Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+----+------------------------------+
| In the Matter of                 | )  | File No. EB-003-MD-011       |
|                                  |    |                              |
| APCC Services, Inc.,             | )  |                              |
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| Data Net Systems, LLC,           | )  |                              |
|                                  |    |                              |
| Davel Communications, Inc.,      | )  |                              |
|                                  |    |                              |
| Jaroth, Inc. d/b/a Pacific       | )  |                              |
| Telemanagement                   |    |                              |
|                                  | )  |                              |
| Services, and                    |    |                              |
|                                  | )  |                              |
| Intera Communications Corp.,     |    |                              |
|                                  | )  |                              |
| Complainants,                    |    |                              |
|                                  | )  |                              |
| v\.                              |    |                              |
|                                  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
+----------------------------------+----+------------------------------+

)

NetworkIP, LLC, and )

Network Enhanced Telecom, LLP, )

)

Defendants. )

Memorandum opinion and order

Adopted: February 22, 2007 Released: February 23, 2007

By the Commission:

TABLE OF CONTENTS

Paragraph

I.  INTRODUCTION
    ............................................................................................
    1

II. BACKGROUND
    .............................................................................................
    2

A. Factual Background
......................................................................................
2

B. Procedural History
.......................................................................................
5

III. DISCUSSION
     .............................................................................................\...
     10

A. Network Owes Complainants \$2,789,505.84 in Principal,

Plus Prejudgment Interest at an Annual Rate of 11.25%
.......................................... 10

B. All of Network's Grounds for Eliminating or Reducing the

Damages Award Lack Merit
..........................................................................
14

1\. The Enforcement Bureau did not err in granting APCC's

motion for waiver of Rule 1.718
.........................................................\... 14

2\. APCC's March 2002 Informal Complaint

was effectively served
.....................................................................\...
35

3\. The Informal Complaints effectively named NET as a

Defendant
......................................................................................
46

4\. The statute of limitations does not bar APCC's damages

claims
..........................................................................................
50

5\. No equitable grounds warrant barring APCC's claims
.................................\... 52

6\. Network has failed to meet its burden of proving that

APCC's damages should be reduced to avoid double

recovery
.......................................................................................
55

IV. CONCLUSION
    ..............................................................................................
    65

V.  ORDERING CLAUSES
    .................................................................................\...
    66

# Introduction

1.  In this Memorandum Opinion and Order, we grant a supplemental
    complaint for damages[^1] filed by APCC Services, Inc., Data Net
    Systems, LLC, Davel Communications, Inc., Jaroth, Inc. d/b/a Pacific
    Telemanagement Services, and Intera Communications Corp.
    (collectively, "Complainants" or "APCC") against NetworkIP, LLC, and
    Network Enhanced Telecom, LLP (collectively, "Defendants" or
    "Network") pursuant to section 208 of the Communications Act of
    1934, as amended ("the Act"),[^2] and section 1.722 of the
    Commission's rules.[^3] Complainants allege that, under the
    Commission's payphone compensation rules,[^4] Network owes
    Complainants "dial-around" compensation and prejudgment interest for
    11,622,941 payphone calls completed during the period October 1,
    1999 through November 22, 2001. For the reasons explained below, we
    agree with Complainants and award damages in the principal amount of
    \$2,789,505.84, plus prejudgment interest at an annual rate of
    11.25%, pursuant to sections 201(b), 208, 209, and 276 of the
    Act.[^5]

# BACKGROUND

## Factual Background[^6]

2.  Complainants are billing and collection agents for payphone service
    providers ("PSPs").[^7] Complainant Jaroth, Inc. d/b/a Pacific
    Telemanagement Services also is itself a PSP.[^8] Network is a
    telecommunications carrier that owns switches and that offers other
    companies a package of telecommunications services that enables
    those companies to provide prepaid calling cards to end-user
    customers.[^9] End-user customers can use those prepaid calling
    cards to make "coinless" calls from payphones.[^10] In this
    proceeding, Complainants seek compensation from Network for such
    "coinless" calls involving Complainants' payphones and a
    Network-owned switch.

3.  The coinless payphone calls at issue here were made by end-user
    customers with prepaid calling cards. When the card-holder placed a
    coinless call from one of Complainants' payphones, the local
    exchange carrier ("LEC") serving the payphone transported the call
    to the interexchange carrier ("IXC") that Network had engaged to
    provide transport services.[^11] The IXC transported the call to one
    of three switches owned by Network. That Network switch then routed
    the call to the terminating LEC (*i.e.*, the LEC serving the call
    recipient) for completion.[^12]

4.  The prepaid calling cards used to make the coinless payphone calls
    at issue here were sold to end-user customers by entities ("Debit
    Card Providers") to which Network sold a package of
    telecommunications services that enabled the Debit Card Providers to
    offer prepaid calling cards to the public.[^13] Network's business
    relationship with the Debit Card Providers was set forth in detailed
    contracts.[^14] Network's contractual package of services sold to
    the Debit Card Providers included (i) internet access to traffic and
    billing records specific to the Debit Card Provider, (ii) call
    routing by Network, and (iii) resold transport services of the
    underlying IXC.[^15] The Debit Card Providers played no role in
    actually transporting the coinless payphone calls at issue
    here.[^16]

    **B. Procedural History**

5.  During the period October 7, 1997 through November 22, 2001, the
    applicable Commission rules provided that, with respect to each
    coinless payphone call, the last facilities-based carrier that
    physically routed the call to the recipient's LEC had to pay \$.24
    ("dial-around compensation" or "payphone compensation") to the
    originating PSP.[^17] This dispute began when, during the period
    October 1, 1999 through November 22, 2001, end users used prepaid
    calling cards sold by Debit Card Providers to make coinless calls on
    Complainants' payphones. Upon learning that a Network switch was
    involved in handling at least some of those calls, Complainants
    sought per-call dial-around compensation from Network. Specifically,
    on March 29, 2002, Complainants filed at the Commission an informal
    complaint regarding coinless payphone calls carried by Network and
    Sprint;[^18] and on September 30, 2002, Complainants filed at the
    Commission an informal complaint regarding coinless payphone calls
    carried by Network and any carrier other than Sprint.[^19] In those
    Informal Complaints, Complainants argued that Network owed \$.24 for
    each payphone call at issue, because for each of those calls Network
    allegedly was the last identified facilities-based carrier within
    the meaning of the Commission's rules and orders.

