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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
American Cellular Corporation and Dobson
Cellular Systems, Inc., )
File No. EB-05-MD-01
BellSouth Telecommunications, Inc., )
Memorandum opinion and order
Adopted: January 31, 2007 Released: January 31, 2007
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order, we dismiss with prejudice a
formal complaint filed by American Cellular Corporation and Dobson
Cellular Systems, Inc. (collectively "Dobson") against BellSouth
Telecommunications, Inc. ("BellSouth") pursuant to section 208 of the
Communications Act of 1934, as amended ("Act"). The Complaint asserts
three claims against BellSouth. First, Dobson alleges that BellSouth
over-billed Dobson for certain shared facilities in Georgia, Kentucky,
and Tennessee, in violation of section 251(c)(2)(D) of the Act and
sections 51.703(b) and 51.709(b) of the Commission's rules ("Count
1"). Second, Dobson alleges that BellSouth over-billed for reciprocal
compensation in Georgia, Kentucky, and Tennessee, in violation of
sections 251(b)(5) and 251(c)(2)(D) of the Act and section 51.703(a)
of the Commission's rules ("Count 2"). Third, Dobson alleges that
BellSouth refused to lower certain reciprocal compensation rates in
Georgia and Tennessee to the rates established in the Commission's ISP
Order, and consequently BellSouth charged Dobson excessive reciprocal
compensation rates ("Count 3"). For the reasons explained below, we
hold that each of the claims in Dobson's Complaint is time-barred
under the two-year statute of limitations in section 415(b) of the
Act, and must be dismissed.
A. The Parties
2. During the period relevant to this dispute, Dobson was a
telecommunications carrier that owned or managed commercial mobile
radio service networks in Georgia, Kentucky, and Tennessee. BellSouth
is an incumbent local exchange carrier ("incumbent LEC") providing
service in Georgia, Kentucky, and Tennessee. During the relevant
period, Dobson and BellSouth exchanged telecommunications traffic, as
defined in section 51.701(b)(2) of the Commission's rules, pursuant to
interconnection agreements in Georgia, Kentucky, and Tennessee.
A. Facts Relevant to Counts 1 and 2
3. The parties' interconnection agreements provided that each party would
bear the costs of using shared facilities to deliver traffic. The
interconnection agreements also provided that each party would pay
reciprocal compensation at stated rates for traffic originated by one
party and terminated by the other party. Accordingly, under the
interconnection agreements, each party was to periodically bill the
other party only for the other's use of the shared facilities, and
only for traffic terminated by the billing party.
4. Although the interconnection agreements required each party to pay
only for its respective portion of the shared facilities and for the
telecommunications traffic terminated on the other's network,
BellSouth periodically billed Dobson, and Dobson ultimately paid, for
the entire cost of the shared facilities and for the
telecommunications traffic terminated by both parties. That is,
BellSouth's bills to Dobson did not include deductions for
BellSouth's use of the shared facilities, or for traffic originated by
BellSouth and terminated by Dobson. Although the record is unclear
when BellSouth sent Dobson these bills, the record reflects that on
June 3, 2002, after having received, and paid in full, all of
BellSouth's bills, Dobson sent BellSouth several invoices requesting
refunds to account for (1) BellSouth's use of the shared facilities,
and (2) telecommunications traffic originated by BellSouth and
terminated by Dobson.
5. Dobson's June 3, 2002 Refund Requests listed July 3, 2002 as the "due
date" for payment of the refunds by BellSouth. BellSouth, however, did
not pay the June 3, 2002 Refund Requests on the due date. Instead,
BellSouth's first payment on the June 3, 2002 Refund Requests occurred
on January 7, 2003, when BellSouth sent Dobson several letters stating
that BellSouth was making a partial payment on the June 3, 2002 Refund
Requests and disputing the balance of the refunds allegedly due. In
March 2003, BellSouth made additional partial payments on the June 3,
2002 Refund Requests, but sought a repayment of some of the amounts
that BellSouth had refunded to Dobson in January 2003. The parties
continued to exchange communications concerning payments on the June
3, 2002 Refund Requests through the Spring of 2003, but failed to
reach agreement concerning amounts owed on those Requests.
A. Facts Relevant to Count 3
6. The Commission's ISP Order, which became effective on June 14, 2001,
permitted an incumbent local exchange carrier to take advantage of
reduced compensation rates for "ISP-bound" traffic if it offered to
exchange all traffic subject to section 251(b)(5) of the Act at that
same lower rate. BellSouth chose to take advantage of the reduced
rates for ISP-bound traffic established in the ISP Order, but did not
unilaterally implement those new rates in its agreements with
interconnecting carriers, including Dobson. Rather, BellSouth's policy
was to make the new rates available via negotiated amendments to
interconnection agreements, upon request. Dobson made such a request
in September 2001, and the parties engaged in negotiations to amend
their interconnection agreements in Georgia, Tennessee, and Kentucky
over the next several months. During this negotiation period,
BellSouth continued to bill Dobson, and Dobson continued to make
reciprocal compensation payments, at the higher, pre-ISP Order rates
specified in the existing interconnection agreements.
7. On February 8, 2002, Dobson transferred its operations in Georgia and
Tennessee to Verizon Wireless. Shortly thereafter, Dobson informed
BellSouth on February 15, 2002 that, in view of the transfer of the
Georgia and Tennessee markets, Dobson's request for a new or amended
interconnection agreement would "now be limited to Kentucky." The
parties eventually negotiated a new interconnection agreement for
Kentucky that incorporated the ISP Order's lower rates, retroactive to
the ISP Order's effective date of June 14, 2001. The parties failed,
however, to negotiate new or amended agreements for Georgia and
Tennessee. BellSouth stopped billing Dobson in Georgia and Tennessee
after February 2002, but never adjusted its past charges to Dobson in
those states to conform to the lower reciprocal compensation rates in
the ISP Order.
8. On June 3, 2002, Dobson sent BellSouth cover letters, along with the
June 3, 2002 Refund Requests, stating, inter alia, that Dobson was
entitled to an adjustment of BellSouth's past reciprocal compensation
charges based on the ISP Order. Communications between the parties
attempting to resolve this issue continued through the Spring of 2003.
The parties, however, failed to reach an agreement.
A. Facts Relevant to All Counts
9. On May 14, 2003, Dobson notified BellSouth that it was invoking the
alternative dispute resolution ("ADR") provisions in the parties'
interconnection agreements. Under the ADR provisions, the parties
agreed to "initially" refer disputed issues to certain company
representatives, and if no resolution was reached within thirty days,
either party was permitted to pursue other remedies. The ADR process
failed to produce settlement of the disputed issues within 30 days
after Dobson initiated the process.
