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Before the
Federal Communications Commission
Washington, D.C. 20554
Communications Vending )
Corporation of )
Arizona, Inc., et al., )
)
Complainants, )
) File Nos. EB-02-MD-018 - 030
v. )
Citizens Communications Company )
f/k/a Citizens Utilities )
Company and )
Citizens Telecommunications )
Company )
d/b/a Citizens Telecom, et al.,
Defendants
MEMORANDUM OPINION AND ORDER
Adopted: November 15, 2002 Released: November 19,
2002
By the Commission:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we partially
grant 13 formal complaints1 filed by independent payphone
providers (``IPPs'') against local exchange carriers (``LECs''),
asserting that Defendants violated Sections 201(b) and 203(c) of
the Communications Act of 1934, as amended, 2 and Part 69 of the
Commission's rules, 3 by improperly assessing end user common
line (``EUCL'') charges on the Complainants' payphones. These
complaints were brought by Communications Vending Corporation of
Arizona, Inc (``CVCA''), IMR Capital Corporation (``IMR''),
Indiana Telcom Corporation, Inc. (``ITC''), National Telecoin
Corporation, Inc. (``NTC''), NSC Communications Public Services
Corporation (``NSC''), and Payphone Systems (collectively
``Complainants'') against Citizens,4 Qwest,5 Verizon,6 ALLTEL,7
SBC,8 BellSouth,9 Century,10 and TDS11 (collectively
``Defendants'').12
2. We note that approximately 3000 informal complaints
pending with the Commission raise virtually identical issues to
those we rule on today.13 Many of the parties in these thirteen
cases are also involved in the pending informal complaints.
Given the similarity in the issues and the parties, we believe
the rulings contained in this order will facilitate informal
resolution among the parties of the pending informal complaints.
Finally, we note that, because the Commission amended its access
charge rules on April 15, 1997, the issues addressed in this
order will only have retrospective application.14
II. BACKGROUND AND SUMMARY
3. As noted above, the Complainants in these cases are
independent payphone providers, and the Defendants are local
exchange carriers, to whose telephone lines Complainants'
payphones were connected.15 The complaints concern EUCL charges
that the Defendants imposed on Complainants' pay telephones from
1986 through April 15, 1997.16
II.A. The History of the EUCL Dispute
4. The issue of EUCL charges for payphones first arose
several years ago, after the Commission first adopted access
charge rules that required LECs to impose EUCL charges. A review
of the history of this issue will help to put the current
disputes into context.
5. When the Commission first adopted access charge rules
in 1982, it permitted LECs to recover certain non-traffic
sensitive costs from end users through the monthly, flat-rated
EUCL charge.17 Because the end users of public payphones,18
however, consist of the "transient general public," rather than
identifiable subscribers,19 the Commission in 1983 exempted
public payphones from the EUCL charge.20 The Commission
determined that the EUCL charge should be imposed on semi-public
payphones,21 however, because subscribers to that service
constitute identifiable business end users.22
6. At the time the access charge scheme was developed, the
only entities authorized to provide payphone service were LECs.23
IPPs were later permitted to enter the market in 1984,
essentially interposing a `middle man,' as it were, between the
LECs and the ultimate payphone users.24 The controversy here was
created because the access charge rules were not modified in 1984
to specify the manner of imposing EUCL charges on IPP payphones.
7. With the advent of IPP payphones in 1984, Defendants,
on their own accord, determined that IPPs were end users and
assessed the EUCL charge on all IPP payphones, irrespective of
whether they were public or semi-public.25 Defendants, however,
did not assess the EUCL on their own public payphones.26 The
IPPs disputed these charges, and two IPPs lodged informal
complaints (in 1988 and 1989).27 In response to both, Commission
staff interpreted the Commission's rules and found that the LECs'
assessment on the IPPs was permissible.28 Subsequently, on April
21, 1989, the American Public Communications Council (``APCC''),
a payphone industry association, filed with the Commission a
petition seeking a declaratory ruling that the Commission's rules
do not authorize the assessment of the EUCL because the IPPs are
not ``end users'' and they only owned public payphones.29 Also
in 1989, the United States District Court for the Western
District of Wisconsin referred to the Commission a complaint
filed by C.F. Communications Corporation (``CFC''), an IPP, which
challenged the assessment of the EUCL charge by certain LECs.30
8. Pursuant to the district court's primary jurisdiction
referral, on May 10, 1989, CFC filed 13 formal complaints with
the Commission objecting to the LECs' assessment of EUCL
charges.31 The Common Carrier Bureau and the Commission denied
CFC's claims.32 In the CFC I Order, the Commission determined
that CFC's payphones were subject to EUCL charges because CFC was
an "end user" and that CFC's payphones were not "public
telephones" under the Commission's rules.33 The D.C. Circuit,
however, rejected the Commission's determinations and remanded
the case to the Commission.34 The Court held that CFC was not an
``end user,'' and, alternatively, that the Commission had
improperly discriminated between similarly situated services
(IPP-owned and LEC-owned public payphones) without a rational
basis.35
9. In its April 13, 2000 Liability Order on remand, the
Commission applied the Court's analysis and found that CFC and
the other IPPs cannot be considered "end users" under Section
69.2(m).36 The Commission also determined, however, that
irrespective of whether CFC was an ``end user,'' the primary
determination the Commission should have made was whether CFC's
payphones were ``public'' or ``semi-public.''37 Accordingly, the
Commission found that the LECs imposed an unreasonable charge in
violation of Section 201(b) by classifying all IPP payphones as
semi-public and assessing EUCL charges against IPP payphones that
were deployed in the same manner as LEC-owned "public
payphones."38
10. The Commission also rejected arguments that awarding
damages to the IPPs would be inappropriate because the LECs were
acting in accordance with Commission rules. The Commission found
that the access charge orders did not, in fact, require carriers
to assess the EUCL charge indiscriminately on all IPP-owned
payphones, given that the rules required LECs to evaluate whether
individual payphones should be classified as "public" or "semi-
public.''39 The Commission, thus, ruled that the IPPs were
entitled to damages.40 The Liability Order was upheld on
appeal.41 In particular, the Court held that ``it was
appropriate for the FCC to find the LECs liable for the EUCL
charges.''42 Because the Commission had not ruled on individual
damages claims, the Court also stated that it would ``express no
opinion as to the Commission's authority to impose damages on the
LECs for charges that they may have collected in reliance on the
agency's initial (and mistaken) interpretations of the Access
Charge Reconsideration rules.''43
II.B. The Current Cases
11. As a result of the D.C. Circuit's 1997 decision, the
Commission received several thousand informal complaints from
late 1997 through 1998 raising claims similar to those asserted
by CFC.44 Because the issues raised by the IPPs in their
informal complaints were similar to those being considered by the
Commission in the remand proceeding, for administrative
efficiency, Commission staff issued a waiver order tolling for a
number of informal complaints the six-month relation back
requirement contained in Section 1.718 of the Commission's
rules.45 Pursuant to the waiver order, any informal complaint
relating to issues raised in the CFC proceeding that had to be
converted to a formal complaint pursuant to Section 1.718 after
June 15, 1998, would be deemed to relate back to the filing date
of the relevant informal complaint if it was filed no later than
90 days after a final nonappealable order had been entered in
that proceeding.46 The Enforcement Bureau has extended the
waiver order several times since then to allow parties to await
the Commission's adjudication of the formal complaints presently
before us.47
12. The cases now before us arise from a number of the
previously-mentioned informal complaints, which have been
converted to formal complaints. Complainants allege that
Defendants violated the Commission's rules,48 as well as Sections
201(b) and 203(c) of the Act49 by imposing EUCL charges on
Complainants' payphones.50 Complainants assert here that it was
not proper to assess the EUCL on any of their payphones,
regardless of whether they were public or semi-public, because
Complainants are not ``end users.''51 Complainants also seek a
waiver of the Section 415(b) statute of limitations in order to
obtain damages for all improperly assessed EUCL charges,
regardless of when their informal complaints were filed.52
13. Defendants deny Complainants' allegations and maintain
that their imposition of EUCL charges on Complainants' payphones
was consistent with the Commission's rules.53 Furthermore,
Defendants raise a number of defenses regarding the payment of
damages to Complainants. In particular, Defendants argue that,
regardless of liability, equitable principles bar any recovery by
Complainants.54 Defendants also maintain that any recovery of
damages is subject to the two-year limitations period in Section
415 of the Act.55 In addition, Defendants argue that certain
claims should be barred for procedural reasons.56
14. In order to expedite resolution of the key legal issues
common to these complaints (and to the pending informal
complaints), we bifurcated the proceeding, deferring the
calculation of Complainants' individual damages claims and
related Complainant-specific damages issues to a later phase.57
II.C. Summary of the Decision
15. In this order we conclude that the LEC Defendants
violated Section 201(b) of the Act and Part 69 of the
Commission's rules by imposing EUCL charges on IPP payphones, and
that Complainants are entitled to recover damages. Further, we
decline to toll the applicable statute of limitations of Section
415(b), and therefore, such damages are limited to the period
beginning two years prior to the filing of the informal
complaints.
III. DEFENDANTS VIOLATED THE ACT AND COMMISSION RULES BY
IMPOSING EUCL CHARGES ON COMPLAINANTS' PAYPHONES
16. Complainants assert that Defendants' imposition of EUCL
charges on their payphones violated the Act and the Commission's
rules. We have already found, in the 2000 Liability Order, that
imposing EUCL charges on public IPP payphones violated Section
201(b) of the Act and Part 69 of the Commission's rules.58
Complainants ask us to affirm that that ruling applies to these
cases, and Defendants do not challenge the applicability of the
Liability Order. Therefore, we affirm and apply that portion of
the Liability Order here.
17. We also find, as explained below, that Defendants
violated Section 201(b) of the Act and Part 69 of the
Commission's rules by imposing EUCL charges on semi-public IPP
phones.
III.A. Defendants Violated Section 201(b) of the Act and
Part 69 of the Commission's Rules by Imposing a EUCL
Charge on Complainants' Payphones, Because the IPPs
Were Not ``End Users''
18. In the Liability Order, the Commission found that the
IPPs ``cannot be considered `end users' under Section 69.2(m),
because they do not own the premises where their payphones are
located.''59 In light of the Court's concerns that the
Commission had improperly discriminated between similarly-
situated payphone services, however, the Commission also stated
that, ``irrespective'' of whether IPPs are ``end users,'' the
``appropriate distinction to apply to determine whether the EUCL
would apply to [IPP] payphones was the `public/semi-public'
distinction.''60 Thus, the Commission concluded in that case
that the imposition of EUCL charges on public IPP payphones was
improper, but that the assessment of such charges on semi-public
IPP phones was permissible.61 The Liability Order was upheld by
the D.C. Circuit.62
19. Complainants here raise an argument that has never been
addressed in light of the public/semi-public distinction
established in the Liability Order.63 Complainants contend that
it was unlawful for Defendants to assess EUCL charges on any IPP
payphones - including semi-public payphones. The Complainants
argue that both the Commission and D.C. Circuit have squarely
held that IPPs were not ``end users'' within the meaning of
Section 69.2(m), and thus they were not subject to the rule
governing EUCL charges at all. As a result, according to
Complainants, notwithstanding the Commission's prior statement in
the Liability Order, the semi-public/public distinction is
actually irrelevant to the issue of whether EUCL charges were
properly assessed on IPP payphones.64 We agree. We find that,
because Complainants were not ``end users'' within the meaning of
Section 69.2(m), they were not within the scope of the EUCL rule,
and charges levied against them - regardless of whether the
payphones were public or semi-public - were unlawful.
20. There is no question that the Commission's rules
allowed LECs to impose EUCL charges, as the name itself suggests,
only on ``end users'':
A charge that is expressed in dollars and
cents per line per month shall be assessed
upon end users that subscribe to local
exchange telephone service, Centrex or semi-
public coin telephone service to the extent
they do not pay carrier common line charges.
65
If an entity is an ``end user'' as defined by the rules, only
then is it necessary to determine whether it ``subscribe[s] to .
. . semi-public'' service.66 Under the plain language of the
rule, however, if an entity is not an ``end user'' in the first
place, then the semi-public distinction is irrelevant.
21. Rule 69.2(m) defined ``end user'' as:
[A]ny customer of an interstate . . .
telecommunications service that is not a
carrier except that a carrier . . . shall be
deemed to be an `end user' when such carrier
uses a telecommunications service for
administrative purposes and a[n] . . . entity
that offers telecommunications services
exclusively as a reseller shall be deemed to
be an `end user' if all resale transmissions
offered by such reseller originate on the
premises of such reseller.67
The D.C. Circuit and the Commission have both previously found
that IPPs are not ``end users'' under this rule. The Court of
Appeals, in its first decision in C.F. Communications, found that
CFC was not an ``end user'' under the rule,68 rejecting the
Commission's analysis that CFC was an ``end user'' because,
according to the Commission, it ``offers telecommunications
service exclusively as a reseller'' with all such transactions
``originat[ing] on [CFC's] premises.''69 The Commission had
construed ``premises'' to mean the actual payphone equipment,
which was owned by the IPPs, but the court rejected that
interpretation. Similarly, on remand, the Commission held that
``[i]n light of the court's ruling, we now find that CFC and the
other IPPs cannot be considered `end users' under Section
69.2(m).''70 The Complainants here, like CFC, do not own the
premises on which their payphones are located;71 thus they are
not ``end users'' within the meaning of 69.2(m). Therefore, they
were not subject to the EUCL charge regardless of whether their
payphones were public or semi-public.
22. We recognize that our decision here differs from our
conclusion in the Liability Order. We note also, however, that
this is the first opportunity we have had to squarely address the
argument raised by Complainants.72 Upon a thorough review of the
relevant rules and precedents, we now conclude that our prior
focus on the public/semi-public distinction, rather than the
threshold ``end user'' determination, was incorrect.73
23. The D.C. Circuit, in its first decision in C.F.
Communications, criticized the Commission's unequal treatment of
similarly-situated payphones. In the Liability Order, the
Commission focused on treating the IPP and LEC payphones the same
in terms of the EUCL charge and thus viewed the public/semi-
public distinction as determinative. Given the clear wording of
the access charge rules in place at the time, however, because
the IPPs were not ``end users,'' as defined by 69.2(m), they were
not subject to the EUCL charge.74 Defendants, moreover, offer no
explanation of how a charge that may be levied only on ``end
users'' may be assessed upon entities that explicitly have been
found not to be ``end users.'' Therefore, we find that
Defendants' assessment of EUCL charges on IPP payphones prior to
1997 - whether public or semi-public - violated Section 201(b) of
the Act and Part 69 of the Commission's rules. While this
differs in part from the Liability Order, it is important to note
that our prior view regarding the imposition of EUCL charges on
semi-public IPP payphones could not even arguably engender
further reliance on the part of Defendants since the access
charge rules were amended before the Liability Order was released
in April 2000. Any assertion by the LECs regarding reliance
could only be based on the 1995 Commission Order, or earlier
pronouncements by the Common Carrier Bureau.
24. Defendants contend that Complainants were ``end
users,'' in any event, because they were acting as agents of the
premises owners (who, they argue, were ``end users'').
Defendants assert that Complainants were therefore liable for the
EUCL charges to the same extent their principals would have
been.75 We reject this argument.
25. First, Defendants cannot use an agency theory to avoid
liability for EUCL charges assessed on public payphones. As
discussed in detail above, the Commission has previously held
that ``end users'' of public payphones are exempt from EUCL
charges.76 This liability determination was upheld by the D.C.
