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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

Communications Vending           )
Corporation of                   )
Arizona, Inc., et al.,           )
                                )
Complainants,                    )
                                ) File Nos. EB-02-MD-018 - 030
    v.                          )
Citizens Communications Company  )
f/k/a Citizens Utilities         )
Company and                      )
Citizens Telecommunications      )
Company                          )
d/b/a Citizens Telecom, et al., 

Defendants                      

                  MEMORANDUM OPINION AND ORDER

     Adopted:  November 15, 2002        Released: November 19, 
2002
By the Commission: 

I.   INTRODUCTION

     1.   In this Memorandum Opinion and Order, we partially 
grant 13 formal complaints1 filed by independent payphone 
providers (``IPPs'') against local exchange carriers (``LECs''), 
asserting that Defendants violated Sections 201(b) and 203(c) of 
the Communications Act of 1934, as amended, 2 and Part 69 of the 
Commission's rules, 3 by improperly assessing end user common 
line (``EUCL'') charges on the Complainants' payphones.  These 
complaints were brought by Communications Vending Corporation of 
Arizona, Inc (``CVCA''), IMR Capital Corporation (``IMR''), 
Indiana Telcom Corporation, Inc. (``ITC''), National Telecoin 
Corporation, Inc. (``NTC''), NSC Communications Public Services 
Corporation (``NSC''), and Payphone Systems (collectively 
``Complainants'') against Citizens,4 Qwest,5 Verizon,6 ALLTEL,7 
SBC,8 BellSouth,9 Century,10 and TDS11 (collectively 
``Defendants'').12 

     2.   We note that approximately 3000 informal complaints 
pending with the Commission raise virtually identical issues to 
those we rule on today.13  Many of the parties in these thirteen 
cases are also involved in the pending informal complaints.  
Given the similarity in the issues and the parties, we believe 
the rulings contained in this order will facilitate informal 
resolution among the parties of the pending informal complaints.  
Finally, we note that, because the Commission amended its access 
charge rules on April 15, 1997, the issues addressed in this 
order will only have retrospective application.14 

II.  BACKGROUND AND SUMMARY

     3.   As noted above, the Complainants in these cases are 
independent payphone providers, and the Defendants are local 
exchange carriers, to whose telephone lines Complainants' 
payphones were connected.15  The complaints concern EUCL charges 
that the Defendants imposed on Complainants' pay telephones from 
1986 through April 15, 1997.16 

     II.A.     The History of the EUCL Dispute 

     4.   The issue of EUCL charges for payphones first arose 
several years ago, after the Commission first adopted access 
charge rules that required LECs to impose EUCL charges.  A review 
of the history of this issue will help to put the current 
disputes into context.  

     5.   When the Commission first adopted access charge rules 
in 1982, it permitted LECs to recover certain  non-traffic 
sensitive costs from end users through the monthly, flat-rated 
EUCL charge.17  Because the end users of public payphones,18 
however, consist of the "transient general public," rather than 
identifiable subscribers,19 the Commission in 1983 exempted 
public payphones from the EUCL charge.20  The Commission 
determined that the EUCL charge should be imposed on semi-public 
payphones,21 however, because subscribers to that service 
constitute identifiable business end users.22  

     6.   At the time the access charge scheme was developed, the 
only entities authorized to provide payphone service were LECs.23  
IPPs were later permitted to enter the market in 1984, 
essentially interposing a `middle man,' as it were, between the 
LECs and the ultimate payphone users.24  The controversy here was 
created because the access charge rules were not modified in 1984 
to specify the manner of imposing EUCL charges on IPP payphones.  

     7.   With the advent of IPP payphones in 1984, Defendants, 
on their own accord, determined that IPPs were end users and 
assessed the EUCL charge on all IPP payphones, irrespective of 
whether they were public or semi-public.25  Defendants, however, 
did not assess the EUCL on their own public payphones.26  The 
IPPs disputed these charges, and two IPPs lodged informal 
complaints (in 1988 and 1989).27  In response to both, Commission 
staff interpreted the Commission's rules and found that the LECs' 
assessment on the IPPs was permissible.28  Subsequently, on April 
21, 1989, the American Public Communications Council (``APCC''), 
a payphone industry association, filed with the Commission a 
petition seeking a declaratory ruling that the Commission's rules 
do not authorize the assessment of the EUCL because the IPPs are 
not ``end users'' and they only owned public payphones.29  Also 
in 1989, the United States District Court for the Western 
District of Wisconsin referred to the Commission a complaint 
filed by C.F. Communications Corporation (``CFC''), an IPP, which 
challenged the assessment of the EUCL charge by certain LECs.30                   

     8.   Pursuant to the district court's primary jurisdiction 
referral, on May 10, 1989, CFC filed 13 formal complaints with 
the Commission objecting to the LECs' assessment of EUCL 
charges.31  The Common Carrier Bureau and the Commission denied 
CFC's claims.32  In the CFC I Order, the Commission determined 
that CFC's payphones were subject to EUCL charges because CFC was 
an "end user" and that CFC's payphones were not "public 
telephones" under the Commission's rules.33  The D.C. Circuit, 
however, rejected the Commission's determinations and remanded 
the case to the Commission.34  The Court held that CFC was not an 
``end user,'' and, alternatively, that the Commission had 
improperly discriminated between similarly situated services 
(IPP-owned and LEC-owned public payphones) without a rational 
basis.35

     9.   In its April 13, 2000 Liability Order on remand, the 
Commission applied the Court's analysis and found that CFC and 
the other IPPs cannot be considered "end users" under Section 
69.2(m).36  The Commission also determined, however, that 
irrespective of whether CFC was an ``end user,'' the primary 
determination the Commission should have made was whether CFC's 
payphones were ``public'' or ``semi-public.''37  Accordingly, the 
Commission found that the LECs imposed an unreasonable charge in 
violation of Section 201(b) by classifying all IPP payphones as 
semi-public and assessing EUCL charges against IPP payphones that 
were deployed in the same manner as LEC-owned "public 
payphones."38   

     10.  The Commission also rejected arguments that awarding 
damages to the IPPs would be inappropriate because the LECs were 
acting in accordance with Commission rules.  The Commission found 
that the access charge orders did not, in fact, require carriers 
to assess the EUCL charge indiscriminately on all IPP-owned 
payphones, given that the rules required LECs to evaluate whether 
individual payphones should be classified as "public" or "semi-
public.''39  The Commission, thus, ruled that the IPPs were 
entitled to damages.40  The Liability Order was upheld on 
appeal.41  In particular, the Court held that ``it was 
appropriate for the FCC to find the LECs liable for the EUCL 
charges.''42  Because the Commission had not ruled on individual 
damages claims, the Court also stated that it would ``express no 
opinion as to the Commission's authority to impose damages on the 
LECs for charges that they may have collected in reliance on the 
agency's initial (and mistaken) interpretations of the Access 
Charge Reconsideration rules.''43 

     II.B.     The Current Cases

     11.  As a result of the D.C. Circuit's 1997 decision, the 
Commission received several thousand informal complaints from 
late 1997 through 1998 raising claims similar to those asserted 
by CFC.44  Because the issues raised by the IPPs in their 
informal complaints were similar to those being considered by the 
Commission in the remand proceeding, for administrative 
efficiency, Commission staff issued a waiver order tolling for a 
number of informal complaints the six-month relation back 
requirement contained in Section 1.718 of the Commission's 
rules.45  Pursuant to the waiver order, any informal complaint 
relating to issues raised in the CFC proceeding that had to be 
converted to a formal complaint pursuant to Section 1.718 after 
June 15, 1998, would be deemed to relate back to the filing date 
of the relevant informal complaint if it was filed no later than 
90 days after a final nonappealable order had been entered in 
that proceeding.46  The Enforcement Bureau has extended the 
waiver order several times since then to allow parties to await 
the Commission's adjudication of the formal complaints presently 
before us.47  

     12.  The cases now before us arise from a number of the 
previously-mentioned informal complaints, which have been 
converted to formal complaints.  Complainants allege that 
Defendants violated the Commission's rules,48 as well as Sections 
201(b) and 203(c) of the Act49 by imposing EUCL charges on 
Complainants' payphones.50  Complainants assert here that it was 
not proper to assess the EUCL on any of their payphones, 
regardless of whether they were public or semi-public, because 
Complainants are not ``end users.''51  Complainants also seek a 
waiver of the Section 415(b) statute of limitations in order to 
obtain damages for all improperly assessed EUCL charges, 
regardless of when their informal complaints were filed.52

     13.  Defendants deny Complainants' allegations and maintain 
that their imposition of EUCL charges on Complainants' payphones 
was consistent with the Commission's rules.53  Furthermore, 
Defendants raise a number of defenses regarding the payment of 
damages to Complainants.  In particular, Defendants argue that, 
regardless of liability, equitable principles bar any recovery by 
Complainants.54  Defendants also maintain that any recovery of 
damages is subject to the two-year limitations period in Section 
415 of the Act.55  In addition, Defendants argue that certain 
claims should be barred for procedural reasons.56  

     14.  In order to expedite resolution of the key legal issues 
common to these complaints (and to the pending informal 
complaints), we bifurcated the proceeding, deferring the 
calculation of Complainants' individual damages claims and 
related Complainant-specific damages issues to a later phase.57  

     II.C.     Summary of the Decision

     15.  In this order we conclude that the LEC Defendants 
violated Section 201(b) of the Act and Part 69 of the 
Commission's rules by imposing EUCL charges on IPP payphones, and 
that Complainants are entitled to recover damages.  Further, we 
decline to toll the applicable statute of limitations of Section 
415(b), and therefore, such damages are limited to the period 
beginning two years prior to the filing of the informal 
complaints.

III.      DEFENDANTS VIOLATED  THE ACT  AND COMMISSION  RULES  BY 
     IMPOSING EUCL CHARGES ON COMPLAINANTS' PAYPHONES

     16.  Complainants assert that Defendants' imposition of EUCL 
charges on their payphones violated the Act and the Commission's 
rules.  We have already found, in the 2000 Liability Order, that 
imposing EUCL charges on public IPP payphones violated Section 
201(b) of the Act and Part 69 of the Commission's rules.58  
Complainants ask us to affirm that that ruling applies to these 
cases, and Defendants do not challenge the applicability of the 
Liability Order.  Therefore, we affirm and apply that portion of 
the Liability Order here.

     17.  We also find, as explained below, that Defendants 
violated Section 201(b) of the Act and Part 69 of the 
Commission's rules by imposing EUCL charges on semi-public IPP 
phones.

     III.A.    Defendants Violated Section 201(b) of the Act  and 
          Part 69 of  the Commission's Rules  by Imposing a  EUCL 
          Charge on  Complainants'  Payphones, Because  the  IPPs 
          Were Not ``End Users''

     18.  In the Liability Order, the Commission found that the 
IPPs ``cannot be considered `end users' under Section 69.2(m), 
because they do not own the premises where their payphones are 
located.''59  In light of the Court's concerns that the 
Commission had improperly discriminated between similarly-
situated payphone services, however, the Commission also stated 
that, ``irrespective'' of whether IPPs are ``end users,'' the 
``appropriate distinction to apply to determine whether the EUCL 
would apply to [IPP] payphones was the `public/semi-public' 
distinction.''60  Thus, the Commission concluded in that case 
that the imposition of EUCL charges on public IPP payphones was 
improper, but that the assessment of such charges on semi-public 
IPP phones was permissible.61 The Liability Order was upheld by 
the D.C. Circuit.62

     19.  Complainants here raise an argument that has never been 
addressed in light of the public/semi-public distinction 
established in the Liability Order.63  Complainants contend that 
it was unlawful for Defendants to assess EUCL charges on any IPP 
payphones - including semi-public payphones.  The Complainants 
argue that both the Commission and D.C. Circuit have squarely 
held that IPPs were not ``end users'' within the meaning of 
Section 69.2(m), and thus they were not subject to the rule 
governing EUCL charges at all.  As a result, according to 
Complainants, notwithstanding the Commission's prior statement in 
the Liability Order, the semi-public/public distinction is 
actually irrelevant to the issue of whether EUCL charges were 
properly assessed on IPP payphones.64  We agree.  We find that, 
because Complainants were not ``end users'' within the meaning of 
Section 69.2(m), they were not within the scope of the EUCL rule, 
and charges levied against them - regardless of whether the 
payphones were public or semi-public - were unlawful.

     20.  There is no question that the Commission's rules 
allowed LECs to impose EUCL charges, as the name itself suggests, 
only on ``end users'':

          A charge that is expressed in dollars and 
          cents per line per month shall be assessed 
          upon end users that subscribe to local 
          exchange telephone service, Centrex or semi-
          public coin telephone service to the extent 
          they do not pay carrier common line charges.  
          65  

If an entity is an ``end user'' as defined by the rules, only 
then is it necessary to determine whether it ``subscribe[s] to . 
. . semi-public'' service.66  Under the plain language of the 
rule, however, if an entity is not an ``end user'' in the first 
place, then the semi-public distinction is irrelevant.  

     21.  Rule 69.2(m) defined ``end user'' as:

          [A]ny customer of an interstate . . . 
          telecommunications service that is not a 
          carrier except that a carrier . . . shall be 
          deemed to be an `end user' when such carrier 
          uses a telecommunications service for 
          administrative purposes and a[n] . . . entity 
          that offers telecommunications services 
          exclusively as a reseller shall be deemed to 
          be an `end user' if all resale transmissions 
          offered by such reseller originate on the 
          premises of such reseller.67

The D.C. Circuit and the Commission have both previously found 
that IPPs are not ``end users'' under this rule.  The Court of 
Appeals, in its first decision in C.F. Communications, found that 
CFC was not an ``end user'' under the rule,68 rejecting the 
Commission's analysis that CFC was an ``end user'' because, 
according to the Commission, it ``offers telecommunications 
service exclusively as a reseller'' with all such transactions 
``originat[ing] on [CFC's] premises.''69  The Commission had 
construed ``premises'' to mean the actual payphone equipment, 
which was owned by the IPPs, but the court rejected that 
interpretation.  Similarly, on remand, the Commission held that 
``[i]n light of the court's ruling, we now find that CFC and the 
other IPPs cannot be considered `end users' under Section 
69.2(m).''70  The Complainants here, like CFC, do not own the 
premises on which their payphones are located;71 thus they are 
not ``end users'' within the meaning of 69.2(m).  Therefore, they 
were not subject to the EUCL charge regardless of whether their 
payphones were public or semi-public.

     22.  We recognize that our decision here differs from our 
conclusion in the Liability Order.  We note also, however, that 
this is the first opportunity we have had to squarely address the 
argument raised by Complainants.72  Upon a thorough review of the 
relevant rules and precedents, we now conclude that our prior 
focus on the public/semi-public distinction, rather than the 
threshold ``end user'' determination, was incorrect.73  

     23.  The D.C. Circuit, in its first decision in C.F. 
Communications, criticized the Commission's unequal treatment of 
similarly-situated payphones.  In the Liability Order, the 
Commission focused on treating the IPP and LEC payphones the same 
in terms of the EUCL charge and thus viewed the public/semi-
public distinction as determinative.  Given the clear wording of 
the access charge rules in place at the time, however, because 
the IPPs were not ``end users,'' as defined by 69.2(m), they were 
not subject to the EUCL charge.74  Defendants, moreover, offer no 
explanation of how a charge that may be levied only on ``end 
users'' may be assessed upon entities that explicitly have been 
found not to be ``end users.''  Therefore, we find that 
Defendants' assessment of EUCL charges on IPP payphones prior to 
1997 - whether public or semi-public - violated Section 201(b) of 
the Act and Part 69 of the Commission's rules.  While this 
differs in part from the Liability Order, it is important to note 
that our prior view regarding the imposition of EUCL charges on 
semi-public IPP payphones could not even arguably engender 
further reliance on the part of Defendants since the access 
charge rules were amended before the Liability Order was released 
in April 2000.  Any assertion by the LECs regarding reliance 
could only be based on the 1995 Commission Order, or earlier 
pronouncements by the Common Carrier Bureau.

     24.  Defendants contend that Complainants were ``end 
users,'' in any event, because they were acting as agents of the 
premises owners (who, they argue, were ``end users'').  
Defendants assert that Complainants were therefore liable for the 
EUCL charges to the same extent their principals would have 
been.75  We reject this argument.   

