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


In the Matter of                 )
                                )
Operator Communications, Inc.,   )
                                )
         Complainant,            )
                                )
          v.                     )
                                )
Contel of the South, Inc. d/b/a  )
Verizon Mid-States, Verizon      )
California Inc., The             )
Micronesian Telecommunications   )    File No. EB-05-MD-009
Corporation, Verizon Delaware    )
Inc., Verizon Florida Inc.,      )
Verizon Maryland Inc., Verizon   )
New England Inc., Verizon New    )
York Inc., Verizon New Jersey    )
Inc., Verizon North Inc.,        )
Verizon Northwest Inc., Verizon  )
South Inc., Verizon              )
Pennsylvania Inc., GTE           )
Southwest Inc., Verizon          )
Washington, D.C. Inc., and       
Verizon West Virginia, Inc.,

       Defendants.

                  MEMORANDUM OPINION AND ORDER

 Adopted:  December 9, 2005           Released:  December 9, 
2005

By the Commission:


I.   INTRODUCTION

     1.   In this Memorandum Opinion and Order, we dismiss a 
formal complaint1 filed by Operator Communications, Inc. 
(``OCI'') against the Verizon Telephone Companies2 pursuant to 
section 208 of the Communications Act of 1934, as amended 
(``Act'').3  OCI's Formal Complaint seeks, inter alia, a refund 
of certain presubscribed interexchange carrier charges 
(``PICCs'') that Verizon billed to OCI from April 1998 to April 
2001.  OCI did not initiate its claim for refund, however, until 
July 6, 2004, more than six years after the charges began, and 
more than three years after the charges ceased.  OCI has 
proffered no valid basis to excuse the delay in initiating its 
claims.  Consequently, OCI's claim is barred by the two-year 
statute of limitations in section 415 of the Act.4  To promote 
fairness and finality, a party seeking from the Commission the 
serious remedy of a monetary damages award against a particular 
common carrier must do so in strict accordance with the 
requirements of the Act and our rules.

II.  BACKGROUND

     II.A.     The Parties

     2.   At all relevant times, OCI was a presubscribed 0+ 
interexchange carrier for payphones owned by the Verizon 
Telephone Companies.5  The presubscribed interexchange carrier is 
selected by either the owner of the payphone or the location 
provider to provide long distance services for coinless calls 
made by callers dialing ``0'' plus the telephone number.  OCI 
provides operator-assisted calling service, primarily from local 
exchange carrier (``LEC'') pay telephones.6  The Verizon 
Telephone Companies (``Verizon'') are the affiliated incumbent 
local exchange carriers and wholly owned (directly or indirectly) 
subsidiaries of Verizon Communications Inc.7  Verizon serves 
territories formerly served by Bell Atlantic entities, NYNEX 
entities, and GTE.8

     II.B.     The Notice and Comment Proceeding

     3.   On May 4, 1998, the Commission issued a Public Notice 
seeking comments regarding whether and to what extent the 
Commission's rules permitted LECs to bill PICCs for lines serving 
LEC-owned payphones.9  The Commission initiated that proceeding 
(the ``Notice-and-Comment Proceeding'') in response to several 
letters -- including a letter dated April 22, 1998 from OCI to 
the Chief of the Common Carrier Bureau10 --  questioning the 
lawfulness of such PICCs then being billed by LECs.11

     4.   Later in 1998, Bell Atlantic filed comments and reply 
comments, and OCI filed comments, in the Notice-and-Comment 
Proceeding.12  In 1999, OCI filed in the Notice-and-Comment 
Proceeding a motion for interim relief -- to which Bell Atlantic 
filed an Opposition --  and a request to file a supplement to its 
motion for interim relief.13  OCI sought in those filings a 
Commission order directing Bell Atlantic to refrain from taking 
adverse action against OCI based on OCI's refusal to pay PICCs on 
payphone lines.14  The Commission did not rule on OCI's Interim 
Request and Supplement Request in the Notice-and-Comment 
Proceeding, which remains open.15   The last OCI filing in the 
Notice-and-Comment Proceeding was its Supplement Request, dated 
August 20, 1999.16

     5.   Between April 1998 and April 2001, in reliance on 
various tariff provisions, Verizon assessed the PICC on OCI for 
lines serving Verizon-owned payphones.17  OCI ultimately paid 
those charges, protesting to Verizon as it did so.18

     6.   On June 25, 2003, in a proceeding other than the 
Notice-and-Comment Proceeding, the Commission issued an order 
addressing the questions raised in the Notice-and-Comment 
Proceeding.19  Specifically, the Payphone PICC Order 
``establish[ed] that payphone lines are exempted from the PICC on 
a going-forward basis ....  Therefore, price cap LECs that still 
assess the PICC on multi-line business lines must adjust their 
rates in their October 1, 2003 tariff filings to reflect that the 
PICC no longer applies to payphone lines.''20  The Payphone PICC 
Order went on to state that the Commission ``ma[d]e no finding 
with respect to the application of PICCs prior to the effective 
date of this Order.''21

     II.C.     OCI's Claim for Damages from Verizon

     7.   On July 6, 2004, pursuant to section 1.716 of our 
rules,22 OCI filed an informal complaint against Verizon seeking 
(i) lost profits and (ii) refunds of the PICCs that Verizon 
assessed OCI from April 1998 to April 2001.23  OCI contended that 
the Payphone PICC Order's exemption of payphone lines from PICCs 
applies retroactively and renders Verizon's PICCs unlawful under 
sections 201(b) and 276 of the Act.  After Verizon responded by 
denying OCI's claim,24 OCI ``converted'' its informal complaint 
to a formal complaint pursuant to section 1.718 of our rules.25

