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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   APCC Services, Inc., Davel Communications, )

   Inc., ETS Payphones, Inc., Goldentel, Inc., )

   Kellee Communications Group, Inc.,  )

   NSC Communications Public Services )

   Corporation, PayTel Communications, Inc., )

   and West Coast Coin, Inc.,  )


   Complainants,  )


   v.  ) File No. EB-05-MD-002


   IDT Corporation,    )


   Respondent.  )

                          Memorandum opinion and order

   Adopted:  July 11, 2006  Released: July 11, 2006

   By the  Chief, Enforcement Bureau:

   I. Introduction

    1. In this order, we address a formal complaint filed by APCC Services,
       Inc. ("APCC"), and several payphone service providers against IDT
       Corporation ("IDT")  pursuant to section 208 of the Communications Act
       of 1934, as amended ("Act"). The Complaint alleges that IDT violated
       sections 201(b) and 416(c) of the Communications Act by failing to
       produce certain documents as required by rule 47 C.F.R. S 64.1320(g).
       Because IDT provided those documents to APCC after the Complaint was
       filed, however, the Complaint is moot and, accordingly, we dismiss it.

   II. Background

         A. The Parties

    2. Complainants Davel Communications, Inc., ETS Payphones, Inc.,
       Goldentel, Inc., NSC Communications Public Service Corporation, West
       Coast Coin, Inc., Kellee Communications Group, Inc., and PayTel
       Communications, Inc. (collectively, the "PSP Complainants") are
       payphone services providers. APCC is an agent of the PSP Complainants,
       and of other payphone service providers, for the billing and
       collection of dial-around compensation.

    3. IDT is a common carrier providing interexchange telecommunications
       services. IDT is also a "Completing Carrier," as defined by section
       64.1300(a) of the Commission's rules.

     A. The Relevant Law

    4. The Commission's payphone compensation rules are designed to ensure,
       inter alia, that payphone service providers are fairly compensated for
       coinless calls originated from their payphones.  For the period at
       issue here, those rules require that the last facilities-based long
       distance  carrier in a call path, the "Completing Carrier," compensate
       the payphone service provider for coinless calls that are completed by
       that carrier.

    5. To help ensure accurate reporting of calls (and, thus, accurate
       payment for those calls), the Commission's rules require a Completing
       Carrier  to establish detailed procedures for tracking and paying
       compensation for payphone-originated calls. The Commission's rules
       also require Completing Carriers to engage an independent third-party
       auditor to prepare a "System Audit Report" verifying the accuracy and
       reliability of the call tracking system.  Completing Carriers must
       submit their System Audit Reports to, among others, the Commission and
       all payphone service providers for which they complete calls. In
       addition, the rules require that "[s]ubject to protections
       safeguarding the auditor's and the Completing Carrier's confidential
       and proprietary information, the Completing Carrier shall provide,
       upon request, to the payphone service provider for inspection any
       documents, including working papers, underlying the System Audit
       Report." This provision lies at the heart of the dispute in the
       instant case.

     A. The Facts

    6. On July 1, 2004, IDT filed its first System Audit Report with the
       Commission. On September 14, 2004, APCC sent IDT a letter requesting,
       on behalf of APCC's unidentified payphone service provider principals,
       that IDT provide all documents underlying its System Audit Report.
       This letter initiated subsequent correspondence between the parties
       about the terms under which IDT was prepared to make the audit
       documents available. For instance, IDT insisted that APCC identify the
       payphone service providers on whose behalf it was making the request,
       and asked for documentation of APCC's authority to do so. Another
       point of contention was the location at which the audit documents
       would be produced. IDT indicated that it would make the documents
       available only at its New Jersey headquarters, while APCC demanded
       that IDT send copies of the documents to APCC in Washington, D.C.