     25.  First, Defendants cannot use an agency theory to avoid 
liability for EUCL charges assessed on public payphones.  As 
discussed in detail above, the Commission has previously held 
that ``end users'' of public payphones are exempt from EUCL 
charges.76  This liability determination was upheld by the D.C. 
Circuit.77  Thus, even the premises owners would not have been 
subject to EUCL charges.  Defendants admit as much when they 
acknowledge that they did not assess EUCL charges on the owners 
of the premises where their own public payphones were located.78  

     26.  In any event, Defendants have established no basis for 
imputing any liability of the premises owner to the Complainants 
for any payphones (public or semi-public).  Defendants claim that 
Complainants were agents of the premises owners by virtue of 
explicit written agency agreements executed by a number of 
Complainants.79  Even without such a contract, Defendants claim 
that an agency relationship can be inferred from the 
circumstances.80  According to Defendants, only the premises 
owner had the right to authorize installation of a phone on its 
premises, and thus the only way Complainants could have ordered 
phone service from Defendants was ``as the agent for the premises 
owner'' and subject to the owner's control.81  

     27.  Agency is defined in the Restatement as ``the fiduciary 
relation which results from the manifestation of consent by one 
person to another that the other shall act on his behalf and 
subject to his control, and consent by the other so to act.'' 82  
A critical element is that ``the principal is to be in control of 
the undertaking.''83  The ``name which the parties give to the 
relation is not determinative,''84 and the burden of proving 
agency rests on the party asserting its existence.85  We find 
that neither the written agreements nor the circumstances 
subjected IPPs to the premises owner's control, and that the 
IPPs, in any event, were acting in their own interests in 
installing and maintaining payphones.

     28.  The written agreements relied on by Defendants are 
licensing agreements authorizing IPPs to install and maintain 
payphones.  Under these agreements, the premises owners control 
nothing, but rather are paid a commission in consideration for 
the use of the space.86  Significantly, the agreements referenced 
by Defendants provide that the IPP has ``sole discretion to 
determine the number of payphones to be installed.''87  The IPP 
owns, installs and maintains the phones and under the agreements 
is given unrestricted access to its phones.88  Indeed, several 
agreements cited by Defendants refer to the premises owner as a 
``space provider'' and ``site provider,'' which is far from the 
notion Defendants seek to portray of premises owners as 
``principals'' who control and supervise their agents (the 
IPPs).89  

     29.  Nor have Defendants established that an agency 
relationship can be inferred from the circumstances.  While 
authorization to install phones on the premises was required, 
Defendants point to no facts suggesting that any premises owner 
here controlled a Complainant or that any Complainant was not 
acting pursuant to its own independent business interests.  In 
sum, no agency relationship existed between Complainants and the 
premises owners on which Defendants can premise their claim of 
imputed liability.

     III.B.    Section 203

     30.  Complainants also assert that the imposition of the 
EUCL charge prior to 1997 violated Section 203 of the Act and the 
Filed Rate Doctrine.90  Paralleling their Section 201 claim, 
Complainants allege that Defendants' tariffs limited EUCL charges 
to ``end users,'' and that both the D.C. Circuit and the 
Commission have specifically held that IPPs are not ``end 
users.''91  Having concluded that Defendants violated Section 
201(b) by assessing the EUCL charges on Complainants prior to 
1997, we do not need to reach Complainants' tariff violation 
claims under Section 203 and the Filed Rate Doctrine.92  

IV.  COMPLAINANTS ARE ENTITLED TO RECOVER DAMAGES FOR DEFENDANTS' 
     UNLAWFUL ASSESSMENT OF EUCL CHARGES

     31.  Having determined that Defendants violated the Act and 
Commission rules by assessing EUCL charges on IPP payphones, we 
now address the extent to which an award of damages is 
appropriate.93  Defendants argue that because the Commission 
approved the practice of imposing EUCL charges on Complainants (a 
decision that was later reversed), Complainants' sole remedy for 
payment of unlawful EUCL charges is restitution, which would be 
limited to the disgorgement of any unjust enrichment.  Defendants 
further contend that they were not unjustly enriched by 
collecting EUCL charges from the IPPs because, had they not done 
so, they would have recovered the same amounts from the IXCs.  
Thus, according to Defendants, Complainants are not entitled to 
any recovery.  We disagree with Defendants and find that the 
imposition of compensatory damages pursuant to Section 206 of the 
Act is appropriate here.94

     IV.A.     Equitable Considerations Do  Not Bar  an Award  of 
          Damages Here

     32.  In the Verizon case, the LECs contested both liability 
for the illegal assessment of EUCL charges on IPPs as well as the 
imposition of damages.  Defendants in that case argued, as they 
have here, that they may not be sanctioned for conduct expressly 
approved by the Commission and that ``restitution, and not legal 
damages, is the sole remedy available to the IPPs.''95  In 
support of their equitable defense to damages here, Defendants 
suggest that the Court of Appeals ``effectively overrule[ed]'' 
the Commission's prior Liability Order in terms of damages.96  
This argument does not constitute a basis upon which Defendants 
can avoid the imposition of damages.  The Liability Order 
rejected the Defendants' arguments that the award of damages 
would be inappropriate in that proceeding.  On appeal, the D.C. 
Circuit declined to address the damages issue on grounds that it 
was not ripe, leaving Defendants free to raise it in a subsequent 
proceeding. 97  By indicating that Defendants ``are not 
foreclosed from presenting their equitable concerns to the agency 
during the next stage of the proceedings,'' the Court did not by 
any means reject the Commission's position.98  