10. On June 24, 2003, Dobson filed an informal complaint at the Commission
pursuant to section 1.716 of the Commission's rules raising each of
the three claims that it asserts in the instant formal Complaint.
Specifically, Dobson alleged that BellSouth: (1) failed to pay refunds
owed due to BellSouth's use of shared facilities; (2) failed to pay
refunds owed to Dobson for reciprocal compensation; and (3) failed to
retroactively offer Dobson the ISP Order's rates in Georgia and
Tennessee. On August 8, 2003, BellSouth filed a response to the
Informal Complaint disputing all three claims, and declining to
satisfy Dobson's demands for payment of the amounts in issue. On
August 22, 2003, pursuant to rule 1.718, the Market Disputes
Resolution Division of the Enforcement Bureau sent a letter to
Dobson's counsel stating that Dobson had exhausted all remedies under
the informal complaint process, and that the Division was closing the
informal complaint file. The Informal Complaint Closure Letter
explained that, under section 1.718 of the Commission's rules, Dobson
had the right to file a formal complaint against BellSouth at the
Commission, and for statute of limitations purposes the filing date of
the formal complaint would be deemed to "relate back" to the filing
date of the Informal Complaint, provided Dobson filed the formal
complaint within six months of BellSouth's response to the Informal
Complaint. The Informal Complaint Closure Letter further advised
Dobson that, under rule 1.718, if Dobson did not file a formal
complaint within this six-month period, i.e., by February 8, 2004, it
would "be deemed to have abandoned the unsatisfied informal
11. Dobson did not file a formal complaint at the Commission within the
six-month window provided under rule 1.718. Instead, on February 4,
2004, Dobson filed a complaint in the United States District Court for
the Western District of Kentucky that raised the same claims presented
in Dobson's Informal Complaint. On October 16, 2004, the District
Court dismissed Dobson's complaint for lack of subject matter
jurisdiction, concluding that "section 207 [of the Act] precludes a
complainant from filing suit in federal court once she has initiated
the administrative complaint process with the FCC either by filing a
formal or informal complaint." Dobson then filed the original version
of the instant Complaint with the Commission on January 10, 2005.
A. Dobson's Claims are Governed by the Statute of Limitations in
Section 415(b) of the Act
12. Section 415(b) of the Act provides a two-year limitations period
applicable to "[a]ll complaints against carriers for the recovery of
damages...." All three counts of Dobson's Complaint against BellSouth
seek the recovery of damages. Thus, the two-year limitations period of
section 415(b) governs all counts of Dobson's Complaint.
13. We find unpersuasive Dobson's argument that the four-year limitations
period in 28 U.S.C. S 1658(a) applies to Dobson's claims. Section
1658(a) is a "fallback" provision that applies only where no specific
statute of limitations governs the particular claim at issue. Because
claims (like Dobson's) for recovery of damages from carriers are
specifically governed by the limitations period set forth in section
415(b) of the Act, the default statute of limitations set forth in 28
U.S.C. S 1658(a), and cases applying it, are inapposite. Accordingly,
the limitations period set forth in 28 U.S.C. S 1658(a) has no
A. The Two-Year Limitations Period of Section 415(b) Bars Dobson's
14. We note at the outset that "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.'" Section 415 serves as an absolute, non-discretionary bar to
the Commission's consideration of tardy complaints against carriers
seeking the recovery of damages for violations of the Act. The
Commission and the federal courts strictly construe section 415, and
have consistently held that it must be applied even if to do so
produces hardship. Thus, exceptions to section 415's application have
been confined to narrow circumstances, such as fraudulent concealment.
15. Under section 415(b), a claim accrues on the date of the injury. If
the injury is not readily discoverable, the claim accrues, and the
limitations period begins to run, when the complainant "`discovers, or
with due diligence should have discovered, the injury that is the
basis of the action.'" A complainant has "an affirmative obligation to
`exercise due diligence in preserving [its] legal rights,'" and it is
"required to make a diligent inquiry into the facts and circumstances
that would support that claim" as soon as it receives notice "that it
might have a claim."
1. All Three of Dobson's Claims Accrued More Than Two Years Before
Dobson Filed Its Complaint, And Thus Are Time-Barred
16. Dobson argues that it "could not have even arguably been aware that it
had a potential claim" against BellSouth under Counts 1 and 2 until it
received letters from BellSouth on January 7, 2003 partially disputing
the June 3, 2002 Refund Requests. Dobson contends, moreover, that
BellSouth did not "unequivocally notif[y]" Dobson that it disputed the
Refund Requests until BellSouth informed Dobson in a June 4, 2003
e-mail message that BellSouth would make no further payments on
Dobson's Refund Requests. To support this contention, Dobson asserts
that BellSouth's position changed materially in March 2003, when
BellSouth made additional payments on some Refund Requests and sought
repayment of some of the refunds it had made to Dobson.
17. Dobson focuses on the wrong events. Under the "discovery" rule
described above, where, as here, a claim asserts that a bill
overstates the claimant's true debt, the claim accrued when the
claimant received the allegedly erroneous bill. Whether and when the
billing party insists that the bill is correct is irrelevant. Here,
the record does not reflect exactly when Dobson received BellSouth's
bills containing the alleged overcharges for the shared facilities and
reciprocal compensation. The record does indicate, however, that
Dobson did receive all such bills by June 3, 2002. Consequently,
Dobson's claims accrued no later than June 3, 2002, which is much more
than two years before Dobson filed the original version of this
instant Complaint on January 10, 2005. Accordingly, absent some basis
for tolling, section 415(b) bars Counts 1 and 2.
18. Turning to Count 3, we find that Dobson's claim that BellSouth failed
to charge the reduced rates established in the ISP Order accrued in
September 2001, when Dobson admits it first requested that BellSouth
bill Dobson at the lower ISP Order rates. At that point, Dobson knew
that BellSouth had elected to implement the ISP Order's lower rates
with other carriers, and that BellSouth was neither charging Dobson
the lower rates nor offering to provide the lower rates to Dobson
through an amendment to the parties' existing interconnection
agreements, or through a separate agreement, as Dobson contends
BellSouth was required to do. Dobson thus knew by September 2001 that
it had been injured by BellSouth's failure to implement the new,
reduced ISP Order rates in its interconnection relationship with
19. We reject Dobson's suggestion that Count 3 did not accrue until June
4, 2003, when BellSouth "unequivocally notified Dobson" in an e-mail
communication that BellSouth intended to dispute Dobson's request for
ISP rate adjustments in Tennessee and Georgia. Again, a claim accrues
under section 415(b), not when a defendant explicitly disputes the
claim, but when the complainant discovers, or with due diligence
should have discovered, the injury that forms the basis of the claim.
