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Before the
Federal Communications Commission
Washington, D.C. 20554
In the matter of )
)
METROCALL, INC., )
) File Nos. E-98-16, E-98-17
Complainant, )
)
v. )
)
SOUTHWESTERN BELL TELEPHONE )
COMPANY and PACIFIC BELL )
TELEPHONE COMPANY, )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
ON SUPPLEMENTAL COMPLAINT FOR DAMAGES
Adopted: September 26, 2001 Released: October 2,
2001
By the Commission:
I. INTRODUCTION
1. In this Memorandum Opinion and Order on Supplemental
Complaint for Damages, we determine the damages owed by
defendants Pacific Bell Telephone Company (``Pac Bell'') and
Southwestern Bell Telephone Company (``SWBT'') (collectively,
``the SBC defendants'') to complainant Metrocall, Inc.
(``Metrocall'') pursuant to our previous decision in this
proceeding.1 We find that Metrocall is not entitled to any
refund of its payment from the SBC defendants because, even under
Metrocall's assumptions, Metrocall's payments did not exceed the
lawful charges on the relevant accounts for the services at
issue. We also reject Metrocall's demands for consequential and
punitive damages. Finally, we deny Metrocall's request that we
reconsider certain aspects of our decision in the Liability
Order.
II. BACKGROUND
2. The facts and circumstances leading to our decision in
the Liability Order are fully recited therein and we need not
reiterate them at length. In that decision, we found that the
SBC defendants and other Local Exchange Carriers (``LECs'') had
violated Commission rules and the Communications Act of 1934, as
amended, by charging Metrocall and another paging carrier, TSR
Wireless, Inc. (``TSR''), for the delivery of LEC-originated,
intraMTA traffic to the paging companies' point of
interconnection, and by imposing non-cost-based charges solely
for the paging companies' use of Direct Inward Dialing (DID)
numbers.2 We rejected claims by Metrocall and TSR that the SBC
defendants had improperly charged for other services, such as
reverse billing and the delivery of transiting traffic.3 The
Liability Order deferred the question of damages, permitting
Metrocall and TSR to file supplemental complaints for damages
within 60 days after release of our decision.
3. In its amended supplemental complaint and an addendum
thereto, Metrocall seeks the return of $297,361.53 it allegedly
paid in illegal charges to Pac Bell and the return of $243,411.03
it allegedly paid to SWBT, plus interest on each of these sums.4
Metrocall also wants removal of any illegal charges from the
outstanding balances on its accounts with the SBC defendants,
although Metrocall does not state precisely how much of these
balances constitute illegal charges.5 Metrocall demands $132,463
in consequential damages for the legal fees incurred during this
proceeding,6 and $7 million in punitive damages, to be divided
among the SBC defendants and their co-defendant, U S West
Communications, Inc. (now Qwest Corporation (``Qwest'')).7
Metrocall also seeks call termination compensation, although it
does not state precisely how much the SBC defendants allegedly
owe.8 Finally, Metrocall requests that the Commission hold that,
contrary to the Liability Order, Metrocall does not have to pay
LECs for the delivery of transiting traffic.9 The SBC defendants
have responded to each of these damage claims.
III. DISCUSSION
III.A. Metrocall Is Not Entitled To The Refund Of Its
Payments As Compensatory Damages Because, Even Under
Metrocall's Assumptions, It Paid Less Than The Amount
Of Lawful Charges On Its Accounts With The SBC
Defendants.
4. As compensatory damages from the SBC defendants,
Metrocall seeks a refund of its payments to the SBC defendants
for charges deemed unlawful in the Liability Order. Metrocall
determines this amount by subtracting the charges for services
deemed lawful in the Liability Order from its total payments to
the SBC defendants for the relevant accounts. According to
Metrocall, after subtracting the lawful charges from its payments
to the SBC defendants since November 1996, it is entitled to the
return of about $540,000 plus interest. Metrocall also seeks
``full credit for any outstanding balances for local
interconnection charges and/or DID-related charges.''10 We find
that Metrocall is not entitled to any refund from the SBC
defendants because, even assuming the company's figures are
correct, it still underpaid for the lawful charges on its
interconnection-related accounts with the SBC defendants.