     33.  We have considered Defendants' equitable defenses and 
conclude that, on balance, any inequity to Defendants in awarding 
damages is outweighed by the imposition of unlawful charges on 
Complainants.  In determining whether the LECs could be held 
liable for violating Section 201 of the Act by assessing EUCL 
charges on IPPs, the D.C. Circuit analyzed a line of cases 
addressing the retroactive applications of judicial reversals of 
agency determinations.  In its analysis, the D.C. Circuit 
recognized a distinction between new applications of law and 
``the substitution of new law for old law that was reasonably 
clear.''99  According to the Court, where the case involves 
```new applications of existing law, clarifications, and 
additions,' the court starts with a presumption in favor of 
retroactivity.''100  Retroactivity will be denied, however, 
``when to apply the new rule to past conduct or to prior events 
would work a `manifest injustice.'''101  The Court stated that it 
has articulated its retroactivity standard in a number of ways - 
from a five-factor balancing test to a three-factor approach - 
and most recently indicated that the analysis ```boil[s] down to 
a question of concerns grounded in notions of equity and 
fairness.'''102  Such a balancing of equities likewise compels 
the conclusion that Defendants should be liable to Complainants 
for damages for the unlawful imposition of EUCL charges.

     34.  Here, the Defendants argue that they assessed the EUCL 
charges ``pursuant to the Commission's explicit guidance and 
direction'' since at least 1988.103  Specifically, Defendants 
allege that such guidance was in the form of two informal staff 
letters issued in response to informal complaints.104  As the 
Commission noted in the Liability Order, however, the two 
unpublished staff letters ``are not binding on the 
Commission.''105  And, as the D.C. Circuit has stated, advice by 
staff members does not bind the Commission and does not excuse 
parties who rely on such advice and rulings from the consequences 
of their conduct.106  Any purported reliance on these letters 
simply does not constitute a basis upon which Defendants can 
avoid payment of damages.

     35.  In addition, Defendants maintain that the 1993 Common 
Carrier Bureau order and the 1995 Commission order affirming it 
(and finding the assessment of EUCL charges on IPPs was proper), 
firmly established the Commission's policy.107  The Commission 
order, however, was reversed on appeal by the D.C. Circuit on 
grounds that the Commission's interpretation of its own access 
charge rules was clearly erroneous.108  The vacated orders did 
not purport to establish new rules or impose new requirements 
upon the LECs.  Rather, in adjudicating the lawfulness of the 
EUCL charges at issue, the Commission and its staff interpreted 
and applied -- albeit erroneously -- the access charge 
requirements that had governed the LECs' assessment of EUCL 
charges since 1983.  

     36.  On balance, we believe that the Complainants' equitable 
interest in receiving compensation for payment of unlawfully 
assessed charges, and the Commission's interest in correcting its 
error and adjudicating the case in accordance with the proper 
interpretation of its regulations, outweighs any reliance the 
Defendants may have had in the correctness of the Commission's 
initial interpretation (before it was struck down on judicial 
review).  The D.C. Circuit has recognized ``a strong equitable 
presumption in favor of retroactivity that would make the parties 
whole.''109  Where, as here, the Commission in an earlier phase 
of the case committed legal error, it is appropriate for the 
agency to ``put the parties in the position they would have been 
in had the error not been made.''110  It is undisputed that the 
1983 access charge rulemaking, correctly interpreted, prohibited 
the LECs from assessing EUCL charges on public payphones.  Even 
if the LECs had believed the EUCL charges were lawful, the D.C. 
Circuit in C.F. Communications found that those charges had 
violated the requirements in the 1983 access charge rulemaking.  
It was appropriate for the Commission, in exercising its 
adjudicatory authority under Section 208, to require the LECs to 
reimburse the Complainants for the unlawful charges they paid.  
As the Court of Appeals stated in the Verizon case:

          [T]he agency pronouncements on which the LECs 
          relied were subsequently held by this court 
          to be mistaken as a matter of law.  As such, 
          the FCC's Liability Order was largely an 
          exercise in error correction.  We have 
          previously held that administrative agencies 
          have greater discretion to impose their 
          rulings retroactively when they do so in 
          response to judicial review, that is, when 
          the purpose of retroactive application is to 
          rectify legal mistakes identified by a 
          federal court.111

Awarding damages put the parties in the position they 
would have been in if the Commission's error had not 
been made.

     37.  We do not believe that any purported reliance on the 
Commission's vacated orders should exempt Defendants from paying 
damages.  The LECs began assessing EUCL charges on all IPP-owned 
payphones years before the agency issued the staff letters or the 
vacated orders.112  Moreover, the vacated orders never became 
settled law on which the LECs were entitled to rely.  The IPPs 
immediately sought judicial review, thereby putting the LECs on 
notice that the Court might invalidate them and adopt a different 
interpretation of the 1983 access charge requirements.  In fact, 
in refuting Complainants' arguments for tolling the statute of 
limitations, Defendants themselves ``emphasize at the outset that 
there was never a final, unappealable determination by any 
tribunal that Complainants were without a remedy for the charges 
imposed here.''113  As the D.C. Circuit stated in the Verizon 
case:

          [T]he agency orders on which the LECs claim 
          to have relied not only had never been 
          judicially confirmed, but were under 
          unceasing challenge before progressively 
          higher legal authorities. .. Because the 
          object of the LECs' reliance was neither 
          settled (but was rather perpetually enmeshed 
          in litigation) nor `well-established,' . . . 
          we are skeptical that retroactive liability 
          against the LECs would impose a manifest 
          injustice.114

     38.  Moreover, to the extent that Defendants might have 
recovered their costs from IXCs if they had not assessed the EUCL 
on IPPs, Defendants are not entirely without recourse.  
Commission rules provide a mechanism whereby Defendants can seek 
to demonstrate that the damages paid to the Complainants 
constitute ``extraordinary cost changes,'' thus increasing the 
permitted price caps.115  Complainants, on the other hand, have 
no other practical recourse.  They were required to pay the EUCL 
to maintain their payphone service despite their legal 
objections.  An award of damages here is justified in order to 
``make whole parties who are clearly injured'' by unlawful 
rates.116  The IPPs should not be deprived of a remedy for paying 
unlawful rates merely because the Commission made a legal error 
in an earlier phase of this adjudication.  The Commission has the 
authority ``to `undo what was wrongfully done by virtue of its 
prior order.'''117  

     39.  Therefore, assuming that equitable considerations are 
appropriate in a Section 208 complaint case, we find that the 
balance of equities tips decidedly in favor of awarding damages 
to Complainants, and we decline to grant any equitable offset 
based on claims of detrimental reliance.  Defendants will be 
required to pay damages to Complainants based on the amount of 
EUCL charges assessed.

     IV.B.     Complainants  Are  Not  Limited  To  Recovery   in 
          Restitution

     40.  Defendants contend that, ``[w]here a party pays amounts 
pursuant to an agency's requirements, and those requirements are 
later held to be unlawful, the payor has, if anything, a claim 
for restitution.''118  Contrary to the Defendants' insistence 
that an action in restitution for unjust enrichment is the sole 
remedy available to Complainants, the Communications Act 
explicitly provides Complainants with a legal remedy for redress 
of injuries suffered as a result of a carrier's violation of the 
Act.  Defendants' assertion ignores the fact that Complainants 
have invoked this statutory scheme.  

     41.  An action in restitution is fundamentally different 
from the statutory claim for damages which Complainants have 
brought.  As the D.C. Circuit has stated, Section 206 of the Act 
is ``phrased in mandatory terms:  A carrier that has violated the 
Act `shall be liable to the person or persons injured thereby for 
the full amount of damages sustained in consequence of any such 
violation.'''119  Section 209, likewise, provides that, if the 
Commission determines that a complainant is entitled to an award 
of damages, the Commission ``shall'' order the carrier to pay the 
complainant the sum to which it is entitled.120  Thus, Section 
206 - in explicit terms - makes the Defendants liable to the 
Complainants in damages for any injuries they inflicted on the 
IPPs by unlawfully assessing EUCL charges.  And Section 209 
requires the Commission, upon making the necessary findings, to 
order the Defendants to pay such damages.  Therefore, because we 
have found that the imposition of damages would not work a 
manifest injustice,121 we believe that Sections 206 and 209 
require the imposition of damages in this case.

     42.  Significantly, moreover, the statute does not limit 
Complainants' remedy to restitution - nor should such a theory be 
superimposed upon the statute.  Damages is a form of remedy that 
is wholly distinct from equitable remedies such as restitution:  

          Restitution measures the remedy by the 
          defendant's gain and seeks to force 
          disgorgement of that gain.  It differs in its 
          goal or principle from damages, which 
          measures the remedy by the plaintiff's loss 
          and seeks to provide compensation for that 
          loss.122  

Compensatory damages are designed to make the plaintiff whole, 
while restitution looks at the extent to which a defendant has 
benefited.123  The purpose of Section 206, by its terms, is to 
compensate Complainants for the injury sustained as a result of 
violations of the Act.  And the D.C. Circuit has determined that 
the measure of damages in a Section 208 case is the difference 
between the charges paid and the ``just and reasonable'' rate.124  
In these cases, because the charge was unlawful, the just and 
reasonable rate was zero.  Thus, the Complainants are entitled to 
damages based on the amount of EUCL charges actually assessed and 
paid during the relevant time period.

     43.  Defendants ignore the statutory damages provision and, 
in essence, seek to substitute in its place a requirement that 
Complainants seek recovery via an action for restitution.  
Defendants base their position on a Restatement provision which 
provides that :  

          A transfer or taking of property, in 
          compliance with/or otherwise in consequence 
          of a judgment that is subsequently reversed 
          or avoided, gives the disadvantaged party a 
          claim in restitution to the extent necessary 
          to avoid unjust enrichment.125   

This provision, however, merely reflects the fact that injured 
parties, in certain circumstances,  have an independent ground 
for recovery in restitution.126  The D.C. Circuit has squarely 
held, however, that where, as here, a statutory mechanism exists, 
an equitable action in restitution is not 
appropriate.127Complainants here brought their claim for damages 
under Section 206, and nothing in the Restatement - or any other 
authority cited by Defendants - vitiates Complainants' right to 
invoke the statutory damages remedy.  

     44.  The cases relied on by Defendants do not support their 
view that restitution is the sole remedy available to 
Complainants here.  Defendants rely on Atlantic Coast Line 
Railroad Co. v. Florida, 295 U.S. 301 (1993), for the proposition 
that equitable restitution is the only available remedy for 
Complainants here.  Defendants claim that ``the statute at issue 
there - the Interstate Commerce Act (``ICA'') - was functionally 
identical to the Communications Act in the remedies it 
provided.''128  The plaintiffs in Atlantic Coast Line, however, 
did not file a complaint against the defendants pursuant to the 
ICA, but rather brought a common-law action for restitution.  
Thus, the court in Atlantic Coast Line did not interpret or apply 
the provisions of the ICA that were ``functionally identical'' to 
Sections 206-209 of the Act, but applied principles of 
restitution.  Indeed, the Court emphasized that the ICC lacked 
authority in that instance to give reparations or damages.129  
Nothing in this or any other case cited by Defendants stands for 
the proposition that Complainants are relegated to restitution 
when a statutory right to damages exists.

     45.  Similarly, Abbotts Dairies Division of Fairmont Foods, 
Inc. v. Butz, 584 F.2d 12 (3d Cir. 1978), Moss v. Civil 
Aeronautics Board, 521 F.2d 298 (D.C. Cir. 1975), and Texas 
Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867 
(1st Cir. 1995), relied on by Defendants, involved no statutory 
provision conferring the right to recover damages comparable to 
Sections 206 and 209 of the Act.  Lacking such a statutory basis, 
these cases involved an analysis of equitable restitution.130  In 
sum, the cases have no relation to the claim brought by the 
Complainants here, and by no means provide a basis to read into 
Section 206 a requirement that damages be limited to restitution 
in this or any other situation. 

     IV.C.     Even Under Principles  of Restitution,  Defendants 
          Would Be Liable for Unlawfully Assessed EUCL Charges

     46.  Analyzing Complainants' causes of action under 
principles of restitution, in any event, would result in an award 
of damages to Complainants.  ``[T]he fundamental characteristic 
of unjust enrichment is `that defendant has been unjustly 
enriched by receiving something . . . that properly belongs to 
the plaintiff.''131  Such a determination is made as between the 
two parties involved:  

          [U]njust enrichment refers to corrective 
          justice . . .  It does not invite judgments 
          about the fair distribution of wealth in 
          society, but about what is right between two 
          particular people. . .132     

     47.  The Defendants assert that, if they had not assessed 
the EUCL charges on the IPPs, they could have assessed higher CCL 
charges on the interexchange carriers (``IXCs'').  Thus, 
according to Defendants, they were not enriched. 133  Defendants, 
in fact, were enriched because they unlawfully assessed and 
collected payments from the Complainants.134  And the enrichment 
was unjust because the assessments and collections violated 
Section 201(b) and the Commission's access charge requirements.  
Section 201(b) requires ``all charges'' of a communications 
carrier to be just and reasonable.135  The carrier ``having 
initially filed the rates and either collected an illegal return 
or failed to collect a sufficient one must . . . shoulder the 
hazards incident to its actions including not only the refund of 
any illegal gain but also its losses where its filed rate is 
found to be inadequate.''136  Every customer has the right to be 
charged lawful rates, and this right is not conditioned upon the 
rates other ratepayers may be charged for other services.  
Defendants thus may not justify unlawful charges to the 
Complainants by asserting that they had failed to assess the 
maximum lawful CCL charge on the IXCs.  Requiring the Defendants 
to pay damages thus would be consistent with equitable 
restitution principles because it merely would require the 
carriers ``to give up what they never should have collected.''137  

V.   COMPLAINANTS' RECOVERY PERIOD IS LIMITED TO TWO YEARS  PRIOR 
     TO THE FILING OF THEIR INFORMAL COMPLAINTS 

     48.  Section 415 of the Act requires an action for damages 
to be filed within two years of the time a cause of action 
accrues.  Thus, damages are available only for the two-year 
period preceding the filing of a complaint.  In these cases, 
informal complaints were filed in the late 1997/early 1998 time 
frame.138 Complainants, nevertheless, seek to recover EUCL 
payments from Defendants for the entire period during which 
Defendants assessed the EUCL on each Complainant.139  
Complainants make two types of arguments to support their claims.  
First, Complainants make various assertions about why the 
Commission should deem the cause of action to have accrued either 
when the D.C. Circuit issued the C.F. Communications Order, or 
when the Commission issued the Liability Order in 2000.  
Complainants claim that it would have been futile for them to 
have pursued their claims prior to the issuance of these orders, 
in light of the Commission's prior rulings to the contrary, even 
though other complainants with identical claims were continuously 
appealing the Commission's determinations.140  As additional 
support for their contentions, Complainants cite to various cases 
to assert that subsequent favorable precedent can revive a time-
barred claim.141  As discussed below, we find, however, that the 
causes of action accrued when the EUCL charges were imposed.

     49.  Second, Complainants assert that, irrespective of the 
accrual date of their causes of action, the statute of 
limitations should be tolled on equitable and administrative 
grounds, based on the filing of a petition for declaratory ruling 
by a payphone trade association (APCC) and the voluminous number 
of informal complaints.  Complainants seek a waiver, under 
Section 1.3 of our Rules, of the application of Section 415(b) of 