Here, Dobson knew, or should have known, in September 2001 that
BellSouth was not billing Dobson at the reduced rates to which Dobson
believed it was entitled under the ISP Order. Consequently, Dobson's
claim in Count 3 accrued in September 2001, far more than two years
before January 10, 2005. Accordingly, absent some basis for tolling,
section 415(b) bars Count 3.
1. The Interconnection Agreements' ADR Provisions Provide No Basis for
Delayed Accrual of the Claims or Tolling of the Limitations Period
20. Dobson argues that section 415(b)'s two-year limitations period did
not begin to run on all three counts in the Complaint until the
parties had exhausted the 30-day procedure set forth in the ADR
provisions of the parties' interconnection agreements. The ADR
Except as otherwise stated in this Agreement, the parties agree that if
any dispute arises as to the interpretation of any provision of this
agreement or as to the proper implementation of this Agreement, the
parties will initially refer the issue to the individuals in each company
that negotiated the Agreement. If the issue is not resolved within 30
days, either party may petition the [state commission] for a resolution of
the dispute, and/or pursue any other remedy available to it at law or in
Dobson maintains that, because it did not invoke the ADR procedures until
May 13, 2003, it did not have the "present ability to bring legal action"
until 30 days later, on June 13, 2003. Dobson contends that the two-year
limitations period thus did not begin to run until June 13, 2003, when
Dobson acquired a "right to sue" under the terms of the ADR provisions.
21. We reject this argument for delayed accrual of Dobson's claims. As
discussed above, where, as here, the claim alleges over-billing, the
claim accrues upon receipt of the allegedly erroneous bill. There is
no legal basis for finding that an over-billing claim (such as the
claims in Counts 1 and 2), or a claim that a party charged excessive
reciprocal compensation rates (such as the claim in Count 3), accrues
under section 415(b) on the date when the complainant acquires a
"right to sue" under a private agreement.
22. Moreover, we reject Dobson's suggestion that the parties' reliance on
the ADR process provides a basis for tolling the limitations period
for two reasons. First, the text of the ADR provisions does not
reflect any intent by both parties to toll the limitations period. The
ADR provisions state only that, once the procedure is invoked, the
parties will seek to resolve the dispute internally for thirty days,
and may then pursue other appropriate remedies. If anything, the
swiftness of the ADR process reflects an intent not to toll the
23. Second, and more importantly, even if we were to interpret the ADR
provisions as an agreement by the parties to toll the limitations
period until completion of the ADR process, as Dobson urges us to do,
we would nonetheless conclude that the limitations period in section
415(b) was not tolled by such an agreement. As noted above, the
Commission and the federal courts have allowed tolling of the
limitations period of section 415 only in very limited circumstances,
such as instances of fraudulent concealment. Indeed, the Commission
has observed that where "there is no allegation of fraud or deceit
having been practiced by the defendants upon complainant to prevent
him from becoming aware of the facts which are the basis of its claim,
there is no way of ... tolling the statute of limitations." Thus, a
private agreement to toll the limitations period, without more, simply
does not meet these narrow grounds for tolling.
24. Our conclusion that tolling is unavailable here is underscored by the
record evidence showing that Dobson failed diligently to pursue the
ADR procedures available under the interconnection agreements. Under
these agreements, initiation of the dispute resolution procedures was
entirely within Dobson's control. Dobson failed promptly to invoke
these procedures, however, and instead waited over eleven months from
the time it sought refunds from BellSouth in June 2002 to initiate the
ADR process on May 14, 2003. Thus, we cannot conclude that the
limitations period should be equitably tolled in Dobson's favor, where
Dobson delayed triggering the ADR procedures.
1. The Statute of Limitations Was Not Tolled During the Pendency of the
District Court Case
25. We also reject Dobson's contention that the two year limitations
period was tolled during the 278-day pendency of Dobson's District
Court case. Dobson asserts that, under the allegedly controlling test
referenced in Irwin v. Department of Veteran's Affairs, "once a cause
of action has accrued, the limitations period may be suspended or
tolled where the claimant has actively pursued his judicial remedies
by filing a defective complaint during the statutory period."
Applying that standard here, Dobson argues that its filing of the
District Court Complaint constitutes an active pursuit of judicial
remedies sufficient to toll section 415(b).
26. Dobson's reliance on Irwin is misplaced. The Irwin court, in refusing
to toll the limitations period in that case, determined that such
equitable relief should be granted only "sparingly," where the
claimant exercised "due diligence in preserving his legal rights." In
this case, the record shows that Dobson failed to act with due
diligence, for two reasons.
27. First, Dobson's commencement of an action in a clearly inappropriate
forum reveals the absence of the kind of due diligence required for
equitable tolling under Irwin. Specifically, Dobson should have known
when it filed its action in federal court that, under section 207 of
the Act and unanimous precedent, its earlier filing of the Informal
Complaint with the Commission would very likely be deemed to
constitute an election of forums that barred Dobson from pursuing
identical claims in federal court. Indeed, in dismissing Dobson's
complaint for lack of subject matter jurisdiction, the District Court
noted that Dobson had failed to provide any authoritative support for
its assertion that prior cases applying section 207 in a manner that
would bar Dobson's court action were "simply wrong." Moreover,
following the District Court's dismissal, Dobson waited over three
months before filing the instant Complaint with the Commission.
28. Second, the Informal Complaint Closure Letter that Commission staff
sent to Dobson on August 22, 2003 specifically advised Dobson that it
could file a formal complaint with the Commission that would relate
back to the June 23, 2003 filing date of Dobson's Informal Complaint
under section 1.718 of the Commission's rules, so long as Dobson filed
its formal complaint "within six months of the date" of BellSouth's
August 8, 2003 response. Thus, Dobson knew that it could preserve its
claims against BellSouth by filing a formal complaint with the
Commission on or before February 8, 2004. Dobson inexplicably failed
to file a formal complaint with the Commission within this six-month
window, however, and instead, in an apparent attempt at "forum
shopping," filed a complaint in the District Court on February 4,
2004. In failing to file by February 8, 2004, Dobson forfeited its
entitlement to the relation-back privileges of rule 1.718. Moreover,
based on this record, Dobson cannot show that it exercised "due
diligence in pursuing [its] legal rights," and thus it cannot satisfy
the narrow grounds for equitable tolling.