5. In the Liability Order, we found that LECs may not
charge one-way paging carriers for the delivery of intra-MTA LEC-
originated traffic to the paging carrier's point of
interconnection.11 We also found that LECs may not impose
recurring charges solely for the use of numbers.12 But we did
not find that all charges imposed by the LECs on paging carriers
were illegal. Rather, we held that LECs may charge for a number
of services, including (1) ``wide area calling'' services,13 (2)
a reasonable initial connection charge to compensate the LECs for
the cost of software and other charges associated with new
numbers, (3) the delivery of ``transiting'' traffic, that is,
traffic that originates from a carrier other than the
interconnecting LEC but nonetheless is carried over the LEC's
network to that of the paging carrier,14 and (4) the delivery of
traffic that originates or terminates outside the MTA.15
6. The parties agree that we should assess Metrocall's
damages claim based on comparing the lawful charges on
Metrocall's accounts with the SBC defendants against Metrocall's
payments to the SBC defendants on those accounts. The parties
also agree that, between November 1996 and October 2000,
Metrocall paid the SBC defendants for both illegal and legal
charges under the Liability Order, but generally stopped paying
for most interconnection-related services about December 1998.
The parties disagree, however, about how much Metrocall paid SWBT
and Pac Bell, whether certain charges were lawful under the
Liability Order or were properly charged to Metrocall even if
legal, and the balance on Metrocall's accounts with each company.
The SBC defendants assert that Metrocall's figures are incorrect,
and have provided figures based on their records of the Metrocall
accounts. For purposes of this decision, however, we will assume
Metrocall's allegations are true because, even based on
Metrocall's calculations, the company did not make payments
greater than the lawful charges on its relevant accounts with Pac
Bell and SWBT.
7. Pac Bell Charges. According to Metrocall, it incurred
$3,478,583.64 in charges on its accounts with Pac Bell between
November 1996 and May 2000.16 During that period, Metrocall
alleges that it paid Pac Bell $1,116,569.97.17 Metrocall does
not dispute that it incurred lawful charges in several
categories, such as Monthly Service charges, Monthly Usage
charges, Remote Call Forwarding, and long-distance calls, among
others.18 According to Metrocall, these charges constitute
$819,208.44. Metrocall subtracts the undisputed lawful charges
from its total payments and argues that it is entitled to a
refund of $297,361.53,19 plus interest, for payments on ``Type 1
and Type 2 interconnection charges and DID-related charges''
deemed unlawful under the Liability Order.20
8. Metrocall ignores the language of the Liability Order.
In that decision, we unambiguously permitted LECs to charge
paging carriers for transiting traffic. Although it reflects
other charges deemed lawful in the Liability Order, however,
Metrocall's damages calculation omits these lawful charges from
its calculations. Though the SBC defendants raised this issue in
their Answer,21 Metrocall never offered a means of determining
its transiting traffic charges. Instead, Metrocall avers in its
Reply that it owes nothing for charges relating to transiting
traffic, then suggests that, even if the SBC defendants properly
charged Metrocall for such traffic, ``they have no legal right to
argue that claim in this proceeding; they failed to raise any
counter-claims during the liability phase of this proceeding, and
are legally barred from doing so now.''22 Metrocall also points
to a petition for reconsideration of the Commission's decision on
transiting traffic, suggesting that the question of its liability
for transiting traffic is still open.23
9. The Liability Order explicitly states that
``Complainants are required to pay for `transiting traffic,' that
is, traffic that originates from a carrier other than the
interconnecting LEC but nonetheless is carried over the LEC
network to the paging carrier's network.''24 Some percentage of
the interconnection-related charges imposed by the SBC defendants
on Metrocall constitutes such traffic, and they are entitled to
charge for it. We reject Metrocall's claim that the SBC
defendants had to raise the issue of Metrocall's liability for
transiting traffic charges as a counterclaim for those charges to
be considered here.25 In considering the transiting charges
applicable to Metrocall's accounts, we are not determining
whether to award damages to the SBC defendants. Rather, we are
following the measure of damages set forth by Metrocall --
weighing the amount Metrocall allegedly paid on its accounts with
the SBC defendants against the charges lawfully applicable to
those accounts, in order to determine the amount, if any, of any
refund to Metrocall. It is therefore appropriate that we
consider the amount of the transiting traffic charges.
