  X- xyaction accrues . . . ." yOW%-#C\  P6QP#ЍXx47 U.S.C.  415(b).(#ƀ Pursuant to this provision, REA argued that, given the rule that a cause  x.of action accrues for purposes of Section 415 when the carrier does the unlawful act or fails to  xZdo what the law requires, REA's causes of action against both defendants accrued when MCI last" D,^(^(JJ"  xattempted to bill it in May 1991 for calls that included those generated by AT&T in October and  X- xNovember 1989.? yOb-  =#C\  P6QP#ЍXxApplication at 8 (citing Armstrong Utilities, Inc. v. General Telephone Company of Pennsylvania, 25 FCC  {O*-  2d 385, 38990 (Armstrong)); REA Reply to AT&T Opposition at 23; REA Reply to MCI Opposition at  {O-23). Cf. Bureau Order at 3307. In addition, REA states in its reply to MCI's opposition that: (#   Xxthe calls did not occur just in one billing cycle . . . and, therefore, there was not a single moment when   MValenti's cause of action accrued. The overcharges were an ongoing event, and each bill was a continuing violation of the Act.(#   [XxREA Reply to MCI Opposition at 23. REA did not clearly state that the AT&Tgenerated calls themselves   continued after November 1989, and there is nothing in the record to contradict the Bureau's finding that the calls did in fact end in November 1989.(#? The Bureau agreed with MCI, however, that REA's claims accrued no later  xthan November 1989, when the calls ceased, thereby making REA's two formal complaints,  xwhich were filed with the Commission on November 4, 1992, untimely for purposes of Section  X-415(b). ,  {O-#C\  P6QP#ЍXxSee Bureau Order at 360708.(#ƌ  Xv-  #x 14. Similarly, REA argues that the Commission's specific statute of limitations on  xovercharge actions, Section 415(c), also began to run on the date of the last bill in May 1991.  xUnder Section 415(c), an action at law for overcharges shall be initiated within two years from  xthe time the cause of action accrues, with a possible twoyear extension from the time the carrier  X - xkdisallows a timely written claim for overcharges.!  yO-#C\  P6QP#ЍXxSection 415(c) provides:(#   /XxFor recovery of overcharges action at law shall be begun or complaint filed with the Commission against   carriers within two years from the time the cause of action accrues, and not after. . . except that if a claim   for the overcharge has been presented in writing to the carrier within the twoyear period of limitation said   zperiod shall be extended to include two years from the time notice in writing is given by the carrier to the claimant of disallowance of the claim, or any part or parts thereof, specified in the notice.(#   Xx47 U.S.C.  415(c). "Overcharges" are defined by Section 415(g) as "charges for services in excess of those   !applicable thereto under the schedules of charges lawfully on file with the Commission." 47 U.S.C.  415(g).(# REA argues that its overcharge cause of  X - xaction under Section 415(c) accrued when MCI last attempted to bill it in May 1991. REA bases  X - xLthis contention on our decision in TeleValuation v. AT&T that, "as a general proposition, the  X - xLpoint of accrual should be fixed as the time the customer receives a bill for services.""  {O"-  #C\  P6QP#ЍXxApplication at 89 (quoting TeleValuation, Inc. v. AT&T, 73 FCC 2d 450, 452 (1979) (TeleValuation)); REA Reply to AT&T Opposition at 3. (# This is  xa different position than REA espoused before the Bureau. REA argued there that its claim in  xthe state court complaint for $5,594.50 in unpaid MCI charges for the AT&Tgenerated calls  xfunctioned as a timely written claim for overcharges for purposes of extension of the twoyear  xperiod in Section 415(c). The Bureau concluded, however, that this was not a claim for"{x",^(^(JJi"  xovercharges as defined in Section 415(g) because REA did not allege that the charges were in  X-excess of the tariffed rate.(#$ {Ob-  #C\  P6QP#ЍXxBureau Order at 330708. REA had argued that MCI's amended state court answer in July 1991 was MCI's   0first written disallowance of that claim, whereas MCI argued, contingently, that its original answer in   >December 1989 was the disallowance. The Bureau found that, even if this were an overcharge case, MCI  {O-was correct on the date of disallowance. Id. at 3307.