Circuit.77 Thus, even the premises owners would not have been
subject to EUCL charges. Defendants admit as much when they
acknowledge that they did not assess EUCL charges on the owners
of the premises where their own public payphones were located.78
26. In any event, Defendants have established no basis for
imputing any liability of the premises owner to the Complainants
for any payphones (public or semi-public). Defendants claim that
Complainants were agents of the premises owners by virtue of
explicit written agency agreements executed by a number of
Complainants.79 Even without such a contract, Defendants claim
that an agency relationship can be inferred from the
circumstances.80 According to Defendants, only the premises
owner had the right to authorize installation of a phone on its
premises, and thus the only way Complainants could have ordered
phone service from Defendants was ``as the agent for the premises
owner'' and subject to the owner's control.81
27. Agency is defined in the Restatement as ``the fiduciary
relation which results from the manifestation of consent by one
person to another that the other shall act on his behalf and
subject to his control, and consent by the other so to act.'' 82
A critical element is that ``the principal is to be in control of
the undertaking.''83 The ``name which the parties give to the
relation is not determinative,''84 and the burden of proving
agency rests on the party asserting its existence.85 We find
that neither the written agreements nor the circumstances
subjected IPPs to the premises owner's control, and that the
IPPs, in any event, were acting in their own interests in
installing and maintaining payphones.
28. The written agreements relied on by Defendants are
licensing agreements authorizing IPPs to install and maintain
payphones. Under these agreements, the premises owners control
nothing, but rather are paid a commission in consideration for
the use of the space.86 Significantly, the agreements referenced
by Defendants provide that the IPP has ``sole discretion to
determine the number of payphones to be installed.''87 The IPP
owns, installs and maintains the phones and under the agreements
is given unrestricted access to its phones.88 Indeed, several
agreements cited by Defendants refer to the premises owner as a
``space provider'' and ``site provider,'' which is far from the
notion Defendants seek to portray of premises owners as
``principals'' who control and supervise their agents (the
IPPs).89
29. Nor have Defendants established that an agency
relationship can be inferred from the circumstances. While
authorization to install phones on the premises was required,
Defendants point to no facts suggesting that any premises owner
here controlled a Complainant or that any Complainant was not
acting pursuant to its own independent business interests. In
sum, no agency relationship existed between Complainants and the
premises owners on which Defendants can premise their claim of
imputed liability.
III.B. Section 203
30. Complainants also assert that the imposition of the
EUCL charge prior to 1997 violated Section 203 of the Act and the
Filed Rate Doctrine.90 Paralleling their Section 201 claim,
Complainants allege that Defendants' tariffs limited EUCL charges
to ``end users,'' and that both the D.C. Circuit and the
Commission have specifically held that IPPs are not ``end
users.''91 Having concluded that Defendants violated Section
201(b) by assessing the EUCL charges on Complainants prior to
1997, we do not need to reach Complainants' tariff violation
claims under Section 203 and the Filed Rate Doctrine.92
IV. COMPLAINANTS ARE ENTITLED TO RECOVER DAMAGES FOR DEFENDANTS'
UNLAWFUL ASSESSMENT OF EUCL CHARGES
31. Having determined that Defendants violated the Act and
Commission rules by assessing EUCL charges on IPP payphones, we
now address the extent to which an award of damages is
appropriate.93 Defendants argue that because the Commission
approved the practice of imposing EUCL charges on Complainants (a
decision that was later reversed), Complainants' sole remedy for
payment of unlawful EUCL charges is restitution, which would be
limited to the disgorgement of any unjust enrichment. Defendants
further contend that they were not unjustly enriched by
collecting EUCL charges from the IPPs because, had they not done
so, they would have recovered the same amounts from the IXCs.
Thus, according to Defendants, Complainants are not entitled to
any recovery. We disagree with Defendants and find that the
imposition of compensatory damages pursuant to Section 206 of the
Act is appropriate here.94
IV.A. Equitable Considerations Do Not Bar an Award of
Damages Here
32. In the Verizon case, the LECs contested both liability
for the illegal assessment of EUCL charges on IPPs as well as the
imposition of damages. Defendants in that case argued, as they
have here, that they may not be sanctioned for conduct expressly
approved by the Commission and that ``restitution, and not legal
damages, is the sole remedy available to the IPPs.''95 In
support of their equitable defense to damages here, Defendants
suggest that the Court of Appeals ``effectively overrule[ed]''
the Commission's prior Liability Order in terms of damages.96
This argument does not constitute a basis upon which Defendants
can avoid the imposition of damages. The Liability Order
rejected the Defendants' arguments that the award of damages
would be inappropriate in that proceeding. On appeal, the D.C.
Circuit declined to address the damages issue on grounds that it
was not ripe, leaving Defendants free to raise it in a subsequent
proceeding. 97 By indicating that Defendants ``are not
foreclosed from presenting their equitable concerns to the agency
during the next stage of the proceedings,'' the Court did not by
any means reject the Commission's position.98
33. We have considered Defendants' equitable defenses and
conclude that, on balance, any inequity to Defendants in awarding
damages is outweighed by the imposition of unlawful charges on
Complainants. In determining whether the LECs could be held
liable for violating Section 201 of the Act by assessing EUCL
charges on IPPs, the D.C. Circuit analyzed a line of cases
addressing the retroactive applications of judicial reversals of
agency determinations. In its analysis, the D.C. Circuit
recognized a distinction between new applications of law and
``the substitution of new law for old law that was reasonably
clear.''99 According to the Court, where the case involves
```new applications of existing law, clarifications, and
additions,' the court starts with a presumption in favor of
retroactivity.''100 Retroactivity will be denied, however,
``when to apply the new rule to past conduct or to prior events
would work a `manifest injustice.'''101 The Court stated that it
has articulated its retroactivity standard in a number of ways -
from a five-factor balancing test to a three-factor approach -
and most recently indicated that the analysis ```boil[s] down to
a question of concerns grounded in notions of equity and
fairness.'''102 Such a balancing of equities likewise compels
the conclusion that Defendants should be liable to Complainants
for damages for the unlawful imposition of EUCL charges.
34. Here, the Defendants argue that they assessed the EUCL
charges ``pursuant to the Commission's explicit guidance and
direction'' since at least 1988.103 Specifically, Defendants
allege that such guidance was in the form of two informal staff
letters issued in response to informal complaints.104 As the
Commission noted in the Liability Order, however, the two
unpublished staff letters ``are not binding on the
Commission.''105 And, as the D.C. Circuit has stated, advice by
staff members does not bind the Commission and does not excuse
parties who rely on such advice and rulings from the consequences
of their conduct.106 Any purported reliance on these letters
simply does not constitute a basis upon which Defendants can
avoid payment of damages.
35. In addition, Defendants maintain that the 1993 Common
Carrier Bureau order and the 1995 Commission order affirming it
(and finding the assessment of EUCL charges on IPPs was proper),
firmly established the Commission's policy.107 The Commission
order, however, was reversed on appeal by the D.C. Circuit on
grounds that the Commission's interpretation of its own access
charge rules was clearly erroneous.108 The vacated orders did
not purport to establish new rules or impose new requirements
upon the LECs. Rather, in adjudicating the lawfulness of the
EUCL charges at issue, the Commission and its staff interpreted
and applied -- albeit erroneously -- the access charge
requirements that had governed the LECs' assessment of EUCL
charges since 1983.
36. On balance, we believe that the Complainants' equitable
interest in receiving compensation for payment of unlawfully
assessed charges, and the Commission's interest in correcting its
error and adjudicating the case in accordance with the proper
interpretation of its regulations, outweighs any reliance the
Defendants may have had in the correctness of the Commission's
initial interpretation (before it was struck down on judicial
review). The D.C. Circuit has recognized ``a strong equitable
presumption in favor of retroactivity that would make the parties
whole.''109 Where, as here, the Commission in an earlier phase
of the case committed legal error, it is appropriate for the
agency to ``put the parties in the position they would have been
in had the error not been made.''110 It is undisputed that the
1983 access charge rulemaking, correctly interpreted, prohibited
the LECs from assessing EUCL charges on public payphones. Even
if the LECs had believed the EUCL charges were lawful, the D.C.
Circuit in C.F. Communications found that those charges had
violated the requirements in the 1983 access charge rulemaking.
It was appropriate for the Commission, in exercising its
adjudicatory authority under Section 208, to require the LECs to
reimburse the Complainants for the unlawful charges they paid.
As the Court of Appeals stated in the Verizon case:
[T]he agency pronouncements on which the LECs
relied were subsequently held by this court
to be mistaken as a matter of law. As such,
the FCC's Liability Order was largely an
exercise in error correction. We have
previously held that administrative agencies
have greater discretion to impose their
rulings retroactively when they do so in
response to judicial review, that is, when
the purpose of retroactive application is to
rectify legal mistakes identified by a
federal court.111
Awarding damages put the parties in the position they
would have been in if the Commission's error had not
been made.
37. We do not believe that any purported reliance on the
Commission's vacated orders should exempt Defendants from paying
damages. The LECs began assessing EUCL charges on all IPP-owned
payphones years before the agency issued the staff letters or the
vacated orders.112 Moreover, the vacated orders never became
settled law on which the LECs were entitled to rely. The IPPs
immediately sought judicial review, thereby putting the LECs on
notice that the Court might invalidate them and adopt a different
interpretation of the 1983 access charge requirements. In fact,
in refuting Complainants' arguments for tolling the statute of
limitations, Defendants themselves ``emphasize at the outset that
there was never a final, unappealable determination by any
tribunal that Complainants were without a remedy for the charges
imposed here.''113 As the D.C. Circuit stated in the Verizon
case:
[T]he agency orders on which the LECs claim
to have relied not only had never been
judicially confirmed, but were under
unceasing challenge before progressively
higher legal authorities. .. Because the
object of the LECs' reliance was neither
settled (but was rather perpetually enmeshed
in litigation) nor `well-established,' . . .
we are skeptical that retroactive liability
against the LECs would impose a manifest
injustice.114
38. Moreover, to the extent that Defendants might have
recovered their costs from IXCs if they had not assessed the EUCL
on IPPs, Defendants are not entirely without recourse.
Commission rules provide a mechanism whereby Defendants can seek
to demonstrate that the damages paid to the Complainants
constitute ``extraordinary cost changes,'' thus increasing the
permitted price caps.115 Complainants, on the other hand, have
no other practical recourse. They were required to pay the EUCL
to maintain their payphone service despite their legal
objections. An award of damages here is justified in order to
``make whole parties who are clearly injured'' by unlawful
rates.116 The IPPs should not be deprived of a remedy for paying
unlawful rates merely because the Commission made a legal error
in an earlier phase of this adjudication. The Commission has the
authority ``to `undo what was wrongfully done by virtue of its
prior order.'''117
39. Therefore, assuming that equitable considerations are
appropriate in a Section 208 complaint case, we find that the
balance of equities tips decidedly in favor of awarding damages
to Complainants, and we decline to grant any equitable offset
based on claims of detrimental reliance. Defendants will be
required to pay damages to Complainants based on the amount of
EUCL charges assessed.
IV.B. Complainants Are Not Limited To Recovery in
Restitution
40. Defendants contend that, ``[w]here a party pays amounts
pursuant to an agency's requirements, and those requirements are
later held to be unlawful, the payor has, if anything, a claim
for restitution.''118 Contrary to the Defendants' insistence
that an action in restitution for unjust enrichment is the sole
remedy available to Complainants, the Communications Act
explicitly provides Complainants with a legal remedy for redress
of injuries suffered as a result of a carrier's violation of the
Act. Defendants' assertion ignores the fact that Complainants
have invoked this statutory scheme.
41. An action in restitution is fundamentally different
from the statutory claim for damages which Complainants have
brought. As the D.C. Circuit has stated, Section 206 of the Act
is ``phrased in mandatory terms: A carrier that has violated the
Act `shall be liable to the person or persons injured thereby for
the full amount of damages sustained in consequence of any such
violation.'''119 Section 209, likewise, provides that, if the
Commission determines that a complainant is entitled to an award
of damages, the Commission ``shall'' order the carrier to pay the
complainant the sum to which it is entitled.120 Thus, Section
206 - in explicit terms - makes the Defendants liable to the
Complainants in damages for any injuries they inflicted on the
IPPs by unlawfully assessing EUCL charges. And Section 209
requires the Commission, upon making the necessary findings, to
order the Defendants to pay such damages. Therefore, because we
have found that the imposition of damages would not work a
manifest injustice,121 we believe that Sections 206 and 209
require the imposition of damages in this case.
42. Significantly, moreover, the statute does not limit
Complainants' remedy to restitution - nor should such a theory be
superimposed upon the statute. Damages is a form of remedy that
is wholly distinct from equitable remedies such as restitution:
Restitution measures the remedy by the
defendant's gain and seeks to force
disgorgement of that gain. It differs in its
goal or principle from damages, which
measures the remedy by the plaintiff's loss
and seeks to provide compensation for that
loss.122
Compensatory damages are designed to make the plaintiff whole,
while restitution looks at the extent to which a defendant has
benefited.123 The purpose of Section 206, by its terms, is to
compensate Complainants for the injury sustained as a result of
violations of the Act. And the D.C. Circuit has determined that
the measure of damages in a Section 208 case is the difference
between the charges paid and the ``just and reasonable'' rate.124
In these cases, because the charge was unlawful, the just and
reasonable rate was zero. Thus, the Complainants are entitled to
damages based on the amount of EUCL charges actually assessed and
paid during the relevant time period.
43. Defendants ignore the statutory damages provision and,
in essence, seek to substitute in its place a requirement that
Complainants seek recovery via an action for restitution.
Defendants base their position on a Restatement provision which
provides that :
A transfer or taking of property, in
compliance with/or otherwise in consequence
of a judgment that is subsequently reversed
or avoided, gives the disadvantaged party a
claim in restitution to the extent necessary
to avoid unjust enrichment.125
This provision, however, merely reflects the fact that injured
parties, in certain circumstances, have an independent ground
for recovery in restitution.126 The D.C. Circuit has squarely
held, however, that where, as here, a statutory mechanism exists,
an equitable action in restitution is not
appropriate.127Complainants here brought their claim for damages
under Section 206, and nothing in the Restatement - or any other
authority cited by Defendants - vitiates Complainants' right to
invoke the statutory damages remedy.
44. The cases relied on by Defendants do not support their
view that restitution is the sole remedy available to
Complainants here. Defendants rely on Atlantic Coast Line
Railroad Co. v. Florida, 295 U.S. 301 (1993), for the proposition
that equitable restitution is the only available remedy for
Complainants here. Defendants claim that ``the statute at issue
there - the Interstate Commerce Act (``ICA'') - was functionally
identical to the Communications Act in the remedies it
provided.''128 The plaintiffs in Atlantic Coast Line, however,
did not file a complaint against the defendants pursuant to the
ICA, but rather brought a common-law action for restitution.
Thus, the court in Atlantic Coast Line did not interpret or apply
the provisions of the ICA that were ``functionally identical'' to
Sections 206-209 of the Act, but applied principles of
restitution. Indeed, the Court emphasized that the ICC lacked
authority in that instance to give reparations or damages.129
Nothing in this or any other case cited by Defendants stands for
the proposition that Complainants are relegated to restitution
when a statutory right to damages exists.
45. Similarly, Abbotts Dairies Division of Fairmont Foods,
Inc. v. Butz, 584 F.2d 12 (3d Cir. 1978), Moss v. Civil
Aeronautics Board, 521 F.2d 298 (D.C. Cir. 1975), and Texas
Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867
(1st Cir. 1995), relied on by Defendants, involved no statutory
provision conferring the right to recover damages comparable to
Sections 206 and 209 of the Act. Lacking such a statutory basis,
these cases involved an analysis of equitable restitution.130 In
sum, the cases have no relation to the claim brought by the
Complainants here, and by no means provide a basis to read into
Section 206 a requirement that damages be limited to restitution
in this or any other situation.