29. Dobson's claims for refunds in Counts 1 and 2 accrued no later than
June 3, 2002. Dobson's claim for refunds in Count 3 accrued no later
than September 2001. Section 415(b) of the Act applies to all of
Dobson's claims, and provides a limitations period of two years.
Therefore, absent some basis for tolling of the two-year limitations
period, Dobson's claims in Counts 1 and 2 expired by June 3, 2004, and
Dobson's claim in Count 3 expired in September 2003, well before
Dobson filed this formal complaint on January 10, 2005. All of the
bases proffered by Dobson for such tolling lack merit. Therefore, the
two-year statute of limitations of section 415(b) of the Act bars
Dobson's formal complaint.
V. Ordering Clause
30. ACCORDINGLY, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j), 208,
and 415(b) of the Communications Act of 1934, as amended, 47 U.S.C. SS
151, 154(i), 154(j), 208 and 415(b), that the formal complaint filed
by American Cellular Corporation and Dobson Cellular Systems, Inc. is
DISMISSED with prejudice.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Amended Formal Complaint of American Cellular Corporation and Dobson
Cellular Systems, Inc., File No. EB-05-MD-01 (filed Jan. 31, 2005)
("Complaint"). Dobson's filed the original version of its Complaint on
January 10, 2005. Formal Complaint, File No. EB-05-MD-01 (filed Jan. 10,
On December 29, 2006, the Commission approved the merger of AT&T Inc. and
BellSouth Corporation. See
Approves Merger of AT&T Inc. and BellSouth Corporation, News Release,
Docket 06-74 (rel. Dec. 29, 1996). Notwithstanding the merger, the
Defendant in this order will be referred to as "BellSouth."
47 U.S.C. S 208.
47 U.S.C. S 251(c)(2)(D); 47 C.F.R. SS 51.703(b), 51.709(b); see, e.g.,
Complaint at 2, 7-11.
47 U.S.C. SS 251(b)(5), 251(c)(2)(D); 47 C.F.R. S 51.703(a); see, e.g.,
Complaint at 2, 11-12. For purposes of this order only, we will assume,
without deciding, that a violation of section 251(b)(5) is cognizable
under section 208 of the Act.
In the Matter of Implementation of the Local Competition Provisions in The
Telecommunications Act of 1996, Intercarrier Compensation for ISP-Bound
Traffic, CC Docket Nos. 96-98, 99-68, Order on Remand and Report and
Order, 16 FCC Rcd 9151 (2001) (subsequent history omitted) ("ISP Order");
see, e.g., Complaint at 2, 12-14. For purposes of this order only, we will
assume, without deciding, that a violation of the ISP Order constitutes a
violation of the Act cognizable under section 208 of the Act.
47 U.S.C. S 415(b).
Joint Statement, File No. EB-05-MD-01, at 2, P 1 (filed Apr. 19, 2005)
("Joint Statement"); Complaint at 3.
Joint Statement at 2, P 2; Complaint at 4; BellSouth Telecommunications,
Inc.'s Answer to the Amended Formal Complaint of American Cellular
Corporation and Dobson Cellular Systems, Inc., File No. EB-05-MD-01, at 7
(filed Feb. 15, 2005) ("Answer").
47 C.F.R. S 51.701(b)(2); Joint Statement at 2 P 3.
Joint Statement at 3, P 4; Complaint at 7; Complaint Exhibit A at 4, P V.B
(Georgia Interconnection Agreement); Complaint Exhibit B at 4, P V.B
(Kentucky and Tennessee Interconnection Agreements); Answer at 9.
Joint Statement at 3, P 4; Complaint at 4-5; Complaint Exhibit A at 3, P
IV.B; Complaint Exhibit B at 3, P IV.B; Answer at 9.
Joint Statement at 3, P 4; Complaint Exhibit A at 3-4, PP IV.B, V.B;
Complaint Exhibit B at 3-4, PP IV.B, V.B. See, e.g., Complaint at 5
(stating that the parties' interconnection agreements provided that
"BellSouth would not charge for interconnection facilities to the extent
such facilities are used to carry traffic originated by customers of
BellSouth"); id. at 6 (stating that BellSouth's bills "made no provision
for credits on account of BellSouth traffic terminated by [Dobson] or for
that portion of the facilities that was utilized to carry BellSouth
Joint Statement at 3, P 4; Complaint at 7-11; Reply at 8-9.
See, e.g., Complaint Exhibit U, Declaration of Andrea Metcalf ("Metcalf
Decl.") at 1, P 4; Joint Statement at 3, P 5.
Complaint Exhibit E (refund requests from Dobson to BellSouth dated June
3, 2002 ("June 3, 2002 Refund Requests" or "Refund Requests")); Joint
Statement at 3, PP 4-5; Answer at 37 (describing BellSouth's bills
submitted to Dobson). BellSouth's bills covered periods from December 2000
to January 2002 in Georgia, October 2000 to February 2002 in Tennessee,
and October 2000 to March 2002 in Kentucky. Metcalf Decl. at 1-2, PP 4-5;
June 3, 2002 Refund Requests. The record does not explain why Dobson did
not send its Refund Requests to BellSouth until as much as 19 months after
the traffic at issue occurred.
June 3, 2002 Refund Requests; Metcalf Decl. at 1, P 4. The interconnection
agreements pursuant to which Dobson issued these Refund Requests to
BellSouth provided that charges for local interconnection were to be
billed and paid monthly, and that late charges could be assessed on the
invoiced amounts if the interconnection charges were not paid within
thirty days of the due date. Complaint Exhibit A at 3, P IV.B; Complaint
Exhibit B at 3, P IV.B.
Metcalf Decl. at 2, P 5; Complaint Exhibit F (letters dated Jan. 7, 2003,
from Gloria Orr of BellSouth to Andrea Metcalf of Dobson regarding the
June 3, 2002 Refund Requests); Joint Statement at 4, P 7.
Complaint Exhibit O (Letters from Gloria Orr of BellSouth to Andrea
Metcalf of Dobson, dated March 27, 2003); Metcalf Decl. at 2, P 6; Joint
Statement at 4, P 7.