10. Further, we reject Metrocall's claim that the
transiting traffic issue is somehow uncertain because of a
pending petition for reconsideration of that aspect of the
Liability Order. The existence of a reconsideration petition
(which Metrocall neither filed nor supported) does not alter the
effect of our holding. In any event, we have now denied that
petition.26
11. In light of Metrocall's failure to suggest any
alternative, we will use, for purposes of this proceeding only,
the 26 percent transiting factor supplied by Pac Bell, which is
based on a 1999 interconnection agreement between the LEC and
Metrocall. Based on Metrocall's allegations, Pac Bell assessed
Metrocall $2,659,375.20 in interconnection-related charges.27 If
we apply the 26 percent transiting factor to the interconnection-
related charges identified by Metrocall, we find that Metrocall
incurred $691,437.55 in transiting traffic charges.28
12. As noted above, Metrocall admits that it is responsible
for $819,208.44 in ``lawful'' charges. The sum of these charges
and the $691,437.55 in transiting traffic charges leads to a
balance of $1,510,645.99 in lawfully imposed charges. But
Metrocall, by its own calculations, has paid Pac Bell only
$1,116,569.97. Therefore, even assuming Metrocall's account
figures, Metrocall is not entitled to any refund of its payments
to Pac Bell as compensatory damages because the lawful charges
imposed by Pac Bell minus Metrocall's total payments to Pac Bell
results in an outstanding balance of $394,076.02 in charges
permitted under the Liability Order, which are due and owed to
Pac Bell.29
13. SWBT Charges. We reach a similar conclusion with
respect to Metrocall's claim against SWBT. Metrocall's
spreadsheets state that it incurred $4,502,364.44 in charges on
its accounts with SWBT between November 1996 and July 2000.
During that period, Metrocall alleges that it paid $800,382.49 on
those same accounts.30 Metrocall does not dispute that it is
responsible for $348,152.33 in Monthly Usage charges by SWBT, as
well as the balances on accounts unrelated to interconnection,
amounting to $208,819.13. According to Metrocall, these charges
constitute $556,971.46. Metrocall alleges that it is entitled to
its total payments minus what it considers to be lawful charges,
resulting in a refund of $243,411.03 for payments on charges
deemed unlawful under the Liability Order.31
14. Once again, however, Metrocall ignores the Liability
Order's finding that LECs may lawfully charge for transiting
traffic. SWBT provides an average transiting factor of 23
percent, derived by averaging the transiting factors applied in
the five SWBT states (Arkansas, Kansas, Oklahoma, Missouri, and
Texas). As we did with the Pac Bell charges, in light of
Metrocall's failure to offer any alternative, we will apply
SWBT's transiting factor to Metrocall's outstanding balance.32
Even if we exclude the charges Metrocall deems unrelated to
interconnection, as well as $84,500.78 in Minimum Monthly Usage
charges that Metrocall deems unlawful,33 Metrocall nevertheless
incurred $3,860,848.20 in interconnection-related charges, based
on the figures provided by Metrocall.34 Applying the 23 percent
transiting factor to this balance results in $887,995.09 in
transiting traffic charges.35 Adding the $556,971.46 for which
Metrocall admits responsibility and the $887,995.09 in transiting
traffic charges, results in a balance of $1,444,966.55 in
lawfully imposed charges. But Metrocall, by its own
calculations, has paid SWBT only $800,382.49. Therefore, even
assuming Metrocall's account figures, Metrocall is not entitled
to the refund of any overpayment as compensatory damages because
it appears to have underpaid SWBT by at least $644,584.06, after
subtracting the total lawful charges from Metrocall's total
payments.36
15. As part of its compensatory damages claim, Metrocall
also seeks ``full credit for any outstanding balances for local
interconnection charges and/or DID-related charges.''37
Metrocall has failed to state a claim regarding this aspect of
its supplemental complaint. At no point in this case has
Metrocall offered a clear estimate of these charges,38 forcing us
to parse through confusing spreadsheets attached to Metrocall's
pleadings in search of hard numbers for use in calculating
Metrocall's compensatory damages. We have used Metrocall's
figures and methodology in our determination of its compensatory
damages claim, but caution that our decision does not endorse
Metrocall's figures and methodology. Moreover, we do not
necessarily accept Metrocall's categorization of specific charges
as ``lawful'' or ``illegal.'' Rather, our analysis is intended
to show that, even using Metrocall's assumptions, the company
should receive no refund of any overpayment as compensatory
damages because it actually underpaid its relevant accounts with
Pac Bell and SWBT by at least $394,076.02 and $644,584.06,
respectively. In light of Metrocall's failure to support its
request that the Commission modify its outstanding balance, we
reject Metrocall's claim.