IV.C. Even Under Principles of Restitution, Defendants
Would Be Liable for Unlawfully Assessed EUCL Charges
46. Analyzing Complainants' causes of action under
principles of restitution, in any event, would result in an award
of damages to Complainants. ``[T]he fundamental characteristic
of unjust enrichment is `that defendant has been unjustly
enriched by receiving something . . . that properly belongs to
the plaintiff.''131 Such a determination is made as between the
two parties involved:
[U]njust enrichment refers to corrective
justice . . . It does not invite judgments
about the fair distribution of wealth in
society, but about what is right between two
particular people. . .132
47. The Defendants assert that, if they had not assessed
the EUCL charges on the IPPs, they could have assessed higher CCL
charges on the interexchange carriers (``IXCs''). Thus,
according to Defendants, they were not enriched. 133 Defendants,
in fact, were enriched because they unlawfully assessed and
collected payments from the Complainants.134 And the enrichment
was unjust because the assessments and collections violated
Section 201(b) and the Commission's access charge requirements.
Section 201(b) requires ``all charges'' of a communications
carrier to be just and reasonable.135 The carrier ``having
initially filed the rates and either collected an illegal return
or failed to collect a sufficient one must . . . shoulder the
hazards incident to its actions including not only the refund of
any illegal gain but also its losses where its filed rate is
found to be inadequate.''136 Every customer has the right to be
charged lawful rates, and this right is not conditioned upon the
rates other ratepayers may be charged for other services.
Defendants thus may not justify unlawful charges to the
Complainants by asserting that they had failed to assess the
maximum lawful CCL charge on the IXCs. Requiring the Defendants
to pay damages thus would be consistent with equitable
restitution principles because it merely would require the
carriers ``to give up what they never should have collected.''137
V. COMPLAINANTS' RECOVERY PERIOD IS LIMITED TO TWO YEARS PRIOR
TO THE FILING OF THEIR INFORMAL COMPLAINTS
48. Section 415 of the Act requires an action for damages
to be filed within two years of the time a cause of action
accrues. Thus, damages are available only for the two-year
period preceding the filing of a complaint. In these cases,
informal complaints were filed in the late 1997/early 1998 time
frame.138 Complainants, nevertheless, seek to recover EUCL
payments from Defendants for the entire period during which
Defendants assessed the EUCL on each Complainant.139
Complainants make two types of arguments to support their claims.
First, Complainants make various assertions about why the
Commission should deem the cause of action to have accrued either
when the D.C. Circuit issued the C.F. Communications Order, or
when the Commission issued the Liability Order in 2000.
Complainants claim that it would have been futile for them to
have pursued their claims prior to the issuance of these orders,
in light of the Commission's prior rulings to the contrary, even
though other complainants with identical claims were continuously
appealing the Commission's determinations.140 As additional
support for their contentions, Complainants cite to various cases
to assert that subsequent favorable precedent can revive a time-
barred claim.141 As discussed below, we find, however, that the
causes of action accrued when the EUCL charges were imposed.
49. Second, Complainants assert that, irrespective of the
accrual date of their causes of action, the statute of
limitations should be tolled on equitable and administrative
grounds, based on the filing of a petition for declaratory ruling
by a payphone trade association (APCC) and the voluminous number
of informal complaints. Complainants seek a waiver, under
Section 1.3 of our Rules, of the application of Section 415(b) of
the Act, which provides a party with two years from the date the
cause of action accrues to file a complaint.142 Based on
Commission and court precedent, as well as the facts of this
case, as discussed below, we decline to extend the recovery
period for which Complainants may collect damages beyond the
limitations period set out in Section 415(b) of the Act.
V.A. Complainants' Causes of Action Accrued at the Time
That The EUCL
Charges Were Assessed
50. The purpose of Section 415 is ``to protect a potential
defendant against stale and vexatious claims by ending the
possibility of litigation after a reasonable period of time has
elapsed.''143 Thus, we review Complainants' assertions from the
perspective that: 1) Complainants have an affirmative obligation
to ``exercise due diligence in preserving [their] legal
rights'';144 and 2) the Commission and the federal courts
strictly construe Section 415 and exceptions to its application
have been confined to narrow circumstances, such as fraudulent
concealment.145 Based on the circumstances of this case, we find
that Complainants did not make sufficient efforts to pursue their
claims, nor have they provided any other basis for determining
that the cause of action accrued later than the time the EUCL
charges were assessed.
51. Under Section 415(b), a cause of action accrues at the
date of the injury, if it is readily discoverable.146 If the
injury is not readily discoverable, the cause of action accrues
when the litigant discovers the injury.147 In these cases, all
of the Complainants have provided affidavits stating that they
were aware of the EUCL charge and that they believed these
charges were unlawful from the start.148 Thus, the injury in
these complaints was not only ``readily discoverable,'' but in
fact had been discovered from the time Complainants received
their first bill containing the EUCL assessment.149 Indeed,
Complainants also state that they were aware of the formal
complaints filed by the other IPPs.150 Moreover, Complainants'
participation in the APCC petition for declaratory ruling seeking
to overturn the EUCL's application on them further belies their
argument that they were not aware they had a cause of action
until the issuance of the D.C. Circuit's C.F. Communications
decision.151 Hence, we reject the claim that their causes of
action accrued no earlier than October 31, 1997, the date of the
C.F. Communications decision or the Commission's Liability Order
of 2000.152
52. We do not find Complainants' arguments about the
futility of previously pursuing their claims to be an adequate
basis for tolling the requirements of Section 415(b), or finding
that the cause of action accrued at a time other than the date of
injury. Complainants argue that adverse Commission and judicial
rulings prior to the Court's issuance of the C.F. Communications
decision deprived them of ``any practicable'' opportunity to
pursue their claims.153 The facts of this case indicate
otherwise.
53. Between 1984 and 1988, there was no statement from the
Commission about the validity of the charges, and thus, no
arguably adverse ruling that could have prevented Complainants
from filing complaints. Under the Commission's rules, the two
unpublished letters by an individual FCC staff member in response
to informal complaints issued in 1988 and 1989154 could not be
used as precedent against other complainants.155 Moreover, when
the full Commission spoke to the validity of the charges in
1995,156 that decision did not become final. Indeed, that
decision was remanded to the Commission after being successfully
appealed by the affected complainants.157 Thus, the Commission's
decision upholding Defendants' manner of assessing the EUCL was
subject to judicial review and pending legal challenges to that
decision made the legality of Defendants' behavior uncertain.158
Complainants themselves stated in seeking to refute Defendants'
reliance argument that ``[a]ny purported reliance on Commission
letters or decision still under appeal would have been
unreasonable as a matter of law.''159
54. Complainants also argue that they could not have
feasibly pursued their claims in other forums because district
courts would have referred them to the Commission, as the Court
did with the C.F. Communications case.160 We disagree. Because
the Commission had not issued a final determination on the
legality of the EUCL assessment on IPPs, Complainants could have
pursued their claims in either forum, irrespective of whether the
district court would have referred the IPPs' claims to the
Commission.161 In any case, the fact that approximately 30
similarly-situated IPPs did manage to pursue over 50 claims in a
timely manner and prevailed on this issue of liability puts
Complainants' impossibility argument to rest.162
55. We are not persuaded that we should conclude in this
instance that the accrual date is other than the date the injury
was first discovered, i.e. the date when the IPPs received their
first EUCL bills.163 New favorable precedent does not revive a
time-barred claim.164 As appellate courts have held, the
``application of the statute of limitations cannot be made to
depend upon the constantly shifting state of the law''165 because
such ``delayed accrual could result in an outpouring of stale,
difficult to defend claims, contrary to the policy underlying
limitations statutes.''166 Complainants could have filed their
complaints on a timely basis and sought to have the Commission
override its previous views.
56. Complainants' reliance on the Container Corp.,167
Hartford Life,168 Red Chevrolet,169 Neely,170 and Slaaten171
decisions is misplaced because they all involve circumstances in
which the newly issued decision created a new cause of action or
revealed the existence of a cause of action for the first
time.172 Complainants, however, believed that Defendants' EUCL
assessments were inconsistent with the Commission's rules at the
time of their first bills; the C.F. Communications decision did
not create Complainants' cause of action, or put them on notice
that they had a claim. Western Union173 is also inapposite
because the finding there that a cause of action would have
accrued on the date of the Commission order setting certain final
rates was based on the fact that the rates at issue were
``interim prescribed rates which the Commission later found to be
inadequate'' and that the facts upon which the complaint was
based were ``inherently unknowable by potential complainants
until the Commission issued its decision.''174
57. Similarly, ITT World Communications175 is not
persuasive because this proceeding is not Complainants' first and
only opportunity to obtain the requested relief. Like a number
of other IPP complainants, they could have filed a complaint at
the time they discovered the EUCL charge on their bill, either at
the Commission or in federal district court, to pursue their
legal remedies.176 In addition, because the Commission's EUCL
rules were imposed on Complainants starting in 1984 and
Complainants were aware that Defendants were violating Section
69.104(a) from the first assessment of the EUCL charge upon them,
Complainants' reliance on AirTouch is misplaced.177 Moreover,
under the reasoning put forth by Complainants, the C.F.
Communications complaint would have been dismissed as prematurely
filed. Thus, we conclude that the cause of action in this
proceeding accrued when Defendants assessed the EUCL charge upon
Complainants.178
V.B. Complainants Have Not Demonstrated that the
Statute of Limitations Should Be Tolled on Equitable or
Administrative Grounds
58. We also reject Complainants' argument that, regardless
of the accrual date of their causes of action, the statute of
limitations should be tolled on equitable and administrative
grounds by the APCC's filing of its 1989 and 1995 petitions for
declaratory ruling.179 Complainants' equitable arguments are
based on a Ninth Circuit case applying California law, that
enunciates a three-part test that Complainants claim the
Commission should apply in this instance.180 According to Ervin,
a case that does not involve Section 415 of the Act, a statute of
limitations can be tolled if a plaintiff has given timely notice
to defendant of its claim, the delay in the filing of the claim
does not prejudice the defendant, and the plaintiff has acted
reasonably and in good faith.181
59. We find that the Commission's strict approach to the
application of Section 415(b) of the Act182 is more consistent
with the United States Supreme Court's position in Irwin,
extending equitable relief only ``sparingly'' where the claimant
exercised ``due diligence in preserving his legal rights.''183
As discussed above, it is readily apparent that Complainants did
not act with anything approaching due diligence. Thus, we are
not persuaded that the situation before us merits an equitable
tolling of the limitations period.
60. With regard to Complainants' reliance on Ervin, we
note, as an initial matter, that federal agencies are not
required to follow state law. Thus, California law does not
govern our interpretation of Section 415(b). In any case, even
if we were to apply the three-part test enunciated in Ervin,
Complainants would not prevail. First, we disagree with
Complainants' position that the APCC's filing of two petitions
for declaratory ruling in 1989 and 1995 constitute timely notice
of their current claims, filed under Section 208 of the Act.184
The individual Defendants in these cases could not have
reasonably assumed, based on the APCC petition for declaratory
ruling, that they would have been sued by these particular
Complainants, or that they would be liable for damages. Second,
given that Defendants would not have known to preserve the
relevant records related to the informal complaints before us
prior to the filing of the informal complaints by Complainants,
extending the recovery period as Complainants advocate would
prejudice Defendants.185 Lastly, as we have previously stated,
we find Complainants' failure to file complaints, in light of the
fact that a number of other IPPs preserved their rights to
damages through the appropriate procedures set out in our rules,
to be unreasonable.186 Indeed, in light of the overlap of
counsel, it borders on the incomprehensible. As the C.F.
Communications case demonstrates, filing protective complaints
was not an exercise in futility.
61. We also note that the decisions that Complainants cite
as examples of the Commission's tolling the limitations period,
based on Section 1.3 of our Rules, are not on point. Those cases
involved waivers of the six-month conversion deadline in Section
1.718 of our Rules where informal complaints were already filed,
rather than a tolling of the statutory limitations period.187
62. We also reject Complainants' assertion that we should
toll the statute of limitations, based on the APCC filing or the
filing of other IPP complaints, for reasons of adjudicatory
efficiency. Complainants argue that the filing of a large number
of formal or informal complaints might have been administratively
burdensome for the Commission.188 We note that Complainants did
not contemporaneously approach the Commission for guidance on how
to handle numerous complaints. Thus, we are not persuaded by
their argument after the fact that they need not have filed
complaints sooner because of their concern for our administrative
burden.
63. Although there is expense and effort of litigating
claims in light of adverse precedent, they do not ``provide a
basis for suspending the statute of limitations period. The only
sure way to determine whether a suit can be maintained is to try
it.''189 We see no reason in this instance to depart from our
precedent limiting the doctrine of equitable tolling.190
64. We, therefore, agree with Defendants that Section 415
limits Complainants' claims for recovery to those charges levied
no earlier than two years prior to the date Complainants filed
their informal complaints.191 Because the charges at issue
ceased on April 15, 1997, we can only award damages where
informal complaints were filed by April 15, 1999.
VI. COMPLAINANTS HAVE ESTABLISHED THAT THE INFORMAL COMPLAINTS
UNDERLYING THESE FORMAL COMPLAINTS WERE TIMELY FILED
65. We reject Defendants' arguments disputing the filing of
certain informal complaints that underlie some of the formal
complaints at issue here. Defendants urge the Commission to
dismiss formal complaints for which a complainant cannot provide
what Defendants consider to be contemporaneous documentary
evidence of filing its underlying informal complaint.192 For
instance, because the copies of the informal complaints submitted
by ITC, NSC, and Payphone Systems lack Commission date stamps,
BellSouth and SBC argue that the Complainants have not met their
burden of showing that the complaints were filed.193 Although
conceding that CVC filed an informal complaint against it, Qwest
disputes the date on which CVC filed the complaint because the
copy in this record lacks a Commission date stamp.194 BellSouth
also contests the filing of the informal complaint against it by
ITC because BellSouth's records do not reflect any receipt of
this complaint.195 In addition, BellSouth and SBC assert that
the lack of a signature on the ITC complaints filed against them
is further indicia of improper filing.196
66. There are unique circumstances surrounding the
processing of the EUCL charge informal complaints that we must
address here. First, our survey of the Commission's informal
complaint files and electronic database indicates that, due to
the administrative difficulties the Commission encountered in
processing these several thousand informal complaints, some
informal complaints do not bear a date stamp. In other cases, it
is evident that the date stamp was not affixed by the staff
contemporaneously with the receipt of the informal complaint. In
addition, we have determined that certain complaint files were
prematurely closed and discarded as a result of difficulties
experienced during a database conversion, even though the
complaints had not been resolved.197 Thus, a properly filed
complaint may not appear in the database or the Commission's
files. We also have concerns that, in some instances, the filing
date noted in the database was not the actual date of receipt.
We must take these circumstances into account in assessing
Defendants' arguments.
67. In light of the Commission's rules, all the
circumstances, and the totality of the information before us, we
find that the copies of the informal complaints in this record
constitute contemporaneous documentary evidence of filing.198
Consequently, we conclude that the informal complaints at issue
here were properly filed on the dates noted below.
68. As a preliminary matter, we dispense with the lack of
signature issue for the ITC complaints. We note that our rules
regarding informal complaints do not require that an informal
complaint include a signature.199 Moreover, the Commission's
copies of the informal complaints submitted by ITC also lack
signatures, so the fact that Complainants' copies are not signed
does not detract from their probative value.200
69. As to the complaints that lack date stamps, we
recognize that the lack of a date stamp is significant, but
nevertheless conclude that the lack of a date stamp alone should
not bar a complainant from pursuing its claim in these specific
circumstances. The Commission has previously required the
submission of date stamped copies as authoritative proof of
filing,201 but we note that those cases involved more formal
filings and instances where the Commission had no record of
initially receiving the filing in question.202 In these unique
circumstances, where some properly-filed complaints were not
properly date-stamped by Commission staff, we find that we must
consider all probative evidence. On this record, we conclude
that evidence of Complainants' standard mailing practices203 and
the date on the contested informal complaint are additional
indicators of whether and when an informal complaint was filed.
Complainants request that we establish a general presumption that
an informal complaint had been timely filed based on a
combination of certain documentary and testimonial evidence.204
Because the determinations in this proceeding will serve as
precedent in future matters, we do not find it necessary to
establish such a presumption.