Joint Statement at 3-4, PP 5-7. Dobson alleges that BellSouth owes Dobson
a refund of $293,202 for the claims underlying Counts 1 and 2. Id. at 4,
See ISP Order, 16 FCC Rcd at 9151, P 1 (describing "ISP-bound" traffic as
"telecommunications traffic delivered to Internet service providers
ISP Order, 16 FCC Rcd at 9193, P 89. According to Dobson, once an
incumbent LEC, such as BellSouth, elected to take advantage of those
rates, it became obligated to offer the same lower rates to
interconnecting carriers such as Dobson. Supplemental Joint Statement,
File No. EB-05-MD-01, at 11-13 (filed May 27, 2005) ("Supplemental Joint
Statement"). At that point, Dobson contends, the two carriers were
supposed to implement the new rates through an amendment to an existing
interconnection agreement, or by entering into a separate, stand-alone
agreement. Supplemental Joint Statement at 10-13; Supplement to Reply of
American Cellular Corporation and Dobson Cellular Systems, Inc. to Answer
of BellSouth Telecommunications, Inc., File No. EB-05-MD-01, at 9 (filed
Apr. 26, 2005) ("Reply Supplement").
Joint Statement at 5, P 9. The record does not reflect the exact date when
BellSouth elected to take advantage of the ISP Order's lower compensation
rates for ISP-bound traffic.
Id. The record does not reflect the exact date in September 2001 when
Dobson first requested the reduced rates. Complaint Exhibit S (Amended
Declaration of David M. Wilson) ("Wilson Decl.") at P 5.
Joint Statement at 6, P 9.
Id. at 4, P 8.
Complaint Exhibit W (Memorandum from David Wilson, counsel for Dobson, to
Langley Kitchings, counsel for BellSouth, dated Feb. 15, 2002).
Joint Statement at 5-6, P 9.
Wilson Decl. at 2-3, PP 5-7; Complaint Exhibit V (spreadsheet prepared by
Dobson); Supplemental Joint Statement Exhibit B (Letter from David Wilson,
counsel for Dobson, to Randy Ham of BellSouth, dated Oct. 1, 2002).
Reply at 31-32; Joint Statement at 5-6, PP 9-10.
Metcalf Decl. at 2, P 7; June 3, 2002 Refund Requests. Dobson's cover
letters did not specify the amount of the requested adjustments. Id.
According to Dobson, the amount of the requested adjustments was set forth
in a spreadsheet that Dobson's counsel attached to an October 1, 2002
letter to BellSouth requesting a "true-up" of amounts billed and collected
by BellSouth in Tennessee, Georgia, and Kentucky during the period between
the effective date of the ISP Order and the dates when the Tennessee and
Georgia markets were transferred to Verizon Wireless. See, e.g., Wilson
Decl. at 2, P 5; Supplemental Joint Statement Exhibit B; Complaint Exhibit
Complaint at 8-11; Reply at 17-18; Joint Statement at 3-5; Supplemental
Joint Statement at 5-8. These communications also concerned the parties'
other outstanding disputes, described above. See supra para. 5.
Dobson alleges that BellSouth owes Dobson a refund of $30,753.62 for the
claims underlying Count 3. Joint Statement at 8, P 1.
Complaint Exhibit A at 15, P XIX; Complaint Exhibit B at 15, P XVIII;
Wilson Decl. at 3, P 8; Complaint Exhibit Y at 3 (E-mail from David
Wilson, counsel for Dobson, to Rhona Reynolds of BellSouth, dated May 14,
Complaint Exhibit A at 15, P XIX; Complaint Exhibit B at 15, P XVIII.
Wilson Decl. at 3, P 8; Reply at 19-20; Supplemental Joint Statement at
Letter from David Wilson, counsel to Dobson, to Suzanne Tetreault,
Enforcement Bureau, File No. EB-03-MDIC-0019 (filed Jun. 23, 2003)
("Informal Complaint"); 47 C.F.R. S 1.716.
Informal Complaint at 2-5.
Letter from Lisa Spooner Foshee and Theodore C. Marcus, BellSouth, to
Alexander Starr, Chief, Market Disputes Resolution Division, Enforcement
Bureau, File No. EB-03-MDIC-0019 (filed Aug. 8, 2003).
Letter from Christopher Olsen, Assistant Chief, Market Disputes Resolution
Division, Enforcement Bureau, to David Wilson, counsel to Dobson, File No.
EB-03-MDIC-0019 (Aug. 22, 2003) ("Informal Complaint Closure Letter").
47 C.F.R. S 1.718; Informal Complaint Closure Letter at 1-2.
Informal Complaint Closure Letter at 2; 47 C.F.R. S 1.718.
Answer Exhibit E ("District Court Complaint"); Joint Statement at 6, P 12;
Answer Exhibit H ("District Court Opinion") at 1.
District Court Opinion at 2 (quoting Stiles v. GTE Southwest Inc., 128
F.3d 904, 907 (5^th Cir. 1997) ("Stiles v. GTE")). See 47 U.S.C. S 207
(providing that a person may file a complaint at the Commission or in
District Court, but that the person "shall not have the right to pursue
Dobson attempted to file a formal complaint on December 27, 2004, but that
complaint was dismissed without prejudice because Dobson failed to comply
with several of the Commission's formal complaint rules. Letter from Lisa
B. Griffin, Deputy Chief, Market Disputes Resolution Division, Enforcement
Bureau, to David Wilson, counsel to Dobson (Dec. 30, 2004).
47 U.S.C. S 415(b).
See, e.g., Complaint at 1-2.
Section 415(b) does not apply to claims seeking damages based on
"overcharges" as that term is defined in section 415(g) of the Act. See 47
U.S.C. S 415(g) (defining "overcharges" as "charges for services in excess
of those applicable thereto under the schedule of charges lawfully on file
with the Commission"). None of the charges at issue in Dobson's Complaint
meets the limited definition of "overcharges" set forth in section 415(g),
and neither party contends that Dobson's claims seek recovery of
"overcharges" within that definition.
Reply Supplement at 7-8 (citing E.spire Communications, Inc. v. Baca, 269
F. Supp. 2d 1310 (D.N.M. 2003); Verizon Maryland, Inc. v. RCN Telecom
Services, Inc., 232 F. Supp. 2d 539 (N.D. Md. 2002);
Bell-Atlantic-Pennsylvania v. Pennsylvania Public Utilities Commission,
107 F. Supp. 2d 653 (E.D. Pa. 2000)).
28 U.S.C. S 1658(a) (providing that, "except as otherwise provided by law,
a civil action arising under an Act of Congress ... may not be commenced
later than 4 years after the cause of action accrues") (emphasis added).
See, e.g., North Star Steel Co. v. Thomas, 515 U.S. 29, 34 n.1 (1995)
(describing section 1658 as a "general, 4-year limitations period for any
federal statute [enacted after Dec. 1, 1990] without one of its own");
Campbell v. Amtrak, 163 F. Supp. 2d 19, 22 (D.D.C. 2001) (describing
section 1658 as the "federal default statute of limitations").