III.B. Metrocall Is Not Entitled To Consequential Or
Punitive Damages.
16. Metrocall also seeks consequential and punitive damages
against the SBC defendants. We find that Metrocall's request for
``consequential'' damages is, effectively, a request for
attorneys' fees, which we have no authority to award under the
Act. Moreover, even assuming we have authority to award punitive
damages, we find that such damages are unwarranted here.
17. Metrocall alleges that it suffered consequential
damages from the SBC defendants' insistence that it pay for
charges deemed illegal under the Liability Order, because it had
to pursue legal actions, including this proceeding, to ``force''
defendants to comply with the law. According to Metrocall, it is
``well-established that, pursuant to Sections 206 and 207 of the
[Communications] Act, any common carrier ... is liable for
consequential damages when, due to its violation of the Act,
and/or the Commission's rules and orders, it harms another
party.''39 Metrocall therefore seeks $132,463 in consequential
damages for ``the full amount of the legal fees it incurred in
prosecuting the [complaints in this proceeding].''40
18. Thus, Metrocall explicitly seeks its attorneys' fees in
this proceeding as ``consequential damages.'' But we repeatedly
have held that the Commission lacks authority under the Act to
award attorneys' fees as damages.41 Indeed, in the same case and
the same paragraph Metrocall cites for the proposition that the
Commission may award consequential damages, the Commission
explicitly stated ``[w]e have no power to award attorneys fees
and that request will be denied.''42 Metrocall argues that we
may nevertheless award attorneys fees arising as a result of the
SBC defendants' actions, citing to a Commission decision in which
we held that consequential damages may lie for ``interference
with the conduct of [complainant's] business, for which
Defendants were responsible directly resulting in the need for
additional professional services, loans and expenditure of
time.''43 But the ``professional services'' to which that
decision refers were not legal services, but rather engineering
services unrelated to the prosecution of the formal complaint.44
19. We also reject Metrocall's demand for punitive damages
against the SBC defendants. Even assuming that we have such
authority (an issue we need not address here), the facts here do
not justify an award of punitive damages. Metrocall argues that
the SBC defendants have engaged in ``wanton and willful
misconduct'' by continuing to charge paging carriers for the
delivery of LEC-originated traffic despite the Local Competition
Order's language to the contrary, as well as letters from the
Common Carrier Bureau in 1997 ``re-affirming'' that holding.45
20. While we are troubled by the SBC defendants' persistent
refusal to acknowledge the effect of the Local Competition Order,
we find that the mere act of billing Metrocall does not
demonstrate that the SBC defendants acted ``maliciously,
wantonly, or with a recklessness that betokens improper motive or
vindictiveness.''46 Indeed, as discussed above, a significant
portion of the bills that the SBC defendants sent Metrocall
covered services that we have recognized are properly charged
CMRS carriers, including charges for the delivery of transiting
traffic. We also note that, despite Metrocall's admitted balance
of more than $6 million with the SBC defendants, and the fact
that Metrocall largely refused to pay for any services, the SBC
defendants continued to provide service to the paging carrier.47
Even assuming we had the authority to grant punitive damages,
such behavior hardly constitutes the ``wanton, oppressive or
malicious intent or ... incompetence or recklessness'' that might
justify such an award.48
III.C. Metrocall Waived Its Right To Dispute Our Holdings
In the Liability Order By Not Filing A Petition For
Reconsideration Or Petition For Review.