     A. The Complaint

    7. On February 1, 2005, while the parties were still discussing
       production of the documents, APCC and the PSP Complainants filed their
       Complaint with the Commission. The Complaint alleges that IDT violated
       sections 201(b) and 416(c) of the Communications Act by engaging in a
       "dilatory and obstructive pattern of conduct" in response to APCC's
       request for documents underlying the System Audit Report, and by
       failing to provide those documents to APCC or to the PSP Complainants.
       The Complaint  does not request payment of damages. The Complaint asks
       only that the Commission find that IDT violated rule 64.1320(g) and
       the Act and order IDT "either to deliver copies of the Underlying
       Documents to Complainants' attorneys, or alternatively, to allow
       Complainants to inspect the documents in Washington, D.C., and to
       request and receive copies of such documents, subject to the condition
       that Complainants reasonably compensate IDT for such copies, all in
       accordance with the protective agreement provided by Complainants."

   E. The Motion to Dismiss

    8. After the Complaint was filed, the parties continued discussions about
       IDT's production of the requested documents. A few months later, in
       June 2005, the parties  agreed upon terms for disclosure of the audit
       documents to the Complainants.  IDT  then filed a Motion to Dismiss
       the Complaint, asserting that since the requested documents have now
       been made available to the Complainants, there is no longer any
       effective relief for the Commission to grant. IDT argues that any
       guidance as to rights and responsibilities under rule 64.1320(g)
       should be determined in a rulemaking, where all interested parties
       would have a right to participate.

    9. Complainants, however, oppose the Motion to Dismiss on three bases.
       First, they assert that the challenged action is "capable of
       repetition, yet evading review," and thus dismissal of the Complaint
       would encourage IDT "to repeat its dilatory and obstructive conduct"
       in response to future requests.  Second, they assert that there is a
       continuing adverse impact on them because they were harmed by the
       delay in obtaining the audit documents. And finally, Complainants
       assert that the Commission can grant effective relief because IDT may
       have, "by design or mistake," failed to produce all of the documents,
       such that an explicit Commission order to produce them is still
       necessary. Complainants also argue that the Article III
       case-or-controversy requirement is applicable only to federal courts,
       not to the Commission.

   III. discussion

   10. As Complainants correctly point out,  section 208 complaints are not
       governed by Article III "case or controversy" standards.
       Nevertheless, we can and do dismiss complaints  when the issues raised
       therein have become moot. Thus, we consider whether there is any
       remaining controversy in this case, and whether any effective relief
       can be granted.

   11. As stated above, Complainants assert that there is a continuing
       controversy here, either because they continue to be adversely
       impacted by IDT's actions, or because the violation at issue is
       "capable of repetition yet evading review." In addition, Complainants
       argue that "[i]t is quite possible that either IDT or its auditor,
       whether by design or mistake, has failed to produce all the documents
       whose production is required," and that therefore the Commission can
       and should grant relief by explicitly directing IDT to produce all
       underlying documents. We find, however, that there is no continuing
       controversy, and that there is no longer any effective relief that we
       can grant in this case. Complainants did not request monetary damages,
       and have already obtained the relief they requested - access to IDT's
       audit documents. Accordingly, at this point, any ruling on whether IDT
       may have violated the Act and our rules  would have no concrete impact
       in this particular case.

   12. Complainants assert that they need a specific Commission order
       directing IDT to provide the audit documents in order to protect
       against the possibility that IDT has withheld some of those documents,
       either inadvertently or wilfully. We disagree. Complainants offer only
       speculation to suggest that they have not been given all of the audit
       documents. IDT is already subject to a Commission rule directing that
       it make those documents available to payphone service providers. We
       expect them to comply with that rule. Thus, we find that another
       Commission order directing them to do so, when we have no reason to
       believe that they are withholding documents,  is unnecessary.

   13. We also reject Complainants' assertion that this case is not moot
       because the action challenged is "capable of repetition, yet evading
       review."  As applied by the courts, this is a narrow exception to the
       "case or controversy" requirement, applicable only in "`exceptional
       situations' . . . where the following  two circumstances [are]
       simultaneously present: `(1) the challenged action [is] in its
       duration too short to be fully litigated prior to its cessation or
       expiration, and (2) there [is] a reasonable expectation that the same
       complaining party would be subjected to the same action again.'"
       Complainants have not demonstrated such circumstances here. As to the
       duration of the challenged action, Complainants seem to consider it
       sufficient to speculate that IDT could choose to cease the offending
       behavior prior to the conclusion of a complaint proceeding. That is
       the case, however, in all complaint proceedings. The "capable of
       repetition" exception was meant to address actions that are inherently
       too short to be litigated.  Moreover, Complainants offer nothing other
       than speculation that IDT will subject them again to the circumstances
       of this case. This is not enough to persuade us that we should issue a
       decision concerning a dispute that has become moot.