the Act, which provides a party with two years from the date the 
cause of action accrues to file a complaint.142  Based on 
Commission and court precedent, as well as the facts of this 
case, as discussed below, we decline to extend the recovery 
period for which Complainants may collect damages beyond the 
limitations period set out in Section 415(b) of the Act.

     V.A.      Complainants' Causes of Action Accrued at the Time 
          That The EUCL                                                                                             
          Charges Were Assessed

     50.  The purpose of Section 415 is ``to protect a potential 
defendant against stale and vexatious claims by ending the 
possibility of litigation after a reasonable period of time has 
elapsed.''143  Thus, we review Complainants' assertions from the 
perspective that: 1) Complainants have an affirmative obligation 
to ``exercise due diligence in preserving [their] legal 
rights'';144 and 2) the Commission and the federal courts 
strictly construe Section 415 and exceptions to its application 
have been confined to narrow circumstances, such as fraudulent 
concealment.145  Based on the circumstances of this case, we find 
that Complainants did not make sufficient efforts to pursue their 
claims, nor have they provided any other basis for determining 
that the cause of action accrued later than the time the EUCL 
charges were assessed.

     51.  Under Section 415(b), a cause of action accrues at the 
date of the injury, if it is readily discoverable.146  If the 
injury is not readily discoverable, the cause of action accrues 
when the litigant discovers the injury.147  In these cases, all 
of the Complainants have provided affidavits stating that they 
were aware of the EUCL charge and that they believed these 
charges were unlawful from the start.148  Thus, the injury in 
these complaints was not only ``readily discoverable,'' but in 
fact had been discovered from the time Complainants received 
their first bill containing the EUCL assessment.149  Indeed, 
Complainants also state that they were aware of the formal 
complaints filed by the other IPPs.150  Moreover, Complainants' 
participation in the APCC petition for declaratory ruling seeking 
to overturn the EUCL's application on them further belies their 
argument that they were not aware they had a cause of action 
until the issuance of the D.C. Circuit's C.F. Communications 
decision.151  Hence, we reject the claim that their causes of 
action accrued no earlier than October 31, 1997, the date of the 
C.F. Communications decision or the Commission's Liability Order 
of 2000.152 

     52.  We do not find Complainants' arguments about the 
futility of previously pursuing their claims to be an adequate 
basis for tolling the requirements of Section 415(b), or finding 
that the cause of action accrued at a time other than the date of 
injury.  Complainants argue that adverse Commission and judicial 
rulings prior to the Court's issuance of the C.F. Communications 
decision deprived them of ``any practicable'' opportunity to 
pursue their claims.153  The facts of this case indicate 
otherwise.  

     53.   Between 1984 and 1988, there was no statement from the 
Commission about the validity of the charges, and thus, no 
arguably adverse ruling that could have prevented Complainants 
from filing complaints.  Under the Commission's rules, the two 
unpublished letters by an individual FCC staff member in response 
to informal complaints issued in 1988 and 1989154 could not be 
used as precedent against other complainants.155  Moreover, when 
the full Commission spoke to the validity of the charges in 
1995,156 that decision did not become final.  Indeed, that 
decision was remanded to the Commission after being successfully 
appealed by the affected complainants.157  Thus, the Commission's 
decision upholding Defendants' manner of assessing the EUCL was 
subject to judicial review and pending legal challenges to that 
decision made the legality of Defendants' behavior uncertain.158  
Complainants themselves stated in seeking to refute Defendants' 
reliance argument that ``[a]ny purported reliance on Commission 
letters or decision still under appeal would have been 
unreasonable as a matter of law.''159

     54.  Complainants also argue that they could not have 
feasibly pursued their claims in other forums because district 
courts would have referred them to the Commission, as the Court 
did with the C.F. Communications case.160  We disagree.  Because 
the Commission had not issued a final determination on the 
legality of the EUCL assessment on IPPs, Complainants could have 
pursued their claims in either forum, irrespective of whether the 
district court would have referred the IPPs' claims to the 
Commission.161  In any case, the fact that approximately 30 
similarly-situated IPPs did manage to pursue over 50 claims in a 
timely manner and prevailed on this issue of liability puts 
Complainants' impossibility argument to rest.162   

     55.  We are not persuaded that we should conclude in this 
instance that the accrual date is other than the date the injury 
was first discovered, i.e. the date when the IPPs received their 
first EUCL bills.163  New favorable precedent does not revive a 
time-barred claim.164  As appellate courts have held, the 
``application of the statute of limitations cannot be made to 
depend upon the constantly shifting state of the law''165 because 
such ``delayed accrual could result in an outpouring of stale, 
difficult to defend claims, contrary to the policy underlying 
limitations statutes.''166  Complainants could have filed their 
complaints on a timely basis and sought to have the Commission 
override its previous views.  

     56.  Complainants' reliance on the Container Corp.,167 
Hartford Life,168 Red Chevrolet,169 Neely,170 and Slaaten171 
decisions is misplaced because they all involve circumstances in 
which the newly issued decision created a new cause of action or 
revealed the existence of a cause of action for the first 
time.172  Complainants, however, believed that Defendants' EUCL 
assessments were inconsistent with the Commission's rules at the 
time of their first bills; the C.F. Communications decision did 
not create Complainants' cause of action, or put them on notice 
that they had a claim.  Western Union173 is also inapposite 
because the finding there that a cause of action would have 
accrued on the date of the Commission order setting certain final 
rates was based on the fact that the rates at issue were 
``interim prescribed rates which the Commission later found to be 
inadequate'' and that the facts upon which the complaint was 
based were ``inherently unknowable by potential complainants 
until the Commission issued its decision.''174  

     57.  Similarly, ITT World Communications175 is not 
persuasive because this proceeding is not Complainants' first and 
only opportunity to obtain the requested relief.  Like a number 
of other IPP complainants, they could have filed a complaint at 
the time they discovered the EUCL charge on their bill, either at 
the Commission or in federal district court, to pursue their 
legal remedies.176  In addition, because the Commission's EUCL 
rules were imposed on Complainants starting in 1984 and 
Complainants were aware that Defendants were violating Section 
69.104(a) from the first assessment of the EUCL charge upon them, 
Complainants' reliance on AirTouch is misplaced.177  Moreover, 
under the reasoning put forth by Complainants, the C.F. 
Communications complaint would have been dismissed as prematurely 
filed.  Thus, we conclude that the cause of action in this 
proceeding accrued when Defendants assessed the EUCL charge upon 
Complainants.178  

     V.B.      Complainants  Have  Not   Demonstrated  that   the 
          Statute of Limitations Should Be Tolled on Equitable or 
          Administrative Grounds

     58.  We also reject Complainants' argument that, regardless 
of the accrual date of their causes of action, the statute of 
limitations should be tolled on equitable and administrative 
grounds by the APCC's filing of its 1989 and 1995 petitions for 
declaratory ruling.179  Complainants' equitable arguments are 
based on a Ninth Circuit case applying California law, that 
enunciates a three-part test that Complainants claim the 
Commission should apply in this instance.180  According to Ervin, 
a case that does not involve Section 415 of the Act, a statute of 
limitations can be tolled if a plaintiff has given timely notice 
to defendant of its claim, the delay in the filing of the claim 
does not prejudice the defendant, and the plaintiff has acted 
reasonably and in good faith.181  

     59.  We find that the Commission's strict approach to the 
application of Section 415(b) of the Act182 is more consistent 
with the United States Supreme Court's position in Irwin, 
extending equitable relief only ``sparingly'' where the claimant 
exercised ``due diligence in preserving his legal rights.''183  
As discussed above, it is readily apparent that Complainants did 
not act with anything approaching due diligence.  Thus, we are 
not persuaded that the situation before us merits an equitable 
tolling of the limitations period. 

     60.  With regard to Complainants' reliance on Ervin, we 
note, as an initial matter, that federal agencies are not 
required to follow state law.  Thus, California law does not 
govern our interpretation of Section 415(b).  In any case, even 
if we were to apply the three-part test enunciated in Ervin, 
Complainants would not prevail.  First, we disagree with 
Complainants' position that the APCC's filing of two petitions 
for declaratory ruling in 1989 and 1995 constitute timely notice 
of their current claims, filed under Section 208 of the Act.184  
The individual Defendants in these cases could not have 
reasonably assumed, based on the APCC petition for declaratory 
ruling, that they would have been sued by these particular 
Complainants, or that they would be liable for damages.  Second, 
given that Defendants would not have known to preserve the 
relevant records related to the informal complaints before us 
prior to the filing of the informal complaints by Complainants, 
extending the recovery period as Complainants advocate would 
prejudice Defendants.185  Lastly, as we have previously stated, 
we find Complainants' failure to file complaints, in light of the 
fact that a number of other IPPs preserved their rights to 
damages through the appropriate procedures set out in our rules, 
to be unreasonable.186  Indeed, in light of the overlap of 
counsel, it borders on the incomprehensible.  As the C.F. 
Communications case demonstrates, filing protective complaints 
was not an exercise in futility.  

     61.  We also note that the decisions that Complainants cite 
as examples of the Commission's tolling the limitations period, 
based on Section 1.3 of our Rules, are not on point.  Those cases 
involved waivers of the six-month conversion deadline in Section 
1.718 of our Rules where informal complaints were already filed, 
rather than a tolling of the statutory limitations period.187  

     62.  We also reject Complainants' assertion that we should 
toll the statute of limitations, based on the APCC filing or the 
filing of other IPP complaints, for reasons of adjudicatory 
efficiency.  Complainants argue that the filing of a large number 
of formal or informal complaints might have been administratively 
burdensome for the Commission.188  We note that Complainants did 
not contemporaneously approach the Commission for guidance on how 
to handle numerous complaints.  Thus, we are not persuaded by 
their argument after the fact that they need not have filed 
complaints sooner because of their concern for our administrative 
burden.  

     63.  Although there is expense and effort of litigating 
claims in light of adverse precedent, they do not ``provide a 
basis for suspending the statute of limitations period.  The only 
sure way to determine whether a suit can be maintained is to try 
it.''189  We see no reason in this instance to depart from our 
precedent limiting the doctrine of equitable tolling.190    

     64.  We, therefore, agree with Defendants that Section 415 
limits Complainants' claims for recovery to those charges levied 
no earlier than two years prior to the date Complainants filed 
their informal complaints.191  Because the charges at issue 
ceased on April 15, 1997, we can only award damages where 
informal complaints were filed by April 15, 1999. 

VI.  COMPLAINANTS HAVE ESTABLISHED THAT THE INFORMAL COMPLAINTS 
     UNDERLYING THESE FORMAL COMPLAINTS WERE TIMELY FILED

     65.  We reject Defendants' arguments disputing the filing of 
certain informal complaints that underlie some of the formal 
complaints at issue here.  Defendants urge the Commission to 
dismiss formal complaints for which a complainant cannot provide 
what Defendants consider to be contemporaneous documentary 
evidence of filing its underlying informal complaint.192  For 
instance, because the copies of the informal complaints submitted 
by ITC, NSC, and Payphone Systems lack Commission date stamps, 
BellSouth and SBC argue that the Complainants have not met their 
burden of showing that the complaints were filed.193  Although 
conceding that CVC filed an informal complaint against it, Qwest 
disputes the date on which CVC filed the complaint because the 
copy in this record lacks a Commission date stamp.194  BellSouth 
also contests the filing of the informal complaint against it by 
ITC because BellSouth's records do not reflect any receipt of 
this complaint.195  In addition, BellSouth and SBC assert that 
the lack of a signature on the ITC complaints filed against them 
is further indicia of improper filing.196  

     66.  There are unique circumstances surrounding the 
processing of the EUCL charge informal complaints that we must 
address here.  First, our survey of the Commission's informal 
complaint files and electronic database indicates that, due to 
the administrative difficulties the Commission encountered in 
processing these several thousand informal complaints, some 
informal complaints do not bear a date stamp.  In other cases, it 
is evident that the date stamp was not affixed by the staff 
contemporaneously with the receipt of the informal complaint.  In 
addition, we have determined that certain complaint files were 
prematurely closed and discarded as a result of difficulties 
experienced during a database conversion, even though the 
complaints had not been resolved.197  Thus, a properly filed 
complaint may not appear in the database or the Commission's 
files.  We also have concerns that, in some instances, the filing 
date noted in the database was not the actual date of receipt.  
We must take these circumstances into account in assessing 
Defendants' arguments.

     67.  In light of the Commission's rules, all the 
circumstances, and the totality of the information before us, we 
find that the copies of the informal complaints in this record 
constitute contemporaneous documentary evidence of filing.198  
Consequently, we conclude that the informal complaints at issue 
here were properly filed on the dates noted below.  

     68.  As a preliminary matter, we dispense with the lack of 
signature issue for the ITC complaints.  We note that our rules 
regarding informal complaints do not require that an informal 
complaint include a signature.199  Moreover, the Commission's 
copies of the informal complaints submitted by ITC also lack 
signatures, so the fact that Complainants' copies are not signed 
does not detract from their probative value.200   

     69.  As to the complaints that lack date stamps, we 
recognize that the lack of a date stamp is significant, but 
nevertheless conclude that the lack of a date stamp alone should 
not bar a complainant from pursuing its claim in these specific 
circumstances.  The Commission has previously required the 
submission of date stamped copies as authoritative proof of 
filing,201 but we note that those cases involved more formal 
filings and instances where the Commission had no record of 
initially receiving the filing in question.202  In these unique 
circumstances, where some properly-filed complaints were not 
properly date-stamped by Commission staff, we find that we must 
consider all probative evidence.  On this record, we conclude 
that evidence of Complainants' standard mailing practices203 and 
the date on the contested informal complaint are additional 
indicators of whether and when an informal complaint was filed.  
Complainants request that we establish a general presumption that 
an informal complaint had been timely filed based on a 
combination of certain documentary and testimonial evidence.204  
Because the determinations in this proceeding will serve as 
precedent in future matters, we do not find it necessary to 
establish such a presumption. 

     70.  With regard to the specific informal complaints at 
issue here, we find that there is sufficient evidence in the 
record to conclude that the informal complaints were filed and to 
determine the dates of these filings.  We note that not only are 
the ITC, NSC, and Payphone Systems complaints against SBC listed 
in the Commission's database as having been filed,205  but that 
SBC responded to the informal complaints at issue and 
acknowledged that its response was based on complaints filed with 
the Commission.206  We find these indicia provide a sufficient 
basis for concluding that the informal complaints were filed.  

     71.  Although ITC's informal complaint against BellSouth is 
not in the database, we find that ITC has met its burden of 
showing that it is more than likely that an informal complaint 
against BellSouth was filed.  ITC has provided evidence showing 
that it properly mailed several other informal complaints on the 
same day (September 15, 1997) and in the same package as the 
informal complaint against BellSouth.  The other informal 
complaints mailed that day are in the Commission's database.207  
Thus, we find it reasonable to conclude that the ITC complaint 