21. Finally, Metrocall challenges two aspects of our
decision in the Liability Order. Specifically, although it
acknowledges the Liability Order's holding that LECs may charge
paging carriers for transiting traffic, Metrocall states that it
``disagrees with this analysis and asks that the Commission hold
that Metrocall does not have to pay the LECs for transiting
traffic.''49 We do not reach Metrocall's arguments on this
subject because its request is procedurally improper. If
Metrocall disagreed with some aspect of the Liability Order, it
should have filed a petition for reconsideration with the
Commission or filed a petition for review with the federal
appellate courts. This proceeding is not the proper forum in
which to challenge the conclusions of the Liability Order.
22. Similarly, Metrocall challenges the Liability Order's
finding that the paging company ``did not seek compensation for
the transport and termination of LEC-originated traffic'' in this
proceeding.50 Metrocall argues that this holding was mistaken
and that the company has properly sought recovery for termination
of LEC-originated traffic.51 As with the transiting traffic
issue, however, Metrocall should have raised this argument in a
petition for reconsideration or a petition for review, not in a
supplemental complaint for damages. Metrocall contends that it
may seek compensation for the transport and termination of LEC
originated traffic in its supplemental complaint because it asked
the Commission to bifurcate the liability and damages aspects of
this proceeding and now is simply ``request[ing] damages for
defendants' violation of the call termination rules.''52 But the
Liability Order did not reach the question of whether the
defendants violated those rules, because it found that Metrocall
had never raised such a claim in the first place.53 Without a
finding that the SBC defendants actually violated any rule, we
cannot make any damages calculation here.
IV. CONCLUSION
23. Based on our analysis above, we deny Metrocall's claims
for compensatory, consequential, and punitive damages. We also
deny Metrocall's demands that we revisit our conclusions in the
Liability Order.
V. ORDERING CLAUSES
24. Accordingly, IT IS ORDERED, pursuant to sections 1,
4(i), 4(j), and 206-209 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151, 154(i), 154(j), 206-209, and section
1.722 of the Commission's rules, 47 C.F.R. § 1.722, that
Metrocall, Inc.'s amended supplemental complaint for damages
against Pacific Bell Telephone Company and Southwestern Bell
Telephone Company is DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
_________________________
1 TSR Wireless, LLC v. U S West Communications, Inc., 15
FCC Rcd 11166 (2000) (``Liability Order''), petition for review
denied sub nom. Qwest Corporation v. FCC, 252 F.3d 462 (D.C. Cir.
2001).
2 Liability Order, 15 FCC Rcd at 11176, para. 18, 11185-
86, para. 33.
3 Id., 15 FCC Rcd at 11177, para. 19, 11184, para. 30.
4 See generally Addendum to Supplemental Complaint for
Damages, File Nos. E-98-16 et al. (Oct. 27, 2000) (``Addendum'').
The Addendum corrected material discrepancies in Metrocall's
Amended Complaint regarding Metrocall's compensatory damages
claim. See Amended Supplemental Complaint for Damages, File Nos.
E-98-16 et al. (Sept. 13, 2000). Although the Addendum
substantially revised Metrocall's compensatory damages claim, it
did not revise the Amended Complaint's demand for punitive and
consequential damages, and did not provide recalculated figures
regarding Metrocall's outstanding balance.
5 See Addendum at 9, para. 16, 10, para. 19 (seeking
``full credit for any outstanding balance of interconnection and
DID-related charges'').
6 Amended Complaint at 10, para. 26.
7 Id. at 14, para. 33. Metrocall and Qwest settled
Metrocall's complaint against Qwest in its entirety and the
Enforcement Bureau released an order granting the parties' joint
motion to dismiss on January 8, 2001. See Metrocall, Inc. v. U S
West Communications, Inc., Order, File No. E-98-18 (Enf. Bur.
rel. Jan. 8, 2001).