(#( x  X-  x15. AT&T and MCI. In response to REA's assertion that its causes of action accrued as  X- x\late as the date of MCI's last bill that included AT&Tgenerated calls, i.e. May 1991, AT&T  x{observes that the calls themselves, which are the critical element under applicable law as  Xv- xreviewed in the Bureau Order, ceased in November 1989.$v {O -#C\  P6QP#ЍXxAT&T Opposition at 34 (citing Bureau Order at 3308 n.25).(#ƪ AT&T also notes that, in any event,  Xa-the statute of limitations with respect to AT&T cannot be extended by MCI's billing.}%aF {OX-#C\  P6QP#ЍXxId. at 4 n.4.(#}   X3-  0x16. MCI contends that the Bureau Order correctly applied the general rule that a cause  x.of action accrues for purposes of Section 415 when the carrier does the unlawful act or fails to  xzdo what the law requires, and the complainant has discovered or could have discovered the  X - xdefendant's wrong.%&P'  {Oy-  #C\  P6QP#ЍXxMCI Opposition at 46 (citing, inter alia, Armstrong, 29 FCC 2d at 38990; Bunker Ramo Corporation v.  {OC-Western Union Telegraph Co., 31 FCC 2d 449, 453 (Review Board 1971) (Bunker Ramo)).(#P According to MCI, the Bureau properly found that, under Section 415(b),  x[governing nonovercharge cases, this date was no later than November 1989, when REA knew  xof AT&T's actions and the last AT&Tgenerated calls were made, rather than the date of MCI's  X -last bill that included those calls in May 1991, as REA now claims.{( 4  {O-#C\  P6QP#ЍXxId. at 56.(#{    x17. Similarly, MCI asserts that, under Section 415(c), the Bureau was correct in finding  Xf- xxthat this was not an overcharge case.{)f  {O-#C\  P6QP#ЍXxId. at 78.(#{ MCI further argues that REA's reliance on TeleValuation  xto claim that its cause of action accrued in May 1991, the date of the last bill, is misplaced. MCI  X:- x[contends that the general proposition stated in TeleValuation, that an action for overcharges  x[should accrue on the date of the customer's bill, is intended for a typical overcharge dispute in  xwhich the customer normally would first be aware of a potential claim at that time. But in the  x0instant case, MCI says, REA was aware of the source of the allegedly wrongful calls by  xNovember 1989, and filed a state court suit at that time with a factual basis virtually identical  X-to the present one before the Commission.{*X  {O%-#C\  P6QP#ЍXxId. at 67.(#{  "*,^(^(JJ"Ԍ X-x2. Decision.   x18. REA's attempt to place the dates of accrual for both the nonovercharge and  xovercharge causes of action at the date of the last MCI bill in May 1991 is unconvincing. REA  xcorrectly states the general rule that a cause of action accrues for purposes of Section 415 when  X- xthe carrier does the unlawful act or fails to do what the law requires,+ {O-#C\  P6QP#ЍXxSee Armstrong, 25 FCC 2d at 390.(#Ɩ but overlooks part of the  xrationale for that rule in the correlative requirement that the cause of action accrues when the  X_- xcomplainant has discovered or could have discovered the defendant's wrong. As stated in Bunker  XJ- xRamo, "a statute of limitations does not begin to run until discovery of the right or wrong of the  X5- xyfacts on which such knowledge is chargeable in law.",\5Z {O@ -  0#C\  P6QP#ЍXx31 FCC 2d at 454; see also Thornell Barnes Co v. Illinois Bell Telephone Co., 1 FCC 2d 1247, 1252   [(1965); Aetna Life Insurance Company v. American Telephone and Telegraph Company, 3 FCC Rcd 2126,  {O -2129 (Com. Car. Bur. 1988) (Aetna Life).(#Ɨ There is no question that the principal  xwrongful acts or omissions that REA alleges against both defendants as nonovercharge causes  x\of action were the AT&T computergenerated telephone calls, which indisputably ended in  xNNovember 1989. REA learned of the source of the calls by the time it filed its state court  xcomplaint on November 14, 1989, and the primary facts REA alleged in its subsequent Section  x.208 complaints are virtually identical to those of the state proceeding. The fact that MCI bills  xcontinued to list these unpaid calls among other charges until service was discontinued in May  xy1991 is immaterial to the nonovercharge wrongs or omissions about which REA complained to  xkthe Commission. Accordingly, the Bureau did not err in finding that the twoyear statute of limitations on the nonovercharge causes of action expired no later than November 1991.   