     8.   Verizon asserts three defenses to OCI's claim.  First, 
Verizon argues that the two-year statute of limitations in 
section 415 of the Act bars OCI's claim, because the claim 
accrued upon OCI's receipt of each PICC bill, and OCI received 
the last such bill in April 2001, much more than two years before 
OCI filed the July 6, 2004 informal complaint.26  Second, in 
Verizon's view, Verizon's PICCs were lawfully tariffed when 
assessed on OCI through April 2001, and the Commission's 
subsequent exemption of payphone lines from PICCs in the 2003 
Payphone PICC Order applies prospectively only.27  Third, 
according to Verizon, Verizon assessed most of the PICCs at issue 
pursuant to tariffs that were filed on a ``streamlined'' basis 
pursuant to section 204(a)(3) of the Act,28 so most of the 
charges are ``deemed lawful'' and cannot form the basis of a 
damages award.29

     9.   For the following reasons, we hold that the two-year 
statute of limitations in section 415 of the Act bars OCI's claim 
in its entirety.  Consequently, we dismiss OCI's Formal Complaint 
without reaching Verizon's other affirmative defenses.

III.      DISCUSSION

     III.A.    Absent Tolling, the Two-Year Statute of 
     Limitations Bars OCI's Claim.

     10.  The two-year statute of limitations in section 415 of 
the Act applies to OCI's claim.30  That ``statute of limitations 
is a statute of repose, designed to protect a potential defendant 
against stale and vexatious claims by ending the possibility of 
litigation after a reasonable period of time has elapsed.''31  
Consequently, ``[s]ection 415 ... must be applied even if to do 
so produces hardships.''32

     11.  It is well established that a customer's claim 
challenging the lawfulness of a carrier's charges accrues when 
the customer receives the carrier's bill containing the allegedly 
unlawful charges.33  Applying that rule here, a portion of OCI's 
damages claim accrued each time OCI received a PICC bill from 
Verizon from April 1998 to April 2001.34  Accordingly, under the 
two-year statute of limitations set forth in section 415 of the 
Act, portions of OCI's damages claim began to expire in April 
2000, and the claim lapsed altogether in April 2003.  
Consequently, absent some basis for tolling the running of the 
limitations period, we must dismiss as time-barred OCI's July 
2004 claim for PICC refunds.

     12.  OCI does not dispute the foregoing operation of the 
statute of limitations.  OCI asserts two grounds, however, for 
tolling the running of the limitations period: (1) general 
principles of equity and (2) the pendency of the Notice-and-
Comment Proceeding.  We consider and reject each of those grounds 
below.

     III.B.    Principles of Equity Do Not Warrant Tolling.

     13.  OCI argues that principles of equity warrant tolling of 
the limitations period applicable to its damages claim against 
Verizon, because (i) OCI had to pay Verizon's PICC bills in order 
to avoid serious harm to its business; (ii) Verizon knowingly 
assumed the risk that the Commission would ultimately find the 
payphone PICCs unlawful; (iii) Verizon's payphone PICCs did not 
serve to reimburse Verizon for any incurred costs; (iv) the 
Commission's PICC rules were ambiguous, as applied to payphone 
lines; (v) OCI actively participated in the Notice-and-Comment 
Proceeding; (vi) the Commission did not resolve the Notice-and-
Comment Proceeding expeditiously; (vii) OCI consistently 
protested to Verizon regarding the payphone PICCs; and (viii) 
``OCI had no other [remedial] options.... It was stuck in a 
notice and comment proceeding.''35  Put differently, according to 
OCI, it would be unfair to enforce the statute of limitations 
against OCI, given that doing so would harm OCI more than it 
would benefit Verizon, and OCI did everything it could and should 
have done to preserve its claim.  We reject OCI's argument, for 
the following reasons.

     14.  OCI has not cited any precedent (and we have found 
none) in which either the Commission or a court has tolled the 
operation of section 415 on ``equitable'' grounds like those 
proffered by OCI here.  ``The construction of section 415 by the 
Commission and the federal courts has been strict and exceptions 
to its application have been confined to narrow 
circumstances.''36  Indeed, the Commission has identified only 
one circumstance that warrants equitable tolling of section 415 - 
fraudulent concealment by the defendant of the facts giving rise 
to the claim.37  As the Commission has explained:

          [Where] there is no allegation of fraud or 
          deceit, having been practiced by the 
          defendant upon complainant to prevent him 
          from becoming aware of the facts which are 
          the basis of its claim, there is no way of . 
          . . tolling the statute of limitations.38

     15.  Applying that standard here, ``there is no way of 
tolling the statute of limitations.''  OCI has neither shown nor 
even alleged that Verizon concealed the fact that Verizon was 
assessing PICCs on OCI's payphone lines.39  In fact, Verizon 
expressly suggested over five years ago that OCI should file a 
complaint if it sought to recover such PICCs.40  

     16.  In a short footnote in its final substantive submission 
-- which concerns an entirely different issue -- OCI suggests for 
the first time that Verizon committed fraud by twice telling OCI 
that Verizon would refund paid PICCs if the Commission were to 
rule that payphone PICCs are unlawful.41  OCI's suggestion is not 
only late,42 but also erroneous.  One Verizon statement was 
nothing more than a recognition by Bell Atlantic that OCI's 
agreement to pay disputed charges was not a concession by OCI of 
the charges' validity; no reference to refunds was made.43    The 
other Verizon statement was one made merely by a GTE billing 
specialist that ``appropriate'' credits would be provided if the 
Commission were to rule in OCI's favor.44  However, OCI could not 
have reasonably believed that ``appropriate'' credits would 
include those sought more than two years after the disputed 
charges were imposed, especially given that, several months after 
this statement by a GTE billing specialist, attorneys for GTE's 
imminent purchaser (Bell Atlantic) expressly notified OCI of the 
need to file a complaint.45  Indeed, OCI has presented no 
argument or evidence that it refrained from filing a complaint in 
reliance on either of these statements.  Thus, OCI has fallen 
short of meeting the high evidentiary burden of showing fraud.46  
Consequently, we reject OCI's contention that we should equitably 
toll the operation of section 415 in this case. 