against BellSouth was in fact filed with the Commission.208 

     72.  We also conclude that there is enough evidence in the 
record to establish a specific date on which each of these 
informal complaints was filed.  Regarding the ITC complaint 
against BellSouth, we note that the Commission's database lists 
several different filing dates for the informal complaints filed 
against multiple Defendants, despite evidence that they were 
mailed on the same day, and in the same package.209  To avoid 
unfairness to ITC from the Commission's administrative problems, 
we conclude that, in this instance where ITC has submitted 
evidence that it followed proper mailing procedures in filing its 
informal complaints, we will deem the date of mailing (September 
15, 1997) to be the filing date.210  Because ITC had mailed to 
the Commission its informal complaint against BellSouth in the 
same package as the complaints it filed against ALLTEL, Ameritech 
(now SBC), Century, TDS, and Verizon North, we also deem the 
filing date for those informal complaints to be September 15, 
1997.

     73.  We note that there is a discrepancy between the date 
listed in the database (December 2, 1997) for the filing of the 
NSC complaint against PacBell (now SBC) and the date on the 
informal complaint (December 31, 1997).  We ascribe this 
discrepancy to the administrative problems encountered in 
processing these complaints, as described above.  In the absence 
of specific evidence of the date on which the NSC Complaint 
arrived at the Commission, we will presume that it was filed on 
the date indicated on the complaint, i.e., December 31, 1997.  
SBC also contests the dates on which ITC and Payphone Systems 
filed their informal complaints.  As noted above, we are 
satisfied by the evidence ITC provided that it properly filed its 
informal complaint against Ameritech and deem September 15, 1997 
as the filing date for this complaint.  We also conclude that SBC 
has provided no evidence to show that the January 8, 1998, filing 
date claimed by Payphone Systems, and reflected in the 
Commission's records, is inaccurate.211     

     74.  With regard to the filing date of the CVC informal 
complaint against Qwest, we find that the return receipt and Mr. 
Kerivan's testimony establish that CVC mailed the informal 
complaint to the Commission on September 29, 1997, and that the 
postal service delivered the complaint to the Commission on 
October 3, 1997.212 

VII.      BASED ON THE UNIQUE CIRCUMSTANCES OF THESE CASES, WE 
     WAIVE OUR SETTLEMENT CERTIFICATION REQUIREMENT IN SECTION 
     1.721(A)(8) OF THE COMMISSION'S RULES.

     75.  Defendants assert that we should dismiss certain of 
Complainants' claims because Complainants did not notify 
Defendants in their certified settlement letters that these 
claims would be included in the formal complaints, as required by 
Section 1.721(a)(8) of the Commission's rules.213  The specific 
claims that Defendants seek to have dismissed are based on (1) 
Section 203 of the Act, (2) the filed rate doctrine, (3) the 
argument that Defendants violated the Act by assessing EUCL 
charges on the lines used to provide both semi-public and public 
service, and (4) the argument that Complainants' status as 
carriers rather than ``end users'' means that Defendants could 
not assess EUCL charges on any lines that Complainants 
ordered.214  Complainants argue that Section 1.721(a)(8) does not 
require a complainant to state each specific cause of action that 
might be included in its formal complaint, and that to do so 
would unreasonably expand the scope and purpose of the rule.215  

     76.  While we do have concerns about whether Complainants' 
certified settlement letters met the requirements of Section 
1.721(a)(8) of our rules, we find it appropriate in this case to 
waive this rule on our own motion.  As explained below, we do so 
because it is clear that Defendants in this case had adequate 
notice, prior to receiving the settlement certification, of all 
the claims Complainants have asserted, and because there is no 
evidence that the parties have not attempted settlement in 
accordance with the Commission's rules.  

     77.  The Commission's first objective when complaint issues 
arise is to promote settlement efforts to enable parties to 
resolve disputes on their own before resorting to 
adjudication.216  To this end, the Commission's rules require 
that complainants and defendants certify in their respective 
complaints and answers that the possibility of settlement was 
discussed before the complaint was filed with the Commission.217  
Specifically, Section 1.721(a)(8) states that the complainant 
must certify that prior to the filing of the formal complaint, 
``the complainant mailed a certified letter outlining the 
allegations that form the basis of the complaint it anticipated 
filing with the Commission to the defendant carrier. . . .''  The 
Commission has emphasized that this rule requires verification 
that the parties discussed the ``facts and issues in dispute 
prior to the filing of the complaint.''218   

     78.  In order to meet the Commission's objective of 
promoting settlement, rule 1.721(a)(8) would generally require 
complainants to provide defendants with adequate notice of each 
of their enumerated claims.219  We find that given the unique 
facts of this case, Defendants had adequate notice of the nature 
of the claims that Complainants were likely to assert against 
them even before they received the settlement letters.  This 
notice came in several forms.  First, the informal complaints 
against Defendants that preceded the formal complaints set out 
Complainants' argument that the IPPs are not ``end users'' under 
the Commission's rules, thereby implicitly including the argument 
that they are not subject to EUCL charges for any of their 
payphones.220    

     79.  Second, in 2001, the Enforcement Bureau initiated a 
hearing proceeding before an administrative law judge to 
determine the amount of damages that defendant local exchange 
carriers owed to certain IPPs for the unlawful assessment of EUCL 
charges.221  All of the defendants in the instant proceeding, 
except Qwest, were a party to that proceeding.222  Prior to 
issuing the order referring the damages issue to an 
Administrative Law judge, the Enforcement Bureau sought proposed 
hearing designation orders and comments from the parties 
regarding the procedures for hearing.223  The complainants in 
those cases, who were represented by the same counsel who 
represent the current Complainants, had asserted that because 
IPPs were found not to be ``end users'' within the meaning of 
Section 69.104(a), the collection of EUCL charges for semi-public 
payphones was unlawful.224  The Enforcement Bureau rejected those 
claims as untimely, stating that they should have been raised in 
a timely filed reconsideration petition to the Liability 
Order.225  Nevertheless, the Enforcement Bureau clearly described 
the claims, thereby informing Defendants of their existence.226  
Thus, it is reasonable to assume that Defendants were on notice 
that these same claims might be raised in a subsequent 
adjudication of the thousands of pending informal complaints.  
Finally, all of the Defendants have been aware of the nature of 
the claims contained in the formal and informal complaints for a 
number of years because, as we have stated previously, they have 
had a number of opportunities to engage in settlement discussions 
with the Complainants, often with the involvement of Commission 
staff.227   

     80.  Accordingly, we conclude both that Defendants have had 
adequate notice of the allegations that form the basis of the 
formal complaints and that settlement discussions have occurred.  
We therefore find that it is appropriate to waive Section 
1.721(a)(8) of our rules.  This waiver is based on the unique 
circumstances of these proceedings, in particular, the parties' 
involvement in adjudicating and mediating the relevant issues 
over a lengthy period of time, and is not an indication that a 
complainant in any other proceeding may fail to ensure that a 
defendant receive adequate notice of the claims being asserted 
against it.  

VIII.     CONCLUSION AND ORDERING CLAUSES

     81.  For the  reasons  discussed  above,  we  conclude  that 
Defendants'  imposition  of  EUCL  charges  on  the  Complainants 
violated  Section  201(b)  of  the   Act  and  Part  69  of   the 
Commission's rules.  

     82.  ACCORDINGLY, IT IS ORDERED, pursuant to Sections 1, 
4(i), 4(j), 201(b), and 208 of the Communications Act of 1934, as 
amended, 47 U.S.C.  151, 154(i), 154(j), 201(b), and 208, that 
the formal complaints filed by Communications Vending Corporation 
of Arizona, Inc., IMR Capital Corporation, Indiana Telcom 
Corporation, Inc., National Telecoin Corporation, Inc., NSC 
Communications Public Services Corporation, and Payphone Systems 
ARE PARTIALLY GRANTED.  

     83.  IT IS FURTHER ORDERED that the APCC Petition for 
Declaratory Ruling filed in 1989 is DISMISSED as moot as a result 
of the Liability Order and this Order.

     84.  IT IS FURTHER ORDERED that, the February 27, 2002 
Letter Ruling is VACATED to the extent it relates to the 
provision of copies of supporting documentation.  

     85.  IT IS FURTHER ORDERED that the Qwest Petition for 
Reconsideration, the SBC Application for Review, and the TDS 
Request for Clarification are DISMISSED as moot.

     86.  IT IS FURTHER ORDERED that, Communications Vending 
Corporation of Arizona, Inc., IMR Capital Corporation, Indiana 
Telcom Corporation, Inc., National Telecoin Corporation, Inc., 
NSC Communications Public Services Corporation, and Payphone 
Systems, in accordance with Section 1.722 of the Commission's 
Rules, 47 C.F.R.  1.722, MAY FILE supplemental complaints 
concerning damages after the Bureau's release of a Hearing 
Designation Order in this proceeding.



                              FEDERAL COMMUNICATIONS COMMISSION



                              Marlene H. Dortch
                              Secretary

                           Appendix A

1)   Communications Vending Corporation of Arizona, Inc. v. 
Citizens Communications Company f/k/a Citizens Utilities Company 
and Citizens Telecommunications Company d/b/a Citizens Telecom, 
Supplement to Formal Complaint, File No. EB-02-MD-018 (filed 
April 26, 2002) (``CVCA v. Citizens Complaint'')

2)   Communications Vending Corporation of Arizona, Inc. v. Qwest 
Corporation f/k/a US West Communications, Inc. and as Successor-
in-Interest to Mountain Bell Telephone Company, Supplement to 
Formal Complaint, File No. EB-02-MD-019 (filed April 26, 2002) 
(``CVCA v. Qwest Complaint'')

3)   IMR Capital Corporation v. Verizon New England Inc. f/k/a 
New England Telephone Company, Supplement to Formal Complaint, 
File No. EB-02-MD-020 (filed April 26, 2002) (``IMR v. Verizon 
New England Complaint'')

4)   Indiana Telcom Corporation, Inc. v. Alltel Corporation, 
Western Reserve Telephone Company-Alltel, Alltel Ohio, Inc. and 
Alltel Indiana, Inc., Supplement to Formal Complaint, File No. 
EB-02-MD-021 (filed April 26, 2002) (``ITC v. Alltel Complaint'')

5)   Indiana Telcom Corporation, Inc. v. Indiana Bell Telephone 
Company, Inc. D/B/A Ameritech Indiana and Ohio Bell Telephone 
Company, Inc. d/b/a Ameritech Ohio, Supplement to Formal 
Complaint, File No. EB-02-MD-022 (filed April 26, 2002) (``ITC v. 
Ameritech Complaint'')

6)   Indiana Telcom Corporation, Inc. v. BellSouth 
Telecommunications, Inc. f/k/a South Central Bell Telephone 
Company, Supplement to Formal Complaint, File No. EB-02-MD-023 
(filed April 26, 2002) (``ITC v. BellSouth Complaint'')

7)   Indiana Telcom Corporation, Inc. v. CenturyTel, Inc. and 
Century Telephone of Central Indiana, Inc. f/k/a Central Indiana 
Telephone Company, Supplement to Formal Complaint, File No. EB-
02-MD-024 (filed April 26, 2002) (``ITC v. Century Complaint'')

8)   Indiana Telcom Corporation, Inc. v. Telephone and Data 
Systems, Inc., TDS Telecommunications Corporation, Tipton 
Telephone Company, Inc. d/b/a TDS Telcom, Communications 
Corporation of Indiana d/b/a TDS Telcom, and Home Telephone 
Company of Pittsboro, Inc., Supplement to Formal Complaint, File 
No. EB-02-MD-025 (filed April 26, 2002) (``ITC v. TDS 
Complaint'')

9)   Indiana Telcom Corporation, Inc. v. Verizon North Inc. f/k/a 
GTE North, Incorporated and as Successor-in-Interest to Contel of 
Indiana, Inc., Supplement to Formal Complaint, File No. EB-02-MD-
026 (filed April 26, 2002) (``ITC v. Verizon North Complaint'')

10)  National Telecoin Corporation v. Verizon Delaware Inc. f/k/a 
Bell Atlantic-Delaware, Inc.; Verizon New Jersey, Inc. f/k/a Bell 
Atlantic-New Jersey, Inc.; and Verizon Pennsylvania Inc. f/k/a 
Bell Atlantic-Pennsylvania, Inc., Supplement to Formal Complaint, 
File No. EB-02-MD-027 (filed April 26, 2002)  (``NTC v. Verizon 
Delaware Complaint'')

11)  NSC Communications Public Services Corporation v. Pacific 
Bell Telephone Company, Supplement to Formal Complaint, File No. 
EB-02-MD-028 (filed April 26, 2002) (``NSC v. PacBell 
Complaint'')

12)  Payphone Systems v. Citizens Telecommunications Company of 
California, Inc. f/k/a Citizens Utilities Company of California, 
Inc., Supplement to Formal Complaint, File No. EB-02-MD-029 
(filed April 26, 2002) (``Payphone Systems v. Citizens 
Complaint''); 

13)  Payphone Systems v. Pacific Bell Telephone Company, 
Supplement to Formal Complaint, File No. EB-02-MD-030 (filed 
April 26, 2002) (``Payphone Systems v. PacBell Complaint'')


_________________________

1     See Appendix A for a list of the complaints at issue in 
this proceeding.  Due to procedural deficiencies, the Commission 
rejected the formal complaints initially filed by Complainants on 
April 17, 2002.  See Letter from Tracy E. Bridgham, Special 
Counsel, Market Disputes Resolution Division, Enforcement Bureau, 
to Albert H. Kramer and Katherine J. Henry, counsel for  
Complainants (rel. Apr. 23, 2002) (``April 23, 2002 Letter 
Ruling'') at 2.  The Commission consolidated the refiled 
complaints for administrative convenience.  See Letter from 
Radhika V. Karmarkar, Deputy Chief, Market Disputes Resolution 
Division, Enforcement Bureau, to all counsel, File Nos. EB-02-MD-
018 - 030 (rel. May 1, 2002) (``May 1, 2002 Letter Ruling'') at 
5.
2        47 U.S.C.  201(b) and 203(c).  Telecommunications Act 
of 1996, Pub. L. No. 104-104, 110 Stat. (1996) (the ``Act'').
3    47 C.F.R.  69.1 et seq. (1987 - 1997).  Unless otherwise 
indicated, all C.F.R. references to Part 69 of the Commission's 
rules refer to the rules in effect prior to April 15, 1997. 

4         ``Citizens'' refers collectively to Citizens 
Communications Company f/k/a Citizens Utilities Company, Citizens 
Telecommunications Company d/b/a Citizens Telcom, and Citizens 
Telecommunications Company of California, Inc. f/k/a Citizens 
Utilities Company of California, Inc. 
5         ``Qwest'' refers collectively to Qwest Corporation 
f/k/a US West Communications, Inc., a Successor-in-Interest to 
Mountain Bell Telephone Company.
6         ``Verizon'' refers collectively to Verizon New England 
Inc. f/k/a New England Telephone Company, Verizon North Inc. 
f/k/a GTE North, Incorporated, a Successor-in-Interest to Contel 
of Indiana, Inc., Verizon Delaware Inc. f/k/a Bell Atlantic-
Delaware, Inc., Verizon New Jersey, Inc. f/k/a Bell Atlantic-New 
Jersey, Inc., and Verizon Pennsylvania, Inc. f/k/a Bell Atlantic-
Pennsylvania, Inc.
7         ``ALLTEL'' refers collectively to ALLTEL Corporation, 
Western Reserve Telephone Company-ALLTEL, ALLTEL Ohio, Inc. and 
ALLTEL Indiana, Inc. 
8         ``SBC'' refers collectively to Indiana Bell Telephone 
Company, Inc. d/b/a Ameritech Indiana and Ohio Bell Telephone 
Company, Inc. d/b/a Ameritech Ohio (``Ameritech'') and Pacific 
Bell Telephone Company (``PacBell'').  SBC Telecommunications, 
Inc. is the parent company of Ameritech and PacBell.
9         ``BellSouth'' refers collectively to BellSouth 
Telecommunications, Inc. f/k/a South Central Bell Telephone 
Company.
10        ``Century'' refers collectively to CenturyTel, Inc. and 
Century Telephone of Central Indiana, Inc. f/k/a Central Indiana 
Telephone Company.
11        ``TDS'' refers collectively to Telephone and Data 
Systems, Inc., TDS Telecommunications Corporation, Tipton 
Telephone Company, Inc. d/b/a TDS Telcom, Communications 
Corporation of Indiana d/b/a TDS Telcom, and Home Telephone 
Company of Pittsboro, Inc.  
12        Citizens, ALLTEL, Century, and TDS maintain that 
certain affiliated entities named in the complaints against them 
are not proper parties to this proceeding because the entity in 
question did not provide local exchange services to the 
particular Complainant.  Defendants, however, concede that each 
of the complaints at issue has named the entities that did 
actually provide service to the Complainants.  See Supplemental 
Consolidated Joint Statement Concerning Issues 1 and 4 Identified 
in the Commission's August 7, 2002 Letter Ruling (filed Aug. 15, 
2002) (``First Supplemental Joint Statement'') at 4,  10-11; 7, 
 20, 26-28; 12-13,  42, 48-49; 14-15,  51-52, 58.  Because 
this issue bears on the entities from whom Complainants may 
recover damages, we will defer its resolution to the next phase 
of this proceeding.  
13        See FCC Open and Pending List of EUCL Informal 
Complaints, dated June 29, 2001 (``June 29, 2001 FCC Open and 
Pending List of EUCL Informal Complaints'').
14        See Implementation of the Pay Telephone 
Reclassification and Compensation Provisions of the 
Telecommunications Act of 1996, First Report and Order, 11 FCC 
Rcd 20541,   187 (1996), vacated in part on other grounds, 
Illinois Pub. Telecomms. Ass'n v. FCC, 123 F.3d 693 (D.C. Cir. 
1997); Implementation of the Pay Telephone Reclassification and 
Compensation Provisions of the Telecommunications Act of 1996, 
Report and Order on Reconsideration, 11 FCC Rcd 21233,  207 
(1996). 
15        See e.g. CVCA v. Citizens Complaint at I-4,  1.  We 
note that this information appears on the same page in all the 
complaints at issue.   See also Consolidated Answer of Citizens 