Nx19. REA's claim that the overcharge cause of action for purposes of Section 415(c) also  X!- xaccrued on the date of the last MCI bill is not only unpersuasiveBStyle 12 )^ `> XifQ 8 # Xj\  P6G; DXP#BFStyle 12 XP\  P6Q D  for the same reason as is its  xgeneral Section 415(b) claim, but is, moreover, founded on the unjustified assumption that the  xcase could be construed as an overcharge case. REA did not plead specifically in either its state  x.suit or the instant complaint proceeding that the $5,594.50 in unpaid MCI charges to REA that  xincluded the AT&Tgenerated calls constituted overcharges. We conclude, as did the Bureau,  x=that the charges in question are not overcharges because they did not exceed the tariffed rate.  X- x]In addition, REA's reliance on TeleValuation to support its claim that the accrual of the  xovercharge claim was somehow renewed with every additional bill is misplaced. The general  Xk- xKproposition stated in TeleValuation, that an action for overcharges should accrue on the date of  XV- xzthe customer's bill, rests on the notion of "discovery" by the customer.-V~ yO"-  #C\  P6QP#ЍXxThus, the Commission stated that, as a general proposition, at the time the customer receives the bill, "the   customer may review the charges, compare them with the appropriate tariffs, question the carrier, or take   any other steps necessary to detect and remedy errors. This places a burden of prompt detection of  {O$-  overcharges on the party with the greatest incentive to do so and penalizes dilatory detection . . . ." Tele {O%-Valuation, 73 FCC 2d at 453.(#ƞ In REA's case the discovery occurred in November 1989. "( 2 -,^(^(JJz"Ԍ X- C. Equitable Tolling.  X- x1. Contentions of the Parties.  X-  x20. REA. In its Reply, Opposition and Answer of February 3, 1993, before the Bureau,  x[REA charged that AT&T and MCI deliberately prolonged the New Jersey proceeding until the  xktwoyear statute of limitations of Section 415 had run, and then MCI, with AT&T's support,  X_- xmoved for dismissal of the state action for lack of subject matter jurisdiction.._ yO-#C\  P6QP#ЍXxREA Reply, Opposition and Answer at 59. (#Ɠ REA stated that  xMCI waited 25 months, until December 1991, to file its motion to dismiss on subject matter  X1- xjurisdiction, rather than pleading it in the answer of December 1989.y/1X {O: -#C\  P6QP#ЍXxId. at 8.(#y On this basis, REA  xargued that, even if its cause of action did accrue in November 1989, the doctrine of equitable  X - xztolling of the statute of limitations should be applied.|0  {O-#C\  P6QP#ЍXxId. at 89. (#| MCI replied that it complied with all  xMstate court rules, that it originally moved to dismiss on subject matter jurisdiction in its first  xanswer to the complaint on December 5, 1989, and that REA bore the responsibility of timely  X - xfiling its claim in the proper jurisdiction.1 | yO-  #C\  P6QP#ЍXxMCI Reply to REA Opposition to MCI Motion to Dismiss (filed February 16, 1993) at 45 & Attachment 2 (MCI Answer of December 5, 1989, in state court suit).(# The Bureau rejected REA's argument, holding that  xjthe equitable tolling doctrine applies only when the delay is caused by the defendant and that,  X-in this case, REA itself was primarily responsible.2 {O-#C\  P6QP#ЍXxBureau Order at 3608 (citing, inter alia, Bunker Ramo, 31 FCC 2d at 453).(#  Xb-  x21. REA raises the same claim in its present application.3$bf  {Oy-  #C\  P6QP#ЍXxREA Application at 911; REA Reply to MCI Opposition at 34 (citing, inter alia, Bunker Ramo, 31 FCC   Rcd at 453; Carter v. Washington Metropolitan Area Transit Authority, 764 F.2d 854, 857 (D.C. Cir. 1985)  {O -  [(Carter); Bowen v. City of New York, 476 U.S. 467 (1986) (Bowen) (fraud not necessary to justify tolling)). (# REA unequivocally states that  xthe first time either of the defendants raised the state court's subject matter jurisdiction was in  xzthe motion to dismiss on this ground in December 1991, just beyond two years after the last  X- xAT&Tgenerated calls in November 1989.4R  yO "-#C\  P6QP#ЍXxREA Application at 4.