70. With regard to the specific informal complaints at
issue here, we find that there is sufficient evidence in the
record to conclude that the informal complaints were filed and to
determine the dates of these filings. We note that not only are
the ITC, NSC, and Payphone Systems complaints against SBC listed
in the Commission's database as having been filed,205 but that
SBC responded to the informal complaints at issue and
acknowledged that its response was based on complaints filed with
the Commission.206 We find these indicia provide a sufficient
basis for concluding that the informal complaints were filed.
71. Although ITC's informal complaint against BellSouth is
not in the database, we find that ITC has met its burden of
showing that it is more than likely that an informal complaint
against BellSouth was filed. ITC has provided evidence showing
that it properly mailed several other informal complaints on the
same day (September 15, 1997) and in the same package as the
informal complaint against BellSouth. The other informal
complaints mailed that day are in the Commission's database.207
Thus, we find it reasonable to conclude that the ITC complaint
against BellSouth was in fact filed with the Commission.208
72. We also conclude that there is enough evidence in the
record to establish a specific date on which each of these
informal complaints was filed. Regarding the ITC complaint
against BellSouth, we note that the Commission's database lists
several different filing dates for the informal complaints filed
against multiple Defendants, despite evidence that they were
mailed on the same day, and in the same package.209 To avoid
unfairness to ITC from the Commission's administrative problems,
we conclude that, in this instance where ITC has submitted
evidence that it followed proper mailing procedures in filing its
informal complaints, we will deem the date of mailing (September
15, 1997) to be the filing date.210 Because ITC had mailed to
the Commission its informal complaint against BellSouth in the
same package as the complaints it filed against ALLTEL, Ameritech
(now SBC), Century, TDS, and Verizon North, we also deem the
filing date for those informal complaints to be September 15,
1997.
73. We note that there is a discrepancy between the date
listed in the database (December 2, 1997) for the filing of the
NSC complaint against PacBell (now SBC) and the date on the
informal complaint (December 31, 1997). We ascribe this
discrepancy to the administrative problems encountered in
processing these complaints, as described above. In the absence
of specific evidence of the date on which the NSC Complaint
arrived at the Commission, we will presume that it was filed on
the date indicated on the complaint, i.e., December 31, 1997.
SBC also contests the dates on which ITC and Payphone Systems
filed their informal complaints. As noted above, we are
satisfied by the evidence ITC provided that it properly filed its
informal complaint against Ameritech and deem September 15, 1997
as the filing date for this complaint. We also conclude that SBC
has provided no evidence to show that the January 8, 1998, filing
date claimed by Payphone Systems, and reflected in the
Commission's records, is inaccurate.211
74. With regard to the filing date of the CVC informal
complaint against Qwest, we find that the return receipt and Mr.
Kerivan's testimony establish that CVC mailed the informal
complaint to the Commission on September 29, 1997, and that the
postal service delivered the complaint to the Commission on
October 3, 1997.212
VII. BASED ON THE UNIQUE CIRCUMSTANCES OF THESE CASES, WE
WAIVE OUR SETTLEMENT CERTIFICATION REQUIREMENT IN SECTION
1.721(A)(8) OF THE COMMISSION'S RULES.
75. Defendants assert that we should dismiss certain of
Complainants' claims because Complainants did not notify
Defendants in their certified settlement letters that these
claims would be included in the formal complaints, as required by
Section 1.721(a)(8) of the Commission's rules.213 The specific
claims that Defendants seek to have dismissed are based on (1)
Section 203 of the Act, (2) the filed rate doctrine, (3) the
argument that Defendants violated the Act by assessing EUCL
charges on the lines used to provide both semi-public and public
service, and (4) the argument that Complainants' status as
carriers rather than ``end users'' means that Defendants could
not assess EUCL charges on any lines that Complainants
ordered.214 Complainants argue that Section 1.721(a)(8) does not
require a complainant to state each specific cause of action that
might be included in its formal complaint, and that to do so
would unreasonably expand the scope and purpose of the rule.215
76. While we do have concerns about whether Complainants'
certified settlement letters met the requirements of Section
1.721(a)(8) of our rules, we find it appropriate in this case to
waive this rule on our own motion. As explained below, we do so
because it is clear that Defendants in this case had adequate
notice, prior to receiving the settlement certification, of all
the claims Complainants have asserted, and because there is no
evidence that the parties have not attempted settlement in
accordance with the Commission's rules.
77. The Commission's first objective when complaint issues
arise is to promote settlement efforts to enable parties to
resolve disputes on their own before resorting to
adjudication.216 To this end, the Commission's rules require
that complainants and defendants certify in their respective
complaints and answers that the possibility of settlement was
discussed before the complaint was filed with the Commission.217
Specifically, Section 1.721(a)(8) states that the complainant
must certify that prior to the filing of the formal complaint,
``the complainant mailed a certified letter outlining the
allegations that form the basis of the complaint it anticipated
filing with the Commission to the defendant carrier. . . .'' The
Commission has emphasized that this rule requires verification
that the parties discussed the ``facts and issues in dispute
prior to the filing of the complaint.''218
78. In order to meet the Commission's objective of
promoting settlement, rule 1.721(a)(8) would generally require
complainants to provide defendants with adequate notice of each
of their enumerated claims.219 We find that given the unique
facts of this case, Defendants had adequate notice of the nature
of the claims that Complainants were likely to assert against
them even before they received the settlement letters. This
notice came in several forms. First, the informal complaints
against Defendants that preceded the formal complaints set out
Complainants' argument that the IPPs are not ``end users'' under
the Commission's rules, thereby implicitly including the argument
that they are not subject to EUCL charges for any of their
payphones.220
79. Second, in 2001, the Enforcement Bureau initiated a
hearing proceeding before an administrative law judge to
determine the amount of damages that defendant local exchange
carriers owed to certain IPPs for the unlawful assessment of EUCL
charges.221 All of the defendants in the instant proceeding,
except Qwest, were a party to that proceeding.222 Prior to
issuing the order referring the damages issue to an
Administrative Law judge, the Enforcement Bureau sought proposed
hearing designation orders and comments from the parties
regarding the procedures for hearing.223 The complainants in
those cases, who were represented by the same counsel who
represent the current Complainants, had asserted that because
IPPs were found not to be ``end users'' within the meaning of
Section 69.104(a), the collection of EUCL charges for semi-public
payphones was unlawful.224 The Enforcement Bureau rejected those
claims as untimely, stating that they should have been raised in
a timely filed reconsideration petition to the Liability
Order.225 Nevertheless, the Enforcement Bureau clearly described
the claims, thereby informing Defendants of their existence.226
Thus, it is reasonable to assume that Defendants were on notice
that these same claims might be raised in a subsequent
adjudication of the thousands of pending informal complaints.
Finally, all of the Defendants have been aware of the nature of
the claims contained in the formal and informal complaints for a
number of years because, as we have stated previously, they have
had a number of opportunities to engage in settlement discussions
with the Complainants, often with the involvement of Commission
staff.227
80. Accordingly, we conclude both that Defendants have had
adequate notice of the allegations that form the basis of the
formal complaints and that settlement discussions have occurred.
We therefore find that it is appropriate to waive Section
1.721(a)(8) of our rules. This waiver is based on the unique
circumstances of these proceedings, in particular, the parties'
involvement in adjudicating and mediating the relevant issues
over a lengthy period of time, and is not an indication that a
complainant in any other proceeding may fail to ensure that a
defendant receive adequate notice of the claims being asserted
against it.
VIII. CONCLUSION AND ORDERING CLAUSES
81. For the reasons discussed above, we conclude that
Defendants' imposition of EUCL charges on the Complainants
violated Section 201(b) of the Act and Part 69 of the
Commission's rules.
82. ACCORDINGLY, IT IS ORDERED, pursuant to Sections 1,
4(i), 4(j), 201(b), and 208 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151, 154(i), 154(j), 201(b), and 208, that
the formal complaints filed by Communications Vending Corporation
of Arizona, Inc., IMR Capital Corporation, Indiana Telcom
Corporation, Inc., National Telecoin Corporation, Inc., NSC
Communications Public Services Corporation, and Payphone Systems
ARE PARTIALLY GRANTED.
83. IT IS FURTHER ORDERED that the APCC Petition for
Declaratory Ruling filed in 1989 is DISMISSED as moot as a result
of the Liability Order and this Order.
84. IT IS FURTHER ORDERED that, the February 27, 2002
Letter Ruling is VACATED to the extent it relates to the
provision of copies of supporting documentation.
85. IT IS FURTHER ORDERED that the Qwest Petition for
Reconsideration, the SBC Application for Review, and the TDS
Request for Clarification are DISMISSED as moot.
86. IT IS FURTHER ORDERED that, Communications Vending
Corporation of Arizona, Inc., IMR Capital Corporation, Indiana
Telcom Corporation, Inc., National Telecoin Corporation, Inc.,
NSC Communications Public Services Corporation, and Payphone
Systems, in accordance with Section 1.722 of the Commission's
Rules, 47 C.F.R. § 1.722, MAY FILE supplemental complaints
concerning damages after the Bureau's release of a Hearing
Designation Order in this proceeding.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Appendix A
1) Communications Vending Corporation of Arizona, Inc. v.
Citizens Communications Company f/k/a Citizens Utilities Company
and Citizens Telecommunications Company d/b/a Citizens Telecom,
Supplement to Formal Complaint, File No. EB-02-MD-018 (filed
April 26, 2002) (``CVCA v. Citizens Complaint'')
2) Communications Vending Corporation of Arizona, Inc. v. Qwest
Corporation f/k/a US West Communications, Inc. and as Successor-
in-Interest to Mountain Bell Telephone Company, Supplement to
Formal Complaint, File No. EB-02-MD-019 (filed April 26, 2002)
(``CVCA v. Qwest Complaint'')
3) IMR Capital Corporation v. Verizon New England Inc. f/k/a
New England Telephone Company, Supplement to Formal Complaint,
File No. EB-02-MD-020 (filed April 26, 2002) (``IMR v. Verizon
New England Complaint'')
4) Indiana Telcom Corporation, Inc. v. Alltel Corporation,
Western Reserve Telephone Company-Alltel, Alltel Ohio, Inc. and
Alltel Indiana, Inc., Supplement to Formal Complaint, File No.
EB-02-MD-021 (filed April 26, 2002) (``ITC v. Alltel Complaint'')
5) Indiana Telcom Corporation, Inc. v. Indiana Bell Telephone
Company, Inc. D/B/A Ameritech Indiana and Ohio Bell Telephone
Company, Inc. d/b/a Ameritech Ohio, Supplement to Formal
Complaint, File No. EB-02-MD-022 (filed April 26, 2002) (``ITC v.
Ameritech Complaint'')
6) Indiana Telcom Corporation, Inc. v. BellSouth
Telecommunications, Inc. f/k/a South Central Bell Telephone
Company, Supplement to Formal Complaint, File No. EB-02-MD-023
(filed April 26, 2002) (``ITC v. BellSouth Complaint'')
7) Indiana Telcom Corporation, Inc. v. CenturyTel, Inc. and
Century Telephone of Central Indiana, Inc. f/k/a Central Indiana
Telephone Company, Supplement to Formal Complaint, File No. EB-
02-MD-024 (filed April 26, 2002) (``ITC v. Century Complaint'')
8) Indiana Telcom Corporation, Inc. v. Telephone and Data
Systems, Inc., TDS Telecommunications Corporation, Tipton
Telephone Company, Inc. d/b/a TDS Telcom, Communications
Corporation of Indiana d/b/a TDS Telcom, and Home Telephone
Company of Pittsboro, Inc., Supplement to Formal Complaint, File
No. EB-02-MD-025 (filed April 26, 2002) (``ITC v. TDS
Complaint'')
9) Indiana Telcom Corporation, Inc. v. Verizon North Inc. f/k/a
GTE North, Incorporated and as Successor-in-Interest to Contel of
Indiana, Inc., Supplement to Formal Complaint, File No. EB-02-MD-
026 (filed April 26, 2002) (``ITC v. Verizon North Complaint'')
10) National Telecoin Corporation v. Verizon Delaware Inc. f/k/a
Bell Atlantic-Delaware, Inc.; Verizon New Jersey, Inc. f/k/a Bell
Atlantic-New Jersey, Inc.; and Verizon Pennsylvania Inc. f/k/a
Bell Atlantic-Pennsylvania, Inc., Supplement to Formal Complaint,
File No. EB-02-MD-027 (filed April 26, 2002) (``NTC v. Verizon
Delaware Complaint'')
11) NSC Communications Public Services Corporation v. Pacific
Bell Telephone Company, Supplement to Formal Complaint, File No.
EB-02-MD-028 (filed April 26, 2002) (``NSC v. PacBell
Complaint'')
12) Payphone Systems v. Citizens Telecommunications Company of
California, Inc. f/k/a Citizens Utilities Company of California,
Inc., Supplement to Formal Complaint, File No. EB-02-MD-029
(filed April 26, 2002) (``Payphone Systems v. Citizens
Complaint'');
13) Payphone Systems v. Pacific Bell Telephone Company,
Supplement to Formal Complaint, File No. EB-02-MD-030 (filed
April 26, 2002) (``Payphone Systems v. PacBell Complaint'')
_________________________
1 See Appendix A for a list of the complaints at issue in
this proceeding. Due to procedural deficiencies, the Commission
rejected the formal complaints initially filed by Complainants on
April 17, 2002. See Letter from Tracy E. Bridgham, Special
Counsel, Market Disputes Resolution Division, Enforcement Bureau,
to Albert H. Kramer and Katherine J. Henry, counsel for
Complainants (rel. Apr. 23, 2002) (``April 23, 2002 Letter
Ruling'') at 2. The Commission consolidated the refiled
complaints for administrative convenience. See Letter from
Radhika V. Karmarkar, Deputy Chief, Market Disputes Resolution
Division, Enforcement Bureau, to all counsel, File Nos. EB-02-MD-
018 - 030 (rel. May 1, 2002) (``May 1, 2002 Letter Ruling'') at
5.
2 47 U.S.C. §§ 201(b) and 203(c). Telecommunications Act
of 1996, Pub. L. No. 104-104, 110 Stat. (1996) (the ``Act'').
3 47 C.F.R. §§ 69.1 et seq. (1987 - 1997). Unless otherwise
indicated, all C.F.R. references to Part 69 of the Commission's
rules refer to the rules in effect prior to April 15, 1997.
4 ``Citizens'' refers collectively to Citizens
Communications Company f/k/a Citizens Utilities Company, Citizens
Telecommunications Company d/b/a Citizens Telcom, and Citizens
Telecommunications Company of California, Inc. f/k/a Citizens
Utilities Company of California, Inc.
5 ``Qwest'' refers collectively to Qwest Corporation
f/k/a US West Communications, Inc., a Successor-in-Interest to
Mountain Bell Telephone Company.
6 ``Verizon'' refers collectively to Verizon New England
Inc. f/k/a New England Telephone Company, Verizon North Inc.
f/k/a GTE North, Incorporated, a Successor-in-Interest to Contel
of Indiana, Inc., Verizon Delaware Inc. f/k/a Bell Atlantic-
Delaware, Inc., Verizon New Jersey, Inc. f/k/a Bell Atlantic-New
Jersey, Inc., and Verizon Pennsylvania, Inc. f/k/a Bell Atlantic-
Pennsylvania, Inc.
7 ``ALLTEL'' refers collectively to ALLTEL Corporation,
Western Reserve Telephone Company-ALLTEL, ALLTEL Ohio, Inc. and
ALLTEL Indiana, Inc.
8 ``SBC'' refers collectively to Indiana Bell Telephone
Company, Inc. d/b/a Ameritech Indiana and Ohio Bell Telephone
Company, Inc. d/b/a Ameritech Ohio (``Ameritech'') and Pacific
Bell Telephone Company (``PacBell''). SBC Telecommunications,
Inc. is the parent company of Ameritech and PacBell.