     17.  In addition, even assuming, arguendo, that we could 
equitably toll the operation of section 415 on some basis other 
than fraudulent concealment, OCI's proffered bases are not 
compelling.  First, as fully explained infra,47 OCI's contention 
that it had no choice but to await the outcome of the Notice-and-
Comment Proceeding before filing a complaint for damages against 
Verizon is unfounded.  As Verizon itself pointed out to OCI in 
1999, at all relevant times OCI could have filed a complaint for 
damages against Verizon if OCI had an interest in pursuing that 
remedy. 48  Second, even within the context of the Notice-and-
Comment Proceeding, OCI did not diligently pursue the remedy it 
seeks here:  OCI's submissions never mentioned a request for 
refunds or lost profits;49 and OCI submitted its last pleading in 
that Proceeding in 1999, 50 and then remained silent for almost 
four years before the Commission answered the payphone PICC 
questions raised in that Proceeding.  Third, even after the 
Commission answered the payphone PICC questions raised in that 
Proceeding,51 OCI waited another year before filing its informal 
complaint for damages against Verizon.52

     18.  Finally, OCI's assertion that applying the statute of 
limitations would unfairly allow a large company like Verizon to 
retain ill-gotten gains at the expense of a small company like 
OCI similarly provides no basis for tolling section 415.  As the 
Commission has frequently stated, ``the fact that application of 
section 415 of the Act may result in hardship in some instances 
does not mean Congress intended that the statute be tolled or 
that a defendant may be estopped from reliance thereon.''53  
Indeed, statutes of limitations inherently involve the potential 
for denying otherwise valid claims.  In recently affirming the 
Commission's holding that section 415 barred certain damages 
claims brought by relatively small independent payphone providers 
(``IPPs'') against relatively large local exchange carriers 
(``LECs'') (including Verizon), the D.C. Circuit observed:

          While it is certainly true that the 
          Commission's decision [not to equitably toll 
          section 415] allows the LECs to keep money 
          that ... they collected unlawfully, that is 
          both the nature of a statute of limitations 
          and the consequence of the IPPs' failure to 
          file and pursue their complaints in a timely 
          manner.54

That observation is particularly apt in this proceeding, because 
here, unlike in the D.C. Circuit case, Verizon asserts several 
defenses that the Commission has not decided; consequently, here, 
unlike in the D.C. Circuit case, it is not clear that Verizon 
collected the charges unlawfully.

     19.  In sum, we reject OCI's contention that we should 
equitably toll the running of the limitations period under 
section 415.  OCI has shown neither fraudulent concealment by 
Verizon nor any other basis to warrant such tolling.

     III.C.    The Pendency of the Notice-and-Comment Proceeding 
     Does Not Warrant Tolling.

     20.  OCI also contends that the pendency of the Notice-and-
Comment Proceeding tolls the running of the limitations period 
for OCI's damages claim against Verizon.  In OCI's view, once the 
Commission chose to examine the lawfulness of payphone PICCs in 
the context of the Notice-and-Comment Proceeding, OCI allegedly 
had no choice but to await that Proceeding's outcome before 
filing its damages claim.55  According to OCI:

          [C]arriers did not have the same options they 
          have today for filing complaints against 
          other carriers.  OCI's only option - 
          particularly since the Commission already 
          initiated a proceeding addressing the matter 
          - was to submit pleadings, comments, motions, 
          and form orders in the [Notice-and-Comment 
          Proceeding] ....  [A]ny other initiative at 
          the Commission would be duplicative.56

     21.  OCI's fundamental premise is incorrect.  It simply is 
not true that an aggrieved party could not file an adjudicatory 
complaint for damages against a particular defendant while a 
general, notice-and-comment proceeding involving similar issues 
was pending.57  No Commission rule or order creates such a bar, 
and OCI cites to none.  Recognizing this, Verizon pointed out to 
OCI the need to file a complaint in 1999,58 as did Qwest,59 which 
OCI failed to do.  Indeed, the Commission's rules contemplate the 
possibility of simultaneous complaint and non-complaint 
proceedings.  Rule 1.721(a)(9) requires a plaintiff to indicate 
``whether the complaint seeks prospective relief identical to the 
relief proposed or at issue in a notice-and-comment proceeding 
that is concurrently before the Commission. . . .''60  Thus, the 
fact that the Notice-and-Comment Proceeding was pending did not 
bar OCI from filing, at a minimum, an informal complaint to 
preserve its rights and did not toll the limitations period 
applicable to OCI's adjudicatory damages claim against Verizon.61  
Indeed, under closely analogous circumstances, the D.C. Circuit 
recently confirmed that the filing of a petition for declaratory 
ruling by a trade association does not toll the statute of 
limitations for damages complaints by individual payphone 
providers addressing the same underlying conduct.62

     22.  OCI analogizes the situation here to situations in 
which courts, invoking the administrative exhaustion doctrine, 
toll the limitations period for filing a court claim while a 
party pursues all available administrative remedies.63  That 
analogy does not bear out.  The administrative exhaustion 
doctrine addresses the adjudicatory functions of, and the 
relationships between, agencies and courts and does not apply in 
this wholly intra-agency context.  The question here concerns the 
complaint and non-complaint functions within the Commission 
itself, not the complaint functions of the Commission and courts; 
and, as previously stated, there is no Commission rule or order 
requiring ``exhaustion'' of general notice-and-comment procedures 
before a particular plaintiff may file an adjudicative complaint 
for damages against a specific defendant.64