8 Amended Complaint at 15-16, paras. 34-35.
9 Id. at 17, para. 38.
10 See, e.g., Addendum at 10, para. 19.
11 Liability Order, 15 FCC Rcd at 11176, para. 18.
12 Id., 15 FCC Rcd at 11185-86, para. 33.
13 ``Wide area calling,'' also known as ``reverse
billing'' or ``reverse toll,'' is a service in which a LEC agrees
with an interconnector not to assess toll charges on calls from
the LEC's end users to the interconnector's end users, in
exchange for which the interconnector pays the LEC a per-minute
fee to recover the LEC's toll carriage costs. Id., 15 FCC Rcd at
11167, para. 2 n.6. In essence, paging carriers use wide area
calling to place toll charges on pager users, rather than the
people calling them.
14 Id., 15 FCC Rcd at 11177, para. 19 n.70.
15 Id., 15 FCC Rcd at 11184, para. 31.
16 Addendum, Exhibit 2 at 6.
17 Id. at 8, para. 15, Exhibit 2 at 6.
18 Id. at 7-8, paras. 14, 16. Metrocall concedes its
responsibility for non-recurring charges for DID numbers, but
asserts that Pac Bell's one-time charges are unreasonably high.
Metrocall does not quantify these charges or offer any
justification for its assertion. Because we are operating under
Metrocall's assumptions here solely for purposes of this
decision, however, we do not reach this issue.
19 Metrocall's calculation assumes that its damages are its
total payments to Pac Bell minus any lawful charges
($1,116,569.97 - $819,208.44 = $297,361.53).
20 As noted above, solely for purposes of this decision, we
assume that Metrocall's account calculations are correct. We
note that the SBC defendants allege several problems with
Metrocall's calculations, which they claim do not include other
charges permitted under the Liability Order, such as non-
recurring charges for administration of DID numbers, transiting
traffic charges, late fees, taxes, and other fees.
21 Answer of Defendants Southwestern Bell Telephone Company and
Pacific Bell Telephone Company, File Nos. E-98-16 et al. at 20,
para. 52 (Oct. 3, 2000) (``Answer'').
22 Metrocall, Inc. Reply to Affirmative Defenses of
Southwestern Bell Telephone Company and Pacific Bell Telephone
Company, File Nos. E-98-16 et al. at 8, para. 13 (Oct. 11, 2000)
(``Reply'').
23 Letter from Frederick M. Joyce, Alston & Bird, Counsel for
Metrocall, to William H. Davenport, Enforcement Bureau, Federal
Communications Commission at 1-2 (October 18, 2000) (citing Small
Business in Telecommunications Petition for Reconsideration or
Clarification, File Nos. E-98-13 et al. (filed July 21, 2000)).
24 Liability Order, 15 FCC Rcd at 11177, para. 19 n.70.
25 When Metrocall filed its original complaint (January 1998),
the formal complaint rules in effect at the time permitted
defendants to file counterclaims with their answers. 47 C.F.R. §
1.725 (1997). Our current rules expressly prohibit
counterclaims. 47 C.F.R. § 1.725.
26 See TSR Wireless, Inc. et al. v. U S West Communications,
Inc. et al., Order On Petition for Reconsideration, FCC 01-169
(Enf. Bur. rel. May 22, 2001).
27 Metrocall's interconnection-related charges equal the total
Pac Bell charges minus the charges considered ``unlawful'' by
Metrocall ( $3,478,583.64 - $819,208.44 = $2,659,375.20).
28 Total interconnection-related payments multiplied by a
transiting factor equals Metrocall's transiting traffic charges
($2,659,375.20 * 0.26 = $691,437.55).
29 Total ``lawful'' charges minus Metrocall's total payments
equals Metrocall's outstanding balance for ``lawful'' charges
($1,510,645.99 - $1,116,569.97 = $394,076.02).
30 Addendum at 8, para. 15.
31 Metrocall alleges that its damages equal its total payments
minus any lawful charges ($800,382.49 - $556,971.46 =
$243,411.03).
32 Our use here of the transiting factors proposed by SWBT and
Pac Bell should not be read as a finding that these factors are
necessarily correct. We have used the SBC defendants' transiting
factors in light of Metrocall's failure either to contest their
validity or to provide transiting factors of its own. Nor does
our decision here determine how much Metrocall owes the
defendants for the charges deemed lawful in the Liability Order.
Rather, we are determining, based on the record before us,
whether Metrocall could have paid more than the SBC defendants'
lawful charges.