(# In addition, REA urges the Commission to apply  X- xkthe threepart test for equitable tolling in Ervin v. Los Angeles County.5 {O$-#C\  P6QP#ЍXx848 F.2d 1018, 1019 (9th Cir. 1988), cert. denied, 489 U.S. 1014 (1989) (Ervin).(# In the context of a  xfederal civil rights complaint, that case held that a statute of limitations can be tolled if a plaintiff  xhas given timely notice to a defendant of its claim, the delay in the filing of the claim does not  x=prejudice the defendant, and the plaintiff has acted reasonably and in good faith. REA argues" t5,^(^(JJ"  xthat it notified defendants of the AT&Tgenerated calls in a timely manner, that the defendants  xwould not be procedurally prejudiced by an adjudication on the merits, that REA acted in good  X-faith, and that the claims are not stale and vexatious.6 {OK-  z#C\  P6QP#ЍXxREA Reply to AT&T Opposition at 3 & n.4 (citing Ervin); REA Reply to MCI Opposition at 34 & n. 4  {O-(citing Ervin).(#  X-  X-  _x22. AT&T and MCI. AT&T states that the Bureau correctly found that REA was  xresponsible for its tardiness in filing its complaint. Moreover, AT&T argues, the defendants  xcould not be expected to raise the statute of limitations defense before the time period had  X_-expired, and there is no requirement on the moving party to give such advance notice.7_$ yO4 -#C\  P6QP#ЍXxAT&T Opposition at 45.(#Ɓ  X1-  Ox23. MCI states that application of the equitable tolling doctrine is usually very much  xLrestricted even if doing so produces hardships and that it generally requires fraud or deceit by  X - xthe defendants to prevent the complainant from becoming aware of the basis for the claim.]8  {Oh-  #C\  P6QP#ЍXxMCI Opposition at 89 (citing Municipality of Anchorage d/b/a Anchorage Telephone Utility v. Alascom,  {O2-Inc., 4 FCC Rcd 2472, 2473 (Com. Car. Bur. 1989) (Anchorage); Armstrong, 25 FCC 2d at 390).(#] On  X - xthis basis, MCI concludes that the Bureau correctly found that the primary responsibility for the  x=complainant's tardiness lay with REA, and that MCI did nothing to prevent REA from learning  X - xthe source of the AT&Tgenerated calls, much less engaging in active fraudulent concealment.9  {O-  ?#C\  P6QP#ЍXxId. at 910 (citing Bureau Order at 3608). MCI does not discuss the question of when subject matter jurisdiction was first raised in state court.(#  X - xMCI further asserts that Ervin and Carter did not involve Section 415 and both held that a prior  X- xclaim in a different forum did not toll the statute of limitations for a later proceeding elsewhere.:j  {O-#C\  P6QP#ЍXxId. at 8 n.9 (citing Ervin, 848 F.2d at 1019; Carter, 764 F.2d at 857).(#  X{-  Xd-x2. Decision.  X6-  x24. REA has presented nothing that persuades us that the Bureau erred in rejecting its equitable tolling argument. We have stated that:    [under Section 415] the lapse of time beyond the limitation period not only bars  X- othe remedy but also destroys the liability . . . . The construction of Section 415,  both by the Commission and the federal courts, has been "strict". . . [Where] there  2is no allegation of fraud or deceit, having been practiced by the defendants upon  #complainant to prevent him from becoming aware of the facts which are the basis  X~-of its claim, there is no way of . . . tolling the statute of limitations.;~ 2 {O+&-#C\  P6QP#ЍXxArmstrong, 25 FCC 2d at 389 (citations omitted). (#ơ "g ;,^(^(JJ1"Ԍ  In addition, the Bureau has summarized applicable law as follows:    the concept of tolling of a statutory period on equitable grounds is usually very  `much restricted, especially when, as here, the statutory period is jurisdictional.  Section 415 is to be construed in light of Congressional intent and the  Commission and the courts have consistently held that Section 415 is jurisdictional  Xv-and must be applied even if to do so produces hardships.<v2 {O-#C\  P6QP#ЍXxAnchorage, 4 FCC Rcd at 2476.