     23.  Almost as an aside, OCI cursorily suggests in its 
Formal Complaint that its submissions in the Notice-and-Comment 
Proceeding constitute an informal complaint for damages under 
Commission rules and thereby tolled the running of the 
limitations period of section 415.65  We reject that suggestion.  
An ``informal complaint'' filed pursuant to sections 1.716 - 
1.718 of the Commission's rules constitutes a ``complaint'' 
within the meaning of section 415 of the Act and thus tolls the 
running of the limitations period.66  Although the Commission's 
rules regarding the content of informal complaints are not 
extensive, they do require the complainant to put a defendant and 
the Commission on fair notice that the complainant is seeking (i) 
the initiation of the Commission's section 208 complaint 
procedures (ii) regarding a particular defendant and (iii) a 
specific remedy that may later be sought in a formal complaint.67  

     24.  OCI's submissions in the Notice-and-Comment Proceeding 
did none of those things.  OCI's April 1998 Letter and subsequent 
Comments were not styled as complaints, did not reference the 
complaint provisions of the Act or the Commission's rules, did 
not name any Verizon entity as a particular target of their 
actions, and did not request the specific remedy of monetary 
damages against a particular defendant, which remedy ``can only 
be obtained from the Commission within the parameters established 
by Sections 206-209 of the Act and Sections 1.711 through 1.735 
of the Commission's rules.''68  The same is true of OCI's Interim 
and Supplement Requests (except that those did pertain to 
Verizon).69  

     25.  Because OCI's submissions lacked the fundamental traits 
of an informal complaint, the Commission plainly and correctly 
did not handle OCI's submissions as an informal complaint under 
the Commission's rules.  OCI never asked the Commission to treat 
its submissions as an informal complaint, and never notified the 
Commission that it believed its submissions constituted an 
informal complaint that could ultimately entitle it to monetary 
damages in a formal complaint proceeding against Verizon.  
Further, Verizon plainly did not view OCI's submissions as a 
complaint, because Verizon suggested in response to these filings 
that OCI ought to file a complaint.70  Even after this explicit 
invitation, OCI did not respond by saying its submissions already 
constituted an informal complaint or separately file a complaint.  
Given these circumstances, we find that OCI's submissions in the 
Notice-and-Comment Proceeding do not constitute an informal 
complaint that tolled the operation of section 415.71

     26.  The rulings in MCI v. PacTel and Communications Vending 
v. FCC support these conclusions.  Both of those cases soundly 
reject belated attempts to re-characterize as complaints 
submissions closely akin to those of OCI here, i.e., letters that 
neither referenced any complaint provisions nor sought damages 
from a particular defendant.72  Accordingly, OCI's submissions in 
the Notice-and-Comment Proceeding did not toll the running of the 
limitations period set forth in section 415 of the Act.  

     27.  Even if we were to disregard reason and precedent to 
treat OCI's submissions in the Notice-and-Comment Proceeding as 
an informal complaint, section 415 would still time-bar OCI's 
Formal Complaint for two reasons.  First, if we were to liberally 
construe OCI's submissions in the Notice-and-Comment Proceeding 
as an informal complaint, then we would also have to liberally 
construe Verizon's submissions in the Notice-and-Comment 
Proceeding as a ``response'' to OCI's informal complaint, in 
which case OCI would have had six months from Verizon's response 
(or until 2000) to file a formal complaint that would ``relate-
back'' to the filing date of OCI's informal complaint.73  OCI 
missed that deadline by several years.  Second, 47 C.F.R.  1.716 
requires an informal complaint to state ``the specific relief or 
satisfaction sought,'' and the filing date of a formal complaint 
relates back to the prior filing date of the informal complaint 
only if, inter alia, the formal complaint ``is based on the same 
cause of action as the informal complaint.''74  Because OCI's 
submissions in the Notice-and-Comment Proceeding did not seek the 
specific relief that OCI seeks in this formal complaint 
proceeding (i.e., retrospective money damages), OCI's formal 
complaint filed in 2005 is not based on the same cause of action 
as OCI's Notice-and-Comment submission and thus does not relate 
back to OCI's 1998-1999 ``informal complaint.''75  

IV.  CONCLUSION 

     28.  OCI's claim against Verizon for monetary damages 
accrued no later than April 2001.  The applicable statute of 
limitations is two years.  Therefore, absent some basis for 
tolling of the running of the two-year limitations period, OCI's 
claim expired in April 2003, well before OCI filed this formal 
complaint.  All of the bases proffered by OCI for such tolling 
lack merit.  Therefore, the statute of limitations bars OCI's 
formal complaint.

V.   ORDERING CLAUSE 

     29.  ACCORDINGLY, IT IS HEREBY ORDERED that, pursuant to 
sections 1, 4(i), 4(j), 208, and 415 of the Communications Act of 
1934, as amended, 47 U.S.C.  151, 154(i), 154(j), 208, and 415, 
the formal complaint filed by Operator Communications, Inc. is 
DISMISSED WITH PREJUDICE.