6.  Network declined to pay the dial-around compensation sought by
    Complainants. Network asserted that Complainants should look,
    instead, to the various Debit Card Providers for compensation. In
    Network's view, the Debit Card Providers, not Network, were the last
    identified facilities-based carriers within the meaning of the
    Commission's rules and orders.[^20]

7.  Complainants ultimately filed a formal complaint alleging that
    Network's refusal to pay dial-around compensation violated the
    Commission rules and orders implementing section 276 of the Act, and
    thus violated, *inter alia*, section 201(b) of the Act.[^21]
    Pursuant to rule 1.722,[^22] Complainants elected to "bifurcate" the
    matter and have only the issue of Network's liability decided first,
    prior to and separate from any subsequent proceeding regarding the
    specific amount of any damages owed.[^23]

8.  After a full liability proceeding, the *Bureau Liability Order*
    concluded, *inter alia*, that (i) Network (and not the Debit Card
    Providers) is liable to Complainants for per-call dial-around
    compensation under the Commission's payphone compensation rules,
    and (ii) Network's failure to pay Complainants in accordance with
    the Commission's payphone compensation rules violated section 201(b)
    of the Act.[^24] Accordingly, the *Bureau Liability Order* granted
    Complainants' Liability Complaint,[^25] and the Commission recently
    affirmed the *Bureau Liability Order*.[^26]

9.  After the release of the *Bureau Liability Order*, Complainants
    filed the instant Damages Complaint pursuant to rule 1.722. As
    stated above, Complainants allege that, under the Commission's
    payphone compensation rules, Network owes Complainants per-call
    dial-around compensation for 11,622,941 payphone calls completed
    during the period October 1, 1999 through November 22, 2001, plus
    prejudgment interest at an annual rate of 11.25%. For purposes of
    this proceeding, Network agrees with Complainants about the number
    of payphone calls at issue.[^27] Nevertheless, Network advances
    numerous grounds why we should fully or partially reject the damages
    award sought by Complainants.[^28] For the reasons explained below,
    we find Network's arguments and defenses to be meritless, and we
    award the requested damages in full: \$2,789,505.84 in principal,
    plus prejudgment interest at an annual rate of 11.25%, pursuant to
    sections 201(b), 208, 209, and 276 of the Act.[^29]

# DISCUSSION

**A. Network Owes Complainants \$2,789,505.84 in Principal, Plus
Prejudgment Interest at an Annual Rate of 11.25%.**

10. Given the quarterly billing practices of the payphone industry,
    payment of dial-around compensation for a coinless payphone call
    becomes due \-- and thus a claim for non-payment accrues \-- on the
    first day of the quarter that is one quarter after the one in which
    the call was made (*e.g*., compensation for calls made in the first
    quarter of 1999 became due on July 1, 1999, the first day of the
    third quarter of 1999).[^30]  Applying that principle here in
    conjunction with the two-year limitations period in section 415(b)
    of the Act[^31] yields the following starting points for damages
    recovery purposes:  regarding the calls addressed in the Informal
    Complaint filed on March 29, 2002 (*i.e*., calls carried by Network
    and Sprint), APCC may recover on all claims accrued on or after
    March 29, 2000, which includes all calls completed on or after
    October 1, 1999.  Regarding the calls addressed in the Informal
    Complaint filed on September 30, 2002 (*i.e*., calls carried by
    Network and any carrier other than Sprint), APCC may recover on all
    claims accrued on or after September 30, 2000, which includes all
    calls completed on or after April 1, 2000.  The end point for
    completed calls subject to APCC\'s claims is November 22, 2001,
    which by Commission order is the date on which the compensation
    regime at issue concluded.[^32] Thus, APCC can seek dial-around
    compensation here for calls completed during the period October 1,
    1999 through November 22, 2001 (the "Relevant Period").

11. The parties correctly agree that, during the Relevant Period, the
    compensation rate established by Commission rule was \$.24 per
    completed payphone call.[^33] For purposes of this proceeding, the
    parties have stipulated that the number of completed calls involving
    Complainants' payphones and a Network switch during the Relevant
    Period is 11,622,941.[^34] That number of completed calls
    (11,622,941) multiplied by the compensation rate per call (\$.24)
    equals \$2,789,505.84. Accordingly, we hereby award damages to
    Complainants in the principal amount of \$2,789,505.84. In addition,
    consistent with past Commission practice,[^35] we award prejudgment
    interest at an annual rate of 11.25%.[^36] Moreover, because
    payphone industry practice is that compensation for a dial-around
    call becomes due on the first day of the quarter that is one quarter
    after the one in which the billed call was made,[^37] prejudgment
    interest shall begin to accrue on that day.[^38]

12. Network observes, correctly, that the Commission has discretion
    *not* to award prejudgment interest on equitable grounds,[^39] and
    argues that we should refrain from doing so here, because (i)
    Complainants refused to heed Network's advice to seek recovery from
    the Debit Card Providers, and (ii) Complainants delayed in seeking
    recovery from Network.[^40] We reject Network's argument. The
    Commission has already held that Complainants were correct in
    seeking recovery from Network rather than from the Debit Card
    Providers.[^41] Moreover, the two-year statute of limitations in
    section 415 of the Act addresses Network's argument as to
    delay.[^42] Thus, Network has not shown the extraordinary
    circumstances necessary to warrant a departure from the Commission's
    usual practice -- in both payphone complaint cases and non-payphone
    complaint cases -- of awarding prejudgment interest in order to
    promote fairness and to make the complainant whole.[^43]