None of the cases cited by Dobson involved claims brought against carriers
for the recovery of damages under section 208 of the Act. Rather, these
cases involved claims against state commissions for injunctive relief,
claims for which federal law provides no specific limitations period. See
supra note 50.
Dobson also argues that we should apply a variety of lengthy state
limitations periods, if we were to regard Counts 1 and 2 as arising under
state contract law. Reply Supplement at 2, 8; Reply of American Cellular
Corporation and Dobson Cellular Systems, Inc. to Answer of BellSouth
Telecommunications, Inc., File No. EB-05-MD-01, at 17 n.11 (filed Mar. 2,
2005) ("Reply"). We reject Dobson's suggestion that state statutes of
limitation apply to Dobson's Complaint, because Dobson's Complaint does
not (and could not here) assert state law claims.
Bunker Ramo Corp. v. The Western Union Telegraph Co., New York, N.T.,
Memorandum Opinion and Order, 31 FCC 2d 449, 453-54, P 12 (Rev. Bd. 1971)
("Bunker Ramo v. Western Union"). See, e.g., Operator Communications, Inc.
v. Verizon Telephone Companies, Memorandum Opinion and Order, FCC 05-207,
2005 WL 3069906, P 14 (rel. Dec. 9, 2005) ("OCI v. Verizon"), P 10;
Communications Vending Corp. of Arizona, Inc. v. Citizens Communications
Co., Memorandum Opinion and Order, 17 FCC Rcd 24201, 24222-23, P 50 (2002)
("Communications Vending Corp. v. Citizens"), aff'd, Communications
Vending Corp. of Arizona v. FCC, 365 F.3d 1064 (D.C. Cir. 2004); Aetna
Life Ins. Co. v. AT&T Co., Memorandum Opinion and Order, 3 FCC Rcd 2126,
2129, P 13 (Com. Car. Bur. 1988) ("Aetna v. AT&T"), aff'd sub nom. US
Sprint Communications Co. v. AT&T Co., Memorandum Opinion and Order, 9 FCC
Rcd 4801 (1994) ("US Sprint v. AT&T"), aff'd, Sprint Communications Co. v.
FCC, 76 F.3d 1221, 1226 (D.C. Cir. 1996 ) ("Sprint v. FCC").
See, e.g., Michael J. Valenti and Real Estate Market Place of New Jersey
t/a Real Estate Alternative v. AT&T, Memorandum Opinion and Order, 12 FCC
Rcd 2611, 2621-22, P 24 (1997) ("Valenti v. AT&T"); MCI Telecommunications
Corp. v. Pacific Tel. Co. of PA, Memorandum Opinion and Order, 12 FCC Rcd
13243, 13252, P 15 (Com. Car. Bur. 1997) ("MCI v. Pacific Tel"); Armstrong
Utilities, Inc. v. General Telephone Co. of Pennsylvania, Memorandum
Opinion, Order, and Temporary Authorization, 25 FCC 2d 385, 389, P 11
(1970) ("Armstrong v. General Telephone").
See, e.g., OCI v. Verizon at P 14; Communications Vending Corp. v.
Citizens, 17 FCC Rcd at 24222, P 50; Valenti v. AT&T, 12 FCC Rcd at
2621-22, P 24; Municipality of Anchorage d/b/a/ Anchorage Telephone
Utilities v. Alascom, Inc., Memorandum Opinion and Order, 4 FCC Rcd 2472,
2476, P 30 (Com. Car. Bur. 1989) ("Anchorage v. Alascom"); Armstrong v.
General Telephone, 25 FCC 2d at 389, P 11 (stating, in applying the then
one year limitations period, that "[t]he construction of Section 415, both
by the Commission and the federal courts, has been `strict' and claims for
damages based upon violations accruing more than one year before filing,
are clearly foreclosed").
See, e.g., OCI v. Verizon at P 14; Communications Vending Corp v.
Citizens, 17 FCC Rcd at 24222, n.145; Valenti v. AT&T, 12 FCC Rcd at
2621-22, P 24; US Sprint v. AT&T, 9 FCC Rcd at 4802, P 10; Anchorage v.
Alascom, 4 FCC Rcd at 2475, P 23; Tele-Valuation, Inc. v. AT&T, Memorandum
Opinion and Order, 73 FCC 2d 450, 452-53, P 4, n.7 (1979) ("Tele-Valuation
v. AT&T"); U.S. Cablevision v. New York Telephone Co., Memorandum Opinion
and Order, 46 FCC 2d 704, 706-07, P 5 (1974); Bunker Ramo v. Western
Union, 31 FCC 2d at 453-54; Armstrong v. General Telephone, 25 FCC 2d at
390, P 15.
See, e.g., Sprint v. FCC, 76 F.3d at 1226; MCI Telecommunications Corp. v.
Teleconcepts, 71 F.3d 1086, 1091 (3^rd Cir. 1995) ("MCI v. Teleconcepts");
OCI v. Verizon at P 11; Communications Vending Corp v. Citizens, 17 FCC
Rcd at 24222-23, P 51; MCI Telecommunications Corp. v. U S West
Communications, Inc., Memorandum Opinion and Order, 15 FCC Rcd 9328, 9330,
P 5 (2000).
Sprint v. FCC, 76 F.3d at 1226 (citations omitted). See, e.g., MCI
Telecommunications Corp. v. FCC, 59 F.3d 1407, 1428 (D.C. Cir. 1995);
Communications Vending Corp. v. Citizens, 17 FCC Rcd at 2422-23, P 51.
Communications Vending Corp. v. Citizens, 17 FCC Rcd at 24222, P 50.
Sprint v. FCC, 76 F.3d at 1228. See, e.g., Communications Vending Corp. v.
Citizens, 17 FCC Rcd at 24222-23, P 51.
Reply at 18. See Reply Supplement at 10-11.
Reply at 18.
See, e.g., OCI v. Verizon at P 11; Communications Vending Corp. v.
Citizens, 17 FCC Rcd at 24222-23, P 51; Aetna v. AT&T, 3 FCC Rcd at 2129,
P 13; Tele-Valuation v. AT&T, 73 FCC 2d at 452, P 4 ("[T]he point of
accrual should be fixed as the time the customer receives a bill for
services. At this point the customer may review the charges ... question
the carrier, or take any other steps necessary to detect and remedy
errors. This places a burden of prompt detection of overcharges on the
party with the greatest incentive to do so and penalizes dilatory
detection, thereby guarding against later attempts to recover for stale
claims. Through the exercise of diligence the customer may prevent loss;
he therefore is held knowledgeable at the time he is notified of his
June 3, 2002 Refund Requests; Metcalf Decl. at 1-2, PP 4-5; Answer at 37;
Joint Statement at 3, PP 4-5.