(#ƍ  XH-  0    x25. REA's claim that defendants' conduct is sufficient under the foregoing standards to  xinvoke the doctrine of equitable tolling rests on the assertion that defendants deliberately waited  xjtwo years after the AT&Tgenerated calls had ceased before raising subject matter jurisdiction  xfor the first time in state court. This assertion is incorrect: MCI's December 5, 1989, answer in  x[state court included explicit separate defenses in the alternative asserting that the Commission  xhad either primary or exclusive jurisdiction over the matter; thus, REA was on notice of possible  X - xjurisdictional problems from the beginning.= Z {O-#C\  P6QP#ЍXxSee Attachment 2 of MCI Reply to REA Opposition to MCI Motion to Dismiss.(#ƹ REA has not shown either active concealment by  xdefendants or any other equitable factors that would be sufficient, under the applicable standards,  xto overcome the reasonable conclusion that REA was principally responsible for not filing a timely complaint before this Commission.  XK-  ]x26. Moreover, the authorities cited by REA cannot change this result. Ervin concerned  X6- xa different statute and in fact found the plaintiff's tardiness to be unreasonable.~>6 yO-#C\  P6QP#ЍXx848 F.2d at 101920.(#~ Further, with  X- xyrespect to the threeprong test in Ervin (i.e., that the plaintiff timely notify the defendant of the  xclaim, the defendant not be prejudiced by the delay, and the plaintiff act reasonably and in good  X- xfaith), REA's tardiness here fails the third prong requiring that the complainant's conduct be  xreasonable because it was or should have been aware of the possibility that the Commission had  xprimary or exclusive subject matter jurisdiction and that there might be associated statute of  X- xzlimitations problems.?| {O-  #C\  P6QP#ЍXxId. Cf. Carter, 746 F.2d at 856 (concerning a claim of equitable tolling of the statue of limitations in a   0federal civil rights action due to the claimant's previous filing of a tort claim in state court, the court   followed the "general doctrine that a pending action does not toll the statute of limitations when the plaintiff  {O5!-  mistakes his remedy."); Bowen, 467 U.S. at 475 (concerning the Social Security Act, 42 U.S.C.  401 et  {O!-  seq., which "Congress designed to be 'unusually protective' of claimants," including a statute of limitations  {O"-  that was not jurisdictional."); Bunker Ramo, 31 FCC 2d at 45354 (holding that the defendant's conduct must be the primary reason for the delay, generally requiring active fraudulent concealment).(# Accordingly, the Bureau did not err in rejecting the equitable tolling argument.  Xi-  0x27. Although we have concluded that REA's conduct relative to AT&T and MCI in the  xjstate court has not met the requirements for equitable tolling, we are not implying a conclusion"R ?,^(^(JJ"  xthat REA's underlying claim on the merits is deficient, and we recognize that REA may  X- xexperience hardship by losing the opportunity for a ruling on the merits in any forum. We  x/emphasize that our jurisdiction over REA's claims under the Communications Act does not  xexclude a tort or other legal action in state court, and that the New Jersey court is free to resume proceedings on REA's stillpending claim there against AT&T if it so chooses.  Xv-  I V.   CONCLUSION AND ORDERING CLAUSE ă  XH- S  SS}28. For the reasons discussed above, we conclude that the Bureau did not err in holding  -that REA's claims against MCI and AT&T were barred by the statute of limitations contained  X -in Section 415 of the Act.}@  yO -#C\  P6QP#ЍXx47 U.S.C.  415.(#}  X - SnSS}29. Accordingly, IT IS ORDERED pursuant to Sections 1, 4(i), 4(j), 208, and 415 of  -the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 154(j), 208, and 415,  -and Section 1.115 of the Commission's Rules, 47 C.F.R.  1.115, that the applications for  -review that were filed on August 11, 1994, by Michael J. Valenti and Real Estate Market Place of New Jersey t/a Real Estate Alternative ARE DENIED. SS}   [[FEDERAL COMMUNICATIONS COMMISSION  X- SS}   [[William F. Caton  X-SS}   [[Acting Secretary