13. Network further argues that, if we do award prejudgment interest, it
    should not be at the rate of 11.25%, but rather at the IRS rate for
    tax underpayments by large corporations, which is much lower than
    11.25%.[^44] To support this argument, Network points out, again
    correctly, that the Commission has applied IRS rates for prejudgment
    interest in a variety of payphone and non-payphone contexts.[^45]
    What Network overlooks, however, is that the Commission has
    repeatedly applied and affirmed the 11.25% prejudgment interest rate
    in the specific payphone context at issue here, *i.e.*, the late
    payment of per-call dial-around compensation accrued in
    1999-2001.[^46] Accordingly, although we have discretion to apply a
    different rate, we decline to depart from the precedent applied to
    this context, and we award prejudgment interest at an annual rate of
    11.25%.

    **B. All of Network's Grounds for Eliminating or Reducing the
    Damages Award Lack Merit.**

    **1. The Enforcement Bureau did not err in granting APCC's Motion
    for Waiver of rule 1.718.**

14. During the course of this formal complaint proceeding, the
    Enforcement Bureau issued an order granting an APCC motion for
    waiver and extension of rule 1.718's "relation-back" filing
    deadline.[^47] Network then sought Commission reconsideration of the
    *Waiver Order* on three grounds: the *Waiver Order* (i) exceeds the
    Commission's authority by essentially waiving a statutory
    limitations period;[^48] (ii) applies the wrong legal standard;[^49]
    and (iii) misjudges the facts favoring and disfavoring waiver.[^50]
    For the following reasons, we deny Network's Petition.[^51]

15. Pursuant to section 208 of the Act, the Commission's rules establish
    an "informal" complaint process that provides a relatively simple
    and streamlined mechanism for seeking resolution of a dispute with a
    common carrier.[^52] If a complainant is not satisfied with the
    results of the informal complaint process, the complainant can then
    commence a "formal" complaint process, which resembles commercial
    litigation in court.[^53]

16. Under section 415(b) of the Act, a "complaint" against a carrier
    seeking recovery of damages must be filed within two years from the
    time the damages claim accrues.[^54] It is well established that
    "\[a\]n 'informal complaint' filed pursuant to sections 1.716-1.718
    of the Commission's rules constitutes a 'complaint' within the
    meaning of section 415 of the Act and thus tolls the running of the
    two-year limitations period."[^55] Under rule 1.718, for purposes of
    continuing the tolling of the limitations period, 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.[^56]

17. Here, on September 30, 2002, APCC filed an informal complaint
    against Network[^57] seeking recovery of payphone compensation for
    the period September 30, 2000 (two years before the filing date, the
    limitations period under section 415 of the Act) through November
    22, 2001 (the regulatory cut-off date for the kind of compensation
    at issue).[^58] Network filed its response to APCC's Informal
    Complaint on November 19, 2002.[^59] 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 through November 22, 2001.[^60]

18. On May 19, 2003, the filing deadline under rule 1.718, APCC
    attempted to file a formal complaint against Network.[^61] That day,
    APCC delivered the formal complaint to Mellon Bank and served
    Network.[^62] APCC submitted the wrong filing fee, however: \$165
    per defendant instead of the \$170 required by Commission rules at
    that time.[^63] In addition, APCC 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.[^64] As a result, the formal
    complaint was not officially "filed" on May 19, 2003, and APCC
    missed the six-month deadline under rule 1.718.[^65]

19. According to APCC, it submitted the wrong filing fee (and thus
    missed the six-month deadline under rule 1.718) because it 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.[^66]

20. On June 3, 2003, APCC filed a revised version of the formal
    complaint, along with the correct filing fee.[^67] That same day,
    APCC also filed its motion for waiver and extension of rule 1.718's
    six-month relation-back deadline from May 19, 2003 to June 3,
    2003.[^68] APCC's Waiver Motion essentially sought to preserve the
    full potential recovery period of April 1, 2000 through November 22,
    2001, and to avoid the loss of approximately nine months of
    potential recovery (*i.e.*, April 1, 2000 to January 2, 2001) that
    would otherwise occur if the relation-back feature of rule 1.718 was
    denied.[^69]

21. In assessing APCC's Waiver Motion, the Bureau applied the following
    well-established standards:

    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.[^70]

22. Over Network's opposition,[^71] the *Waiver Order* largely granted
    APCC's Waiver Motion because (i) APCC attempted in good faith to
    file its formal complaint by the six-month deadline of rule
    1.718; (ii) APCC's filing errors were not an attempt to "game" the
    system to obtain some undue advantage; (iii) denying a waiver would
    allow a \$5.00 fee error to jeopardize the statutory right of
    numerous independent payphone service providers to substantial sums
    of per-call compensation;[^72] and (iv) through many communications
    between the parties before the six-month deadline of rule 1.718,
    Network was fully aware that APCC would file a formal complaint in
    the absence of a settlement, and thus Network had little expectation
    of finality and repose on May 19, 2003. Accordingly, the *Waiver
    Order* waived and extended rule 1.718's six-month relation-back
    deadline from May 19, 2003 to June 3, 2003.[^73] Because APCC's
    mistakes were "easily avoidable," however, the *Waiver Order*
    excluded from the scope of the waiver any prejudgment interest
    accrued during the 15-day period between the date on which APCC
    should have filed its formal complaint with the correct fee (May
    19, 2003) and the date on which APCC effectively filed its formal
    complaint with the correct fee (June 3, 2003).[^74]

