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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
APCC Services, Inc., )
Data Net Systems, LLC, )
Davel Communications, Inc., ) File No. EB-03-MD-011
Jaroth, Inc. d/b/a Pacific )
Telemanagement )
Services, and )
Intera Communications Corp., )
)
Complainants, )
)
v.
)
Network IP, LLC, and )
Network Enhanced Telecom, LLP, )
)
Defendants. )
ORDER
Adopted: October 26, 2005Released: October 27, 2005
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Order, pursuant to sections 1.3 and 1.727 of
the Commission's rules,1 we grant in substantial part a motion2
filed by Complainants (collectively, ``APCC'') for waiver of the
six-month filing deadline set forth in section 1.718 of the
Commission's rules.3 For statute of limitations purposes, rule
1.718 allows the filing date of a formal complaint to ``relate
back'' to the filing date of a prior informal complaint
regarding the same claim, but only if, inter alia, the formal
complaint is filed within six months of the defendant's response
to the informal complaint. Here, APCC's counsel attempted to
file APCC's formal complaint on the very last day of the
applicable six-month period. The formal complaint was
automatically rejected, however, because APCC's counsel
submitted the wrong filing fee. Consequently, absent a waiver
and brief extension of the six-month filing deadline in rule
1.718, the statute of limitations will bar a significant portion
of APCC's damages claim, perhaps amounting to a potential loss
of millions of dollars.
2. For the reasons stated below, we conclude that the
hardship APCC would suffer as a result of their counsel's
administrative errors outweighs the need to enforce our
procedural rules strictly, especially given that NET's and the
Commission's interest in finality would not be materially
undermined by a brief extension of the deadline. Thus, under the
unique circumstances here, we find that the public interest is
better served by granting the waiver to allow some small
flexibility in the deadline established by rule 1.718.
II. BACKGROUND
3. Complainants are, inter alia, billing and collection
agents for numerous independent payphone service providers
(``PSPs'').4 NET is a switch-based reseller.5 On behalf of
Complainants' PSP principals, the Formal Damages Complaint seeks
recovery of ``dial-around'' payphone compensation from
Defendants under rule 64.1300,6 which implements (along with
other rules) section 276 of the Communications Act of 1934, as
amended (the ``Act'').7
4. Under rule 1.718, for purposes of tolling the statute
of limitations, the filing date of a formal complaint can
``relate back'' to the filing date of a prior informal complaint
involving the same parties and the same matter, but only if the
formal complaint is filed within six months after the
defendant's response to the informal complaint.8 Here, on
September 30, 2002, APCC filed an informal complaint against
NET9 seeking recovery of payphone compensation from one quarter
before the quarter ending on September 30, 200010 (two years
before the filing date, the limitations period under section 415
of the Act11) to November 23, 2001 (the regulatory cut-off date
for the kind of compensation at issue12). NET filed its
response to APCC's informal complaint on November 19, 2002.13
Therefore, pursuant to the six-month deadline under rule 1.718,
May 19, 2003 was the last date on which APCC could file a formal
complaint that would relate back to September 30, 2002 (the
filing date of the informal complaint) and thereby retain the
full potential recovery period of April 1, 2000 - November 23,
2001.
5. On May 19, 2003, the filing deadline under rule 1.718,
APCC's counsel attempted to file a formal complaint against NET.