   14. Nevertheless, to facilitate prompt production of audit documents in
       future cases, we provide the following guidance. First, we believe
       that it is reasonable to expect that a party requesting documents
       under rule 64.1320(g) will specifically identify on whose behalf it
       makes the request. Second, we note  that rule 64.1320(g) effectively
       requires the Completing Carrier to permit payphone service providers
       to copy the audit documents, at the payphone service providers'
       expense, not merely to examine them. We agree with APCC that given the
       complex and technical nature of the documents at issue, it would be
       unduly burdensome to expect payphone services providers to conduct
       their "inspection" of audit documents entirely on the Completing
       Carrier's premises, and without any copies to mark up. To the extent
       that copying raises greater issues of safeguarding confidential
       information than does on-site inspection, we expect parties to be able
       to address this in their nondisclosure agreements. And finally, we
       note that rule 64.1320(g) effectively requires Completing Carriers to
       ensure that their auditors are contractually obligated to provide the
       documents covered by the rule if a payphone service provider requests
       them. This obligation can readily be imposed when the auditor is
       engaged; if the Completing Carrier fails to take this step, then any
       "impossibility" of compliance will be of its own making. If the
       auditor failed to live up to its contractual obligation, we would
       consider whether the Completing Carrier had taken all reasonable steps
       to enforce compliance before we would excuse its failure to provide
       the documents as "impossible." In this case, it appears that IDT did,
       in fact, take steps to ensure that its auditors would provide the
       necessary documents. See IDT's Initial Brief at 14-15.

   15. We find that there is no remaining dispute in this case, and no
       requested relief remaining for us to grant. Accordingly, we dismiss
       the Complaint  as moot.

   IV. Ordering Clause

   16. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), and 208
       of the Communications Act of 1934, as amended, 47 U.S.C. SS 254(i),
       154(j), and 208, sections 1.720-1.736 of the Commission's rules, 47
       C.F.R. SS 1.720-1.736, and the authority delegated in section 0.111
       and 0.311 of the Commission's rules, 47 C.F.R. SS 0.111 and 0.311,
       that the

   Defendant's Motion to Dismiss IS GRANTED, that the  Complaint IS DISMISSED
   WITH  PREJUDICE as moot, and that this proceeding IS TERMINATED.


   Kris A. Monteith

   Chief, Enforcement Bureau

   Complaint, File No. EB-05-MD-002 (filed Feb. 1, 2005) ("Complaint").

   47 U.S.C. S 208.

   47 U.S.C. SS 201(b), 416(c).

   Revised Joint Statement of Stipulated Facts, Disputed Facts, and Key Legal
   Issues, File No. EB-05-MC-002 (filed May 13, 2005) ("Revised Joint
   Statement") at PP 9-10. See generally 47 C.F.R. SS 64.1300-64.1320 for
   rules governing payphone compensation obligations.

   Revised Joint Statement at P 11; 47 C.F.R. S 64.1300(a) (defining a
   "Completing Carrier" as "a long distance carrier or switch-based long
   distance reseller that completes a coinless access code or subscriber
   toll-free payphone call or a local exchange carrier that completes a
   local, coinless access code or subscriber toll-free payphone call").

   See, e.g., In the Matter of the Pay Telephone Reclassification and
   Compensation Provisions of the Telecommunications Act of 1996, 19 FCC Rcd
   21457, P 1 (2004) (subsequent history omitted)("October 2004 Payphone
   Order"); see also 47 U.S.C. S 276; 47 C.F.R. SS 64.1300-64.1320.