23. Based on this record, we conclude that the Bureau's determination in
    the *Waiver Order* was correct. We agree with the *Waiver Order*
    that, at bottom, a \$5.00 fee error by APCC's counsel \-- as
    negligent as it may have been \-- should not deprive APCC and its
    numerous PSP principals of their right under section 276 of the Act
    and our rules to substantial sums of dial-around compensation, where
    the formal complaint was otherwise submitted and served on time and
    in good faith, with advance notice to Network. Put simply, under
    these specific circumstances, strict enforcement of our six-month
    relation-back deadline would unduly conflict with the public
    interest in ensuring the payment of compensation necessary to
    "promote the widespread deployment of payphone services to the
    benefit of the general public...."[^75]

24. In its multifaceted challenge to the *Waiver Order*, Network first
    argues that, in allowing APCC to re-file its formal complaint after
    the relation-back deadline of rule 1.718 had passed, the *Waiver
    Order* exceeded the Commission's authority by effectively waiving
    the statutory limitations period in section 415(b) of the Act.[^76]
    We disagree. Network mischaracterizes the *Waiver Order*. As stated
    above, APCC's filing of the informal complaint on September 30, 2002
    -- *not* APCC's submission of the formal complaint on May 19 or June
    3, 2003 -- tolled the running of the limitations period under
    section 415(b) of the Act. Thereafter, the question whether APCC's
    subsequent formal complaint was sufficiently timely so as to benefit
    from that preexisting tolling was a matter purely of the
    Commission's rules regarding the internal management of its
    complaint proceedings. Consequently, the *Waiver Order* had no
    effect on the statutory limitations period, and pertained only to
    the Commission's relation-back rules. Accordingly, the *Waiver
    Order* falls squarely within the Commission's authority.[^77]

25. Network next argues that the Bureau erred in the *Waiver Order* by
    applying the Commission's general waiver standard rather than a
    stricter waiver standard applied "in connection with filing
    deadlines for pleadings which initiate adjudicatory
    proceedings."[^78] According to Network, where, as here, a waiver
    request concerns "a filing deadline for an adjudicatory pleading, a
    party 'must cite the intervention of something beyond the control of
    the party which could not have been foreseen, and for which no
    corrective action could have been taken.'"[^79] In Network's view,
    under that standard, APCC's Waiver Motion should be denied, because
    the failure to pay the correct fee and the decision to file on the
    last day of the six-month period were foreseeable, correctable, and
    within APCC's control.[^80]

26. This argument, too, fails for two reasons.[^81] First, by its own
    terms, the strict *Meredith* waiver standard applies only to filing
    deadlines for pleadings that "*initiate* adjudicatory
    proceedings."[^82] Applying a different waiver standard to filing
    deadlines for pleadings that initiate adjudications makes sense,
    because the initiation deadline is when the defendant's interest in
    certainty, finality, and repose, and the Commission's interest in
    resource management, are most acute.[^83] Here, the deadline at
    issue \-- when a formal complaint must be filed in order to "relate
    back" to a cognate informal complaint \-- does not concern a
    pleading that initiated the instant proceeding. It is the informal
    complaint filed on September 30, 2002 that initiated the proceeding
    (and, as stated above, that tolled the running of the limitations
    period), not the subsequent formal complaint. Put differently, the
    Informal Complaint initiated this proceeding, whereas the formal
    complaint simply continued it. Consequently, the Bureau correctly
    applied the general waiver standard, rather than the *Meredith*
    waiver standard, in the *Waiver Order*.[^84]

27. Second, in each of the cases relied upon by Network, the movant
    failed to submit and serve the pleading at issue within the deadline
    period, and thereby failed to satisfy any of the public interests in
    enforcing deadlines.[^85] Here, by contrast, APCC did submit its
    formal complaint to the Commission, and did serve the formal
    complaint on Network, before the six-month deadline expired. For
    this reason, too, the Bureau was correct in applying the general
    waiver standard, rather than the *Meredith* waiver standard, in the
    *Waiver Order*.

28. Network last argues that, even under the Commission's general waiver
    standard, the Bureau should not have granted a waiver of the
    six-month relation-back deadline. Specifically, Network contends
    that the *Waiver Order* misapplies the general waiver standard to
    the operative facts in several respects. Network's contention lacks
    merit, for the reasons described below.

29. Network's principal argument is that the Bureau erred in relying at
    all on the substantial financial harm to APCC and its PSP principals
    that would likely result from denying the Waiver Motion. In
    Network's view, the analysis should have focused solely on the
    circumstances of APCC's failure to perfect a filing on time. Network
    observes that a denial of a waiver request will always harm the
    requesting party, so reliance on such harm in the waiver analysis
    would provide no "limiting principle," leading the Commission to
    engage improperly in *ad hoc* decision-making, and skewing the
    balance inherently and unfairly towards waiver grants. Network
    further states that, under a properly limited analysis focusing
    exclusively on the circumstances of APCC's failure to perfect a
    filing on time, the Waiver Motion should have been denied because,
    as the *Waiver Order* concluded, the failure stems from APCC's
    mistakes, which do not qualify as good cause.[^86]

30. Network's argument is unpersuasive. As stated above, the Commission
    has repeatedly held that, in determining the propriety of waiving a
    Commission rule, the Commission may evaluate "the public interest"
    and "considerations of hardship, equity, or more effective
    implementation of overall policy on an individual basis."[^87] Those
    factors plainly encompass consideration of the potential harm to the
    requesting party. Indeed, the Commission has frequently and recently
    assessed such harm in evaluating the propriety of waiver.[^88] Thus,
    the *Waiver Order* did not err by considering the potential harm to
    APCC and its PSP principals.