Defendants to Formal Complaints and Supplements to Formal 
Complaints, File Nos. EB-02-MD-018 and EB-02-MD-029 (filed June 
28, 2002) (``Citizens Consolidated Answer'') at 2,  B3; Qwest 
Corporation's Answer to CVCA's Formal Complaint, File No. EB-02-
MD-019 (filed June 28, 2002) (``Qwest Answer'') at I-9,  3; 
Answer of Verizon New England Inc. to IMR Capital Corporation's 
Complaint, File No. EB-02-MD-020 (filed June 28, 2002) (``Verizon 
New England Answer'') at A-6,  3; Revised Answer of ALLTEL 
Corporation, Western Reserve Telephone Company, ALLTEL Ohio, 
Inc., and ALLTEL Indiana, Inc., File No. EB-02-MD-021 (filed July 
15, 2002) (``ALLTEL Supplemental Answer'') at I-5,  6; 8; 
Consolidated Answer of Indiana Bell Company, Ohio Bell Telephone 
Company, and Pacific Bell Telephone Company, File Nos. EB-02-MD-
022 and EB-02-MD-028; EB-02-MD-030; (filed June 28, 2002) (``SBC 
Answer'') at 5-6,  1, 3; 6-7,  1, 3; 7-8,  1, 3; Answer of 
BellSouth Telecommunications, Inc., File No. EB-02-MD-023 (filed 
June 28, 2002) (``BellSouth Answer'') at I-4,  B1, B3; Revised 
Answer of CenturyTel, Inc. and CenturyTel of Central Indiana, 
Inc., File No. EB-02-MD-024 (filed July 15, 2002) (``Century 
Supplemental Answer'') at I-5,  6, 8; Defendants Telephone and 
Data Systems, Inc., TDS Telecommunications Corporation, Tipton 
Telephone Company, Inc., Communications Corporation of Indiana 
and Home Telephone Company of Pittsboro, Inc.'s Answer to 
Complaint, File No. EB-02-MD-025 (filed June 28, 2002) (``TDS 
Answer'') at 3,  B1, B3; Answer of Verizon North Inc. to 
Indiana Telcom Corporation's Complaint, File No. EB-02-MD-026 
(filed June 28, 2002) (``Verizon North Answer'') at A-7,  3; 
Answer of Verizon Delaware Inc., Verizon New Jersey Inc. and 
Verizon Pennsylvania Inc. to National Telecoin Corporation's 
Complaint, File No. EB-02-MD-027 (filed June 28, 2002) (``Verizon 
Delaware et al. Answer'') at A-6,  3; First Supplemental Joint 
Statement at 4,  10-11; 5,  12; 6,  18; 16,  59, 61.
16        Complainants filed informal complaints regarding the 
controversy at issue in the above-referenced formal complaints 
during 1997 and 1998.  Subsequent waiver orders extended the time 
for converting the informal complaints to formal complaints until 
June 30, 2003.  Therefore, provided the informal complaints were 
properly filed, the formal complaints at issue here were timely 
filed.  See 47 U.S.C.  415(b).  See also Informal Complaints 
Filed By Independent Payphone Service Providers Against Various 
Local Exchange Carriers Seeking Refunds of End User Common Line 
Charges, Order (EB DA 02-1890) (rel. Aug. 2, 2002), at  2 
(``Third Waiver Order''); Informal Complaints Filed By 
Independent Payphone Service Providers Against Various Local 
Exchange Carriers Seeking Refunds of End User Common Line 
Charges, Order, 17 FCC Rcd 2115, 2116, at  3 (EB 2002) (``Second 
Waiver Order'');  Informal Complaints Filed By Independent 
Payphone Service Providers Against Various Local Exchange 
Carriers Seeking Refunds of End User Common Line Charges, Order, 
16 FCC Rcd 3669, 3671, at  5 (CCB 1999) (``First Waiver 
Order'').
17       See MTS and WATS Market Structure, Third Report and 
Order, 93 FCC 2d 241, 243,  3; 280,  128 (1983) (``Access 
Charge Order''), modified on recon., 97 FCC 2d 682 (1983) 
(``First Reconsideration Order'') modified on further recon., 97 
FCC 2d  834 (1984), aff'd and remanded in part sub nom., National 
Ass'n of Regulatory Util. Comm'rs v. FCC, 737 F.2d 1095 (D.C. 
Cir. 1984).  See also C.F. Communications Corp. v. FCC, 128 F.3d 
735, 736-7 (D.C. Cir. 1997) (``C.F. Communications'').
18        "A pay telephone is used to provide public telephone 
service when a public need exists, such as at an airport lobby, 
at the option of the telephone company and with the agreement of 
the owner of the property on which the phone is placed."  First 
Reconsideration Order, 97 FCC 2d at 704 n.41.
19        A private business or residential telephone would 
constitute an identifiable subscriber.  C.F. Communications 
Corp., et al. v. Century Telephone of Wisconsin, Inc., et. al., 
Memorandum Opinion and Order on Remand, 15 FCC Rcd 8759, 8762,  
10 (2000) (``Liability Order'').
20        First Reconsideration Order, 97 FCC 2d at 705,  58. 
21        ``A pay telephone is used to provide semi-public 
telephone service when there is a combination of general public 
and specific customer need for the service, such as at a gasoline 
station or pizza parlor.''  First Reconsideration Order, 97 FCC 
2d at 704, n.41 (emphasis added).
22        Id. at 706,  60.  The NTS costs of operating public 
payphones would in effect be subsidized by all interstate callers 
through the Carrier Common Line Charge (``CCL'') assessed on 
IXCs.  Id. at 705,  58.
23        Liability Order, 15 FCC Rcd at 8763,  13.
24        See Registration of Coin Operated Telephones, 
Memorandum Opinion and Order, 49 Fed. Reg. 27763 (1984).
25        Consolidated Joint Statement (filed July 29, 2002) at 
31,  127.
26        Id. at 47,  205; 59,  276; 72,  350; 85,  417; 100, 
 495; 114,  574; 126,  644; 141,  721; 155,  799; 170,  
875; 183,  941; 197,  1005; 206,  1055.
27        See e.g. CVCA v. Citizens Complaint, Exh. 11 (American 
Payphone Systems, Inc. Informal Complaint, IC-88-04679, dated May 
12, 1988); Exh. 13 (Letter from Anita J. Thomas, Carrier Analyst, 
Informal Complaints and Public Inquiries Branch, Enforcement 
Division, Common Carrier Bureau, FCC, to LeRoy Manke, Coon Valley 
Farmers Telephone Co, IC-89-03671,  (Apr. 4, 1989) (``Apr. 4, 
1989 Anita J. Thomas Letter'').
28        See e.g. CVCA v. Citizens Complaint, Exh. 12 (Letter 
from Anita J. Thomas, Carrier Analyst, Informal Complaints and 
Public Inquiries Branch, Enforcement Division, Common Carrier 
Bureau, FCC, to Lance C. Norris, American Payphones, Inc., IC-88-
04679,  (Sept. 14, 1988) (``Sept. 14, 1988 Anita J. Thomas 
Letter''); Apr. 4, 1989 Anita J. Thomas Letter.  The staff 
letters appear to have been based on a determination that the 
telephone lines provided to the IPPs were ``ordinary `common 
lines''' and that such ``[o]rdinary business telephone lines 
taken out of the local exchange service tariff [were] not exempt 
from subscriber line charges.''  Sept. 14, 1988 Anita J. Thomas 
Letter at 1.
29        The American Public Communications Council Petition for 
Declaratory Ruling (filed April 21, 1989) (``APCC Petition''). 
Although the Commission has not yet ruled on APCC's petition, the 
Liability Order and our ruling today renders it moot.
30        C.F. Communications Corp. v. CenturyTel. of  Wisconsin, 
89-C-0168-C, Order (W.D. Wis. 1989).
31        CFC and several other IPPs subsequently filed 52 
additional formal complaints raising the same allegations raised 
by CFC in its initial complaints.  The Commission did not 
consolidate these complaints with the initial 13 complaints.  For 
further discussion of these complaints see Liability Order, 15 
FCC Rcd at 8760,  2, 4-6.
32        C.F. Communications Corp. v. Century Telephone of 
Wisconsin, Inc. et. al., Memorandum Opinion and Order, 8 FCC Rcd 
7334 (1993) (``Bureau CFC Order''); C.F. Communications Corp. v. 
Century Telephone of Wisconsin, Inc., et. al.,  Memorandum 
Opinion and Order, 10 FCC Rcd 9775 (1995) (``CFC I Order''); C.F. 
Communications Corp., et. al. v. Michigan Bell Telephone Co., et. 
al., Memorandum Opinion and Order, 12 FCC Rcd 2134 (1997) (``CFC 
II Order'').
33        CFC I Order, 10 FCC Rcd at 9779,  16-20.  The 
Commission reasoned that IPP payphones did not fall within the 
definition of ``public telephone'' under the rules at the time 
and thus were not exempt from the EUCL charge.  Id. at 20.
34        C.F. Communications Corp. v. FCC, 128 F.3d 735 (D.C. 
Cir. 1997) (``C.F. Communications''); see also C.F. 
Communications Corp. v. FCC, No. 97-1202, slip op. (D.C. Cir. 
1997).
35        C.F. Communications, 128 F.3d at 740.  In addition, the 
Court concluded that the definition of ``public telephone'' 
relied on by the Commission had no bearing on the IPP service, 
but rather related to how the LECs recovered their investment in 
payphone equipment.  Id.
36        Liability Order, 15 FCC Rcd at 8768,  24.
37        Id. at 8768,  25.
38        Id. at 8766,  20; 8768,  26.
39        Id. at 8768,  27.
40        Id. at 8769,  28.
41        See Verizon Telephone Companies v. FCC, 269 F.3d 1098 
(DC Cir. 2001) (``Verizon'').
42        Id. at 1101. 
43        Id. 
44        Liability Order, 15 FCC Rcd at 8766,  7.  The 
Commission's database presently lists close to 3000 informal 
complaints disputing the EUCL charge. See June 29, 2001 FCC Open 
and Pending List for EUCL Informal Complaints.
45        First Waiver Order, 16 FCC Rcd at 3671,  5; 3672,  8.
46        Id. at 3671,  5; Liability Order, 15 FCC Rcd at 8773, 
 39.
47        Third Waiver Order, at  2; Second Waiver Order, 17 FCC 
Rcd at 2226,  3.
48        During the relevant period, 47 C.F.R.  69.104(a) 
stated:
          A charge that is expressed in dollars and cents 
          per line per month shall be assessed upon end 
          users that subscribe to local exchange telephone 
          service, Centrex or semi-public coin telephone 
          service to the extent they do not pay carrier 
          common line charges.... 
49        Section 201(b) of the Act provides, in pertinent part, 
that ``[a]ll charges [and] practices... in conjunction with such 
communications service shall be just and reasonable, and any such 
charge [or] practice...that is unjust or unreasonable is hereby 
declared to be unlawful.''  47 U.S.C.  201(b).  Section 203(c) 
of the Act states that a carrier must provide communications 
services in strict accordance with the terms and conditions 
contained in its tariff.  47 U.S.C.  203(c).  Section 203(c), 
therefore, prohibits the imposition of a charge not specified in 
a carrier's tariff.  See AT&T v. Central Office Telephone, Inc., 
524 U.S. 214, 222 (1988).
50        See, e.g. CVCA v. Citizens Complaint at II-1- II-3,  
1-3; II-6 - II-12,  10-22; II-13 - II-14,  23-25.   Because 
the citations to the legal analysis sections of all the 
complaints are identical, citations to Complainants' legal 
analysis will hereinafter be referred to as ``Complainants' Legal 
Analysis.''   See Letter from Katherine J. Henry, counsel for 
Complainants, dated Oct. 17, 2002, to Rosemary McEnery, Attorney, 
Market Disputes Resolution Division, Enforcement Bureau, Federal 
Communications Commission. 
51        See Complainants' Legal Analysis at II-3 - II-5,  4-
7; II-5 - II-6,  8.
52        Id. at II-28 - II-57,  50-99. 
53        See Citizens Memorandum of Law, File Nos. EB-02-MD-018 
and EB-02-MD-029 (filed July 15, 2002) (``Citizens Supplemental 
Answer'') at III-23 - III-32; Qwest Corporation's Revised Legal 
Analysis in Support of its Answer to the Formal Complaint of 
CVCA, File No. EB-02-MD-019 (filed July 15, 2002) (``Qwest 
Supplemental Answer'') at III-5 - III-13; Supplemental Answer of 
Verizon New England Inc. to IMR Capital Corporation's Complaint, 
File No. EB-02-MD-020 (filed July 15, 2002) (``Verizon New 
England Supplemental Answer'') at B20 - B29; ALLTEL Supplemental 
Answer at IV-1 - IV-3; SBC's Revised Legal Analysis, File Nos. 
EB-02-MD-022; EB-02-MD-028; and EB-02-MD-030; (filed July 15, 
2002) (``SBC Supplemental Answer'') at III-23 - III-31; BellSouth 
Supplemental Legal Analysis, File No. EB-02-MD-023 (filed July 
15, 2002) (``BellSouth Supplemental Answer'') at II-22 - II-30; 
Century Supplemental Answer at IV-1 - IV-3; TDS Telecom's 
Supplemental Answer to ITC's Complaint, File No. EB-02-MD-025 
(filed July 15, 2002) (``TDS Supplemental Answer'') at 21 - 30; 
Supplemental Answer of Verizon North Inc. to Indiana Telcom 
Corporation's Complaint, File No. EB-02-MD-026 (filed July 15, 
2002) (``Verizon North Supplemental Answer'') at B-20 - B-29; 
Supplemental Answer of Verizon Delaware Inc., Verizon New Jersey 
Inc. and Verizon Pennsylvania Inc. to National Telecoin 
Corporation's Complaint, File No. EB-02-MD-027 (filed July 15, 
2002) (``Verizon Delaware Supplemental Answer'') at B-20 - B-29.
54        Citizens Supplemental Answer at III-4 - III-20; Qwest 
Supplemental Answer at III-14 - III-31; Verizon New England 
Supplemental Answer at B-3 - B-20; ALLTEL Supplemental Answer at 
IV-5 - IV-6; SBC Supplemental Answer at III-3 - III-23; BellSouth 
Supplemental Answer at II-3 - II-20; Century Supplemental Answer 
at IV-3 - IV-6; TDS Supplemental Answer at 3 - 20; Verizon North 
Supplemental Answer at B-3 - B-20; Verizon Delaware Supplemental 
Answer at B-3 - B-20.
55        Citizens Supplemental Answer at III-33 - III-53; Qwest 
Supplemental Answer at III-32 - III-55; Verizon New England 
Supplemental Answer at B-28 - B-52; ALLTEL Supplemental Answer at 
IV-7 - IV-9; SBC Supplemental Answer at III-33 - III-52; 
BellSouth Supplemental Answer at II-30 - II-55; Century 
Supplemental Answer at IV-7 - IV-9; TDS Supplemental Answer at 30 
- 53; Verizon North Supplemental Answer at B-28 - B-52; Verizon 
Delaware Supplemental Answer at B-30 - B-53.
56        Citizens Supplemental Answer at III-56 - III-60; Qwest 
Supplemental Answer at III-55 - III-58; Verizon New England 
Supplemental Answer at B-54 - B-55; ALLTEL Supplemental Answer at 
IV-9 - IV-10; SBC Supplemental Answer at III-57 - III-61; 
BellSouth Supplemental Answer at II-55 - II-60; Century 
Supplemental Answer at IV-9 -  IV-10; TDS Supplemental Answer at 
53 - 58; Verizon North Supplemental Answer at B-53 - B-54; 
Verizon Delaware Supplemental Answer at B-54.
57            See May 1, 2002 Letter Ruling at 7.  Section 208(a) 
of the Act provides the Commission with discretion to bifurcate 
liability and damages issues on its own motion.  See 
Implementation of the Telecommunications Act of 1996:  Amendment 
of Rules Governing Procedures to be Followed When Formal 
Complaints Are Filed Against Common Carriers, Memorandum Opinion 
and Order, 12 FCC Rcd 22497, 22575 (1997) (``Formal Complaints 
Order'').  See also Verizon, 269 F.3d at 1105.  

               In light of the bifurcation, we hereby vacate our 
February 27, 2002 Letter Ruling to the extent it relates to the 
provision of copies of supporting documentation, and the 
corresponding confidentiality designation, because these 
materials relate only to the damages phase.  See Letter from 
Tracy E. Bridgham, Special Counsel, Market Disputes Resolution 
Division, Enforcement Bureau to all counsel, File Nos. EB-02-MD-
018 - 030 (Feb. 27, 2002) (``February 27, 2002 Letter Ruling'').  
Having vacated the Letter Ruling, the motions of several 
Defendants challenging it are thus dismissed as moot.  See Letter 
from Aimee Jimenez, counsel for Qwest, to Tracy Bridgham, Special 
Counsel, Market Disputes Resolution Division, Enforcement Bureau, 
File Nos. EB-02-MD-018 - 030 (Feb. 28, 2002) (``Qwest Petition 
for Reconsideration''); SBC's Application for Review, File Nos. 
EB-02-MD-018 - 030 (filed Mar. 29, 2002) (``SBC Application for 
Review''); Letter from Margot Humphrey, counsel for TDS, to Tracy 
Bridgham, Special Counsel, Market Disputes Resolution Division, 
Enforcement Bureau, File Nos. EB-02-MD-018 - 030 (Feb. 28, 2002) 
(``TDS Request for Clarification'').  To the extent the TDS 
Request for Clarification sought an initial ruling on the statute 
of limitations issue, that request is also moot.

58        See Liability Order, 15 FCC Rcd at 8766,  20.
59        Id. at 8768,  24.
60        Id. at 8767,  21.
61        See id. at 8766-71,  20-25, 33.    
62        Verizon, 269 F.3d at 1112.
63        Complainants in the prior case did not raise this ``end 
user'' argument in a petition for reconsideration following the 
Liability Order - nor was it presented to the Court of Appeals.
64        See Complainants' Legal Analysis at II-5 - II-6,  8-
9.
65        47 C.F.R.  69.104(a) (emphasis added).
66        Id.
67        47 C.F.R.  69.2(m).
68        See C.F. Communications, 128 F.3d at 739.  The Court 
reasoned that, because CFC is a ``carrier,'' then it can only be 
an ``end user'' under the rule (1) if it ``uses a 
telecommunications service for administrative purposes'' (and no 
one suggested that IPPs used payphones for such purposes) or (2) 
if CFC ``offers telecommunications services exclusively as a 
reseller'' and if all such transactions ``originate on the 
premises of such reseller.''  Id. at 738.  Thus, the Court's 
conclusion that calls did not originate on CFC's premises 
necessarily means that CFC is not an ``end user.''  See id. at 
740.
69        C.F. Communications, 128 F.3d at 737-38.
70        Liability Order, 15 FCC Rcd at 8768,  24.
71   Defendants concede that Complainants ``had no property 
interest whatsoever in the premises where their payphones were 
installed.''  Citizens Supplemental Answer at III-25; Qwest 
Supplemental Answer at III-8; Verizon New England Supplemental 
Answer at B-23; ALLTEL Supplemental Answer at IV-2; SBC 
Supplemental Answer at III-25; BellSouth Supplemental Answer at 
II-24; Century Supplemental Answer at IV-2; TDS Supplemental 
Answer at 24; Verizon North Supplemental Answer at B-23; Verizon 
Delaware Supplemental Answer at B-23.

72        See n.63, supra.
73        We note  that  the public/semi-public  distinction  may 
well  prove   to  be   a   distinction  without   a   difference.  
Complainants contend that virtually  all the IPP-owned  payphones 
were  public.    This  is   consistent  with   the   Commissions' 
understanding of the payphone business - notably that semi-public 
service was for customers who  desired coin phones but where  the 
traffic did not justify the placement of a payphone.  Because  of 
this, it appears unlikely that the IPPs, who were new entrants in 
this market, would  have sought to  provide semi-public  service.  
Because we bifurcated liability and damages in the thirteen cases 
currently before us, however, we left discovery regarding whether 
the IPP phones were public or  semi-public for the next phase  of 
the proceeding.  Thus, we cannot unequivocally find here that  no 
IPP-owned semi-public payphones existed.
74        47 C.F.R.  69.104(a).
75        Citizens Supplemental Answer at III-24 - III-26; Qwest 
Supplemental Answer at III-7 - III-9; Verizon New England 