   See, e.g., October 2004 Payphone Order at P 2; see also 47 C.F.R. S

   47 C.F.R. S 64.1310(a)(1).

   47 C.F.R. S 64.1320(a).

   See 47 C.F.R. S 64.1320(b). Completing Carriers can comply with the
   requirement to submit the report to payphone service providers by posting
   a copy on either their website or a clearinghouse website. 47 C.F.R. S

   47 C.F.R. S 64.1320(g).

   Revised Joint Statement at P 12; Complaint Exh. 2.

   Complaint Exhs. 3-11.

   Complaint Exh. 7 at 2, Exh. 10 at 1.

   Complaint Exhs. 7, 8, 9, and 11.

   Complaint at 17-19.

   Id. at 61.

   See IDT's Motion to Dismiss, File No. EB-05-MD-002 (filed June 30, 2005)
   ("Motion to Dismiss") at 2; see also Complainants' Opposition to IDT's
   Motion to Dismiss, File No. EB-05-MD-002 (filed July 25, 2005) at 3.

   The Motion to Dismiss was filed after the Complaint, Answer, and Reply had
   all been filed, but shortly before the parties filed their Opposing Briefs
   and Reply Briefs in the case.

   Motion to Dismiss at 1-5. IDT also asserts that APCC's claims should be
   dismissed because APCC, which is not a payphone service provider, lacks
   standing to assert that it was denied the right to inspect the audit
   documents. Motion to Dismiss at 4-5. Because we dismiss the Complaint as
   moot, this issue is also moot.

   Motion to Dismiss at 5-9.

   Complainants' Opposition to IDT's Motion to Dismiss at 2.

   Id. at 2-3.

   Id. at 3.

   Id. at 4-5.


   See, e.g., North Carolina Utilities Comm. v. FCC, 537 F.2d 787, 791 (4^th
   Cir. 1976) (holding that federal administrative agencies are not
   restricted to adjudication of matters that are "cases and controversies"
   within the meaning of Article III of the Constitution).

   See, e.g.,  Total Telecommunications Services, Inc. v. AT&T Corporation,
   16 FCC Rcd 5726 (2001) (dismissing claims as moot because there was no
   additional relief that could be granted), remanded, 317 F.3d 227 (D.C.
   Cir. 2003) (to explain dismissal of claim as "moot, without prejudice"
   (emphasis added)), dismissed on motion of parties, 18 FCC Rcd 11533 (Enf.
   Bur. 2003); Transglobal Telcom, Inc. v. E-Tel, Inc., 16 FCC Rcd 21576
   (Enf. Bur. 2001) (dismissing complaint as moot where challenged action had
   ceased and plaintiff had not requested damages)  National Wireless
   Resellers Ass'n v. AirTouch Communications, Inc., 15 FCC Rcd 13826
   (Wireless Tel. Bur. 2000) (dismissing complaint as moot where the
   challenged program had been discontinued); see also AT&T v. BellSouth, 19
   FCC Rcd 23898 (2004) (dismissing certain counts of a complaint on grounds
   that no additional relief could be afforded even if the Commission ruled
   in the complainant's favor).

   Complainants' Opposition to IDT's Motion to Dismiss at 3.

   Id. at 2. Although, as explained above, we are not governed by Article III
   concepts of standing and mootness, we address Complainants' argument here
   under Article III precedent because they have framed their argument in
   this context.

   Lewis v. Continental Bank Corp., 494 U.S. 472, 481 (1990) (citations

   See, e.g., Spencer v. Kemna, 523 U.S. 1 (1998) (holding that the exception
   is inapplicable where party failed to show that duration of action is
   always so short as to evade review).

   See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) ( "[T]he
   capable-of-repetition doctrine applies only in exceptional situations, and
   generally only where the named plaintiff can make a reasonable showing
   that he will again be subjected to the alleged illegality.").

   We note that these document production requirements are all "[s]ubject to
   protections safeguarding the auditor's and the Completing Carrier's
   confidential and proprietary information," as set forth at 47 C.F.R. S

   (...continued from previous page)


                                 Federal Communications Commission DA-06-1424


                                 Federal Communications Commission DA-06-1424