31. Network next argues that, even if it were appropriate to consider
    the potential harm to APCC and its PSP principals, the *Waiver
    Order* erroneously exaggerated the harm by failing to recognize
    that (i) denying a waiver would not deprive APCC of its entire
    recovery, and (ii) APCC can seek damages from its attorneys in a
    malpractice suit.[^89] We disagree with Network's characterization
    of the *Waiver Order*. The *Waiver Order* recognized that denial of
    the Waiver Motion would reduce, but not eliminate, APCC's potential
    recovery.[^90] Moreover, as Network implicitly concedes, the
    reduction in potential recovery would diminish APCC's total
    potential recovery by a substantial sum, even though a part of the
    recovery would remain. Finally, that APCC and its PSP principals
    might recover any lost potential damages in a malpractice suit is
    too speculative and remote to be dispositive of whether the Bureau
    properly weighed the public interest. Consequently, we find that the
    *Waiver Order* did not misjudge the potential harm facing APCC and
    its PSP principals.

32. Network also asserts that the *Waiver Order* erred by considering
    favorably the absence of bad faith or gamesmanship by APCC.[^91] The
    *Waiver Order*'s consideration of that factor, however, has ample
    precedent,[^92] and in any event was not dispositive standing alone.

33. Network concludes by contending that the *Waiver Order* erred by
    failing to consider Network's interest in *not* paying millions of
    payphone compensation dollars more than would be owed without a
    waiver. Network points out that Defendants, like APCC's PSP
    principals, are small companies, and they structured their
    operations in good faith in a manner that they believed would result
    in the Debit Card Providers, not Defendants, owing and paying any
    payphone compensation due.[^93] We do not doubt that Network has a
    strong interest in having APCC's error reduce Network's exposure to
    damages here. It was Network's own mistaken view of the Commission's
    payphone compensation regime, however, that gave rise to those
    damages. Moreover, unlike APCC, Network has a potential contractual
    basis for mitigating the effect of its error: indemnification
    actions against the Debit Card Providers.[^94] Thus, for all of the
    reasons previously discussed, the public interest favors grant of
    the waiver, rather than strict application of the rule that would
    relieve Network of a substantial part of its legal liability due to
    the purely administrative error of APCC.[^95]

34. In sum, we conclude that the Bureau did not err in granting APCC's
    Waiver Motion. Accordingly, Network's Petition for Reconsideration
    of the *Waiver Order* is denied.

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2.  APCC's March 2002 Informal Complaint was effectively served.

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35. With respect to informal complaints under section 208 of the Act,
    the Commission acts much like a process server. A complainant files
    with the Commission an informal complaint containing, *inter alia*,
    "the name of the carrier against which the complaint is made,"[^96]
    and then "\[t\]he Commission will forward \[the\] informal
    complaint\[ \] to the appropriate carrier for investigation."[^97]
    To facilitate that procedure (among other reasons), the Commission's
    rules require "\[e\]very common carrier ... \[to\] designate an
    agent *in the District of Columbia* ... upon whom service of all
    notices, process, orders, decisions, and requirements of the
    Commission may be made for and on behalf of said carrier in any
    proceeding before the Commission."[^98] Service can be effectuated
    "by mailing a copy \[of the informal complaint\] to the last known
    address."[^99]

36. Here, on March 29, 2002, several months prior to the September 2002
    Informal Complaint discussed above, APCC filed with the Commission
    and mailed to the putative defendant a different informal complaint
    seeking recovery of per-call dial-around compensation.[^100] As
    previously explained, the March 2002 Informal Complaint concerns
    calls carried by Network and Sprint, whereas the September 2002
    Informal Complaint concerns calls carried by Network and all
    carriers other than Sprint.[^101]

37. As of the time that APCC filed the March 2002 Informal Complaint,
    NetworkIP, LLC had not designated an agent for service of process in
    the District of Columbia, in violation of Commission rules.[^102]
    Nevertheless, the Commission attempted to effectuate service by mail
    on Network's "last known address" by using the following contact
    information provided by APCC in the March 2002 Informal Complaint,
    which was also the address to which APCC itself mailed the March
    2002 Informal Complaint: "Mr. Doug Williams, Network, IP, Inc., 1950
    Stemmons Freeway, Suite 2045, Dallas, TX 75207."[^103] APCC had
    obtained that contact information from Sprint during the discovery
    phase of certain federal court litigation, in response to APCC's
    request for identification of all switch-based resellers to which
    Sprint had routed coinless payphone calls originated from APCC
    payphones.[^104] No response to the March 2002 Informal Complaint
    was ever filed.[^105]

38. In September 2002, having received no response to the March 2002
    Informal Complaint, APCC sent to NetworkIP, LLC \-- and NetworkIP,
    LLC received \-- a letter referencing the March 2002 Informal
    Complaint and suggesting Commission-supervised mediation regarding
    the dispute.[^106] Shortly thereafter, APCC filed and successfully
    served on NetworkIP, LLC the September 2002 Informal
    Complaint;[^107] and in that Informal Complaint APCC again
    referenced the March 2002 Informal Complaint.[^108] On November 15,
    2002, APCC faxed to NetworkIP, LLC's counsel \-- and NetworkIP,
    LLC's counsel received \-- a copy of the March 2002 Informal
    Complaint and the Commission's First Notice.[^109] Nevertheless, as
    stated above, NetworkIP, LLC never filed a response to the March
    2002 Informal Complaint.[^110]

39. Network asserts here that the March 2002 Informal Complaint was
    never properly served and that Network received no actual notice of
    the March 2002 Informal Complaint until November 2002.[^111] Network
    argues, therefore, that the filing of the March 2002 Informal
    Complaint did not toll the running of the limitations period, and
    the filing date of the June 2003 Damages Complaint does not relate
    back to the filing date of the March 2002 Informal Complaint.[^112]
    Accordingly, in Network's view, the recovery period regarding calls
    carried by Network and Sprint should extend back only to June 2001
    (two years before the June 2003 Damages Complaint) rather than to
    October 1, 1999.[^113]