                              FEDERAL COMMUNICATIONS COMMISSION





                              Marlene H. Dortch                                                         
                              Secretary

_________________________

1 Formal Complaint of Operator Communications, Inc., File No. EB-
05-MD-009 (filed June 3, 2005) (``Formal Complaint'').
2 Contel of the South, Inc. d/b/a Verizon Mid-States, Verizon 
California Inc., The Micronesian Telecommunications Corporation, 
Verizon Delaware Inc., Verizon Florida Inc., Verizon Maryland 
Inc., Verizon New England Inc., Verizon New York Inc., Verizon 
New Jersey Inc., Verizon North Inc., Verizon Northwest Inc., 
Verizon South Inc., Verizon Pennsylvania Inc., GTE Southwest 
Inc., Verizon Washington, D.C. Inc., and Verizon West Virginia, 
Inc.  See Revised Joint Statement of Stipulated Facts, Disputed 
Facts, and Key Legal Issues, File No. EB-05-MD-009 (filed Aug. 8, 
2005) (``Revised Joint Statement'') at 1, n.1.
3 47 U.S.C.  208.
4 47 U.S.C.  415.
5 See, e.g., Revised Joint Statement at 2,  2.  OCI was formerly 
known as Oncor.  See Joint Statement of Stipulated Facts, 
Disputed Facts, and Key Legal Issues, File No. EB-05-MD-009 
(filed July 12, 2005) (``Joint Statement'') at Exhibits JS-15, 
17, 20, 22.  
6 OCI is no longer a going concern.  See Contel of the South, 
Inc. d/b/a/Verizon Mid-States v. Operator Communications, Inc., 
Answer and Affirmative Defenses of Operator Communications, Inc., 
File No. EB-05-MD-007 (filed June 23, 3005) Tab D (Legal 
Analysis) at 1.  Its only ``assets'' appear to be this claim 
against Verizon and similar claims that it filed in 2005 against 
SBC Communications, Inc., Qwest Corporation, and Sprint 
Corporation, all of whom raise the same limitations defense as 
does Verizon here.  See OCI v. SBC Communications, Inc., Informal 
Complaint of Operator Communications, Inc., File No. EB-05-MDIC-
0017 (filed June 17, 2005); OCI v. Sprint Corp., Informal 
Complaint of Operator Communications, Inc., File No. EB-05-MDIC-
0019 (filed June 17, 2005); OCI v. Qwest Corp., Informal 
Complaint of Operator Communications, Inc., File No. EB-05-MDIC-
0018 (filed June 17, 2005).
7 See, e.g., Revised Joint Statement at 2,  3-4.
8 See, e.g., Contel of the South, Inc. d/b/a/Verizon Mid-States 
v. Operator Communications, Inc., Revised Joint Statement of 
Stipulated Facts, Disputed Facts, and Key Legal Issues, File No. 
EB-05-MD-007 (filed Aug. 8, 2005) at 10,  49-50.
9 Formal Complaint at Exhibit 2 (Commission Seeks Comment on 
Specific Questions Related to Assessment of Presubscribed 
Interexchange Carrier Charges on Public Payphone Lines, CCB/CPD 
No. 98-34 (rel. May 4, 1998)) (``Public Notice'').
10 Formal Complaint at Exhibit 1 (Letter dated Apr. 22, 1998 to 
Chief, Common Carrier Bureau, from General Counsel, Oncor, Re: 
Application of Presubscribed Interexchange Carrier (PICC) Charges 
to Pay Telephones Owned by Local Exchange Carriers) (``April 1998 
Letter'').
11 See Public Notice at 3.
12 Formal Complaint at Exhibit 3 (Comments of Oncor 
Communications, Inc.); Joint Statement at Exhibit JS-18 (Comments 
of Bell Atlantic), JS-19 (Reply Comments of Bell Atlantic).  
Other commenters included SBC, US West, Sprint, Southern New 
England Telephone, One Call Communications, National Operator 
Services, GTE Service Corporation, Cleartel Communications, 
BellSouth, MCI, and the American Public Communications Council.  
See, e.g., Formal Complaint at 6, n.18.  
13 See Formal Complaint at Exhibit 4 (``Interim Request''); Joint 
Statement at Exhibit JS-21; Formal Complaint at Exhibit 7 
(``Supplement Request'').  
14 Interim Request at 1, 4-5, 10; Supplement Request at 1-2.
15 See Revised Joint Statement at 9,  68.  
16 See Formal Complaint at 32-33,  73.
17 See Revised Joint Statement at 4-7,  25, 29-53.
18 See, e.g., id. at 4-7,  26-55; 10-12,  75-84.  
19 Access Charge Reform, Price Cap Performance Review for Local 
Exchange Carriers, Order on Reconsideration, 18 FCC Rcd 12626 
(2003) (``Payphone PICC Order'').  
20 Payphone PICC Order, 18 FCC Rcd at 12629-30,  8-9.
21 Id. at 12629,  8.  The Commission also noted that ``[p]rice 
cap LECs may recover the revenue previously recovered through 
assessing the PICC on payphone lines by adjusting their multi-
line business PICCs.''  Id. at 12629-30,  9.
22 47 C.F.R.  1.716.
23 Informal Complaint, File No. EB-04-MDIC-0096 (filed July 6, 
2004) (``Informal Complaint'').
24 Letter from Kathleen Grillo, Verizon, to Radhika Karmarkar, 
Enforcement Bureau, File No. EB-04-MDIC-096 (filed Sept. 3, 
2004).
25 47 C.F.R.  1.718.  See Formal Complaint.  See also Letter 
from Alexander P. Starr, Enforcement Bureau, to Danny Adams, 
counsel for OCI, and Karen Zacharia, counsel for Verizon, File 
No. E05-MD-006 (filed May 23, 2005) (extending until June 3, 2005 
OCI's deadline to convert its informal complaint into a formal 
complaint pursuant to rule 1.718).
26 See, e.g., The Verizon Telephone Companies' Supplemental 
Answer to Operator Communications, Inc.'s Complaint, File No. EB-
05-MD-009 (filed June 30, 2005) (``Verizon Answer'') at 18-22,  