9 ``BellSouth'' refers collectively to BellSouth
Telecommunications, Inc. f/k/a South Central Bell Telephone
Company.
10 ``Century'' refers collectively to CenturyTel, Inc. and
Century Telephone of Central Indiana, Inc. f/k/a Central Indiana
Telephone Company.
11 ``TDS'' refers collectively to Telephone and Data
Systems, Inc., TDS Telecommunications Corporation, Tipton
Telephone Company, Inc. d/b/a TDS Telcom, Communications
Corporation of Indiana d/b/a TDS Telcom, and Home Telephone
Company of Pittsboro, Inc.
12 Citizens, ALLTEL, Century, and TDS maintain that
certain affiliated entities named in the complaints against them
are not proper parties to this proceeding because the entity in
question did not provide local exchange services to the
particular Complainant. Defendants, however, concede that each
of the complaints at issue has named the entities that did
actually provide service to the Complainants. See Supplemental
Consolidated Joint Statement Concerning Issues 1 and 4 Identified
in the Commission's August 7, 2002 Letter Ruling (filed Aug. 15,
2002) (``First Supplemental Joint Statement'') at 4, ¶¶ 10-11; 7,
¶¶ 20, 26-28; 12-13, ¶¶ 42, 48-49; 14-15, ¶¶ 51-52, 58. Because
this issue bears on the entities from whom Complainants may
recover damages, we will defer its resolution to the next phase
of this proceeding.
13 See FCC Open and Pending List of EUCL Informal
Complaints, dated June 29, 2001 (``June 29, 2001 FCC Open and
Pending List of EUCL Informal Complaints'').
14 See Implementation of the Pay Telephone
Reclassification and Compensation Provisions of the
Telecommunications Act of 1996, First Report and Order, 11 FCC
Rcd 20541, ¶ 187 (1996), vacated in part on other grounds,
Illinois Pub. Telecomms. Ass'n v. FCC, 123 F.3d 693 (D.C. Cir.
1997); Implementation of the Pay Telephone Reclassification and
Compensation Provisions of the Telecommunications Act of 1996,
Report and Order on Reconsideration, 11 FCC Rcd 21233, ¶ 207
(1996).
15 See e.g. CVCA v. Citizens Complaint at I-4, ¶ 1. We
note that this information appears on the same page in all the
complaints at issue. See also Consolidated Answer of Citizens
Defendants to Formal Complaints and Supplements to Formal
Complaints, File Nos. EB-02-MD-018 and EB-02-MD-029 (filed June
28, 2002) (``Citizens Consolidated Answer'') at 2, ¶ B3; Qwest
Corporation's Answer to CVCA's Formal Complaint, File No. EB-02-
MD-019 (filed June 28, 2002) (``Qwest Answer'') at I-9, ¶ 3;
Answer of Verizon New England Inc. to IMR Capital Corporation's
Complaint, File No. EB-02-MD-020 (filed June 28, 2002) (``Verizon
New England Answer'') at A-6, ¶ 3; Revised Answer of ALLTEL
Corporation, Western Reserve Telephone Company, ALLTEL Ohio,
Inc., and ALLTEL Indiana, Inc., File No. EB-02-MD-021 (filed July
15, 2002) (``ALLTEL Supplemental Answer'') at I-5, ¶¶ 6; 8;
Consolidated Answer of Indiana Bell Company, Ohio Bell Telephone
Company, and Pacific Bell Telephone Company, File Nos. EB-02-MD-
022 and EB-02-MD-028; EB-02-MD-030; (filed June 28, 2002) (``SBC
Answer'') at 5-6, ¶¶ 1, 3; 6-7, ¶¶ 1, 3; 7-8, ¶¶ 1, 3; Answer of
BellSouth Telecommunications, Inc., File No. EB-02-MD-023 (filed
June 28, 2002) (``BellSouth Answer'') at I-4, ¶¶ B1, B3; Revised
Answer of CenturyTel, Inc. and CenturyTel of Central Indiana,
Inc., File No. EB-02-MD-024 (filed July 15, 2002) (``Century
Supplemental Answer'') at I-5, ¶¶ 6, 8; Defendants Telephone and
Data Systems, Inc., TDS Telecommunications Corporation, Tipton
Telephone Company, Inc., Communications Corporation of Indiana
and Home Telephone Company of Pittsboro, Inc.'s Answer to
Complaint, File No. EB-02-MD-025 (filed June 28, 2002) (``TDS
Answer'') at 3, ¶¶ B1, B3; Answer of Verizon North Inc. to
Indiana Telcom Corporation's Complaint, File No. EB-02-MD-026
(filed June 28, 2002) (``Verizon North Answer'') at A-7, ¶ 3;
Answer of Verizon Delaware Inc., Verizon New Jersey Inc. and
Verizon Pennsylvania Inc. to National Telecoin Corporation's
Complaint, File No. EB-02-MD-027 (filed June 28, 2002) (``Verizon
Delaware et al. Answer'') at A-6, ¶ 3; First Supplemental Joint
Statement at 4, ¶¶ 10-11; 5, ¶ 12; 6, ¶ 18; 16, ¶¶ 59, 61.
16 Complainants filed informal complaints regarding the
controversy at issue in the above-referenced formal complaints
during 1997 and 1998. Subsequent waiver orders extended the time
for converting the informal complaints to formal complaints until
June 30, 2003. Therefore, provided the informal complaints were
properly filed, the formal complaints at issue here were timely
filed. See 47 U.S.C. § 415(b). See also Informal Complaints
Filed By Independent Payphone Service Providers Against Various
Local Exchange Carriers Seeking Refunds of End User Common Line
Charges, Order (EB DA 02-1890) (rel. Aug. 2, 2002), at ¶ 2
(``Third Waiver Order''); Informal Complaints Filed By
Independent Payphone Service Providers Against Various Local
Exchange Carriers Seeking Refunds of End User Common Line
Charges, Order, 17 FCC Rcd 2115, 2116, at ¶ 3 (EB 2002) (``Second
Waiver Order''); Informal Complaints Filed By Independent
Payphone Service Providers Against Various Local Exchange
Carriers Seeking Refunds of End User Common Line Charges, Order,
16 FCC Rcd 3669, 3671, at ¶ 5 (CCB 1999) (``First Waiver
Order'').
17 See MTS and WATS Market Structure, Third Report and
Order, 93 FCC 2d 241, 243, ¶ 3; 280, ¶ 128 (1983) (``Access
Charge Order''), modified on recon., 97 FCC 2d 682 (1983)
(``First Reconsideration Order'') modified on further recon., 97
FCC 2d 834 (1984), aff'd and remanded in part sub nom., National
Ass'n of Regulatory Util. Comm'rs v. FCC, 737 F.2d 1095 (D.C.
Cir. 1984). See also C.F. Communications Corp. v. FCC, 128 F.3d
735, 736-7 (D.C. Cir. 1997) (``C.F. Communications'').
18 "A pay telephone is used to provide public telephone
service when a public need exists, such as at an airport lobby,
at the option of the telephone company and with the agreement of
the owner of the property on which the phone is placed." First
Reconsideration Order, 97 FCC 2d at 704 n.41.
19 A private business or residential telephone would
constitute an identifiable subscriber. C.F. Communications
Corp., et al. v. Century Telephone of Wisconsin, Inc., et. al.,
Memorandum Opinion and Order on Remand, 15 FCC Rcd 8759, 8762, ¶
10 (2000) (``Liability Order'').
20 First Reconsideration Order, 97 FCC 2d at 705, ¶ 58.
21 ``A pay telephone is used to provide semi-public
telephone service when there is a combination of general public
and specific customer need for the service, such as at a gasoline
station or pizza parlor.'' First Reconsideration Order, 97 FCC
2d at 704, n.41 (emphasis added).
22 Id. at 706, ¶ 60. The NTS costs of operating public
payphones would in effect be subsidized by all interstate callers
through the Carrier Common Line Charge (``CCL'') assessed on
IXCs. Id. at 705, ¶ 58.
23 Liability Order, 15 FCC Rcd at 8763, ¶ 13.
24 See Registration of Coin Operated Telephones,
Memorandum Opinion and Order, 49 Fed. Reg. 27763 (1984).
25 Consolidated Joint Statement (filed July 29, 2002) at
31, ¶ 127.
26 Id. at 47, ¶ 205; 59, ¶ 276; 72, ¶ 350; 85, ¶ 417; 100,
¶ 495; 114, ¶ 574; 126, ¶ 644; 141, ¶ 721; 155, ¶ 799; 170, ¶
875; 183, ¶ 941; 197, ¶ 1005; 206, ¶ 1055.
27 See e.g. CVCA v. Citizens Complaint, Exh. 11 (American
Payphone Systems, Inc. Informal Complaint, IC-88-04679, dated May
12, 1988); Exh. 13 (Letter from Anita J. Thomas, Carrier Analyst,
Informal Complaints and Public Inquiries Branch, Enforcement
Division, Common Carrier Bureau, FCC, to LeRoy Manke, Coon Valley
Farmers Telephone Co, IC-89-03671, (Apr. 4, 1989) (``Apr. 4,
1989 Anita J. Thomas Letter'').
28 See e.g. CVCA v. Citizens Complaint, Exh. 12 (Letter
from Anita J. Thomas, Carrier Analyst, Informal Complaints and
Public Inquiries Branch, Enforcement Division, Common Carrier
Bureau, FCC, to Lance C. Norris, American Payphones, Inc., IC-88-
04679, (Sept. 14, 1988) (``Sept. 14, 1988 Anita J. Thomas
Letter''); Apr. 4, 1989 Anita J. Thomas Letter. The staff
letters appear to have been based on a determination that the
telephone lines provided to the IPPs were ``ordinary `common
lines''' and that such ``[o]rdinary business telephone lines
taken out of the local exchange service tariff [were] not exempt
from subscriber line charges.'' Sept. 14, 1988 Anita J. Thomas
Letter at 1.
29 The American Public Communications Council Petition for
Declaratory Ruling (filed April 21, 1989) (``APCC Petition'').
Although the Commission has not yet ruled on APCC's petition, the
Liability Order and our ruling today renders it moot.
30 C.F. Communications Corp. v. CenturyTel. of Wisconsin,
89-C-0168-C, Order (W.D. Wis. 1989).
31 CFC and several other IPPs subsequently filed 52
additional formal complaints raising the same allegations raised
by CFC in its initial complaints. The Commission did not
consolidate these complaints with the initial 13 complaints. For
further discussion of these complaints see Liability Order, 15
FCC Rcd at 8760, ¶¶ 2, 4-6.
32 C.F. Communications Corp. v. Century Telephone of
Wisconsin, Inc. et. al., Memorandum Opinion and Order, 8 FCC Rcd
7334 (1993) (``Bureau CFC Order''); C.F. Communications Corp. v.
Century Telephone of Wisconsin, Inc., et. al., Memorandum
Opinion and Order, 10 FCC Rcd 9775 (1995) (``CFC I Order''); C.F.
Communications Corp., et. al. v. Michigan Bell Telephone Co., et.
al., Memorandum Opinion and Order, 12 FCC Rcd 2134 (1997) (``CFC
II Order'').
33 CFC I Order, 10 FCC Rcd at 9779, ¶¶ 16-20. The
Commission reasoned that IPP payphones did not fall within the
definition of ``public telephone'' under the rules at the time
and thus were not exempt from the EUCL charge. Id. at 20.
34 C.F. Communications Corp. v. FCC, 128 F.3d 735 (D.C.
Cir. 1997) (``C.F. Communications''); see also C.F.
Communications Corp. v. FCC, No. 97-1202, slip op. (D.C. Cir.
1997).
35 C.F. Communications, 128 F.3d at 740. In addition, the
Court concluded that the definition of ``public telephone''
relied on by the Commission had no bearing on the IPP service,
but rather related to how the LECs recovered their investment in
payphone equipment. Id.
36 Liability Order, 15 FCC Rcd at 8768, ¶ 24.
37 Id. at 8768, ¶ 25.
38 Id. at 8766, ¶ 20; 8768, ¶ 26.
39 Id. at 8768, ¶ 27.
40 Id. at 8769, ¶ 28.
41 See Verizon Telephone Companies v. FCC, 269 F.3d 1098
(DC Cir. 2001) (``Verizon'').
42 Id. at 1101.
43 Id.
44 Liability Order, 15 FCC Rcd at 8766, ¶ 7. The
Commission's database presently lists close to 3000 informal
complaints disputing the EUCL charge. See June 29, 2001 FCC Open
and Pending List for EUCL Informal Complaints.
45 First Waiver Order, 16 FCC Rcd at 3671, ¶ 5; 3672, ¶ 8.
46 Id. at 3671, ¶ 5; Liability Order, 15 FCC Rcd at 8773,
¶ 39.
47 Third Waiver Order, at ¶ 2; Second Waiver Order, 17 FCC
Rcd at 2226, ¶ 3.
48 During the relevant period, 47 C.F.R. § 69.104(a)
stated:
A charge that is expressed in dollars and cents
per line per month shall be assessed upon end
users that subscribe to local exchange telephone
service, Centrex or semi-public coin telephone
service to the extent they do not pay carrier
common line charges....
49 Section 201(b) of the Act provides, in pertinent part,
that ``[a]ll charges [and] practices... in conjunction with such
communications service shall be just and reasonable, and any such
charge [or] practice...that is unjust or unreasonable is hereby
declared to be unlawful.'' 47 U.S.C. § 201(b). Section 203(c)
of the Act states that a carrier must provide communications
services in strict accordance with the terms and conditions
contained in its tariff. 47 U.S.C. § 203(c). Section 203(c),
therefore, prohibits the imposition of a charge not specified in
a carrier's tariff. See AT&T v. Central Office Telephone, Inc.,
524 U.S. 214, 222 (1988).
50 See, e.g. CVCA v. Citizens Complaint at II-1- II-3, ¶¶
1-3; II-6 - II-12, ¶¶ 10-22; II-13 - II-14, ¶¶ 23-25. Because
the citations to the legal analysis sections of all the
complaints are identical, citations to Complainants' legal
analysis will hereinafter be referred to as ``Complainants' Legal
Analysis.'' See Letter from Katherine J. Henry, counsel for
Complainants, dated Oct. 17, 2002, to Rosemary McEnery, Attorney,
Market Disputes Resolution Division, Enforcement Bureau, Federal
Communications Commission.
51 See Complainants' Legal Analysis at II-3 - II-5, ¶¶ 4-
7; II-5 - II-6, ¶ 8.
52 Id. at II-28 - II-57, ¶¶ 50-99.
53 See Citizens Memorandum of Law, File Nos. EB-02-MD-018
and EB-02-MD-029 (filed July 15, 2002) (``Citizens Supplemental
Answer'') at III-23 - III-32; Qwest Corporation's Revised Legal
Analysis in Support of its Answer to the Formal Complaint of
CVCA, File No. EB-02-MD-019 (filed July 15, 2002) (``Qwest
Supplemental Answer'') at III-5 - III-13; Supplemental Answer of
Verizon New England Inc. to IMR Capital Corporation's Complaint,
File No. EB-02-MD-020 (filed July 15, 2002) (``Verizon New
England Supplemental Answer'') at B20 - B29; ALLTEL Supplemental
Answer at IV-1 - IV-3; SBC's Revised Legal Analysis, File Nos.