Supplemental Answer at B-22 - B-24; ALLTEL Supplemental Answer at 
IV-2; SBC Supplemental Answer at III-24 - III-26; BellSouth 
Supplemental Answer at II-22 - II-25; Century Supplemental Answer 
at IV-2; TDS Supplemental Answer at 23-25; Verizon North 
Supplemental Answer at B-22 - B-24; Verizon Delaware Supplemental 
Answer at B-22 - B-24.
76        Liability Order, 15 FCC Rcd at 8762-3,  11.
77        See Verizon, 269 F.3d at 1112.
78        See n.26, supra.
79        Citizens Supplemental Answer at III-24; Qwest 
Supplemental Answer at III-7; ALLTEL Supplemental Answer at IV-2; 
SBC Supplemental Answer at III-24; BellSouth Supplemental Answer 
at II-22 - II-23; Century Supplemental Answer at Section IV-2; 
TDS Supplemental Answer at 23; Verizon North Supplemental Answer 
at B-22 - B-23; Verizon Delaware Supplemental Answer at B-22 - B-
23.
80        Citizens Supplemental Answer at III-25; Qwest 
Supplemental Answer at III-8; Verizon New England Supplemental 
Answer at B-23; SBC Supplemental Answer at III-25; BellSouth 
Supplemental Answer at II-24; TDS Supplemental Answer at 24; 
Verizon North Supplemental Answer at B-23; Verizon Delaware 
Supplemental Answer at B-23.
81        Id.
82        Restatement (Second) of Agency  1 (1958).
83        Id.  1 cmt. b (``It is the element of continuous 
subjection to the will of the principal which distinguishes the 
agent from other fiduciaries and the agency agreement from other 
agreements.'')
84        Id.  13 cmt. c.  
85        See, e.g., Bancoklahoma Mortgage Corp. v. Capital Title 
Co., 194 F.3d 1089, 1104 (10th Cir. 1999).  
86        See Affidavit of William J. Nelson at  6-7, attached 
as Exhibit 7 to the following complaints: ITC v. ALLTEL; ITC v. 
Ameritech; ITC v. BellSouth; ITC v. Century; ITC v. TDS; and ITC 
v. Verizon North (ITC did not ``receive any payments, or charge 
any fees, for installing or maintaining payphones at particular 
locations.  To the contrary, [ITC] invariably had to contract 
with, and pay, site owners or commercial tenants for 
authorization to install and maintain payphones on premises that 
they owned or leased.'')
87        See, e.g., TDS Supplemental Answer, Exhibit 10.
88        Id.
89        See Qwest Supplemental Answer, Exhibit 1, Attachments A 
and B.
90        See Complainants' Legal Analysis at II-13 - II-14,  
23-25.
91        Id.
92        Several Defendants argue that Complainants' claims 
pursuant to Section 203 of the Act and the filed rate doctrine 
are barred because they did not raise them in their informal 
complaints.  See TDS Supplemental Answer at 29; Qwest 
Supplemental Answer at III-13; ALLTEL Supplemental Answer at IV-
3; BellSouth Supplemental Answer at II-29; Century Supplemental 
Answer at IV-3; Verizon New England Supplemental Answer at B-27; 
Verizon North Supplemental Answer at B-27; Verizon Delaware 
Supplemental Answer at B-27 to B-28.  Having concluded above that 
we need not reach the Section 203 and filed rate doctrine claims 
for purposes of this Order, we likewise need not address whether 
the informal complaints adequately raised these claims.
93        Although we deferred the calculation of damages until 
the second phase of this proceeding, we analyze the imposition of 
damages here in order to facilitate the resolution of these 
thirteen formal complaints as well as the 3000 pending informal 
complaints.  The parties were on notice that we would address 
these threshold damages issues at this stage of the proceeding.  
See May 1, 2002 Letter Ruling at 7.
94        While we conclude here that an award of damages is 
appropriate, we defer the calculation of damages for each 
Complainant to the second phase of this proceeding.  See id.  
Such calculation will be based on the amount of EUCL charges 
actually paid by each Complainant to Defendants during the 
applicable time period.  
95   Verizon, 296 F.3d at 1100, 1112.
96        Citizens Supplemental Answer at III-11; Qwest 
Supplemental Answer at III-22; Verizon New England Supplemental 
Answer at B-11; SBC Supplemental Answer at III-11; BellSouth 
Supplemental Answer at II-10 - II-11; TDS Supplemental Answer at 
10; Verizon North Supplemental Answer at B-11; Verizon Delaware 
Supplemental Answer at B-11.  See also ALLTEL Supplemental Answer 
and Century Supplemental Answer at IV-3, referencing Citizens 
Supplemental Answer at 4-20.
97        Verizon, 269  F. 3d at 1101, 1112 (``We therefore 
express no opinion as to the Commission's authority to impose 
damages on the LECs for charges that they may have collected in 
reliance on the agency's initial (and mistaken) interpretation of 
the Access Charge Reconsideration rules.'')
98        Id. at 1112.
99        Id. at 1109, quoting Williams Natural Gas Co. v. FERC, 
3 F.3d 1544, 1554 (D.C. Cir. 1993).
100  Id.  At 1109, citing Health Ins. Ass'n of Am. v. Shalala, 23 
F.3d 412, 424 (D.C. Cir. 1994) (emphasis added).
101  Id. (citations omitted).
102  See id. at 1109-10, citing Pub. Serv. Co. of Colo. v.  FERC, 
91 F.3d 1478, 1490 (D.C. Cir. 1996).
103  Citizens Supplemental Answer at III-4 - III-5; Qwest 
Supplemental Answer at III-15 - III-16; Verizon New England 
Supplemental Answer at B-3 - B-4; ALLTEL Supplemental Answer at 
IV-3 - IV-4; SBC Supplemental Answer at III-3 - III-4; BellSouth 
Supplemental Answer at II-3 - II-4; Century Supplemental Answer 
at IV- 3 - IV-4; TDS Supplemental Answer at 3-4; Verizon North 
Supplemental Answer at B-3 - B-4; Verizon Delaware Supplemental 
Answer at B-3 - B-4. 
104  See id., citing Apr. 4, 1989 Anita J.Thomas Letter and Sep. 
14, 1988 Anita J. Thomas Letter.
105  Liability Order, 15 FCC Rcd at 8769,  28.
106  See e.g., Malkan FM Associates v. FCC, 935 F.2d 1313, 1319 
(D.C. Cir. 1991) (``Malkan''). 
107  Citizens Supplemental Answer at III-5 - III-6; Qwest 
Supplemental Answer at III-16 - III-17; Verizon New England 
Supplemental Answer at B-5; ALLTEL Supplemental Answer at IV-3 - 
IV-4; SBC Supplemental Answer at III-4 - III-5; BellSouth 
Supplemental Answer at II-4 - II-5; Century Supplemental Answer 
at IV-3 - IV-4; TDS Supplemental Answer at 3-4; Verizon North 
Supplemental Answer at B-5; Verizon Delaware Supplemental Answer 
at B-5.
108  C.F. Communications, 128 F.3d at 742.
109  Exxon Co., U.S.A. v. FERC, 182 F.3d 30, 49 (D.C. Cir. 1999).
110  Id.  
111  Verizon, 269 F.3d at 1111 (citations omitted); see also Pub. 
Utilities Com'n of Calif. V. FERC, 988 F.2d 154, 163 (D.C. Cir. 
1993) (Agency discretion ``is often at its `zenith' when the 
challenged action relates to the fashioning of remedies.'') 
(citations omitted).
112  See Liability Order, 15 FCC Rcd at 8768,  28
113  Citizens Supplemental Answer at III-43; Qwest Supplemental 
Answer at III-42; Verizon New England Supplemental Answer at B-
42; SBC Supplemental Answer at III-44; BellSouth Supplemental 
Answer at II-42; TDS Supplemental Answer at 41; Verizon North 
Supplemental Answer at B-42; Verizon Delaware Supplemental Answer 
at B-42.
114  Verizon, 269 F.3d at 1110-11 (citations omitted).  See Exxon 
Co., 182 F.3d at 49 (Retroactivity is not impermissible where, as 
here, the affected parties have notice ``that resolution of some 
specific issue may cause a later adjustment.'').  See, e.g., OXY 
USA, Inc. v. FERC, 64 F.3d 679, 699 (D.C. Cir. 1995); 
Transwestern Pipeline Co. v. FERC, 59 F.3d 222, 232-233 (D.C. 
Cir. 1995).
115  See 47 C.F.R.  61.45(d)(vi).
116  Exxon Co., 182 F.3d at 49.  See also Cities of Carlisle and 
Neola, Iowa v. FERC, 741 F.2d 429, 433 (D.C. Cir. 1984).
117  Public Utilities Commission of the State of California, 988 
F.2d at 163, quoting United Gas Improvement Co. v. Callery, 382 
U.S. 223, 229 (1965), reh. denied, 382 U.S. 1001 (1966) (ellipses 
and brackets omitted). 
118  Citizens Supplemental Answer at III-4; Verizon New England 
Supplemental Answer at B-3; SBC Supplemental Answer at 3; 
BellSouth Supplemental Answer at II-3; TDS Supplemental Answer at 
3; Verizon North Supplemental Answer at B-3; Verizon Delaware 
Supplemental Answer at B-3.  See also ALLTEL Supplemental Answer 
and Century Supplemental Answer at IV-2 - IV-3, incorporating by 
reference Citizens Supplemental Answer at III-4.
119  MCI Telecommunications Corp. v. FCC, 59 F.3d 1407, 1414 
(D.C. Cir. 1995), cert. denied, 517 U.S. 1129 (1996), quoting 47 
U.S.C.  206 (emphasis added).
120  47 U.S.C.  209.
121  See  33, supra.
122  1 Dan B. Dobbs, Law of Remedies  4.1(1), at 555 (2d ed. 
1993).  
123  See id.
124  See MCI, 59 F. 3d at 1415.
125  Restatement (Third) of Restitution and Unjust Enrichment  
17.
126  See Restatement (Third) of Restitution and Unjust Enrichment 
 1 cmt. H (Discussion Draft 2000) (``restitution . . . is itself 
a source of obligations, analogous in this respect to tort or 
contract.  A liability in restitution is enforced by 
restitution's own characteristic remedies, just as a liability in 
contract is enforced by what we think of as contract remedies.'')
127  See U.S. v. Associated Transport, Inc., 505 F.2d 366, 367-69 
(D.C. Cir. 1995).
128  Complainants' Consolidated Reply at III-9.
129  Atlantic Coast Line, 295 U.S. at 312.
130  Similarly, Towns of Concord, Norwood and Wellesley, 
Massachusetts v. FERC, 955 F.2d 67 (D.C. Cir 1991), another case 
relied on by Defendants, does not involve a statutory right to 
damages, but rather merely confirms that FERC has discretion in 
ordering rate refunds under the Federal Power Act.
131  Rapaport v. United States Dep't of the Treasury, Office of 
Thrift Supervision, 59 F.3d 212, 217 (D.C. Cir. 1995) (emphasis 
added), quoting Dobbs, Law of Remedies  4.1(2); see also Klein 
v. Arkoma Prod. Co., 73 F.3d 779, 786 (8th Cir. 1996) (``a party 
is unjustly enriched when he has received something of value that 
belongs to another'').  
132  Dobbs, Law of Remedies  4.1(2), at 558; see also MacDraw, 
Inc. v. CIT Group Equip. Fin., Inc., 157 F.3d 956, 963 (2d Cir. 
1998) (unjust enrichment exists when ``as between the two parties 
enrichment of the [defendant is] unjust.'')
133  Citizens Supplemental Answer at III-16; Qwest Supplemental 
Answer at III-26; Verizon New England Supplemental Answer at B-
15; ALLTEL Supplemental Answer at IV-6; SBC Supplemental Answer 
at III-16; BellSouth Supplemental Answer at II-15; Century 
Supplemental Answer at IV-6; TDS Supplemental Answer at 15; 
Verizon North Supplemental Answer at B-15; Verizon Delaware 
Supplemental Answer at B-15. 
134  Proof of such payment will occur in the second phase of this 
proceeding.
135  47 U.S.C.  201(b).
136  FPC v. Tennessee Gas Transmission Co., 371 U.S. 145, 152-53 
(1962); see also Liability Order, 15 FCC Rcd at 8770,  31. 
137  New England Telephone & Telegraph Co v. FCC., 826 F.2d 1101, 
1108 (D.C. Cir. 1987).
138  See CVCA v. Citizens Complaint at I-4,  1; Exh. 1 (Informal 
Complaint filed by CVCA against Citizens, dated Mar. 3, 1998); 
CVCA v. Qwest Complaint at I-4,  1; Exh. 1 (Informal Complaint 
filed by CVCA against Qwest, dated Sep. 29, 1997); IMR v. Verizon 
New England Complaint at I-4,  1; Exh. 1 (Informal Complaint 
filed by IMR against Verizon, dated Oct. 6, 1997); ITC v. ALLTEL 
Complaint at I-4, 1; Exh. 1 (Informal Complaint filed by ITC 
against ALLTEL, dated Sep. 15, 1997);  ITC v. Ameritech Complaint 
at I-4,  1; Exh. 1 (Informal Complaint filed by ITC against. 
Ameritech, dated Sep. 15, 1997); ITC v. BellSouth Complaint at I-
4,  1; Exh. 1 (Informal Complaint filed by ITC against 
BellSouth, dated Sep. 15, 1997); ITC v. Century Complaint at I-4, 
 1; Exh. 1 (Informal Complaint filed by ITC against Century, 
dated Sep. 15, 1997); ITC v. TDS Complaint at I-4,  1; Exh. 1 
(Informal Complaint filed by ITC against TDS, dated Sep. 15, 
1997); ITC v. Verizon North Complaint at I-4,  1; Exh. 1 
(Informal Complaint filed by ITC against Verizon North, dated 
Sep. 15, 1997); NTC v. Verizon Delaware Complaint at I-4,  1; 
Exh. 1 (Informal Complaint filed by NTC against Verizon Delawere, 
dated Nov. 4, 1997);  NSC v. PacBell Complaint at I-4,  1; Exh. 
1 (Informal Complaint filed by NSC against PacBell, dated Dec. 
31, 1997); Payphone Systems v. Citizens Complaint at I-4,  1; 
Exh. 1 (Informal Complaint filed by Payphone Systems against 
Citizens, dated Jan. 8, 1998); Payphone Systems v. PacBell 
Complaint at I-4,  1; Exh. 1 (Informal Complaint filed by 
Payphone Systems against PacBell, dated Jan. 8, 1998).      
139  As noted earlier, this time frame encompasses the years 1986 
through 1997.  See supra  3.
140  We note that many of the complainants who chose to file 
complaints earlier were represented by the same Washington D.C. 
communications counsel representing the Complainants in this 
matter.
141  See Complainants' Legal Analysis at II-44 - II-52,  74 - 
88.
142  47 U.S.C.  415(b).
143  Bunker Ramo Corp., 31 FCC 2d 449, 453,   12 (1971) 
(``Bunker Ramo'').  See American Pipe & Construction Co. v. Utah, 
414 U.S. 538, 554 (1974) (stating that ``statutory limitation 
periods are designed to promote justice by preventing surprises 
through the revival of claims that have been allowed to slumber 
until evidence has been lost, memories have faded, and witnesses 
have disappeared.'').  See also Aetna Life Ins. Co. v. AT&T Co., 
3 FCC Rcd  2126, 2129,  13 (CCB 1988) (``Aetna''), aff'd sub 
nom. US Sprint Communications Co. v. AT&T Co., 9 FCC Rcd 4801 
(1994) (``US Sprint''), aff'd, Sprint Communications Co. v. FCC, 
76 F.3d  1221, 1226 (D.C. Cir. 1996) (``Sprint''); Carter v. 
Washington Metropolitan Area Transit Authority, 764 F.2d 854, 858 
(D.C. Cir. 1985) (``Carter''). 
144  Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 
(1991).  See Baldwin County Welcome Center v. Brown, 466 U.S. 
147, 151 (1984) (stating ``one who fails to act diligently cannot 
invoke equitable principles to excuse that lack of diligence.''); 
I.M. Frazer v. United States, 288 F.3d 1347, 1352 (Fed. Cir. 
2002) (stating that the court has ``generally been much less 
forgiving in receiving late filings where the claimant failed to 
exercise due diligence in preserving his legal rights.''); see 
also Aetna, 3 FCC Rcd at 2129,  14; Armstrong Utils., Inc. v. 
General Tel. Co., Memorandum Opinion and Order, 25 FCC 2d 385, 
389,  12 (1970) (``Armstrong'').
145  Armstrong, 25 FCC 2d at 389,  11 (stating that the 
``construction of  Section 415, both by the Commission and the 
federal courts, has been `strict'''; Carter, 764 F.2d at 858 
(noting that the general rule is that courts should apply the 
statute of limitations strictly); Bunker Ramo, 31 FCC 2d at 453,  
 12 (stating that ``although mere ignorance will generally not 
toll the statute, active fraudulent concealment by a defendant 
will generally do so.'').  See also US Sprint, 9 FCC Rcd at 4802, 
 10; Teleprompter Cable Sys., Inc., Decision, 52 FCC 2d 1263, 
1271,  19 n.13 (1975), rev'd and remanded on other grounds, 
Teleprompter Cable Sys., Inc. v. FCC, 543 F.2d 1379 (D.C. Cir. 
1976); Municipality of Anchorage d/b/a Anchorage Telephone 
Utility v. Alascom, Inc., 4 FCC Rcd 2472, 2473, 23 (CCB 1989) 
(``Anchorage'').  Complainants, however, make no allegations of 
fraudulent conduct by the Defendants in their complaints.
146  See Sprint, 76 F.3d  at 1225 (stating that a cause of action 
accrues and the limitations period begins to run only when the 
plaintiff discovers, or with due diligence should have 
discovered, the injury that is the basis of the action.); 
AirTouch Cellular v. Pacific Bell, Memorandum Opinion and Order, 
16 FCC Rcd 13502, 13504,  6 (2001) (``AirTouch'') (stating that, 
under Section 415(b), a cause of action accrues ``when the 
carrier does the unlawful act or fails to do what the law 
requires.'').  See also Liability Order, 15 FCC Rcd at 8772,  
36; C.F. Communications Corp. v. Century Tel. of Wisconsin, Inc., 
Hearing Designation Order, 16 FCC Rcd 8801, 8807,  17 (2001) 
(``HDO''); MCI Telecommunications Corp. v. Teleconcepts, 71 F.3d 
1086, 1100 (3rd Cir. 1995) (``Teleconcepts'').
147   See Sprint, 76 F.3d at 1226 (stating that ``where the 
defendant fraudulently concealed material facts related to its 
wrongdoing,'' the cause of action does not accrue until the 
plaintiff has ``something approaching actual notice.''). Aetna, 3 
FCC Rcd at  2129,  16 (noting that the ``running of a 
limitations period may be tolled by active concealment of the 
facts giving rise to a cause of action by defendant.'').  See 
also Valenti v. AT&T Co., Memorandum Opinion and Order, 12 FCC 
Rcd 2611, 2621,  24 (1997) (``Valenti'').
148       See Complainants' Legal Analysis at II-30,  54.  See 
e.g. CVCA v. Citizens Complaint; Exh. 8 (Affidavit of James 
Patrick Kerivan, Jr. On the Recovery Period [``Kerivan Recovery 
Period Aff.''] at 2-4,  6, 9, 13; IMR v. Verizon New England 
Complaint; Exh. 8 (Affidavit of Thomas J. Biggins On the Recovery 
Period [``Biggins  Recovery Period Aff.'']) at 2,  5-8; ITC v. 
ALLTEL Complaint; Exh. 8 (Affidavit of William J. Nelson On the 
Recovery Period [``Nelson Recovery Period Aff.''] at 2-3,  6, 
8-9; NTC v. Verizon Delaware Complaint; Exh. 8 (Affidavit of 
Michael Bright On the Recovery Period [``Bright Recovery Period 
Aff.''] at 2-3,  5-7; NSC v. PacBell Complaint; Exh. D 
(Affidavit of M. Sean Venezia [``Venezia Aff.''] at 25,  67-69; 
Payphone Systems v. Citizens Complaint; Exh. 8 (Affidavit of 
Ronald McPherson On the Recovery Period [``McPherson Recovery 
Period Aff.''] at 2,  4, 6-8. 
149  MCI Telecommunications  Corp. v.  U S  West  Communications, 
Inc., Memorandum Opinion and  Order, 15 FCC Rcd  9328, 9330,   5 
(2000) (noting  that  ``the general  rule  is that  the  two-year 
limitations period begins  to run  when the  customer receives  a 
bill from the carrier assessing  the disputed rate'').  See  also 
Teleconcepts, 71 F.3d at 1100; Tele-Valuation, Inc. v. AT&T  Co., 
73 FCC 2d 450, 452,  4 (1979).
150  See CVCA v. Citizens Complaint at I-35,  6-7.  See also 
Kerivan Recovery Period Aff. at 4,  17; Biggins  Recovery Period 
Aff. at 4,  19; Nelson Recovery Period Aff. at 4,  17; Bright 
Recovery Period Aff. at 4,  17; Venezia Aff. at 27,  76; 
McPherson Recovery Period Aff. at 3,  15.
151  See CVCA v. Citizens Complaint at I-35,  1-5; See also 
Kerivan Recovery Period Aff. at 3-4,  13-14; Biggins  Recovery 