APCC's counsel submitted the wrong filing fee, however: $165
per defendant instead of the $170 required by Commission rules
at that time.14 In addition, APCC's counsel submitted a single
check rather than a check for each defendant. Because APCC
submitted an inadequate filing fee, Mellon Bank automatically
rejected and returned the formal complaint.15 As a result, the
formal complaint was not ``filed'' on May 19, 2003, and APCC
missed the six-month deadline under rule 1.718.16
6. According to APCC, it submitted the wrong filing fee
(and thus missed the six-month deadline under rule 1.718)
because its counsel consulted only the hard-copy version of the
Code of Federal Regulations (``CFR''), dated October 1, 2002,
which contained a filing fee amount -- $165 per defendant --
that had been superseded by the time APCC filed its formal
complaint in May 2003. The new fee of $170 per defendant,
although adopted in July 2002, did not become effective until
after publication of the October 1, 2002 CFR, and so was not
reflected therein.17
7. On June 3, 2003, APCC filed a revised version of the
formal complaint, along with the correct filing fee.18 That
same day, APCC also filed the instant motion for waiver and
extension of rule 1.718's six-month relation-back deadline from
May 19, 2003 to June 3, 2003.19 APCC argues that we should
waive and extend the filing deadline because (i) APCC's counsel
made a good faith effort to file on time; (ii) the fee error was
de minimis and administrative; and (iii) denying a waiver would
impose a severe and undue penalty on Complainants' small PSP
clients.20 NET vehemently opposes the Motion, arguing, inter
alia, that (i) APCC has not met its heavy burden of showing
``special circumstances'' warranting a waiver of the
Commission's filing deadline, and (ii) the errors of APCC's
counsel here are precisely the kind of negligent acts that the
Commission has repeatedly refused to excuse, despite the
prospect of harsh consequences.21
II. DISCUSSION
8. Our resolution of APCC's Waiver Motion will affect the
amount of payphone compensation damages to which Complainants'
PSP clients may be entitled.22 Specifically, the potential
recovery period will be about nine months shorter if we deny the
Waiver Motion than if we grant the Waiver Motion.23 Although
the record does not yet permit us to ascribe a precise dollar
value to that time differential, that differential may well
amount to millions of dollars.24
9. The standards governing our assessment of APCC's
request to waive rule 1.718 are well established:
Generally, the Commission may grant a waiver for
good cause shown. The Commission may exercise its
discretion to waive a rule where the particular
facts make strict compliance inconsistent with the
public interest. In addition, the Commission may
take into account considerations of hardship,
equity, or more effective implementation of overall
policy on an individual basis. Waiver is therefore
appropriate only if special circumstances warrant a
deviation from the general rule, and such a
deviation will serve the public interest.25
Put differently, ``[w]hile an applicant for a waiver faces a
heavy burden of persuasion, the Commission must give a `hard
look' to meritorious waiver requests and may grant such requests
where the waiver will not undermine the policy of the general
rule and where public interest considerations require the
waiver.''26 Applying those standards to the facts here, we
largely grant but partially deny APCC's Waiver Motion, for the
reasons described below.
10. APCC missed the six-month filing deadline under rule
1.718 because its counsel made two easily avoidable mistakes:
(i) consulting only the hard-copy version of the CFR to learn
the filing fee, rather than also consulting readily available,
and more frequently updated, on-line versions of the CFR (e.g.,
Westlaw, LEXIS); and (ii) waiting until the last day to file the
formal complaint. NET contends that we should not relieve
Complainants of the consequences of their counsel's negligence,
just as the Commission has refrained from doing so in numerous,
allegedly analogous circumstances.27 For the following reasons,
we disagree with NET.
11. ``Considerations of hardship, equity, [and] more
effective implementation of overall policy'' support waiver of
rule 1.718 under the particular facts here.28 Denying a waiver
could deprive APCC's principals - numerous independent payphone
service providers -- of the right to millions of dollars in
compensation. That would cause APCC's principals to bear
substantial hardship due to the lack of reasonable care taken by
APPC's counsel. Moreover, that would allow APCC's counsel's
failures to impinge upon an overall policy of section 276 of the
Act -- ``to ensure that all payphone service providers are
fairly compensated for each and every completed intrastate and
interstate call using their payphone....''29 Given these unique
circumstances, this case is a situation where the ``Commission
may exercise its discretion to waive a rule ... [because] the
particular facts make strict compliance inconsistent with the
public interest.''30
12. We recognize that the errors by APCC's counsel are
difficult to excuse, given that they were easily avoidable, and
APCC's law firm is highly experienced, resourceful, and
knowledgeable in communications law, and therefore should be
expected to know and closely adhere to Commission processes. On
the other hand, APCC's counsel did try to file the formal
complaint on time, and they corrected their error and filed
another formal complaint 15 days later. There is no evidence of
any attempt to ``game'' the system to obtain some undue
advantage. During the weeks leading up to the deadline, APCC
was in frequent contact with NET, discussing the status of the
dispute and the prospects for pre-complaint settlement.31 NET
knew all along that, in the absence of a settlement, APCC
planned to file a formal complaint; and APCC attempted in good
faith to do just that, finally succeeding shortly after the
deadline passed. For all these reasons, waiving the filing
deadline would not materially undermine a primary purpose of
rule 1.718 at stake here, which is to ensure finality,
certainty, and repose for prospective defendants.