EB-02-MD-022; EB-02-MD-028; and EB-02-MD-030; (filed July 15,
2002) (``SBC Supplemental Answer'') at III-23 - III-31; BellSouth
Supplemental Legal Analysis, File No. EB-02-MD-023 (filed July
15, 2002) (``BellSouth Supplemental Answer'') at II-22 - II-30;
Century Supplemental Answer at IV-1 - IV-3; TDS Telecom's
Supplemental Answer to ITC's Complaint, File No. EB-02-MD-025
(filed July 15, 2002) (``TDS Supplemental Answer'') at 21 - 30;
Supplemental Answer of Verizon North Inc. to Indiana Telcom
Corporation's Complaint, File No. EB-02-MD-026 (filed July 15,
2002) (``Verizon North Supplemental Answer'') at B-20 - B-29;
Supplemental Answer of Verizon Delaware Inc., Verizon New Jersey
Inc. and Verizon Pennsylvania Inc. to National Telecoin
Corporation's Complaint, File No. EB-02-MD-027 (filed July 15,
2002) (``Verizon Delaware Supplemental Answer'') at B-20 - B-29.
54 Citizens Supplemental Answer at III-4 - III-20; Qwest
Supplemental Answer at III-14 - III-31; Verizon New England
Supplemental Answer at B-3 - B-20; ALLTEL Supplemental Answer at
IV-5 - IV-6; SBC Supplemental Answer at III-3 - III-23; BellSouth
Supplemental Answer at II-3 - II-20; Century Supplemental Answer
at IV-3 - IV-6; TDS Supplemental Answer at 3 - 20; Verizon North
Supplemental Answer at B-3 - B-20; Verizon Delaware Supplemental
Answer at B-3 - B-20.
55 Citizens Supplemental Answer at III-33 - III-53; Qwest
Supplemental Answer at III-32 - III-55; Verizon New England
Supplemental Answer at B-28 - B-52; ALLTEL Supplemental Answer at
IV-7 - IV-9; SBC Supplemental Answer at III-33 - III-52;
BellSouth Supplemental Answer at II-30 - II-55; Century
Supplemental Answer at IV-7 - IV-9; TDS Supplemental Answer at 30
- 53; Verizon North Supplemental Answer at B-28 - B-52; Verizon
Delaware Supplemental Answer at B-30 - B-53.
56 Citizens Supplemental Answer at III-56 - III-60; Qwest
Supplemental Answer at III-55 - III-58; Verizon New England
Supplemental Answer at B-54 - B-55; ALLTEL Supplemental Answer at
IV-9 - IV-10; SBC Supplemental Answer at III-57 - III-61;
BellSouth Supplemental Answer at II-55 - II-60; Century
Supplemental Answer at IV-9 - IV-10; TDS Supplemental Answer at
53 - 58; Verizon North Supplemental Answer at B-53 - B-54;
Verizon Delaware Supplemental Answer at B-54.
57 See May 1, 2002 Letter Ruling at 7. Section 208(a)
of the Act provides the Commission with discretion to bifurcate
liability and damages issues on its own motion. See
Implementation of the Telecommunications Act of 1996: Amendment
of Rules Governing Procedures to be Followed When Formal
Complaints Are Filed Against Common Carriers, Memorandum Opinion
and Order, 12 FCC Rcd 22497, 22575 (1997) (``Formal Complaints
Order''). See also Verizon, 269 F.3d at 1105.
In light of the bifurcation, we hereby vacate our
February 27, 2002 Letter Ruling to the extent it relates to the
provision of copies of supporting documentation, and the
corresponding confidentiality designation, because these
materials relate only to the damages phase. See Letter from
Tracy E. Bridgham, Special Counsel, Market Disputes Resolution
Division, Enforcement Bureau to all counsel, File Nos. EB-02-MD-
018 - 030 (Feb. 27, 2002) (``February 27, 2002 Letter Ruling'').
Having vacated the Letter Ruling, the motions of several
Defendants challenging it are thus dismissed as moot. See Letter
from Aimee Jimenez, counsel for Qwest, to Tracy Bridgham, Special
Counsel, Market Disputes Resolution Division, Enforcement Bureau,
File Nos. EB-02-MD-018 - 030 (Feb. 28, 2002) (``Qwest Petition
for Reconsideration''); SBC's Application for Review, File Nos.
EB-02-MD-018 - 030 (filed Mar. 29, 2002) (``SBC Application for
Review''); Letter from Margot Humphrey, counsel for TDS, to Tracy
Bridgham, Special Counsel, Market Disputes Resolution Division,
Enforcement Bureau, File Nos. EB-02-MD-018 - 030 (Feb. 28, 2002)
(``TDS Request for Clarification''). To the extent the TDS
Request for Clarification sought an initial ruling on the statute
of limitations issue, that request is also moot.
58 See Liability Order, 15 FCC Rcd at 8766, ¶ 20.
59 Id. at 8768, ¶ 24.
60 Id. at 8767, ¶ 21.
61 See id. at 8766-71, ¶¶ 20-25, 33.
62 Verizon, 269 F.3d at 1112.
63 Complainants in the prior case did not raise this ``end
user'' argument in a petition for reconsideration following the
Liability Order - nor was it presented to the Court of Appeals.
64 See Complainants' Legal Analysis at II-5 - II-6, ¶¶ 8-
9.
65 47 C.F.R. § 69.104(a) (emphasis added).
66 Id.
67 47 C.F.R. § 69.2(m).
68 See C.F. Communications, 128 F.3d at 739. The Court
reasoned that, because CFC is a ``carrier,'' then it can only be
an ``end user'' under the rule (1) if it ``uses a
telecommunications service for administrative purposes'' (and no
one suggested that IPPs used payphones for such purposes) or (2)
if CFC ``offers telecommunications services exclusively as a
reseller'' and if all such transactions ``originate on the
premises of such reseller.'' Id. at 738. Thus, the Court's
conclusion that calls did not originate on CFC's premises
necessarily means that CFC is not an ``end user.'' See id. at
740.
69 C.F. Communications, 128 F.3d at 737-38.
70 Liability Order, 15 FCC Rcd at 8768, ¶ 24.
71 Defendants concede that Complainants ``had no property
interest whatsoever in the premises where their payphones were
installed.'' Citizens Supplemental Answer at III-25; Qwest
Supplemental Answer at III-8; Verizon New England Supplemental
Answer at B-23; ALLTEL Supplemental Answer at IV-2; SBC
Supplemental Answer at III-25; BellSouth Supplemental Answer at
II-24; Century Supplemental Answer at IV-2; TDS Supplemental
Answer at 24; Verizon North Supplemental Answer at B-23; Verizon
Delaware Supplemental Answer at B-23.
72 See n.63, supra.
73 We note that the public/semi-public distinction may
well prove to be a distinction without a difference.
Complainants contend that virtually all the IPP-owned payphones
were public. This is consistent with the Commissions'
understanding of the payphone business - notably that semi-public
service was for customers who desired coin phones but where the
traffic did not justify the placement of a payphone. Because of
this, it appears unlikely that the IPPs, who were new entrants in
this market, would have sought to provide semi-public service.
Because we bifurcated liability and damages in the thirteen cases
currently before us, however, we left discovery regarding whether
the IPP phones were public or semi-public for the next phase of
the proceeding. Thus, we cannot unequivocally find here that no
IPP-owned semi-public payphones existed.
74 47 C.F.R. § 69.104(a).
75 Citizens Supplemental Answer at III-24 - III-26; Qwest
Supplemental Answer at III-7 - III-9; Verizon New England
Supplemental Answer at B-22 - B-24; ALLTEL Supplemental Answer at
IV-2; SBC Supplemental Answer at III-24 - III-26; BellSouth
Supplemental Answer at II-22 - II-25; Century Supplemental Answer
at IV-2; TDS Supplemental Answer at 23-25; Verizon North
Supplemental Answer at B-22 - B-24; Verizon Delaware Supplemental
Answer at B-22 - B-24.
76 Liability Order, 15 FCC Rcd at 8762-3, ¶ 11.
77 See Verizon, 269 F.3d at 1112.
78 See n.26, supra.
79 Citizens Supplemental Answer at III-24; Qwest
Supplemental Answer at III-7; ALLTEL Supplemental Answer at IV-2;
SBC Supplemental Answer at III-24; BellSouth Supplemental Answer
at II-22 - II-23; Century Supplemental Answer at Section IV-2;
TDS Supplemental Answer at 23; Verizon North Supplemental Answer
at B-22 - B-23; Verizon Delaware Supplemental Answer at B-22 - B-
23.
80 Citizens Supplemental Answer at III-25; Qwest
Supplemental Answer at III-8; Verizon New England Supplemental
Answer at B-23; SBC Supplemental Answer at III-25; BellSouth
Supplemental Answer at II-24; TDS Supplemental Answer at 24;
Verizon North Supplemental Answer at B-23; Verizon Delaware
Supplemental Answer at B-23.
81 Id.
82 Restatement (Second) of Agency § 1 (1958).
83 Id. § 1 cmt. b (``It is the element of continuous
subjection to the will of the principal which distinguishes the
agent from other fiduciaries and the agency agreement from other
agreements.'')
84 Id. § 13 cmt. c.
85 See, e.g., Bancoklahoma Mortgage Corp. v. Capital Title
Co., 194 F.3d 1089, 1104 (10th Cir. 1999).
86 See Affidavit of William J. Nelson at ¶¶ 6-7, attached
as Exhibit 7 to the following complaints: ITC v. ALLTEL; ITC v.
Ameritech; ITC v. BellSouth; ITC v. Century; ITC v. TDS; and ITC
v. Verizon North (ITC did not ``receive any payments, or charge
any fees, for installing or maintaining payphones at particular
locations. To the contrary, [ITC] invariably had to contract
with, and pay, site owners or commercial tenants for
authorization to install and maintain payphones on premises that
they owned or leased.'')
87 See, e.g., TDS Supplemental Answer, Exhibit 10.
88 Id.
89 See Qwest Supplemental Answer, Exhibit 1, Attachments A
and B.
90 See Complainants' Legal Analysis at II-13 - II-14, ¶¶
23-25.
91 Id.
92 Several Defendants argue that Complainants' claims
pursuant to Section 203 of the Act and the filed rate doctrine
are barred because they did not raise them in their informal
complaints. See TDS Supplemental Answer at 29; Qwest
Supplemental Answer at III-13; ALLTEL Supplemental Answer at IV-
3; BellSouth Supplemental Answer at II-29; Century Supplemental
Answer at IV-3; Verizon New England Supplemental Answer at B-27;
Verizon North Supplemental Answer at B-27; Verizon Delaware
Supplemental Answer at B-27 to B-28. Having concluded above that
we need not reach the Section 203 and filed rate doctrine claims
for purposes of this Order, we likewise need not address whether
the informal complaints adequately raised these claims.
93 Although we deferred the calculation of damages until
the second phase of this proceeding, we analyze the imposition of
damages here in order to facilitate the resolution of these
thirteen formal complaints as well as the 3000 pending informal
complaints. The parties were on notice that we would address
these threshold damages issues at this stage of the proceeding.
See May 1, 2002 Letter Ruling at 7.
94 While we conclude here that an award of damages is
appropriate, we defer the calculation of damages for each
Complainant to the second phase of this proceeding. See id.
Such calculation will be based on the amount of EUCL charges
actually paid by each Complainant to Defendants during the
applicable time period.
95 Verizon, 296 F.3d at 1100, 1112.
96 Citizens Supplemental Answer at III-11; Qwest
Supplemental Answer at III-22; Verizon New England Supplemental
Answer at B-11; SBC Supplemental Answer at III-11; BellSouth
Supplemental Answer at II-10 - II-11; TDS Supplemental Answer at
10; Verizon North Supplemental Answer at B-11; Verizon Delaware
Supplemental Answer at B-11. See also ALLTEL Supplemental Answer
and Century Supplemental Answer at IV-3, referencing Citizens
Supplemental Answer at 4-20.
97 Verizon, 269 F. 3d at 1101, 1112 (``We therefore
express no opinion as to the Commission's authority to impose
damages on the LECs for charges that they may have collected in
reliance on the agency's initial (and mistaken) interpretation of
the Access Charge Reconsideration rules.'')
98 Id. at 1112.
99 Id. at 1109, quoting Williams Natural Gas Co. v. FERC,
3 F.3d 1544, 1554 (D.C. Cir. 1993).
100 Id. At 1109, citing Health Ins. Ass'n of Am. v. Shalala, 23
F.3d 412, 424 (D.C. Cir. 1994) (emphasis added).
101 Id. (citations omitted).
102 See id. at 1109-10, citing Pub. Serv. Co. of Colo. v. FERC,
91 F.3d 1478, 1490 (D.C. Cir. 1996).
103 Citizens Supplemental Answer at III-4 - III-5; Qwest
Supplemental Answer at III-15 - III-16; Verizon New England
Supplemental Answer at B-3 - B-4; ALLTEL Supplemental Answer at
IV-3 - IV-4; SBC Supplemental Answer at III-3 - III-4; BellSouth
Supplemental Answer at II-3 - II-4; Century Supplemental Answer
at IV- 3 - IV-4; TDS Supplemental Answer at 3-4; Verizon North
Supplemental Answer at B-3 - B-4; Verizon Delaware Supplemental
Answer at B-3 - B-4.
104 See id., citing Apr. 4, 1989 Anita J.Thomas Letter and Sep.
14, 1988 Anita J. Thomas Letter.
105 Liability Order, 15 FCC Rcd at 8769, ¶ 28.
106 See e.g., Malkan FM Associates v. FCC, 935 F.2d 1313, 1319
(D.C. Cir. 1991) (``Malkan'').
107 Citizens Supplemental Answer at III-5 - III-6; Qwest
Supplemental Answer at III-16 - III-17; Verizon New England
Supplemental Answer at B-5; ALLTEL Supplemental Answer at IV-3 -
IV-4; SBC Supplemental Answer at III-4 - III-5; BellSouth
Supplemental Answer at II-4 - II-5; Century Supplemental Answer
at IV-3 - IV-4; TDS Supplemental Answer at 3-4; Verizon North
Supplemental Answer at B-5; Verizon Delaware Supplemental Answer
at B-5.
108 C.F. Communications, 128 F.3d at 742.
109 Exxon Co., U.S.A. v. FERC, 182 F.3d 30, 49 (D.C. Cir. 1999).
110 Id.
111 Verizon, 269 F.3d at 1111 (citations omitted); see also Pub.
Utilities Com'n of Calif. V. FERC, 988 F.2d 154, 163 (D.C. Cir.
1993) (Agency discretion ``is often at its `zenith' when the
challenged action relates to the fashioning of remedies.'')
(citations omitted).
112 See Liability Order, 15 FCC Rcd at 8768, ¶ 28
113 Citizens Supplemental Answer at III-43; Qwest Supplemental
Answer at III-42; Verizon New England Supplemental Answer at B-
42; SBC Supplemental Answer at III-44; BellSouth Supplemental
Answer at II-42; TDS Supplemental Answer at 41; Verizon North
Supplemental Answer at B-42; Verizon Delaware Supplemental Answer
at B-42.
114 Verizon, 269 F.3d at 1110-11 (citations omitted). See Exxon
Co., 182 F.3d at 49 (Retroactivity is not impermissible where, as
here, the affected parties have notice ``that resolution of some
specific issue may cause a later adjustment.''). See, e.g., OXY
USA, Inc. v. FERC, 64 F.3d 679, 699 (D.C. Cir. 1995);
Transwestern Pipeline Co. v. FERC, 59 F.3d 222, 232-233 (D.C.
Cir. 1995).
115 See 47 C.F.R. § 61.45(d)(vi).
116 Exxon Co., 182 F.3d at 49. See also Cities of Carlisle and
Neola, Iowa v. FERC, 741 F.2d 429, 433 (D.C. Cir. 1984).
117 Public Utilities Commission of the State of California, 988
F.2d at 163, quoting United Gas Improvement Co. v. Callery, 382
U.S. 223, 229 (1965), reh. denied, 382 U.S. 1001 (1966) (ellipses
and brackets omitted).
118 Citizens Supplemental Answer at III-4; Verizon New England
Supplemental Answer at B-3; SBC Supplemental Answer at 3;
BellSouth Supplemental Answer at II-3; TDS Supplemental Answer at
3; Verizon North Supplemental Answer at B-3; Verizon Delaware
Supplemental Answer at B-3. See also ALLTEL Supplemental Answer
and Century Supplemental Answer at IV-2 - IV-3, incorporating by
reference Citizens Supplemental Answer at III-4.