52-64; 31-32; Supplemental Legal Analysis in Support of Verizon's 
Supplemental Answer, File No. EB-05-MD-009 (filed June 30, 2005) 
(``Verizon Legal Analysis'') at 1, 4-10; Verizon's Initial Brief, 
File No. EB-05-MD-009 (filed Aug. 25, 2005) at 1, 8; Verizon's 
Reply Brief, File No. EB-05-MD-009 (filed Sept. 9, 2005) at 1-2.
27 See Verizon Answer at 7-9,  18-19, 21-24; 11-12,  31; 15-
16,  42-45; 24,  71; 26-27,  76-81; 32-33.  See also Verizon 
Legal Analysis at 1-3, 9-13; Verizon's Initial Brief at 1; 
Verizon's Reply Brief at 1.
28 47 U.S.C.  204(a)(3).
29 See Verizon Answer at 27-28,  82-83; 33.  See also Verizon 
Legal Analysis at 1, 3, 13-16; Verizon's Initial Brief at 2, 9.
30 47 U.S.C.  415(b) and (c), providing that all complaints 
against carriers for the recovery of damages shall be filed with 
the Commission within two years from the time the cause of action 
accrues. 
31 Bunker Ramo Corp. v. The Western Union Telegraph Co., New 
York, N.T., Memorandum Opinion and Order, 31 FCC 2d 449, 453-4,  
12 (Rev. Bd. 1971) (``Bunker Ramo v. Western Union'').  See, 
e.g., Communications Vending Corp. of Arizona, Inc. v. Citizens 
Communications Co., Memorandum Opinion and Order, 17 FCC Rcd 
24201, 24222-23,  50 (2002) (``EUCL Order''), aff'd, 
Communications Vending Corp. of Arizona, Inc. v. FCC, 365 F.3d 
1064 (D.C. Cir. 2004) (``Communications Vending v. FCC''); US 
Sprint Communications Co. v. American Telephone & Telegraph Co., 
Memorandum Opinion and Order, 9 FCC Rcd 4801, 4803,  10 (1994) 
(``US Sprint v. AT&T'').  
32 Michael J. Valenti and Real Estate Market Place of New Jersey 
T/A Real Estate Alternative v. American Telephone and Telegraph 
Co., Memorandum Opinion and Order, 12 FCC Rcd 2611, 2621-22,  24 
(1997) (``Valenti v. AT&T''), quoting Municipality of Anchorage 
d/b/a Anchorage Telephone Utility v. Alascom, Inc., Memorandum 
Opinion and Order, 4 FCC Rcd 2472, 2476,  30 (Com. Car. Bur. 
1989) (``Anchorage v. Alascom'').  See, e.g., Communications 
Vending v. FCC, 365 F.3d at 1075.  
33 See, e.g., MCI Telecommunications Corp. v. U S West 
Communications, Inc., Memorandum Opinion and Order, 15 FCC Rcd 
9328, 9329-30,  5 (2000); AT&T Corp. v. Bell Atlantic - 
Pennsylvania, Memorandum Opinion and Order, 14 FCC Rcd 556, 565, 
 19 (1998); Aetna Life Insurance Co. v. American Telephone and 
Telegraph Co., 3 FCC Rcd 2126, 2128-29,  12 (1988); Tele-
Valuation, Inc. v. American Telephone and Telegraph Co., 
Memorandum Opinion and Order, 73 FCC 2d 450, 452,  4 (1979) 
(``Tele-Valuation v. AT&T''); see also Communications Vending v. 
FCC, 365 F.3d at 1073.  
34 We note that OCI's claims accrued at this time notwithstanding 
the ongoing Notice-and-Comment proceeding, in which the 
Commission was evaluating the validity of PICC charges such as 
those at issue here.  See, e.g., Communications Vending Corp., 
365 F.3d at 1073-74 (rejecting argument that ``a cause of action 
cannot accrue [under section 415 of the Act] when the controlling 
law does not recognize its validity''), citing Atchison, Topeka & 
Santa Fe Ry. Co. v. ICC, 851 F.2d 1432 (D.C. Cir. 1988) 
(reversing ICC conclusion that party's cause of action did not 
accrue until agency resolved relevant legal question).  Below, we 
also conclude that the ongoing proceeding does not form a basis 
for tolling the two-year limitations period.  See infra Part 
III.C.
35 Formal Complaint at 29,  67.  See, e.g., Formal Complaint at 
4-9,  8-9, 18-19; 12-17,  28, 30-36, 38-39; 19,  45-47; 29-
34,  65-75.  See also Initial Brief of Operator Communications, 
Inc., File No. EB-05-MD-009 (filed Aug. 25, 2005) (``OCI Brief'') 
at 14-15; Letter from Danny E. Adams, counsel for OCI, to Marlene 
H. Dortch, Secretary, FCC, File No. EB-05-MD-009 (filed Sept. 9, 
2005, in lieu of a reply brief).
36 Anchorage v. Alascom, 4 FCC Rcd at 2475,  23.  See, e.g., 
Communications Vending v. FCC, 365 F.3d at 1075 (``The Commission 
has construed [section 415] strictly. . .  We too have set a high 
hurdle for equitable tolling, allowing a statute to be tolled 
`only in extraordinary and carefully circumscribed 
instances.'''); Valenti v. AT&T, 12 FCC Rcd at 2621-22,  24, 
quoting Armstrong Utilities, Inc. v. General Telephone Co. of 
Pennsylvania, 25 FCC 2d 385, 389,  11 (1971) (``Armstrong 
Utilities v. General Telephone'') (``The construction of Section 
415, both by the Commission and the federal courts, has been 
`strict'....'').  
37 EUCL Order, 17 FCC Rcd at 24222, n.145; Valenti v. AT&T, 12 
FCC Rcd at 2621-22,  24; US Sprint v. AT&T, 9 FCC Rcd at 4802,  
10; Anchorage v. Alascom, 4 FCC Rcd at 2475,  23; Tele-Valuation 
v. AT&T, 73 FCC2d at 452-3,  4 and n.7; U.S. Cablevision v. New 
York Telephone Co., Memorandum Opinion and Order, 46 FCC 2d 704, 
706-7,  5 (1974) (``Cablevision v. New York Tel''); Bunker Ramo 
v. Western Union, 31 FCC 2d at 453-4,  12; Armstrong Utilities 
v. General Telephone, 25 FCC 2d at 390,  15.
38 Valenti v. AT&T, 12 FCC Rcd at 2621-22,  24, quoting 
Armstrong Utilities v. General Telephone, 25 FCC 2d at 390,  15 
(emphasis added).  Although the Commission has implied that that 