The record can plausibly be read to suggest that BellSouth was supposed to
"over-bill" Dobson in the first instance, whereupon Dobson would, as a
matter of course, bill BellSouth back for the overcharge amount. See
generally Complaint Exhibit C at 6, P IV.A.4 (new Kentucky
interconnection agreement). Such a reading would not save Dobson's claims,
however. The accrual date would move only from June 3, 2002 to July 3,
2002, the day on which the Refund Requests became due; and July 3, 2002 is
still well more than two years before January 10, 2005. Moreover, the
claims then might constitute "collection actions" that fail at the
threshold under well-established Commission precedent. See, e.g., U.S.
TelePacific Corp. v. Tel-America of Salt Lake City, Inc., Memorandum
Opinion and Order, 19 FCC Rcd 24552, 24555, P 8 (2004).
Joint Statement at 5, P 9; Supplemental Joint Statement at 5; Wilson Decl.
at P 5.
Joint Statement at 5, P 9; Supplemental Joint Statement at 10-13. Cf.
Airtouch Cellular v. Pacific Bell, Memorandum Opinion and Order, 16 FCC
Rcd 13502, 13504, P 6 (2001) ("Airtouch") (holding that a claim for
violating a Commission rule accrued on the rule's effective date, even
though the parties had to implement the rule by amending their
Even assuming, arguendo, that Dobson's claim under Count 3 did not accrue
in September 2001, we would still conclude that section 415(b) bars the
claim based on two alternative accrual dates, both of which pre-date the
Complaint by more than two years. First, we agree with BellSouth that the
claim in Count 3 had accrued by at least February 2002, when Dobson
received BellSouth's last invoices for Georgia and Tennessee. See Joint
Statement at 3-4, P 6-8; Wilson Decl. at 2-3, P 5-7; Complaint Exhibit V
(spreadsheet prepared by Dobson); Supplemental Joint Statement Exhibit B
(Letter from David Wilson, counsel for Dobson, to Randy Ham of BellSouth,
dated Oct. 1, 2002). By that time, Dobson knew, or should have known, that
BellSouth had failed to bill Dobson at the new ISP rates in those markets.
Second, Dobson's cover letters to its June 3, 2002 Refund Requests, which
expressly request an adjustment to BellSouth's ISP charges, affirm that
Dobson knew, as of June 2002, that it had been injured by BellSouth's
failure to charge Dobson the new ISP rates. The claim in Count 3 therefore
accrued, at the latest, by June 3, 2002.
Reply at 18 (citing Complaint Exhibit K); Reply Supplement at 9.
See, e.g., Sprint v. FCC, 76 F.3d at 1226.
Reply at 16-21; Joint Statement at 11-12, P 2.
Complaint Exhibit A at 15, P XIX; Complaint Exhibit B at 15, P XVIII;
Reply at 19-20.
Reply at 18-19. See Complaint at 14-15.
See supra Part III(B)(1).
See Complaint Exhibit A at 15, P XIX; Complaint Exhibit B at 15, P XVIII.
Reply at 19.
See supra Part III(B)(1).
Valenti v. AT&T, 12 FCC Rcd at 2621-22, PP 24-25. This also explains why
Dobson's reliance on labor law cases is misplaced. See Reply at 18-19
(citing Frandsen v. Brotherhood of Railway, Airline and Steamship Clerks,
Freight Handlers, Express and Station Employees, 782 F.2d 674, 681 (7^th
Cir. 1986) ("Frandsen v. Brotherhood") and Volkman v. United Transport
Union, 73 F.3d 1047, 1054-55 (10^th Cir. 1996) ("Volkman v. United
Transport")). Those cases hold that the six-month limitations period
applicable to unfair representation claims is tolled pending an employee's
mandatory exhaustion of union remedies. That holding stems from the unique
attributes of national labor laws and policies regarding the complex
interrelationships of unions, employees, and employers. Frandsen, 782 F.2d
at 681 (discussing the "national labor policy of encouraging workers to
pursue internal union remedies, while ensuring them a judicial forum in
which to resolve disputes"); Volkman, 73 F.3d at 1054-56; see BalSavage v.
Ryder Truck Rental, 712 F. Supp. 461, 471 (D.N.J. 1989) (discussing the
"federal policy of encouraging private resolution of labor disputes"). In
any event, unlike the six-month period applicable in Frandsen v.
Brotherhood and Volkman v. United Transport, the two-year limitations
period under section 415(b) provides parties ample time to pursue ADR
without the need for tolling, especially where, as here, the agreements
require only 30 days of ADR procedures.
See, e.g., Midstate Horticultural Co. v. Pennsylvania Railroad Co., 320
U.S. 356, 365-67 (1943) (holding that parties cannot, by agreement, waive
the limitations period of section 16 of the Interstate Commerce Act, on
which section 415 of the Communications Act is based); Anchorage v.
Alascom, 4 FCC Rcd at 2474, 2476, PP 20, 27 (noting that section 415(b) of
the Act is based on section 16 of the Interstate Commerce Act). Nor was
the limitations period tolled, as Dobson has suggested (Reply at 17-18),
by the parties' on-going correspondence and discussions concerning the
disputed matters that gave rise to Dobson's Complaint. See, e.g.,
Anchorage v. Alascom, 4 FCC Rcd at 2475-76, PP 22, 28 (observing that
"[i]f a written agreement is ineffective in tolling the statute, certainly
oral discussions which contained no agreement to toll the statute are
insufficient" to do so, and that "pursuit of negotiations looking toward a
possible settlement of outstanding differences does not, in and of itself,
generally stay or toll operation of the statute of limitations"). That
said, we strongly encourage parties to make vigorous settlement efforts
before invoking the Commission's formal complaint procedures. See, e.g.,
Implementation of the Telecommunications Act of 1996, Amendment of Rules
Governing Procedures to be Followed When Formal Complaints are Filed
Against Common Carriers, CC Docket No. 96-238, Report and Order, 12 FCC
Rcd 22497, 22507, 22519-20, 22582, PP 21, 48, 198 (1997) (subsequent
history omitted). The limitations period of two years provides plenty of
time to do so; and the Commission's informal complaint rules provide a
relatively inexpensive procedure for creating additional time for
settlement negotiations, if necessary. See, e.g., 47 C.F.R. SS
1.716-1.718; OCI v. Verizon at P 23.