119 MCI Telecommunications Corp. v. FCC, 59 F.3d 1407, 1414
(D.C. Cir. 1995), cert. denied, 517 U.S. 1129 (1996), quoting 47
U.S.C. § 206 (emphasis added).
120 47 U.S.C. § 209.
121 See ¶ 33, supra.
122 1 Dan B. Dobbs, Law of Remedies § 4.1(1), at 555 (2d ed.
1993).
123 See id.
124 See MCI, 59 F. 3d at 1415.
125 Restatement (Third) of Restitution and Unjust Enrichment §
17.
126 See Restatement (Third) of Restitution and Unjust Enrichment
§ 1 cmt. H (Discussion Draft 2000) (``restitution . . . is itself
a source of obligations, analogous in this respect to tort or
contract. A liability in restitution is enforced by
restitution's own characteristic remedies, just as a liability in
contract is enforced by what we think of as contract remedies.'')
127 See U.S. v. Associated Transport, Inc., 505 F.2d 366, 367-69
(D.C. Cir. 1995).
128 Complainants' Consolidated Reply at III-9.
129 Atlantic Coast Line, 295 U.S. at 312.
130 Similarly, Towns of Concord, Norwood and Wellesley,
Massachusetts v. FERC, 955 F.2d 67 (D.C. Cir 1991), another case
relied on by Defendants, does not involve a statutory right to
damages, but rather merely confirms that FERC has discretion in
ordering rate refunds under the Federal Power Act.
131 Rapaport v. United States Dep't of the Treasury, Office of
Thrift Supervision, 59 F.3d 212, 217 (D.C. Cir. 1995) (emphasis
added), quoting Dobbs, Law of Remedies § 4.1(2); see also Klein
v. Arkoma Prod. Co., 73 F.3d 779, 786 (8th Cir. 1996) (``a party
is unjustly enriched when he has received something of value that
belongs to another'').
132 Dobbs, Law of Remedies § 4.1(2), at 558; see also MacDraw,
Inc. v. CIT Group Equip. Fin., Inc., 157 F.3d 956, 963 (2d Cir.
1998) (unjust enrichment exists when ``as between the two parties
enrichment of the [defendant is] unjust.'')
133 Citizens Supplemental Answer at III-16; Qwest Supplemental
Answer at III-26; Verizon New England Supplemental Answer at B-
15; ALLTEL Supplemental Answer at IV-6; SBC Supplemental Answer
at III-16; BellSouth Supplemental Answer at II-15; Century
Supplemental Answer at IV-6; TDS Supplemental Answer at 15;
Verizon North Supplemental Answer at B-15; Verizon Delaware
Supplemental Answer at B-15.
134 Proof of such payment will occur in the second phase of this
proceeding.
135 47 U.S.C. § 201(b).
136 FPC v. Tennessee Gas Transmission Co., 371 U.S. 145, 152-53
(1962); see also Liability Order, 15 FCC Rcd at 8770, ¶ 31.
137 New England Telephone & Telegraph Co v. FCC., 826 F.2d 1101,
1108 (D.C. Cir. 1987).
138 See CVCA v. Citizens Complaint at I-4, ¶ 1; Exh. 1 (Informal
Complaint filed by CVCA against Citizens, dated Mar. 3, 1998);
CVCA v. Qwest Complaint at I-4, ¶ 1; Exh. 1 (Informal Complaint
filed by CVCA against Qwest, dated Sep. 29, 1997); IMR v. Verizon
New England Complaint at I-4, ¶ 1; Exh. 1 (Informal Complaint
filed by IMR against Verizon, dated Oct. 6, 1997); ITC v. ALLTEL
Complaint at I-4, ¶1; Exh. 1 (Informal Complaint filed by ITC
against ALLTEL, dated Sep. 15, 1997); ITC v. Ameritech Complaint
at I-4, ¶ 1; Exh. 1 (Informal Complaint filed by ITC against.
Ameritech, dated Sep. 15, 1997); ITC v. BellSouth Complaint at I-
4, ¶ 1; Exh. 1 (Informal Complaint filed by ITC against
BellSouth, dated Sep. 15, 1997); ITC v. Century Complaint at I-4,
¶ 1; Exh. 1 (Informal Complaint filed by ITC against Century,
dated Sep. 15, 1997); ITC v. TDS Complaint at I-4, ¶ 1; Exh. 1
(Informal Complaint filed by ITC against TDS, dated Sep. 15,
1997); ITC v. Verizon North Complaint at I-4, ¶ 1; Exh. 1
(Informal Complaint filed by ITC against Verizon North, dated
Sep. 15, 1997); NTC v. Verizon Delaware Complaint at I-4, ¶ 1;
Exh. 1 (Informal Complaint filed by NTC against Verizon Delawere,
dated Nov. 4, 1997); NSC v. PacBell Complaint at I-4, ¶ 1; Exh.
1 (Informal Complaint filed by NSC against PacBell, dated Dec.
31, 1997); Payphone Systems v. Citizens Complaint at I-4, ¶ 1;
Exh. 1 (Informal Complaint filed by Payphone Systems against
Citizens, dated Jan. 8, 1998); Payphone Systems v. PacBell
Complaint at I-4, ¶ 1; Exh. 1 (Informal Complaint filed by
Payphone Systems against PacBell, dated Jan. 8, 1998).
139 As noted earlier, this time frame encompasses the years 1986
through 1997. See supra ¶ 3.
140 We note that many of the complainants who chose to file
complaints earlier were represented by the same Washington D.C.
communications counsel representing the Complainants in this
matter.
141 See Complainants' Legal Analysis at II-44 - II-52, ¶¶ 74 -
88.
142 47 U.S.C. § 415(b).
143 Bunker Ramo Corp., 31 FCC 2d 449, 453, ¶ 12 (1971)
(``Bunker Ramo''). See American Pipe & Construction Co. v. Utah,
414 U.S. 538, 554 (1974) (stating that ``statutory limitation
periods are designed to promote justice by preventing surprises
through the revival of claims that have been allowed to slumber
until evidence has been lost, memories have faded, and witnesses
have disappeared.''). See also Aetna Life Ins. Co. v. AT&T Co.,
3 FCC Rcd 2126, 2129, ¶ 13 (CCB 1988) (``Aetna''), aff'd sub
nom. US Sprint Communications Co. v. AT&T Co., 9 FCC Rcd 4801
(1994) (``US Sprint''), aff'd, Sprint Communications Co. v. FCC,
76 F.3d 1221, 1226 (D.C. Cir. 1996) (``Sprint''); Carter v.
Washington Metropolitan Area Transit Authority, 764 F.2d 854, 858
(D.C. Cir. 1985) (``Carter'').
144 Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96
(1991). See Baldwin County Welcome Center v. Brown, 466 U.S.
147, 151 (1984) (stating ``one who fails to act diligently cannot
invoke equitable principles to excuse that lack of diligence.'');
I.M. Frazer v. United States, 288 F.3d 1347, 1352 (Fed. Cir.
2002) (stating that the court has ``generally been much less
forgiving in receiving late filings where the claimant failed to
exercise due diligence in preserving his legal rights.''); see
also Aetna, 3 FCC Rcd at 2129, ¶ 14; Armstrong Utils., Inc. v.
General Tel. Co., Memorandum Opinion and Order, 25 FCC 2d 385,
389, ¶ 12 (1970) (``Armstrong'').
145 Armstrong, 25 FCC 2d at 389, ¶ 11 (stating that the
``construction of Section 415, both by the Commission and the
federal courts, has been `strict'''; Carter, 764 F.2d at 858
(noting that the general rule is that courts should apply the
statute of limitations strictly); Bunker Ramo, 31 FCC 2d at 453,
¶ 12 (stating that ``although mere ignorance will generally not
toll the statute, active fraudulent concealment by a defendant
will generally do so.''). See also US Sprint, 9 FCC Rcd at 4802,
¶ 10; Teleprompter Cable Sys., Inc., Decision, 52 FCC 2d 1263,
1271, ¶ 19 n.13 (1975), rev'd and remanded on other grounds,
Teleprompter Cable Sys., Inc. v. FCC, 543 F.2d 1379 (D.C. Cir.
1976); Municipality of Anchorage d/b/a Anchorage Telephone
Utility v. Alascom, Inc., 4 FCC Rcd 2472, 2473, ¶23 (CCB 1989)
(``Anchorage''). Complainants, however, make no allegations of
fraudulent conduct by the Defendants in their complaints.
146 See Sprint, 76 F.3d at 1225 (stating that a cause of action
accrues and the limitations period begins to run only when the
plaintiff discovers, or with due diligence should have
discovered, the injury that is the basis of the action.);
AirTouch Cellular v. Pacific Bell, Memorandum Opinion and Order,
16 FCC Rcd 13502, 13504, ¶ 6 (2001) (``AirTouch'') (stating that,
under Section 415(b), a cause of action accrues ``when the
carrier does the unlawful act or fails to do what the law
requires.''). See also Liability Order, 15 FCC Rcd at 8772, ¶
36; C.F. Communications Corp. v. Century Tel. of Wisconsin, Inc.,
Hearing Designation Order, 16 FCC Rcd 8801, 8807, ¶ 17 (2001)
(``HDO''); MCI Telecommunications Corp. v. Teleconcepts, 71 F.3d
1086, 1100 (3rd Cir. 1995) (``Teleconcepts'').
147 See Sprint, 76 F.3d at 1226 (stating that ``where the
defendant fraudulently concealed material facts related to its
wrongdoing,'' the cause of action does not accrue until the
plaintiff has ``something approaching actual notice.''). Aetna, 3
FCC Rcd at 2129, ¶ 16 (noting that the ``running of a
limitations period may be tolled by active concealment of the
facts giving rise to a cause of action by defendant.''). See
also Valenti v. AT&T Co., Memorandum Opinion and Order, 12 FCC
Rcd 2611, 2621, ¶ 24 (1997) (``Valenti'').
148 See Complainants' Legal Analysis at II-30, ¶ 54. See
e.g. CVCA v. Citizens Complaint; Exh. 8 (Affidavit of James
Patrick Kerivan, Jr. On the Recovery Period [``Kerivan Recovery
Period Aff.''] at 2-4, ¶¶ 6, 9, 13; IMR v. Verizon New England
Complaint; Exh. 8 (Affidavit of Thomas J. Biggins On the Recovery
Period [``Biggins Recovery Period Aff.'']) at 2, ¶¶ 5-8; ITC v.
ALLTEL Complaint; Exh. 8 (Affidavit of William J. Nelson On the
Recovery Period [``Nelson Recovery Period Aff.''] at 2-3, ¶¶ 6,
8-9; NTC v. Verizon Delaware Complaint; Exh. 8 (Affidavit of
Michael Bright On the Recovery Period [``Bright Recovery Period
Aff.''] at 2-3, ¶¶ 5-7; NSC v. PacBell Complaint; Exh. D
(Affidavit of M. Sean Venezia [``Venezia Aff.''] at 25, ¶¶ 67-69;
Payphone Systems v. Citizens Complaint; Exh. 8 (Affidavit of
Ronald McPherson On the Recovery Period [``McPherson Recovery
Period Aff.''] at 2, ¶¶ 4, 6-8.
149 MCI Telecommunications Corp. v. U S West Communications,
Inc., Memorandum Opinion and Order, 15 FCC Rcd 9328, 9330, ¶ 5
(2000) (noting that ``the general rule is that the two-year
limitations period begins to run when the customer receives a
bill from the carrier assessing the disputed rate''). See also
Teleconcepts, 71 F.3d at 1100; Tele-Valuation, Inc. v. AT&T Co.,
73 FCC 2d 450, 452, ¶ 4 (1979).
150 See CVCA v. Citizens Complaint at I-35, ¶¶ 6-7. See also
Kerivan Recovery Period Aff. at 4, ¶ 17; Biggins Recovery Period
Aff. at 4, ¶ 19; Nelson Recovery Period Aff. at 4, ¶ 17; Bright
Recovery Period Aff. at 4, ¶ 17; Venezia Aff. at 27, ¶ 76;
McPherson Recovery Period Aff. at 3, ¶ 15.
151 See CVCA v. Citizens Complaint at I-35, ¶¶ 1-5; See also
Kerivan Recovery Period Aff. at 3-4, ¶¶ 13-14; Biggins Recovery
Period Aff. at 3, ¶ 11; 4, ¶¶ 16-18; Nelson Recovery Period Aff.
at 2, ¶ 7; Bright Recovery Period Aff. 2, ¶ 6; 4, ¶¶ 12-14;
Venezia Aff. at 26, ¶¶ 73-74; McPherson Recovery Period Aff. at
2, ¶ 5; 3, ¶ 12.
In this regard, given the uncertain outcome of their
petition and the agency's discretion whether to rule on a
petition for declaratory ruling, Complainants should not have
relied solely on this petition to address their legal claims
against Defendants. See 47 C.F.R. § 1.2; 5 U.S.C. § 554.
152 See Complainants' Legal Analysis at II-30, ¶ 53; II-37, ¶
64; II-41, ¶ 69; II-49, ¶ 82; II-50, ¶ 84.
153 Id. at II-28, ¶ 52; II-29, ¶ 53; II-34, P 59; II-37, ¶ 64;
II-41, ¶ 70; II-43, ¶ 73.
154 Sep. 14, 1988 Anita J. Thomas Letter. See also Apr. 4, 1989
Anita J. Thomas Letter; Bureau CFC Order, 8 FCC Rcd at 7336, ¶¶
12-13.
155 See 47 C.F.R. § 0.445(e); Section 0.445(e) of the
Commission's rule provides that an unpublished order may not be
used as precedent against a third party. See also Malkan, 935
F.2d at 1319 (stating that staff level letters do not necessarily
speak for or bind the Commission); Liability Order, 15 FCC Rcd at
8768-8769, ¶ 28.
156 CFC I Order, 10 FCC Rcd at 9778-79, ¶ 16; 9780, ¶ 21,
157 C.F. Communications, 128 F.3d at 739-40.
158 See Verizon, 269 F.3d at 1111.
159 See Complainants' Legal Analysis at II-20, ¶ 36.
160 Id. at II-29, ¶ 51; II-35, ¶ 61.
161 We note that there is no evidence that any of these IPPs
tried to pursue their claims in district court.
162 We note that the majority of these 30 prevailing IPPs were
represented by the same Washington D.C. communications counsel
that represent the current complainants.
163 See Sprint, 76 F.3d at 1226. See also Kerivan Recovery
Period Aff. at 2-4, ¶¶ 6, 9, 13; Biggins Recovery Period Aff. at
2, ¶¶ 5-7; Nelson Recovery Period Aff. at 2-3, ¶¶ 6, 8-9; Bright
Recovery Period Aff. at 2-3, ¶¶ 5-7; Venezia Aff. at 25, ¶¶ 67-
69; McPherson Recovery Period Aff.''] at 2, ¶¶ 4, 6-8.
164 McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir. 1981)
(``A decision recognizing a cause of action after the period has
run does not retroactively interrupt the running of the
limitations period.'') (``McConnell''). See also Fiesel v. Board
of Ed. of City of New York, 675 F.2d 522, 524 (2nd Cir. 1982)
(``Fiesel''); Duchesne v. Sugarman, 459 F.Supp. 313 (S.D.N.Y.
1978).
165 Fiesel, 675 F.2d at 524.
166 McConnell, 661 F.2d at 118.
167 Container Corp. of America v. Admiral Merchants Motor
Freight, Inc., 489 F.2d 825, 828 (7th Cir. 1973) (Interpreting a
provision of the Interstate Commerce Act (``ICC''), wherein the
limitations period begins to run from the issuance of an ICC
order, to find that a cause of action to enforce an ICC order
accrues when a final order is issued.)