Period Aff. at 3,  11; 4,  16-18; Nelson Recovery Period Aff. 
at 2,  7; Bright Recovery Period Aff. 2,  6; 4,  12-14; 
Venezia Aff. at 26,  73-74; McPherson Recovery Period Aff. at 
2,  5; 3,  12.  
     In this regard, given the uncertain outcome of their 
petition and the agency's discretion whether to rule on a 
petition for declaratory ruling, Complainants should not have 
relied solely on this petition to address their legal claims 
against Defendants.  See 47 C.F.R.  1.2; 5 U.S.C.  554.
152  See Complainants' Legal Analysis at II-30,  53; II-37,  
64; II-41,  69; II-49,  82; II-50,  84.
153  Id. at II-28,  52; II-29,  53; II-34, P 59; II-37,  64; 
II-41,  70; II-43,  73. 
154  Sep. 14, 1988 Anita J. Thomas Letter.  See also Apr. 4, 1989 
Anita J. Thomas Letter; Bureau CFC Order, 8 FCC Rcd at 7336,  
12-13.
155  See 47 C.F.R.  0.445(e); Section 0.445(e) of the 
Commission's rule provides that an unpublished order may not be 
used as precedent against a third party.  See also Malkan, 935 
F.2d at 1319 (stating that staff level letters do not necessarily 
speak for or bind the Commission); Liability Order, 15 FCC Rcd at 
8768-8769,  28.     
156  CFC I Order, 10 FCC Rcd at 9778-79,  16; 9780,  21,
157  C.F. Communications, 128 F.3d at 739-40.
158  See Verizon, 269 F.3d at 1111.
159  See Complainants' Legal Analysis at II-20,  36. 
160  Id. at II-29,  51; II-35,  61.  
161  We note that  there is no  evidence that any  of these  IPPs 
tried to pursue their claims in district court.
162  We note that the majority of these 30 prevailing IPPs were 
represented by the same Washington D.C. communications counsel 
that represent the current complainants.
163  See Sprint,  76 F.3d  at 1226.   See also  Kerivan  Recovery 
Period Aff. at 2-4,  6, 9, 13; Biggins  Recovery Period Aff. at 
2,  5-7; Nelson Recovery Period Aff. at 2-3,  6, 8-9;  Bright 
Recovery Period Aff. at 2-3,   5-7; Venezia Aff. at 25,   67-
69; McPherson Recovery Period Aff.''] at 2,  4, 6-8.
164  McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir. 1981) 
(``A decision recognizing a cause of action after the period has 
run does not retroactively interrupt the running of the 
limitations period.'') (``McConnell'').  See also Fiesel v. Board 
of Ed. of City of New York, 675 F.2d 522, 524 (2nd Cir. 1982) 
(``Fiesel''); Duchesne v. Sugarman, 459 F.Supp. 313 (S.D.N.Y. 
1978).   
165  Fiesel, 675 F.2d at 524.
166  McConnell, 661 F.2d at 118.  
167  Container  Corp.  of  America  v.  Admiral  Merchants  Motor 
Freight, Inc., 489 F.2d 825, 828 (7th Cir. 1973) (Interpreting  a 
provision of the Interstate  Commerce Act (``ICC''), wherein  the 
limitations period  begins to  run from  the issuance  of an  ICC 
order, to find  that a cause  of action to  enforce an ICC  order 
accrues when a final order is issued.)
168  Hartford Life Insurance Co. v. Title Guarantee Co., 52 F.2d 
1170, 1174 (D.C. Cir. 1975) (finding that plaintiff's cause of 
action for failure of consideration depended upon a prior 
adjudication finding that the loan held by plaintiff was 
invalid).
169  United States v. One 1961 Red Chevrolet Impala Sedan, 457 
F.2d 1353, 1358 (5th Cir. 1972) (finding that plaintiff had been 
``without a right'' until Supreme Court issued its opinion).
170  Neely v. United States, 546 F.2d 1059, 1068 (3rd Cir. 1976) 
(finding that the existence of a cause of action was  
``inherently unknowable'' until Supreme Court issued its 
opinion).
171  Slaaten v. United States, 990 F.2d 1038, 1042 (8th Cir. 
1993) (finding that plaintiff could not have had the requisite 
knowledge of injury to file a claim under the Federal Tort Claims 
Act until the Interior Board of Land Appeals issued a final 
decision regarding a related issue).
172  See Aetna, 3 FCC Rcd at 2129,  15 (rejecting complainants' 
reliance on Red Chevrolet (457 F.2d 1353) and Neely (546 F.2d 
1059) because the challenged order at issue did not create their 
cause of action).
173  Interconnection Arrangements Between and Among the Domestic 
and International Record Carriers, Memorandum Opinion and Order, 
CC Docket Nos. 78-122 & 78-97, FCC 86-190, (rel. May 2, 1986) at 
 16.
174  Id. 
175  ITT World Communications, Inc. v. Western Union Telegraph 
Co., 598 F. Supp. 1439, 1440-1 (S.D.N.Y. 1984) (holding that 
request made to District Court for attorney's fees as damages 
under Section 207 of the Act was not barred by Section 415(b) 
because this was plaintiff's ``first and only opportunity'' to 
recover attorney's fees in the proceeding).  
176  Had such complaint been rejected by the Commission, 
Complainants would have been free to appeal the Commission's 
rulings.  Also, if the Commission improperly failed to act on 
such complaints, Complainants could have sought mandamus. 
177  AirTouch, 16 FCC Rcd at 13504,  6 n.21 (stating that a 
cause of action accrues when a rule imposing a new regulatory 
obligation is promulgated).
178  See supra n.146. 
179  See Complainants' Legal Analysis at II-52 - II-55,  90 - 
99.  
180  Id. at II-52,  90, citing Ervin v. County of Los Angeles, 
848 F.2d 1018 (9th Cir. 1988) (``Ervin'').
181  Ervin, 848 F.2d at 1019.  See also Hernandez v. City of El 
Monte, 138 F.3d 393, 401-402 (9th Cir. 1998); Cervantes v. City 
of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993); Daviton v. 
Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1137, 1140 (9th 
Cir. 2001) (all applying the California test for equitable 
tolling).
182  See supra n.145.
183  Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 
(1991) (Limits tolling to instances ``where the claimant has 
actively pursued his judicial remedies by filing a defective 
pleading during the statutory period, or where the complainant 
has been induced or tricked by his adversary's misconduct into 
allowing the filing deadline to pass.'').  
184  See Complainants' Legal Analysis at II-53 - II-54,  91 -
93.
185  Id. at II-55,  94.
186  Id. at II-55,  95 relying on Valenti (12 FCC Rcd at 2211,  
26) and Teleprompter (52 FCC 2d 1263, 1271,  19 n.13) for the 
proposition that the Commission has previously applied the Ervin 
test.  We note, however, that in Valenti, the Commission relied 
on prior Commission decisions (Armstrong, 25 FCC 2d at 389, and 
Anchorage, 4 FCC Rcd at 2476), to reject the equitable tolling 
request.  It was only to address complainant's reliance on Ervin 
that the Commission noted that the complainant failed the third 
prong of the Ervin test because complainant should have been 
aware that the Commission had primary or exclusive jurisdiction.  
Contrary to Complainants' assertions, the Commission's 
Teleprompter decision does not apply the California Ervin test to 
consider whether the statute of limitations should be equitably 
tolled.  Teleprompter, 52 FCC 2d 1263, 1271,  19 n.13. 
187  See Complainants' Legal Analysis at II-39 citing First 
Waiver Order; Bay Communications v. New England Tel. Co., Order, 
7 FCC Rcd 254 (CCB 1992) (unopposed waiver requests granted 
because of pending related complaint); TTX Co. v. AT&T 
Communications, Order, 7 FCC Rcd 2084 (CCB 1992) (unopposed 
waiver request granted for 60 days because deadline for filing 
formal complaint expired during Commission's consideration of 
waiver request).
188  Id. at II-56 - II-57,  97-99.
189  Fiesel, 675 F.2d at 524 (stating that it is incumbent upon a 
plaintiff to test his ``right and remedy in the available forums.  
These suits were not commenced until through the labor of others 
the way was made clear.'')
190  See supra n.144 and n.145.  See also Armstrong, 25 FCC 2d at 
389,  12 (stating that permitting ``a potential complainant to 
sit idly by and remain silent for years'' and ``then claim that a 
cause of action has accrued to him because of a determination 
made by the Commission in an adjudicatory proceeding involving a 
different entity asserting an independent grievance'' would be 
``contrary to the policies underlying the statute of 
limitations'').
191  See Citizens Supplemental Answer at 33-53; Qwest 
Supplemental Answer at III-32 - III-55; Verizon New England 
Supplemental Answer at B-28 - B-52; ALLTEL Supplemental Answer at 
IV-7 - IV-9; SBC Supplemental Answer at III-33 - III-52; 
BellSouth Supplemental Answer at II-30 - II-55; Century 
Supplemental Answer at IV-7 - IV-9; TDS Supplemental Answer at 30 
- 53; Verizon North Supplemental Answer at B-28 - B-52; Verizon 
Delaware Supplemental Answer at B-30 - B-53.
192  SBC Supplemental Answer at 56, 59-61; BellSouth Supplemental 
Answer at II-57, 59-60; Qwest Supplemental Answer at III-56-57; 
TDS Supplemental Answer at III-55, 58.  Although TDS acknowledges 
that the informal complaint filed against it by ITS appears to be 
timely filed, TDS also argues that the Commission should dismiss 
any formal complaints for which a complainant has failed to show 
that it properly filed an informal complaint.  See TDS 
Supplemental Answer at n.38. 
193  BellSouth Answer at I-30,  G12; SBC Answer, I-H at 27, 30, 
32.   Relying on the same theory, SBC also appears to be 
contesting the dates on which the informal complaints at issue 
were filed.
194          Qwest Answer at I-31,  14; Qwest Supplemental 
Answer at III-54 - III-57 (Qwest does not dispute that CVC filed 
an informal complaint, but maintains that the correct filing date 
for CVC's informal complaint is April 15, 1998, instead of 
October 3, 1997). 

195  BellSouth Supplemental Answer at II-60, n.39.
196  BellSouth Answer at I-30,  G12; SBC Answer at I-H at 27, 
30, 32.
197  See ITC v. BellSouth Complaint, Exh. 24 (Letter from Chief, 
Consumer Protection Branch, Federal Communications Commission, 
dated June 30, 1999, to ITC Corporation (stating that, during 
implementation of new complaint processing system, ``unexpected 
technical issues arose and as a result, we have been unable to 
further process your complaint and have closed the file.'') 
(``June 30, 1999 Consumer Protection Branch Letter''). 
198  TeleSTAR, Inc., Decision, 2 FCC Rcd 5, 13,  23 (Rev. Bd. 
1987) (stating that credibility involves the manner in which 
testimony ``hangs together with other evidence,'' citing to Carbo 
v. U.S., 314 F.2d 718, 749 (9th Cir. 1963)); American 
International Development, Inc., Memorandum Opinion and Order, 86 
FCC 2d 808, 815,  17 (1981) (noting that the existence of 
corroborative evidence is a factor to be considered in weighing 
the evidence presented).  See also Contemporary Media, Inc., 
Decision, 13 FCC Rcd 14,437, 14,457,  39 (1998).
199  See 47 C.F.R.  1.716, 1.717, and 1.718.
200  The informal complaint letters are dated September 15, 1997, 
are printed on ITC's stationery, and include the name of ITC's 
president, William J. Nelson.  We find credible the affidavit of 
Pamela S. Wickham, ITC's office manager during the time period at 
issue, that it was the company's customary  practice to send 
letters out on the date they were generated, without Mr. Nelson's 
signature when he was not available to sign them, and that this 
is what occurred with the informal complaints at issue here.  
Complainants' Consolidated Reply at III-154,  104; Exh. 30 
(Declaration of Pamela S. Wickham) (``Wickham Decl.''), at 2-3, 
 2-8.
201  See Hughes-Moore Assocs., Memorandum Opinion and Order, 7 
FCC Rcd 1454, 1455,  10-11 (1992) (finding that, in the absence 
of a document with an actual FCC date stamp, and where neither 
the Commission nor the parties have a record of initially 
receiving the pleading in question, the submitted copy was not 
entitled to be accepted at face value; in addition, verified 
statement of counsel regarding proper mailing, without additional 
corroborating evidence, was insufficient); Westchester Council 
for Public Broadcasting, Inc. to Share Time with Noncommercial 
Educational Station WNYE(FM), Brooklyn, New York, Memorandum 
Opinion and Order, 8 FCC Rcd 2213, 2214,  7 n.4 (1993) (finding 
that applicant's copy of its response without a Commission date 
stamp constituted insufficient evidence of filing a response.); 
Federal Express Corp., Memorandum Opinion and Order, 15 FCC Rcd 
4289, 4292,  13 (WTB 2000) (finding that complainant did not 
diligently prosecute its renewal application because, among other 
things, it did not avail itself of the option to receive a date 
stamped copy of the application to indicate the FCC's receipt of 
it).
202  Except for the  informal complaint  that ITC  says it  filed 
against BellSouth,  the  Commission  has  a  record  of  all  the 
informal complaints at  issue in this  proceeding.  See June  29, 
2001 FCC Open and Pending List of EUCL Informal Complaints.
203  See supra n.200 regarding Wickham Decl.  We note that 
evidence regarding mailing is an acceptable form of proof.  See 
Schikore v. BankAmerica Supplemental Retirement Plan, 269 F.3d 
956, 964 (9th Cir. 2001) (stating that a sworn statement is 
credible evidence of mailing.); Simpson v. Jefferson Standard 
Life Ins. Co., 465 F.2d 1320, 1324 (6th Cir. 1972) (finding that 
evidence of compliance with business custom will suffice to 
establish proof of mailing.); Legille v. Dann, 544 F.2d 1, 4 
(D.C. Cir. 1976) (noting that ``proof that mail matter is 
properly addressed, stamped deposited in an appropriate 
receptacle has long been accepted as evidence of delivery to the 
adressee.'')  See also Smith v. City of Chicago, 242 F.3d 737, 
741 (7th Cir. 2001).  
204  Complainants' Legal Analyis at II-83 - II-84,  143 - 145; 
II-95,  23-24.
205  See June 29, 2001 FCC Open and Pending List of EUCL Informal 
Complaints.
206  In its Jan. 21, 1999 response to ITC's informal complaints, 
Ameritech (SBC) stated that it ``has received a copy of your 
letters'' to the Federal Communications Commission dated 
September 12, 1997.... seeking a refund of end user common line 
(``EUCL'') charges assessed prior to April 15, 1997.''   See ITC 
v. Ameritech Complaint, Exh. 2 (Letter from Linda Koraba, 
Ameritech, dated Jan. 21, 1999, to Bill Nelson, ITC).  In 
addition, in its Dec. 31, 1998 response to NSC's informal 
complaint, PacBell (SBC) stated that it had received a ``copy of 
your letter dated Dec. 30, 1997, to the FCC.''  Further, PacBell 
(SBC) noted that it ``is waiting for the expected further FCC 
proceedings to determine whether or not we have any obligation to 
refund EUCL charges to independent Payphone Service Providers.''  
See NSC v. PacBell Complaint, Exh. A (Letter from June A. 
Burgess, Pacific Bell, dated Dec. 30, 1998, to Iain MacLeod, 
NSC).  SBC's Jan. 4, 1989 response to Payphone Systems's informal 
complaint is identical in substance to its response to NSC's 
informal complaint.  Letter from June A. Burgess, Pacific Bell, 
dated Jan. 4, 1999, to Ronald MacPherson, Payphone Systems.
207  See Complainants' Consolidated Reply at III-153,  102; 154, 
 104.  See also Wickham Decl.  Ms. Wickham's declaration 
indicates that the package included informal complaints that 
underlie the following six formal complaints in this proceeding: 
ITC v. ALLTEL; ITC v. Ameritech; ITC v. BellSouth; ITC v. 
Century; ITC v. TDS; and ITC v. Verizon North.
208  See ITC v. BellSouth Complaint, Exh. 24 (June 30, 1989 
Consumer Protection Branch Letter).  See also n.196 supra.  We 
find that ITC's receipt of this letter supports ITC's assertion 
that the informal complaint ITC states it filed against BellSouth 
was prematurely closed.  As with all the letters the bureau sent 
regarding the files that were prematurely closed during the 
database conversion, this letter did not state the name of the 
defendant or informal complaint number of the improperly closed 
complaint.  However, this was the only informal complaint out of 
the six informal complaints ITC filed together that is not 
currently in the Commission's database. 
209  The database lists the following filing dates for ITC's 
informal complaints against the defendants in this proceeding: 
ITC  v. ALLTEL: Sep. 23, 1997; ITC v. Ameritech: Oct. 1, 1997; 
ITC v. Century; Sep. 15, 1997; ITC v.  TDS: Sep. 15, 1997; ITC v. 
Verizon North: Oct. 1, 1997.
210  See 47 C.F.R.  1.5.
211  The database shows: 1) ITC's complaints against Ameritech 
were filed on Oct. 1, 1997; 2) Payphone Systems' complaint 
against PacBell was filed on Jan. 12, 1998. 
212  Complainants' Consolidated Reply, III-153; Exh. 27 
(Declaration of James P. Kerrivan, Jr.), at 2,  3-4.  
213  Citizens Supplemental Answer at III-53 - III-54; Qwest 
Supplemental Answer at III-55 - III-56; Verizon New England 
Supplemental Answer at B-52 - B-53; ALLTEL Supplemental Answer at 
IV-9- IV-10; SBC Supplemental Answer at III-86; BellSouth 
Supplemntal Answer at II-55 to II-56; Century Supplemental Answer 
at IV-9 - IV-10; Verizon North Supplemental Answer at B-51 - B-
52; Verizon Delaware Supplemental Answer at B-52 - B-53; TDS 
Supplemental Answer at 53-54.
214  See, e.g., Citizens Supplemental Answer at III-54; SBC 
Supplemental Answer at III- 86.   As we have concluded above that 
we need not reach the section 203 and filed rate doctrine claims 
for purposes of this Order, we will not address whether 
Complainants provided sufficient notice about these particular 
claims. 
215  Complainants' Consolidated Reply at III-129 - III-131.
216  Formal Complaints Order, 12 FCC Rcd at 22507-08,  21.
217  Id. at 22507,  21.  
218  Id. at 22517,  42.
219  See, e.g., Sprint Communications Company, L.P., v. Time 
Warner Telecom, Inc., File No. EB-01-MD-020, Notice of Formal 
Complaint, Sept. 7, 2001, at 3.
220  The informal complaints against each Defendant were attached 
to the certified settlement letters, thereby providing Defendants 
with a contemporaneous reference to the claims at issue. 
221  HDO, 16 FCC Rcd 8801. 
222  Although Qwest was not party to the HDO proceeding, it was a 
defendant in the informal complaints and therefore had notice of 
Complainants' arguments.  CVCA v. Qwest Complaint, Exh. 1.
223  See HDO, 16 FCC Rcd at 8805,  8.
224  Id. 
225  Id. 
226  Id. at 8805, n.28.
227  See Letter Ruling, File Nos. EB-02-MD-018-030 (June 26, 
2002), at n.9 (citing Summary of Enforcement Bureau's Multi-party 
Initial Meeting Regarding Procedures for Resolving End User 
Common Line Informal Complaints, Public Notice, DA 01-1344 (June 
4, 2001)) (listing dates for Bureau-facilitated settlement 
discussions scheduled in 2001).