Joint Statement at 11-12, P 2.
Complaint Exhibit A at 15, P XIX; Complaint Exhibit B at 15, P XVIII.
Joint Statement at 11-12, P 2. Indeed, Dobson's counsel expressly opted to
delay invoking the ADR procedures. In a communication with BellSouth on
January 17, 2003, Dobson's counsel stated Dobson "hope[d] to avoid the
dispute resolution procedures of the various agreements" between the
parties. Complaint Exhibit J (Letter from David Wilson, counsel for
Dobson, to Bill Mealer of BellSouth, dated Jan. 17, 2003); Wilson Decl. at
3, P 8.
Moreover, under Dobson's rationale, it could have waited an indefinite
period of time to invoke the dispute resolution provision, then filed a
timely complaint with the Commission thirty days later.
Joint Statement at 12, P 3; Reply at 21-22.
Reply at 21 (quoting Irwin v. Department of Veteran's Affairs, 498 U.S.
89, 96 (1991)). See Reply Supplement at 13 (citing Herb v. Pitcairn, 325
U.S. 77 (1945), Burnett v. New York Central Railroad Co., 380 U.S. 424
(1965) ("Burnett v. NYC Railroad"), and Fox v. Eaton Corp., 615 F.2d 716
(6^th Cir. 1980) ("Fox v. Eaton")).
Irwin v. Department of Veteran's Affairs, 498 U.S. at 96 (noting that the
"principles of equitable tolling ... do not extend to what is at best a
garden variety claim of excusable neglect").
We also reject Dobson's reliance on Crown, Cork & Seal Co. Inc. v. Parker,
462 U.S. 345 (1983) ("Crown, Cork & Seal v. Parker") and Pavlak v. Church,
727 F.2d 1425 (9^th Cir. 1984), both of which involved tolling a
limitations period applicable to an individual class member's claim
pending a ruling on class certification motions. In brief, these decisions
relied on certain unique complexities of class actions that are not
present in this relatively straightforward complaint proceeding.
See, e.g., Gibson v. American Bankers Insurance Co., 289 F.3d 943, 948
(6^th Cir. 2002); Shofer v. Hack Co., 970 F.2d 1316, 1319 (4^th Cir.
1992). See generally Fox v. Eaton, 615 F.2d at 721 ("[A]s a general
matter, the filing of an action in a court that clearly lacks jurisdiction
will not toll the statute of limitations.").
See 47 U.S.C. S 207; Mexiport, Inc. v. Frontier Communications Services,
Inc., 253 F.3d 573 (11^th Cir. 2001); Digitel, Inc. v. MCI WorldCom, Inc.,
239 F.3d 187, 190 (2^nd Cir. 2001) (stating "a party that has filed an
informal complaint may not also sue in district court"); Stiles v. GTE,
128 F.3d at 906-07; Cincinnati Bell Telephone Co. v. Allnet Communication
Services, Inc., 17 F.3d 921 (6^th Cir. 1994); Bell Atlantic Corp. v. MFS
Communications Co., 901 F. Supp. 835 (D.Del. 1995); U.S. TelePacific Corp.
v. Tel-America of Salt Lake City, Inc., Memorandum Opinion and Order, 19
FCC Rcd 24552, 24556-57, P 10 (2004). See generally Premiere Network
Services, Inc. v. SBC Communications, Inc., No. 04-41574, 2006 WL 350064
(5^th Cir. Feb. 16, 2004); Valenti v. AT&T, 12 FCC Rcd at 2622, P 26
(holding that the complainant's delay in filing a complaint at the
Commission was not reasonable "because it was or should have been aware of
the possibility that the Commission had primary or exclusive subject
matter jurisdiction and that there might be associated statute of
District Court Opinion at 2. In this regard, we find Dobson's reliance on
Fox v. Eaton to be misplaced. Reply Supplement at 13. In Fox v. Eaton, the
court held that commencement of an employment discrimination action in
state court, which was later dismissed for lack of subject matter
jurisdiction, was sufficient to toll the limitations period, where the
lack of state court jurisdiction was "far from clear" due to conflicting
case law on the question. Fox v. Eaton, 615 F.2d at 719-20. By contrast,
Dobson has not cited, nor have we found, any conflicting precedent under
section 207 of the Act that supports Dobson's decision to file a complaint
in federal court raising the same issues as its earlier Informal Complaint
before the Commission.
Similarly, in Anchorage v. Alascom, the Common Carrier Bureau held that
the complainant could not "deduct from the period of the statute of
limitations the time during which a prior action ultimately dismissed
without prejudice was pending." Anchorage v. Alascom, 4 FCC Rcd at 2474, P
47 C.F.R. S 1.718; Informal Complaint Closure Letter at 2.
Answer Exhibit E.
Irwin v. Department of Veteran's Affairs, 498 U.S. at 96.
See supra Part III(B)(1).
We note that, during this proceeding, we orally denied a motion by
BellSouth to strike from the record Dobson's references in the Complaint
to settlement discussions between the parties. Motion to Strike Material
Related to Confidential Settlement Negotiations, File No. EB-05-MD-01
(filed Feb. 15, 2005) ("Motion to Strike"); Letter from Lisa Saks,
Assistant Chief, Market Disputes Resolution Division, Enforcement Bureau,
to David Wilson, counsel to Dobson, and Theodore Marcus, counsel to
BellSouth, File No. EB-05-MD-01 (May 5, 2005). BellSouth's Motion to
Strike was premised on Federal Rule of Evidence 408, which provides that
"[e]vidence of (1) furnishing or offering ... to furnish, or (2) accepting
or offering ... to accept, a valuable consideration in compromising or
attempting to compromise a [disputed] claim ... is not admissible to prove
liability for or invalidity of the claim or its amount." Federal Rules of
Evidence Rule 408 ("FRE 408"). Nothing in the language of FRE 408 requires
exclusion of all references to the fact that settlement negotiations have
occurred; it bars only such references that are proffered to prove or
disprove liability and/or damages. Here, Dobson did not attempt to rely on
any of the purported references to the parties' settlement discussions to
establish that BellSouth is liable for damages. In other words, BellSouth
failed to show that the material it moved to strike reflected an offer of
compromise upon which Dobson sought to rely to prove liability or damages.
Consequently, BellSouth's Motion to Strike lacks merit. In any event,
because we do not rely on any of Dobson's references to settlement
discussions, BellSouth's Motion to Strike is moot.
(...continued from previous page)
Federal Communications Commission DA 07-228
Federal Communications Commission