168 Hartford Life Insurance Co. v. Title Guarantee Co., 52 F.2d
1170, 1174 (D.C. Cir. 1975) (finding that plaintiff's cause of
action for failure of consideration depended upon a prior
adjudication finding that the loan held by plaintiff was
invalid).
169 United States v. One 1961 Red Chevrolet Impala Sedan, 457
F.2d 1353, 1358 (5th Cir. 1972) (finding that plaintiff had been
``without a right'' until Supreme Court issued its opinion).
170 Neely v. United States, 546 F.2d 1059, 1068 (3rd Cir. 1976)
(finding that the existence of a cause of action was
``inherently unknowable'' until Supreme Court issued its
opinion).
171 Slaaten v. United States, 990 F.2d 1038, 1042 (8th Cir.
1993) (finding that plaintiff could not have had the requisite
knowledge of injury to file a claim under the Federal Tort Claims
Act until the Interior Board of Land Appeals issued a final
decision regarding a related issue).
172 See Aetna, 3 FCC Rcd at 2129, ¶ 15 (rejecting complainants'
reliance on Red Chevrolet (457 F.2d 1353) and Neely (546 F.2d
1059) because the challenged order at issue did not create their
cause of action).
173 Interconnection Arrangements Between and Among the Domestic
and International Record Carriers, Memorandum Opinion and Order,
CC Docket Nos. 78-122 & 78-97, FCC 86-190, (rel. May 2, 1986) at
¶ 16.
174 Id.
175 ITT World Communications, Inc. v. Western Union Telegraph
Co., 598 F. Supp. 1439, 1440-1 (S.D.N.Y. 1984) (holding that
request made to District Court for attorney's fees as damages
under Section 207 of the Act was not barred by Section 415(b)
because this was plaintiff's ``first and only opportunity'' to
recover attorney's fees in the proceeding).
176 Had such complaint been rejected by the Commission,
Complainants would have been free to appeal the Commission's
rulings. Also, if the Commission improperly failed to act on
such complaints, Complainants could have sought mandamus.
177 AirTouch, 16 FCC Rcd at 13504, ¶ 6 n.21 (stating that a
cause of action accrues when a rule imposing a new regulatory
obligation is promulgated).
178 See supra n.146.
179 See Complainants' Legal Analysis at II-52 - II-55, ¶¶ 90 -
99.
180 Id. at II-52, ¶ 90, citing Ervin v. County of Los Angeles,
848 F.2d 1018 (9th Cir. 1988) (``Ervin'').
181 Ervin, 848 F.2d at 1019. See also Hernandez v. City of El
Monte, 138 F.3d 393, 401-402 (9th Cir. 1998); Cervantes v. City
of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993); Daviton v.
Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1137, 1140 (9th
Cir. 2001) (all applying the California test for equitable
tolling).
182 See supra n.145.
183 Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96
(1991) (Limits tolling to instances ``where the claimant has
actively pursued his judicial remedies by filing a defective
pleading during the statutory period, or where the complainant
has been induced or tricked by his adversary's misconduct into
allowing the filing deadline to pass.'').
184 See Complainants' Legal Analysis at II-53 - II-54, ¶¶ 91 -
93.
185 Id. at II-55, ¶ 94.
186 Id. at II-55, ¶ 95 relying on Valenti (12 FCC Rcd at 2211, ¶
26) and Teleprompter (52 FCC 2d 1263, 1271, ¶ 19 n.13) for the
proposition that the Commission has previously applied the Ervin
test. We note, however, that in Valenti, the Commission relied
on prior Commission decisions (Armstrong, 25 FCC 2d at 389, and
Anchorage, 4 FCC Rcd at 2476), to reject the equitable tolling
request. It was only to address complainant's reliance on Ervin
that the Commission noted that the complainant failed the third
prong of the Ervin test because complainant should have been
aware that the Commission had primary or exclusive jurisdiction.
Contrary to Complainants' assertions, the Commission's
Teleprompter decision does not apply the California Ervin test to
consider whether the statute of limitations should be equitably
tolled. Teleprompter, 52 FCC 2d 1263, 1271, ¶ 19 n.13.
187 See Complainants' Legal Analysis at II-39 citing First
Waiver Order; Bay Communications v. New England Tel. Co., Order,
7 FCC Rcd 254 (CCB 1992) (unopposed waiver requests granted
because of pending related complaint); TTX Co. v. AT&T
Communications, Order, 7 FCC Rcd 2084 (CCB 1992) (unopposed
waiver request granted for 60 days because deadline for filing
formal complaint expired during Commission's consideration of
waiver request).
188 Id. at II-56 - II-57, ¶¶ 97-99.
189 Fiesel, 675 F.2d at 524 (stating that it is incumbent upon a
plaintiff to test his ``right and remedy in the available forums.
These suits were not commenced until through the labor of others
the way was made clear.'')
190 See supra n.144 and n.145. See also Armstrong, 25 FCC 2d at
389, ¶ 12 (stating that permitting ``a potential complainant to
sit idly by and remain silent for years'' and ``then claim that a
cause of action has accrued to him because of a determination
made by the Commission in an adjudicatory proceeding involving a
different entity asserting an independent grievance'' would be
``contrary to the policies underlying the statute of
limitations'').
191 See Citizens Supplemental Answer at 33-53; Qwest
Supplemental Answer at III-32 - III-55; Verizon New England
Supplemental Answer at B-28 - B-52; ALLTEL Supplemental Answer at
IV-7 - IV-9; SBC Supplemental Answer at III-33 - III-52;
BellSouth Supplemental Answer at II-30 - II-55; Century
Supplemental Answer at IV-7 - IV-9; TDS Supplemental Answer at 30
- 53; Verizon North Supplemental Answer at B-28 - B-52; Verizon
Delaware Supplemental Answer at B-30 - B-53.
192 SBC Supplemental Answer at 56, 59-61; BellSouth Supplemental
Answer at II-57, 59-60; Qwest Supplemental Answer at III-56-57;
TDS Supplemental Answer at III-55, 58. Although TDS acknowledges
that the informal complaint filed against it by ITS appears to be
timely filed, TDS also argues that the Commission should dismiss
any formal complaints for which a complainant has failed to show
that it properly filed an informal complaint. See TDS
Supplemental Answer at n.38.
193 BellSouth Answer at I-30, ¶ G12; SBC Answer, I-H at 27, 30,
32. Relying on the same theory, SBC also appears to be
contesting the dates on which the informal complaints at issue
were filed.
194 Qwest Answer at I-31, ¶ 14; Qwest Supplemental
Answer at III-54 - III-57 (Qwest does not dispute that CVC filed
an informal complaint, but maintains that the correct filing date
for CVC's informal complaint is April 15, 1998, instead of
October 3, 1997).
195 BellSouth Supplemental Answer at II-60, n.39.
196 BellSouth Answer at I-30, ¶ G12; SBC Answer at I-H at 27,
30, 32.
197 See ITC v. BellSouth Complaint, Exh. 24 (Letter from Chief,
Consumer Protection Branch, Federal Communications Commission,
dated June 30, 1999, to ITC Corporation (stating that, during
implementation of new complaint processing system, ``unexpected
technical issues arose and as a result, we have been unable to
further process your complaint and have closed the file.'')
(``June 30, 1999 Consumer Protection Branch Letter'').
198 TeleSTAR, Inc., Decision, 2 FCC Rcd 5, 13, ¶ 23 (Rev. Bd.
1987) (stating that credibility involves the manner in which
testimony ``hangs together with other evidence,'' citing to Carbo
v. U.S., 314 F.2d 718, 749 (9th Cir. 1963)); American
International Development, Inc., Memorandum Opinion and Order, 86
FCC 2d 808, 815, ¶ 17 (1981) (noting that the existence of
corroborative evidence is a factor to be considered in weighing
the evidence presented). See also Contemporary Media, Inc.,
Decision, 13 FCC Rcd 14,437, 14,457, ¶ 39 (1998).
199 See 47 C.F.R. §§ 1.716, 1.717, and 1.718.
200 The informal complaint letters are dated September 15, 1997,
are printed on ITC's stationery, and include the name of ITC's
president, William J. Nelson. We find credible the affidavit of
Pamela S. Wickham, ITC's office manager during the time period at
issue, that it was the company's customary practice to send
letters out on the date they were generated, without Mr. Nelson's
signature when he was not available to sign them, and that this
is what occurred with the informal complaints at issue here.
Complainants' Consolidated Reply at III-154, ¶ 104; Exh. 30
(Declaration of Pamela S. Wickham) (``Wickham Decl.''), at 2-3,
¶¶ 2-8.
201 See Hughes-Moore Assocs., Memorandum Opinion and Order, 7
FCC Rcd 1454, 1455, ¶¶ 10-11 (1992) (finding that, in the absence
of a document with an actual FCC date stamp, and where neither
the Commission nor the parties have a record of initially
receiving the pleading in question, the submitted copy was not
entitled to be accepted at face value; in addition, verified
statement of counsel regarding proper mailing, without additional
corroborating evidence, was insufficient); Westchester Council
for Public Broadcasting, Inc. to Share Time with Noncommercial
Educational Station WNYE(FM), Brooklyn, New York, Memorandum
Opinion and Order, 8 FCC Rcd 2213, 2214, ¶ 7 n.4 (1993) (finding
that applicant's copy of its response without a Commission date
stamp constituted insufficient evidence of filing a response.);
Federal Express Corp., Memorandum Opinion and Order, 15 FCC Rcd
4289, 4292, ¶ 13 (WTB 2000) (finding that complainant did not
diligently prosecute its renewal application because, among other
things, it did not avail itself of the option to receive a date
stamped copy of the application to indicate the FCC's receipt of
it).
202 Except for the informal complaint that ITC says it filed
against BellSouth, the Commission has a record of all the
informal complaints at issue in this proceeding. See June 29,
2001 FCC Open and Pending List of EUCL Informal Complaints.
203 See supra n.200 regarding Wickham Decl. We note that
evidence regarding mailing is an acceptable form of proof. See
Schikore v. BankAmerica Supplemental Retirement Plan, 269 F.3d
956, 964 (9th Cir. 2001) (stating that a sworn statement is
credible evidence of mailing.); Simpson v. Jefferson Standard
Life Ins. Co., 465 F.2d 1320, 1324 (6th Cir. 1972) (finding that
evidence of compliance with business custom will suffice to
establish proof of mailing.); Legille v. Dann, 544 F.2d 1, 4
(D.C. Cir. 1976) (noting that ``proof that mail matter is
properly addressed, stamped deposited in an appropriate
receptacle has long been accepted as evidence of delivery to the
adressee.'') See also Smith v. City of Chicago, 242 F.3d 737,
741 (7th Cir. 2001).
204 Complainants' Legal Analyis at II-83 - II-84, ¶¶ 143 - 145;
II-95, ¶¶ 23-24.
205 See June 29, 2001 FCC Open and Pending List of EUCL Informal
Complaints.
206 In its Jan. 21, 1999 response to ITC's informal complaints,
Ameritech (SBC) stated that it ``has received a copy of your
letters'' to the Federal Communications Commission dated
September 12, 1997.... seeking a refund of end user common line
(``EUCL'') charges assessed prior to April 15, 1997.'' See ITC
v. Ameritech Complaint, Exh. 2 (Letter from Linda Koraba,
Ameritech, dated Jan. 21, 1999, to Bill Nelson, ITC). In
addition, in its Dec. 31, 1998 response to NSC's informal
complaint, PacBell (SBC) stated that it had received a ``copy of
your letter dated Dec. 30, 1997, to the FCC.'' Further, PacBell
(SBC) noted that it ``is waiting for the expected further FCC
proceedings to determine whether or not we have any obligation to
refund EUCL charges to independent Payphone Service Providers.''
See NSC v. PacBell Complaint, Exh. A (Letter from June A.
Burgess, Pacific Bell, dated Dec. 30, 1998, to Iain MacLeod,
NSC). SBC's Jan. 4, 1989 response to Payphone Systems's informal
complaint is identical in substance to its response to NSC's
informal complaint. Letter from June A. Burgess, Pacific Bell,
dated Jan. 4, 1999, to Ronald MacPherson, Payphone Systems.
207 See Complainants' Consolidated Reply at III-153, ¶ 102; 154,
¶ 104. See also Wickham Decl. Ms. Wickham's declaration
indicates that the package included informal complaints that
underlie the following six formal complaints in this proceeding:
ITC v. ALLTEL; ITC v. Ameritech; ITC v. BellSouth; ITC v.
Century; ITC v. TDS; and ITC v. Verizon North.
208 See ITC v. BellSouth Complaint, Exh. 24 (June 30, 1989
Consumer Protection Branch Letter). See also n.196 supra. We
find that ITC's receipt of this letter supports ITC's assertion
that the informal complaint ITC states it filed against BellSouth
was prematurely closed. As with all the letters the bureau sent
regarding the files that were prematurely closed during the
database conversion, this letter did not state the name of the
defendant or informal complaint number of the improperly closed
complaint. However, this was the only informal complaint out of
the six informal complaints ITC filed together that is not
currently in the Commission's database.
209 The database lists the following filing dates for ITC's
informal complaints against the defendants in this proceeding:
ITC v. ALLTEL: Sep. 23, 1997; ITC v. Ameritech: Oct. 1, 1997;
ITC v. Century; Sep. 15, 1997; ITC v. TDS: Sep. 15, 1997; ITC v.
Verizon North: Oct. 1, 1997.
210 See 47 C.F.R. § 1.5.
211 The database shows: 1) ITC's complaints against Ameritech
were filed on Oct. 1, 1997; 2) Payphone Systems' complaint
against PacBell was filed on Jan. 12, 1998.
212 Complainants' Consolidated Reply, III-153; Exh. 27
(Declaration of James P. Kerrivan, Jr.), at 2, ¶¶ 3-4.
213 Citizens Supplemental Answer at III-53 - III-54; Qwest
Supplemental Answer at III-55 - III-56; Verizon New England
Supplemental Answer at B-52 - B-53; ALLTEL Supplemental Answer at
IV-9- IV-10; SBC Supplemental Answer at III-86; BellSouth
Supplemntal Answer at II-55 to II-56; Century Supplemental Answer
at IV-9 - IV-10; Verizon North Supplemental Answer at B-51 - B-
52; Verizon Delaware Supplemental Answer at B-52 - B-53; TDS
Supplemental Answer at 53-54.
214 See, e.g., Citizens Supplemental Answer at III-54; SBC
Supplemental Answer at III- 86. As we have concluded above that
we need not reach the section 203 and filed rate doctrine claims
for purposes of this Order, we will not address whether
Complainants provided sufficient notice about these particular
claims.
215 Complainants' Consolidated Reply at III-129 - III-131.
216 Formal Complaints Order, 12 FCC Rcd at 22507-08, ¶ 21.
217 Id. at 22507, ¶ 21.
218 Id. at 22517, ¶ 42.
219 See, e.g., Sprint Communications Company, L.P., v. Time
Warner Telecom, Inc., File No. EB-01-MD-020, Notice of Formal
Complaint, Sept. 7, 2001, at 3.
220 The informal complaints against each Defendant were attached
to the certified settlement letters, thereby providing Defendants
with a contemporaneous reference to the claims at issue.
221 HDO, 16 FCC Rcd 8801.
222 Although Qwest was not party to the HDO proceeding, it was a
defendant in the informal complaints and therefore had notice of
Complainants' arguments. CVCA v. Qwest Complaint, Exh. 1.
223 See HDO, 16 FCC Rcd at 8805, ¶ 8.
224 Id.
225 Id.
226 Id. at 8805, n.28.
227 See Letter Ruling, File Nos. EB-02-MD-018-030 (June 26,
2002), at n.9 (citing Summary of Enforcement Bureau's Multi-party
Initial Meeting Regarding Procedures for Resolving End User
Common Line Informal Complaints, Public Notice, DA 01-1344 (June
4, 2001)) (listing dates for Bureau-facilitated settlement
discussions scheduled in 2001).