40. To support its assertion that the March 2002 Informal Complaint was
    not properly served, Network points out that (i) the individual
    addressee, Doug Williams, did not work for NetworkIP, LLC; (ii) the
    business addressee, "Network IP, Inc.", did not exist; (iii) the
    address was not of NetworkIP's headquarters; (iv) APCC had
    previously known of NetworkIP, LLC's correct name and address via
    prior correspondence; (v) NetworkIP, LLC had a registered agent in
    Texas, which APCC could have found; (vi) NetworkIP, LLC's website
    listed its headquarters' address, which APCC could have found; (vii)
    APCC did not re-send (or ask the Commission to re-send) the March
    2002 Informal Complaint when APCC learned of NetworkIP, LLC's
    correct name and address in September 2002.[^114]

41. Network is correct that the filing date of the June 2003 Damages
    Complaint relates back to the filing date of the March 2002 Informal
    Complaint only if the March 2002 Informal Complaint was filed *and
    served* properly. For the reasons explained below, however, we
    reject Network's arguments regarding service and conclude that the
    March 2002 Informal Complaint was effectively served by mail in the
    Spring of 2002.

42. First, as stated above, NetworkIP, LLC failed to designate an agent
    for service of process in the District of Columbia and thereby
    violated a Commission rule designed to avoid precisely the kind of
    service problem alleged here by NetworkIP, LLC. Thus, Network cannot
    complain about the Commission's attempts to work around NetworkIP
    LLC's rule violation and provide Network actual notice of the
    informal complaint.[^115] Moreover, especially in light of the
    absence of a registered agent, the address used to serve the March
    2002 Informal Complaint qualifies as the "last known address" under
    rule 1.47(d), because (i) the individual addressee, Doug Williams,
    worked for a closely related affiliate of NetworkIP, LLC;[^116] (ii)
    the business addressee, "Network IP, Inc.", is so close to
    "NetworkIP, LLC" that any reasonable person would have suspected
    that NetworkIP, LLC was the intended recipient;[^117] (iii) though
    not of NetworkIP's headquarters, the address used *was* of a
    NetworkIP, LLC office containing collocation space, manned by
    several NetworkIP, LLC employees;[^118] (iv) the previous
    correspondence between the parties did not clearly identify
    NetworkIP, LLC;[^119] (v) APCC obtained the contact information from
    a credible source, Sprint;[^120] and (vi) neither APCC's mailing nor
    the Commission's was ever returned as "undeliverable,"[^121] and the
    Commission never received any inquiry about the nature or import of
    the mailings. Given all of these circumstances, we find that service
    of the March 2002 Informal Complaint was effectively made to
    Network's "last known address" under rule 1.47(d) in the Spring of
    2002.[^122]

43. Even assuming, *arguendo*, that the March 2002 Informal Complaint
    was not effectively served by mail in the Spring of 2002, we
    conclude that it *was* effectively served in November 2002, for the
    following reasons. Neither the Act nor the Commission's rules
    specify a deadline for effectuating service of a previously filed
    informal complaint. Consequently, we look to federal court
    procedures for guidance.[^123] Under federal court procedures, a
    plaintiff has at least 120 days from the complaint's filing date to
    effectuate service, and a court has broad discretion to permit even
    more time if circumstances warrant.[^124] The factors courts usually
    consider most relevant are whether the plaintiff made reasonable
    efforts to effectuate service, and whether the delay in service has
    prejudiced the defendant's ability to defend against the
    claims.[^125]

44. Applying those principles here, we conclude that, in November 2002,
    APCC made effective and sufficiently timely service of the March
    2002 Informal Complaint. First, Network concedes that, on November
    15, 2002, NetworkIP, LLC's counsel received from APCC a copy of the
    March 2002 Informal Complaint and of the Commission's First
    Notice.[^126] Such actual notice perfects service.[^127] Moreover,
    although the substantial delay in perfecting service is far from
    ideal, it was completed within acceptable time limits under the
    specific circumstances of this case. In particular, as described
    above, reasonable service efforts were made in the Spring of 2002,
    especially given NetworkIP, LLC's failure to comply with our rule
    requiring the designation of an agent for service of process in the
    District of Columbia. Moreover, in September 2002, APCC made
    additional reasonable attempts to draw NetworkIP, LLC's attention to
    the March 2002 Informal Complaint. Furthermore, Network has not
    shown -- or even attempted to show -- any relevant prejudice arising
    from the delay, such as the loss or destruction of evidence or the
    inability to locate key witnesses.[^128]

45. In sum, we hold that the March 2002 Informal Complaint was
    effectively served. Therefore, with respect to calls carried by
    Network and Sprint, the filing date of the June 2003 Damages
    Complaint relates back to the filing date of the March 2002 Informal
    Complaint.

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3.  The informal complaints effectively named Network Enhanced Telecom,
    LLP (NET) as a defendant.

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46. APCC's March 2002 Informal Complaint named "Network IP, Inc." as the
    sole defendant.[^129] APCC's September 2002 Informal Complaint named
    "NetworkIP, LLC" as the sole defendant.[^130] Neither the March 2002
    Informal Complaint nor the September 2002 Informal Complaint named
    "Network Enhanced Telecom, LLP" \-- one of the two defendants named
    by the formal Damages Complaint resolved in this order \-- as a
    defendant. Based on these facts, Network argues that the claims in
    the Damages Complaint against Network Enhanced Telecom, LLP cannot
    relate back to the filing date of either Informal Complaint.[^131]
    In Network's view, because Network Enhanced Telecom, LLP is an
    independent legal entity separate and distinct from the entities
    named in the Informal Complaints, we cannot link Network Enhanced
    Telecom, LLP to the claims alleged in the Informal Complaints.[^132]
    We disagree.