there might be some additional basis for equitable tolling, see, 
e.g., Bunker Ramo v. Western Union, 31 FCC 2d at 453-4,  12, the 
Commission has never identified or relied upon any basis other 
than fraudulent concealment.  In the EUCL Order, the Commission 
simply assumed, without deciding, that ``due diligence'' by the 
plaintiff might warrant tolling, and then demonstrated the 
absence of such diligence.  See EUCL Order, 17 FCC Rcd at 24225-
26,  57-59.
39 See, e.g., Cablevision v. New York Tel, 46 FCC 2d at 706-7,  
5 (``we cannot hold that the statute of limitations was tolled in 
view of complainant's failure to allege any facts whatsoever 
indicating that fraud or deceit was practiced by NYTelco upon 
complainant to prevent complainant from becoming aware of the 
basic facts upon which its claim for reimbursement is based''); 
Anchorage v. Alascom, 4 FCC Rcd at 2476,  30 (denying request 
for equitable estoppel of section 415, because the complainant 
``has convincingly shown neither that Alascom fraudulently 
concealed facts that were relevant and material to the alleged 
violations of the Act nor that Alascom misrepresented, either 
intentionally or unintentionally, any such facts. . . .'').
40 Specifically, in one of its filings in the Notice-and-Comment 
Proceeding, Verizon stated:  ``[I]f [OCI] truly believes the 
[PICC] charge is unlawful, it may file a complaint.''  Joint 
Statement Exhibit JS-21 (Bell Atlantic Opposition to Oncor Motion 
for Interim Relief, dated June 25, 1999) at 1.  
41 OCI Brief at 14-15, n.6.
42 For example, 47 C.F.R.  1.720(b)-(d) and 1.721(a)(5)-(6) 
required OCI to set forth in its Formal Complaint all the facts 
and legal analyses upon which the claims are based.
43 See Formal Complaint Exhibit 10, Attachment C, at 1.
44 See Formal Complaint Exhibit 10, Attachment D, at 2.
45 See Joint Statement Exhibit JS-21 at 1.  
46 See generally Cablevision v. New York Tel, 46 FCC 2d at 706-7, 
 5; Anchorage v. Alascom, 4 FCC Rcd at 2476,  30.
47 See Part III(C), infra.
48 See Joint Statement Exhibit JS-21 at 1.  Indeed, US West made 
the same point to OCI in one of Qwest's filings in the Notice-
and-Comment Proceeding, stating that ``Sections 206-209 of the 
Communications Act provide a mechanism whereby Oncor can 
challenge any action which it believes contravenes the provisions 
of the Act.''  Opposition of US West Communications, Inc. at 8, 
CCB/CPD No. 98-34 (filed Dec. 14, 1999).
49 See Formal Complaint Exhibits 1, 3, 4, 7.
50 See, e.g., Formal Complaint at 32-33,  73.
51 See Payphone PICC Order.
52 See Informal Complaint.
53 Anchorage v. Alascom, 4 FCC Rcd at 2476-7,  32.  See, e.g., 
Valenti v. AT&T, 12 FCC Rcd at 2621-22,  24; Communications 
Vending v. FCC, 365 F.3d at 1075. 
54 Communications Vending v. FCC, 365 F.3d at 1076 (internal 
quotation marks and citations omitted).
55 See, e.g., Formal Complaint at 16,  38; 23-28,  54-64.  See 
also Reply of Operator Communications, Inc., File No. EB-05-MD-
009 (filed June 30, 2005) (``OCI Reply'') Legal Analysis at 23-
26.  
56 Formal Complaint at 16,  38.
57 OCI's repeated reference to 47 U.S.C.  207 is mystifying.  
See e.g., Formal Complaint at 15, n.52; 26-7,  60, 62; OCI 
Reply at 25-26.  Section 207 requires parties seeking recovery of 
damages to file a complaint either with the Commission or in 
federal court, but not both.  This provision, however, has 
nothing to do with filing a complaint with the Commission while a 
notice-and-comment proceeding is pending at the Commission.  
Moreover, OCI's unsupported suggestion that the complaint 
procedures somehow did not exist during the April 1998-April 2001 
timeframe (see, e.g., Formal Complaint at 16,  38) is similarly 
inexplicable.  Rules governing the filing of both informal and 
formal complaints were in place at the time and virtually 
identical to those existing today.  See Amendment of Rules 
Governing Procedures to Be Followed When Formal Complaints Are 
Filed Against Common Carriers, Report and Order, 12 FCC Rcd 22497 
(1997) (subsequent history omitted).  See also Amendment of Rules 
Governing Procedures to be Followed When Formal Complaints are 
Filed Against Common Carriers, Report and Order, 8 FCC Rcd 2614 
(1993); Amendment of Rules Governing Procedures to be Followed 
Where Formal Complaints are Filed Against Common Carriers, Report 
and Order, 3 FCC Rcd 1806 (1988).
58 Joint Statement Exhibit JS-21 at 1.  
59 Opposition of US West Communications, Inc. at 8, CCB/CPD No. 
98-34 (filed Dec. 14, 1999); see n.42, supra.  
60 47 C.F.R.  1.721(a)(9).
61 OCI warns that, if parties can file complaints while related 
proceedings are pending elsewhere at the Commission, a flood of 
complaints will be filed whenever an unresolved issue of broad 
industry concern arises.  See Formal Complaint at 28,  64.  As 
stated above, however, our holding here is nothing new; aggrieved 
parties have always had the option to file complaints under those 
circumstances, and the Commission has managed its workload 
accordingly.  Moreover, the Commission's informal complaint 
process provides parties a specific but streamlined option for 