33 Metrocall claims that it has no responsibility for Minimum
Monthly Usage charges on its accounts, amounting to $84,544.78.
For purposes of this decision, we will not consider these charges
in our calculations, since they do not affect our conclusion.
34 Total charges minus total ``lawful'' charges equals the
amount of interconnection-related charges ($4,502,364.44 -
$556,971.46 - $84,544.78 = $3,860,848.20).
35 Total interconnection-related charges multiplied by the
transiting factor equals the amount of transiting traffic charges
($3,860,848.20 * 0.23 = $887,995.09).
36 Total ``lawful'' charges plus transiting traffic charges
minus the amount paid equals Metrocall's outstanding balance
($1,444,966.55 - $800,382.49 = $644,584.06).
37 Addendum at 10, para. 19.
38 In the parties' Joint Statement, Metrocall claims -- and the
SBC defendants dispute -- that the SBC defendants ``should credit
[its] outstanding balances for local interconnection charges and
DID-related charges in the following amounts: Pac Bell,
$2,544,000; SWBT, $2,707,935.72.'' Joint Statement, File Nos. E-
98-16 et al., at 7 para. 15 (Oct. 17, 2000) (``Joint
Statement''). As mentioned above, however, Metrocall
subsequently filed an Addendum to its Amended Supplemental
Complaint which substantially revised the accounts relevant here,
the categories of charges, and the amount on those charges. The
Addendum did not include outstanding balance figures. Rather,
Metrocall simply demanded ``full credit for any outstanding
balances for local interconnection charges and/or DID-related
charges,'' but gave no explanation about the amount of this
``full credit,'' in light of its revised calculations. Addendum
at 10, para. 19.
39 Amended Complaint at 9, para. 23 (citing Comark Cable Fund
III, Memorandum Opinion and Order and Notice of Apparent
Liability for Forfeiture, 100 FCC 2d 1244, 1257, para. 31
(1985)).
40 Amended Complaint at 10, para. 26.
41 See, e.g., Ascom Communications, Inc. v. Sprint
Communications Co., L.P., 15 FCC Rcd 3223, 3236, para. 31 (2000)
(``[W]e have no authority to award attorneys' fees and costs
....''); Multimedia Cablevision, Inc. v. Southwestern Bell Tel.
Co., 11 FCC Rcd 11202, 11208, para. 16 (1996) (``We agree ...
that we do not have authority to grant costs and attorneys
fees.'').
42 Comark, 100 FCC 2d at 1257, para. 31 n.51.
43 Reply at 11, para. 21 (citing Edwards Indus. v. Bell Tel.
Co. of Nevada, 74 FCC 2d 322, 328, para. 17 (1992)).
44 Id., 74 FCC 2d at 327, para. 16.
45 Amended Complaint at 11-12, paras. 28-30; Reply at 12-13,
paras. 25.
46 Strouth v. Western Union Tel. Co., Initial Decision, 70 FCC
2d 525, 570, para. 129 (ALJ 1977) (setting forth standard for
punitive damages, even assuming Commission has authority to award
such damages), aff'd in relevant part, 70 FCC 2d 506 (Rev. Bd.
1978). See also Krauss v. MCI Telecom. Corp., 14 FCC Rcd 2770,
2776, para. 12 (Com. Car. Bur. 1999) (declining to award punitive
damages even assuming, without deciding, that Commission has
authority to do so; ``Krauss has failed to show that MCI acted
`maliciously, wantonly or with a recklessness that betokens
improper motive or vindictiveness.''').
47 See Joint Statement at 4, para. 5 (Metrocall and the SBC
defendants stipulate as an undisputed fact that ``[t]he
Defendants have never disconnected any existing service nor have
they ever refused to provide additional services ordered by
Metrocall.'').
48 Strouth, 70 FCC 2d at 570, para. 130.
49 Amended Complaint at 17, para. 36.
50 Liability Order, 15 FCC Rcd at 11167, para. 1.
51 Amended Complaint at 15, para. 34.
52 Id. at 15, para. 34 n.52.
53 Liability Order, 15 FCC Rcd at 11167, para. 1.