13. We cannot completely overlook, however, the fact that
the efficient and effective functioning of the Commission's
complaint processes, both informal and formal, requires close
attention and adherence to the Commission's procedural rules,
including filing fees and deadlines like that established in
rule 1.718. Thus, we will consider the carelessness of APCC's
counsel in crafting the scope of our waiver.32
14. In light of all of the specific facts previously
described, we conclude that the public interest would best be
served by waiving and extending rule 1.718's filing deadline -
and thereby allowing the formal complaint's filing date of June
3, 2003 to relate back to the informal complaint's filing date
of September 30, 2002 - for all aspects of APCC's compensation
claim, except for prejudgment interest accrued during the 15-day
period between when APCC should have filed its formal complaint
with the correct fee (May 19, 2003) and when APCC did file its
formal complaint with the correct fee (June 3, 2003). 33 This
substantial, but not complete, grant of APCC's Waiver Motion
achieves an appropriate balance of the public interests in
avoiding undue hardship, promoting the Act's substantive policy
objectives, and discouraging disregard of the Commission's
procedural requirements.34
IV. CONCLUSION
15. The Commission has discretion in granting or rejecting
waiver requests, and in fashioning any grant of a waiver. In
the unique circumstances here, we find that the errors that
APCC's counsel committed should not deprive Complainants' PSP
principals of the chance to recover compensation for the period
in question, especially because allowing the waiver does not
materially detract from NET's and the Commission's interest in
finality. Further, APCC's counsel did make a good faith effort
to comply with the filing deadline, and promptly corrected the
failure to do so. As described above, we have crafted a grant
that serves the public interest in this case, while admonishing
APCC's counsel to pay appropriate regard to the Commission's
procedural rules.
V. ORDERING CLAUSE
16. Accordingly, IT IS ORDERED, pursuant to sections 1,
4(i), 4(j), 201(b), 208, and 276 of the Communications Act of
1934, as amended, 47 U.S.C. §§ 151, 154(i), 154(j), 201(b), 208,
and 276, and sections 1.3, 1.711-1.736, and 64.1300-64.1320 of
the Commission's rules, 47 C.F.R. §§ 1.3, 1.711-1.736, 64.1300-
64.1320, and the authority delegated pursuant to sections 0.111
and 0.311 of the Commission's rules, 47 C.F.R. §§ 0.111, 0.311,
that Complainants' motion for partial waiver of section 1.718 of
the Commission's rules IS GRANTED to the extent set forth above,
and is otherwise DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Kris A. Monteith
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 1.3, 1.727.
2 APCC Services, et. al., v. NetworkIP, LLC and Network Enhanced
Telecom, LLP, Complainants' Motion for Partial Waiver of Section
1.718 of the Commission's Rules, File No. EB-03-MD-011 (filed
June 3, 2003) (``Waiver Motion''). Defendants (collectively,
``NET'') opposed the motion, and APCC replied. See APCC
Services, et. al., v. NetworkIP, LLC and Network Enhanced
Telecom, LLP, Opposition to Complainants' Motion for Partial
Waiver of Section 1.718 of the Commission's Rules, File No. EB-
03-MD-011 (filed June 9, 2003) (``Opposition to Waiver Motion'');
APCC Services, et. al., v. NetworkIP, LLC and Network Enhanced
Telecom, LLP, Complainants' Reply to Defendants' Opposition to
Complainants' Motion for Partial Waiver of Section 1.718, File
No. EB-03-MD-011 (filed June 17, 2003) (``Reply''). Because rule
1.727(h) precludes a reply to an opposition to a motion, 47
C.F.R. § 1.727(h), APCC filed a motion for leave to file a reply
along with their Reply. APCC Services, et. al., v. NetworkIP,
LLC and Network Enhanced Telecom, LLP, Complainants' Conditional
Motion for Leave to File a Reply, File No. EB-03-MD-011 (filed
June 17, 2003). NET opposed the motion. APCC Services, et. al.,
v. NetworkIP, LLC and Network Enhanced Telecom, LLP, Defendants'
Opposition to Complainants' Conditional Motion for Leave to File
a Reply, File No. EB-03-MD-011 (filed June 23, 2003). Because we
do not rely on any submission other than the Waiver Motion and
the Opposition to Waiver Motion, we dismiss as moot APCC's motion
for leave to file a reply.
