**DA 05-49**

**INDEPENDENT PAYPHONE ASSOCIATION OF NEW YORK'S PETITION FOR**

> **PRE-EMPTION AND DECLARATORY RULING**

**CONCERNING REFUND OF PAYPHONE LINE RATE CHARGES**

**PLEADING CYCLE ESTABLISHED**

**CC Docket No. 96-128**

**Released: January 7, 2005**

**Comment Date: January 18, 2005**

**Reply Comment Date: January 25, 2005**

On December 29, 2004, the Independent Payphone Association of New York
(IPANY) filed a petition asking the Commission to pre-empt rulings of
the State of New York that allegedly contravene the Commission's
payphone orders. IPANY's petition also seeks a declaratory ruling that
IPANY members are entitled to refunds of the tariffed payphone line rate
charges they paid to Verizon from 1997 to date, to the extent those
charges exceeded rates that comply with the Commission's new services
test.[^1]

Also on December 29, 2004, IPANY filed a motion pursuant to section
1.227 of the Commission's rules[^2] to consolidate its petition with the
Commission's consideration of the Illinois Public Telecommunications
Association's July 30, 2004, petition for a declaratory ruling (IPTA)
and the Southern Public Communications Association (SPCA) petition for
similar relief in this docket.[^3] IPANY contends that its petition
raises substantially the same issues presented by IPTA's and SCPA's
petitions for declaratory ruling. IPTA's and SCPA's petitions contend
that its members are entitled to refunds of the tariffed payphone line
rate charges they paid to SBC Ilinois and to Verizon North and South and
BellSouth, respectively, from 1997 to 2003, to the extent the charges
exceeded rates that comply with the Commission's new services test.

IPANY's petition appears to raise the same or substantially similar
issues raised in the IPTA and SCPA petitions. Accordingly, we will
consider IPANY's petition with our consolidated consideration of the
IPTA and SCPA petitions in CC Docket No. 96-128.

We invite comment on the IPANY petition. Pursuant to applicable
procedures set forth in sections 1.415 and 1.419 of the Commission's
rules, interested parties may file comments on or before January 18,
2005 and reply comments on or before January 25, 2005. Comments may be
filed using the Commission\'s Electronic Comment Filing System (ECFS) or
by filing paper copies. *See Electronic Filing of Documents in
Rulemaking Proceedings*, 63 Fed. Reg. 24121 (1998).

Comments filed through the ECFS can be sent as an electronic file via
the Internet to \<http://www.fcc.gov/e-file/ecfs.html\>. Generally, only
one copy of an electronic submission must be filed. If multiple docket
or rulemaking numbers appear in the caption of this proceeding, however,
commenters must transmit one electronic copy of the comments to each
docket or rulemaking number referenced in the caption. In completing the
transmittal screen, commenters should include their full name, U.S.
Postal Service mailing address, and the applicable docket or rulemaking
number, in this case, **CC Docket No. 96-128**. Parties may also submit
an electronic comment by Internet e-mail. To get filing instructions for
e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and
should include the following words in the body of the message, \"get
form \<your e-mail address\>.\" A sample form and directions will be
sent in reply. Parties who choose to file by paper must file an original
and four copies of each filing. If more than one docket or rulemaking
number appears in the caption of this proceeding, commenters must submit
two additional copies for each additional docket or rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail (although we continue to experience delays in receiving U.S. Postal
Service mail).

The Commission\'s contractor, Natek, Inc., will receive hand-delivered
or messenger-delivered paper filings for the Commission\'s Secretary at
236 Massachusetts Avenue, N.E., Suite 110, Washington, D.C. 20002.

> -The filing hours at this location are 8:00 a.m. to 7:00 p.m.
>
> -All hand deliveries must be held together with rubber bands or
> fasteners.
>
> -Any envelopes must be disposed of before entering the building.
>
> -Commercial overnight mail (other than U.S. Postal Service Express
> Mail and Priority Mail) must be sent to 9300 East Hampton Drive,
> Capitol Heights, MD 20743.
>
> -U.S. Postal Service first-class mail, Express Mail, and Priority Mail
> should be addressed to 445 12th Street, SW, Washington, D.C. 20554.

All filings must be addressed to the Commission\'s Secretary, Marlene H.
Dortch, Office of the Secretary, Federal Communications Commission, Room
TW-A325, 445 12^th^ Street, SW, Washington, D.C. 20554. Parties should
also send a copy of their filings to Jon Stover, Pricing Policy
Division, Wireline Competition Bureau, Federal Communications
Commission, Room 5-A365, 445 12^th^ Street, SW, Washington, D.C. 20554,
or by e-mail to jon.stover@fcc.gov. Parties shall also serve one copy
with the Commission's copy contractor, Best Copy and Printing, Inc.
(BCPI), Portals II, 445 12th Street, SW, Room CY-B402, Washington, D.C.
20554, (202) 488-5300, or via e-mail to fcc@bcpiweb.com.

The petition for declaratory ruling and comments filed by participating
parties will be available for public inspection and copying during
business hours at the FCC Reference Information Center, Portals II, 445
12^th^ Street SW., Room CY-A257, Washington, DC 20554. The documents may
also be purchased from BCPI, telephone (202) 488-5300, facsimile (202)
488-5563, TTY (202) 488-5562, or by e-mail at fcc@bcpiweb.com.

This matter shall be treated as a "permit-but-disclose" proceeding in
accordance with the Commission\'s *ex parte* rules.[^4] Persons making
oral *ex parte* presentations are reminded that memoranda summarizing
the presentations must contain summaries of the substance of the
presentations and not merely a listing of the subjects discussed. More
than a one- or two-sentence description of the views and arguments
presented generally is required.[^5] Other requirements pertaining to
oral and written presentations are set forth in section 1.1206(b) of the
Commission\'s rules.[^6]

Action by the Chief, Pricing Policy Division, Wireline Competition
Bureau.

For further information, contact Jon Stover of the Pricing Policy
Division, Wireline Competition Bureau at (202) 418-0390.

[^1]: *See Implementation of the Pay Telephone Reclassification and
    Compensation Provisions Of the Telecommunications Act of 1996*, CC
    Docket No.96-128, Petition of Independent Payphone Associatioin of
    New York, Inc. for an Order on Pre-emption and Declaratory Ruling at
    10 (filed December 29, 2004).

[^2]: 47 C.F.R. § 1.227.

[^3]: C*omment Sought on Southern Public TeleCommunications
    Association's Petition For a Declaratory Ruling Concerning Refund of
    Payphone Line Rate Charges*, Public Notice, CC Docket No. 96-128, DA
    04-3653 (rel. November 19, 2004).

[^4]: 47 C.F.R. § 1.1200 *et seq.*

[^5]: *See* 47 C.F.R. § 1.1206(b)(2).

[^6]: 47 C.F.R. § 1.1206(b).