47. It is well established that, if the following test is met, the
    Commission may "pierce the corporate veil" and hold one entity
    liable for the acts and omissions of a different entity:

    '\[S\]eparate corporate structures may be ignored where the purpose
    of a statutory scheme or regulation would otherwise be frustrated.
    The critical question, therefore, is whether the conduct of the
    \[two\] corporations in light of the relationship which exists among
    them requires that the legal concept of separate corporate
    identities be disregarded in order to preserve the integrity of
    \[the Act\] and to prevent the \[corporations\] from defeating the
    purpose and objective of the statutory provisions....' Other
    criteria include: (1) a common identity of officers, directors and
    shareholders; (2) sharing the same principal offices; \[and\]
    closeness of relationship between entities.[^133]

48. Applying that test here, we can and should pierce the corporate veil
    and treat Network Enhanced Telecom, LLP as if it had been
    specifically named as a defendant by the Informal Complaints. First,
    Network Enhanced Telecom, LLP and NetworkIP, LLC are, at a minimum,
    close affiliates.[^134] Second, Network Enhanced Telecom, LLP and
    NetworkIP, LLC have common officers, common offices, and common
    phone numbers.[^135] Third, the two entities hold themselves out as
    being interchangeable. For example, many of the contracts with Debit
    Card Providers expressly identify the Network entity as "Network
    Enhanced Telecom d/b/a NetworkIP."[^136] And on the website
    [www.networkip.net](http://www.networkip.net/), NetworkIP, LLC
    identifies itself as "NetworkIP (Network Enhanced Telecom,
    LLP)."[^137] Furthermore, in written communications with APCC,
    correspondence on "NetworkIP" letterhead referred to the sender as
    "NET" (an acronym for Network Enhanced Telecom) and "NetworkIP
    (NET),"[^138] and information labeled as pertinent to "NET" was
    produced in response to inquiries regarding NetworkIP.[^139] Indeed,
    in certain comments filed with the Commission, the first page
    identified the commenter as "Network Enhanced Telecom, LLP d/b/a
    Network IP ('NET')."[^140]

49. The foregoing facts show a common identity between NetworkIP, LLC
    and Network Enhanced Telecom LLP. Given this operational overlap,
    "the conduct of \[Network Enhanced Telecom, LLP and NetworkIP, LLC\]
    in light of the relationship which exists among them requires that
    the legal concept of separate corporate identities be disregarded in
    order to preserve the integrity of \[section 276 of the Act\] and to
    prevent the \[Defendants\] from defeating the purpose and objective
    of the statutory provisions...."[^141] In other words, for all
    purposes relevant here, we should treat these two entities as one
    and the same. Thus, we consider the Informal Complaints' naming of
    NetworkIP, LLC as a defendant to be tantamount to naming Network
    Enhanced Telecom, LLP as a defendant.[^142] Accordingly, the Damage
    Complaint's claims against Network Enhanced Telecom, LLP relate back
    to the filing dates of the Informal Complaints. In that way, APCC's
    PSP principals will receive the level of per-call, dial-around
    compensation contemplated by sections 276 and 415 of the Act and our
    payphone compensation rules.

    **4. The statute of limitations does not bar APCC's damages
    claims.**

50. According to Network, on January 26, 2000, it notified APCC
    unequivocally and in writing that it would not agree \-- then or
    ever \-- to pay dial-around compensation for payphone calls handled
    by Network-owned switches.[^143] In Network's view, therefore,
    APCC's claims for payment of dial-around compensation accrued on
    January 26, 2000 under the Commission's "discovery" rule;[^144] in
    turn, the two-year limitations period under section 415(b) of the
    Act lapsed on January 26, 2002, two months before APCC filed any of
    the damages claims at issue here.[^145] Consequently, Network argues
    that the statute of limitations in section 415(b) of the Act bars
    all of APCC's damages claims.[^146]

51. Network's argument rests on a flawed understanding of the
    Commission's discovery rule. Contrary to Network's assertion, it is
    well-established that when a complaint concerns periodic continuing
    conduct, such as overbilling or underpaying, a new claim accrues (or
    is "discovered") each time an additional instance of the allegedly
    unlawful conduct occurs.[^147] Applying that standard here, APCC's
    claims did not accrue once and for all on January 26, 2000; instead,
    a new claim accrued each time dial-around compensation became due
    and Network failed to pay. Thus, the Damages Complaint is timely
    under section 415(b) of the Act with respect to every instance in
    which payment of dial-around compensation became due, and Network
    failed to pay, during the two years before March 29, 2002 regarding
    calls carried by Network and Sprint, and during the two years before
    September 30, 2002 regarding calls carried by Network and carriers
    other than Sprint.

5\. No equitable grounds warrant barring APCC's claims.

52. Network argues that, even if timely under section 415(b) of the Act,
    APCC's claims are "barred by the doctrines of waiver, estoppel,
    and/or laches."[^148] According to Network, because Network
    definitively told APCC on January 26, 2000 that Network would not
    pay dial-around compensation for calls handled by Network's
    switches, APCC should have either (i) promptly sued the Debit Card
    Providers, or (ii) sued Network before March 2002. Moreover, APCC's
    failure to take either of those actions has allegedly prejudiced
    Network, because as of October 2005 many of the Debit Card Providers
    have ceased to exist, diminishing Network's ability to seek
    indemnification.[^149] Thus, in Network's view, equity precludes
    APCC's belated attempt to recover from Network here.

53. Network's argument has no merit. First, as the *Bureau Liability
    Order* and the *Commission Liability Order* have held, it is Network
    who owes dial-around compensation, not the Debit Card Providers.
    Thus, APCC never had any duty, equitable or otherwise, to seek
    recovery from the Debit Card Providers.