3 47 C.F.R. § 1.718.
4 See, e.g., APCC Services, et al., v. NetworkIP, LLC and Network
Enhanced Telecom, LLP, Supplemental Complaint for Damages, File
No. EB-03-MD-011 (filed Apr. 4, 2004) (``Formal Damages
Complaint'') at 2. Although the Formal Damages Complaint does
not specify the number of PSPs represented by Complainants, it is
clear that such PSPs are quite numerous. See, e.g., Formal
Damages Complaint at Attachments 16, 21, 25 and 29.
5 Formal Damages Complaint at 2; APCC Services, et al., v.
NetworkIP, LLC and Network Enhanced Telecom, LLP, Answer to
Damages Complaint, at 2, File No. EB-03-MD-011 (filed May 31,
2005) (``Answer'').
6 47 C.F.R. § 64.1300. See Formal Damages Complaint, supra.
7 47 U.S.C. § 276.
8 47 C.F.R. § 1.718 (providing, in pertinent part, that a formal
complaint ``will be deemed to relate back to the filing date of
the informal complaint: Provided, That the formal complaint: (a)
Is filed within six months from the date of the carrier's [i.e.,
the defendant's] report . . . '').
9 APCC Services, et al., v. NetworkIP, LLC, Informal Complaint,
File No. EB-02-MDIC-0071 (filed Sept. 30, 2002).
10 Due to certain unique characteristics of payphone billing and
payment cycles, payphone compensation claims can extend back a
quarter of a year farther than most other kinds of claims. Thus,
an informal complaint filed on September 30, 2002 allows recovery
back to April 1, 2000. See generally Pay Telephone
Reclassification and Compensation Provisions of the
Telecommunications Act of 1996, Third Report and Order, 14 FCC
Rcd 2545, 2631 at paras. 187-190 (1999) (subsequent history
omitted); see also, APCC Services et al. v. TS Interactive,
Memorandum Opinion and Order, 19 FCC Rcd 10456, 10459 at para. 18
(Enf. Bur. 2004); APCC Services, et al. v. NetworkIP, LLC and
Network Enhanced Telecom, LLP, Letter from Commission Staff to
Counsel, File No. EB-03-MD-011 (rel. Oct. 6, 2005) (``ISC
Order'').
11 47 U.S.C. § 415.
12 See, e.g., Formal Damages Complaint at 6, n.8; 8-9, paras. 11-
12. See generally Pay Telephone Reclassification and
Compensation Provisions of the Telecommunications Act of 1996,
Report and Order, 18 FCC Rcd 19975, 19983-86 at paras. 16-24
(2003) (subsequent history omitted); Pay Telephone
Reclassification and Compensation Provisions of the
Telecommunications Act of 1996, Second Order on Reconsideration,
16 FCC Rcd 8098, 8105 at para. 16 (2001) (subsequent history
omitted).
13 Answer at 3.
14 47 C.F.R. § 1.1106.
15 See generally 47 C.F.R. § 1.1116(a).
16 47 C.F.R. § 1.1116(a)(2).
17 Waiver Motion at 4-5, 7-9.
18 APCC Services, et al. v. NetworkIP, LLC and Network Enhanced
Telecom, LLP, Formal Complaint, File No. EB-03-MD-011 (filed June
3, 2003) (``Formal Liability Complaint''). See APCC Services, et
al. v. NetworkIP, LLC and Network Enhanced Telecom, LLP,
Defendants' Answer to Formal Complaint, File No. EB-03-MD-011
(filed July 28, 2003) (``Liability Answer''); APCC Services, et
al. v. NetworkIP, LLC and Network Enhanced Telecom, LLP,
Complainants' Reply to Defendants' Answer, File No. EB-03-MD-011
(filed Sept. 24, 2003) (``Liability Reply'').