preserving damages claims while related issues of broad industry 
concern are addressed in other proceedings.  47 C.F.R.  1.716-
1.718.  See e.g., AT&T Corp. v. Virgin Islands Telephone Corp. 
d/b/a Innovative Telephone, Order, File No. EB-01-MDIC-0552 (rel. 
Nov. 21, 2004) (extending time for defendant to respond to the 
informal complaint until 90 days after the D.C. Circuit ruled on 
a different case involving substantially similar issues).  
Indeed, under OCI's theory, any notice and comment proceeding 
would serve to toll the statute of limitation for any 
participating party for any claim for damages relating to the 
subject of the administrative proceeding.  Such an outcome would 
eviscerate section 415.
62 See Communications Vending v. FCC, 365 F.3d at 1076 (``that 
petition sought only a declaratory ruling that the LECs' 
imposition of EUCL charges was unlawful, so it could neither have 
tolled the statute nor otherwise excused the [independent 
payphone providers'] failure to pursue complaints for damages'').
63 See, e.g., Formal Complaint at 25-27,  59, 61, 63; OCI 
Reply, Legal Analysis at 25-26.  
64 In any event, as OCI acknowledges, the administrative 
exhaustion doctrine applies only when the second action seeks the 
same remedy as the first action.  That prerequisite is not met 
here.  The first action - the Notice-and-Comment Proceeding - 
involved declaratory and injunctive relief; the second action - 
this complaint proceeding - involves retrospective monetary 
damages (i.e., refunds and lost profits).  Therefore, even on its 
own terms, the administrative exhaustion doctrine does not 
warrant tolling of the limitations period applicable to OCI's 
complaint for damages against Verizon.
65 See Formal Complaint at 5,  11; 22-23,  52 and n.73, 54.  
See also OCI Reply at 3,  10; 7-8,  35-36; 15-16; OCI Reply, 
Legal Analysis at 22-25; OCI Brief at 12-14.  OCI's Formal 
Complaint focuses almost exclusively on the two other alleged 
bases for tolling already addressed above: so-called 
``administrative'' tolling (Formal Complaint at 23-28,  54-64) 
and equitable tolling (Formal Complaint at 28-34,  65-75).  
Nevertheless, for the sake of completeness, we reach and reject 
OCI's suggestion.  
66 47 C.F.R.  1.716-1.718.
67 See, e.g., MCI Telecommunications Corp., v. Pacific Telephone 
Co., Memorandum Opinion and Order, 12 FCC Rcd 13243, 13253-54,  
17-18 (Com. Car. Bur. 1997) (``MCI v. Pac Tel''); 47 C.F.R.  
1.716-1.718.    
68 See, e.g., MCI v. Pac Tel, 12 FCC Rcd at 13,253,  17.  See 
April 1998 Letter; Formal Complaint Exhibit 3 (Comments of Oncor 
Communications, Inc.).     
69 See Interim Request; Supplement Request.  One submission 
contains a single footnote citation to 47 C.F.R.  1.727.  See 
Supplement Request at 2.   
70 See Joint Statement Exhibit JS-21.
71 We recognize that, when a letter is submitted to the 
Commission by pro se ``consumers who have little, if any, 
familiarity with Commission's rules or practices,'' the 
Commission may construe the rules more liberally.  MCI v. Pac 
Tel, 12 FCC Rcd at 13253, n.67.  However, such an approach has no 
application where, as here, the submissions are by in-house and 
outside counsel for a communications company, all with extensive 
experience with Commission processes.
72 See MCI v. PacTel, 12 FCC Rcd at 13252-54,  16-18; 
Communications Vending v. FCC, 350 F.3d at 1076.  What was said 
in MCI v. PacTel is equally apt here: ``MCI could have, at any 
time after the February 1990 and September 1990 [letters to the 
Bureau Chief], filed claims for damages with the Commission based 
on the allegations in those letters if those were its intentions.  
At the very least, MCI could have acted to put the Bureau, and 
the defendant LECs, on notice that it viewed the February 1990 
and September 1990 Evans letters as informal complaints that 
might entitle MCI to monetary damages to the extent the alleged 
violations were ultimately proven.  Under these circumstances, it 
would be contrary to the policies underlying the statute of 
limitations to permit MCI, years after the fact, to transform the 
September 1990 [letter to the Bureau Chief] into an informal 
complaint for purposes of pursuing monetary damages claims 
against the defendant LECs that could have been filed with the 
Commission within two years from the time MCI was assessed the 
charges that form the basis of such claims. . . . Were MCI's 
characterization of the September 1990 [letter to the Bureau 
Chief] correct, the Commission would have to treat virtually 
every letter or written correspondence to any Commission office 
that raised a question regarding a practice of a common carrier 
as a claim for damages in applying Section 415 of the Act.  Such 
a result would be inconsistent with Section 415.''  12 FCC Rcd at 
13254,  18 and n.70.
73 See 47 C.F.R.  1.718.
74 47 C.F.R.  1.718.
75 See generally MCI v. PacTel, 12 FCC Rcd at 13255, n.74 (noting 
the possibility that a formal complaint seeking monetary damages 
may not relate back to an informal complaint not seeking monetary 
damages).