19 Waiver Motion, supra.
20 Waiver Motion at 5, 7-9, 12, 15-17.
21 Opposition to Waiver Motion at 5-15. NET also argues that
APCC's Waiver Motion actually seeks dispositive rulings on three
issues, thus bringing the Motion under rule 1.727(b), whose
pleading requirements the Motion does not meet. Id. at 15-18.
We reject NET's assertion, because it is clear that the Waiver
Motion seeks merely a waiver of the rule in question, 47 C.F.R. §
1.718, and the dispositive issues mentioned by NET are argued not
in the Waiver Motion but in the Formal Liability Complaint.
22 In its formal complaint filed on June 3, 2003, APCC asked that
the issue of liability be addressed first, and that the issue of
damages be decided in a subsequent phase of the proceeding if
APCC prevailed in the first phase. Formal Liability Complaint at
1-2. See 47 C.F.R. § 1.722 (providing for such ``bifurcation''
of liability and damages determinations). During the liability
phase of this proceeding, we deferred ruling on the instant
Waiver Motion until the damages phase (if any), because the
outcome of the Motion would affect only the amount of damages,
not NET's liability. APCC Services, et al. v. NetworkIP, LLC and
Network Enhanced Telecom, LLP, Notice of Formal Complaint, File
No. EB-03-MD-011 (rel. July 8, 2003). We then ruled in APCC's
favor on liability on February 1, 2005, APCC Services, et al. v.
NetworkIP, LLC and Network Enhanced Telecom, LLP, Memorandum
Opinion and Order, 20 FCC Rcd 2073 (Enf. Bur. 2005) (``Bureau
Liability Order''), whereupon APCC filed a supplemental complaint
for damages on April 4, 2005. APCC's Waiver Motion is now ripe
for decision, because such decision will determine the length of
the potential damages recovery period. We note further that NET
filed an application for review of the Bureau Liability Order on
March 1, 2005, which is pending. APCC Services, et al., v.
NetworkIP, LLC and Network Enhanced Telecom, LLP, Application for
Review of Liability Order, File No. EB-03-MD-011 (filed March 1,
2005).
23 With the waiver, the relevant period for damages is April 1,
2000 to November 23, 2001; without the waiver, it is January 3,
2001 to November 23, 2001. See, e.g., ISC Order at 2; APCC
Services, et al. v. NetworkIP, LLC and Network Enhanced Telecom,
LLP, Letter from Commission Staff to Counsel, File No. EB-03-MD-
011 (rel. June 21, 2005) (``June 21 Letter'') at 3; APCC
Services, et al. v. NetworkIP, LLC and Network Enhanced Telecom,
LLP, Letter from Commission Staff to Counsel, File No. EB-03-MD-
011 (rel. Oct. 6, 2005). See supra, n.10.
24 See Formal Damages Complaint at Attachment 22; APCC Services,
et al. v. NetworkIP, LLC and Network Enhanced Telecom, LLP,
Defendants' Call Completion Data, File No. EB-03-MD-011 (filed
Sept. 2, 2005); ISC Order at 4.
25 Application for Review by Information Technology Dept. of
State of North Dakota, Order, 18 FCC Rcd 21521, 21524 at para. 9
(2003) (``North Dakota Order'').
26 Application of Winstar Broadcasting, Memorandum Opinion and
Order, 17 FCC Rcd 6126, 6128 at para. 9 (2003) (``Winstar
Order''). See, e.g., Delta Radio, Inc. v. FCC, 387 F.3d 897,
900-901 (D.C. Cir. 2004); Mountain Solutions, Ltd., Inc. v FCC,
197 F.3d 512, 517-522 (D.C. Cir. 1999); Northeast Cellular
Telephone v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990).
27 Opposition to Waiver Motion at 5-15. See, e.g., North Dakota
Order, 18 FCC Rcd 21521(denying one-day waiver of USF filing
deadline, even though mere administrative errors caused
applicant's day-late postmark); Application for Review of Denial
of Vista Communications, Inc.'s Request for Waiver, Memorandum
Opinion and Order, 18 FCC Rcd 16957 (2003) (denying waiver of
installment payment deadlines, because applicant's confusion and
uncertainty over its installment payment schedule, and its lack
of knowledge regarding the grace period provisions, did not
amount to good cause), aff'd, Vista Communications, Inc. v. FCC,
2004 WL 1171431 (D.C. Cir. 2004); Southern Communications
Systems, Inc., Memorandum Opinion and Order, 15 FCC Rcd 25103
(2000) (denying four-day waiver of payment deadline, because
employee's illness, lack of internal coordination, and sloppy
record-keeping did not amount to good cause) (Furchtgott-Roth
dissenting), aff'd, Second Memorandum Opinion and Order, 16 FCC
Rcd 18357 (2001); Inforum Communications, Inc. Waiver Request for
Late Acceptance of BTA Installment Payment, Order, 19 FCC Rcd 83
(ASA Div., Wireless Tel. Bur. 2004) (denying 2-day waiver of
payment deadline, because absence of officers authorized to make
payment did not amount to good cause); Request for Review of the
Decision of the Universal Service Administrator by School
District of Durand, Order, 18 FCC Rcd 9697 (TAP Div., Wireline
Comp. Bur. 2003) (denying waiver of USF filing deadline, because
confusion about complicated requirements does not amount to good
cause).
28 North Dakota Order, 18 FCC Rcd at 21524, para. 9.
29 47 U.S.C. § 276(b)(1)(A).
30 North Dakota Order, 18 FCC Rcd at 21524, para. 9. See, e.g.,
Metricom, Inc. Request for Waiver of Section 27.208(A) of the
Commission's Rules, Order, 13 FCC Rcd 890 (Wireless Tel. Bur.
1998) (granting two-day waiver of payment deadline, because delay
caused by applicant's bank's error in transmitting payment to
Mellon Bank); Southern Communications Systems, Inc. Request for
Waiver of Section 24.711(a)(2) of the Commission's Rules, Order,
12 FCC Rcd 1532 (Wireless Tel. Bur. 1997) (granting one-day
waiver of payment deadline, because of applicant's prior record
of compliance, prompt remedial action, and good faith effort to
pay on time); MFRI, Inc. Request for Waiver of Section
24.711(a)(2) of the Commission's Rules, Order, 12 FCC Rcd 1540
(Wireless Tel. Bur. 1997) (granting one-day waiver of payment
deadline, because applicant attempted to pay on time and failed
only due to administrative errors); Longstreet Communications
Int'l, Inc. Request for Waiver of Section 24.711(a)(2) of the
Commission's Rules, Order, 12 FCC Rcd 1549 (Wireless Tel. Bur.
1997) (granting nine-day waiver of payment deadline, because of
applicant's prior record of compliance, prompt remedial action,
and good faith effort to pay on time); Application of Fred Farley
for Authority to Construct and Operate a Domestic Public Cellular
Radio Telecommunications Service, Memorandum Opinion and Order, 4
FCC Rcd 4670 (Com. Car. Bur. 1989) (granting three-day waiver of
filing deadline, because improper filing on due-date caused by
clerical error).
31 Waiver Motion at 4, n.5; Opposition to Waiver Motion at 4-5;
Liability Answer at 17.
32 See n. 27, supra.
33 In other words, the calculation of prejudgment interest on
APCC's award of payphone compensation in this damages proceeding
will exclude the period from May 19, 2003 to June 3, 2003.
34 Cf., e.g., Metricom, supra; Southern Communications, supra;
MFRI, supra; Longstreet Communications, supra (all four orders
waiving deadlines, but denying movants a ``complete waiver'' and
requiring movants to pay penalties for missing deadlines). NET
also argues that we should deny the Waiver Motion because, even
had APCC made appropriate fee payments, the formal complaint
would have been dismissed for failure to comply with the
Commission's pleading requirements. Opposition to Waiver at 10-
12. We decline to engage in such post-hoc speculation here. It
is possible that supplementation rather than dismissal would have
been ordered. Thus, NET's argument does not counsel against
waiver here.