54. Second, to obtain an equitable remedy for an opponent's alleged lack
    of diligence, a party must have been scrupulously diligent itself.
    Network falls short in that regard. As early as August 2000, APCC
    notified Network that APCC intended to hold Network, and not the
    Debit Card Providers, responsible for dial-around
    compensation.[^150] Notwithstanding this notice, Network's
    contractual relationships with the Debit Card Providers, and the
    filing of APCC's March 2002 Informal Complaint, September 2002
    Informal Complaint, and June 2003 Formal Complaint, the record
    contains no evidence that Network has taken any steps to (i) ensure
    that the Debit Card Providers were paying dial-around compensation
    to APCC, or (ii) seek indemnification from the Debit Card Providers,
    even after the *Bureau Liability Order* was released in
    February 2005. Therefore, Network's present inability to obtain full
    satisfaction via indemnification processes is a dilemma of its own
    making. Accordingly, we reject Network's equitable arguments against
    APCC's damages claim.

    **6. Network has failed to meet its burden of proving that APCC's
    damages should be reduced to avoid double recovery.**

55. The parties agree that APCC received some dial-around compensation
    from some of the Debit Card Providers for payphone calls made during
    the Relevant Period.[^151] Network maintains, therefore, that any
    damages award here should be reduced by some amount in order to
    avoid the possibility that APCC might recover dial-around
    compensation from both Network and the Debit Card Providers for the
    same payphone calls.[^152] We disagree, for the following reasons.

56. Both parties acknowledge that, at this point, neither APCC nor
    Network can determine the extent, if any, to which the compensation
    paid by Debit Card Providers to APCC was for payphone calls at issue
    here, *i.e.*, calls that were made using a Debit Card Provider's
    calling card and were handled by a Network switch. Only the Debit
    Card Providers might have the call payment information needed to
    permit such a determination.[^153] The lack of direct evidence about
    whether the Debit Card Providers' payments were for the calls at
    issue here would not present a problem had the Debit Card Providers
    contracted exclusively with Network to handle coinless payphone
    calls. We could then readily infer that all of the Debit Card
    Providers' payments to APCC were for calls handled by a Network
    switch, and reduce the damages award on a dollar-for-dollar basis.

57. Network provides no evidence, however, that the Debit Card Providers
    could not and did not contract with facilities-based carriers other
    than Network to handle coinless payphone calls made with their
    calling cards. And a review of Network's contracts with the Debit
    Card Providers reveals no facial bar on Debit Card Providers'
    ability to contract with facilities-based carriers other than
    Network. In fact, virtually all of the contracts specifically state
    that the arrangements between the Debit Card Providers and Network
    are not exclusive. [^154] Thus, as far as the direct evidence in the
    record shows, some, most, or even all of the payments made by Debit
    Card Providers to APCC could have been for coinless payphone calls
    *not* at issue here, *i.e.*, calls *not* handled by a Network
    switch. Consequently, the record does not permit a definitive
    conclusion about the extent, if any, to which the Debit Card
    Providers' payments to APCC were for calls handled by a Network
    switch and thus should reduce the damages award to APCC.

58. Because neither party can provide definitive information about
    whether any of the dial-around compensation paid by Debit Card
    Providers to APCC was for payphone calls handled by a Network
    switch, the outcome here turns heavily on who bears the burden of
    proof regarding that fact. According to Network, because APCC is the
    complainant, APCC bears the burden of proving not only liability and
    damages generally, but also the precise dollar amount of harm
    arising from Network's failure to pay. And in Network's view,
    providing damages with such precision requires APCC to, *inter
    alia*, ascertain and net out an appropriate amount for sums already
    received by APCC from Debit Card Providers.[^155] We disagree, for
    the following reasons.

59. Network is correct that, in complaint proceedings under section 208
    of the Act, the complainant bears the burden of proving liability
    and damages. APCC satisfied that burden, however, by showing
    that (i) Network was the last facilities-based carrier to handle the
    11,622,941 payphone calls at issue, and (ii) Network failed to pay
    any dial-around compensation to APCC for those calls. Having thereby
    demonstrated that the party legally responsible for payment failed
    to pay, APCC has no additional burden to prove further that some
    third parties who were *not* legally responsible for payment also
    failed to pay. Instead, if Network wants us to reduce its legal
    obligation to pay damages to APCC to account for payments allegedly
    made to APCC by some collateral sources, it is Network's burden to
    prove that such a reduction is warranted. Thus, Network bears the
    burden of proving how much (if any) of the payments made by Debit
    Card Providers to APCC were for payphone calls handled by a Network
    switch.

60. Assigning the burden of proof to Network comports with substantial
    precedent holding that the assertion of setoffs for collateral
    source payments is an affirmative defense for which the defendant
    bears the burden of proof.[^156] Indeed, Network implicitly
    acknowledged that precedent by *twice* pleading this issue as an
    affirmative defense, before shifting gears late in the proceeding
    and arguing that APCC has the burden of proof.[^157] Moreover,
    assigning the burden of proof to Network is fair and sensible,
    because Network had (and still has) the greater access to pertinent
    evidence.[^158] In particular, unlike APCC, Network had a
    contractual relationship with the Debit Card Providers regarding the
    payphone calls at issue. Thus, unlike APCC, Network had a
    significant opportunity to obtain payment information from the Debit
    Card Providers, either during the Relevant Period or soon after APCC
    notified Network (in 2000, 2002, and 2003) of its intention to hold
    Network (and not the Debit Card Providers) responsible for
    dial-around compensation.[^159] Moreover, APCC has no independent
    basis for developing payment information, because during the
    Relevant Period the Debit Card Providers \-- like all payors of
    dial-around compensation \-- were not required to and did not
    itemize their payments to APCC according to call-paths.[^160] Thus,
    as stated above, Network bears the burden of proving how much (if
    any) of the payments made by Debit Card Providers to APCC were for
    payphone calls handled by a Network switch.

61. The record evidence supplied by Network falls short of meeting that
    burden. Specifically, having failed to produce evidence that it had
    exclusive contractual arrangements with the Debit Card Providers,
    Network proffers, instead, only two bases for offsetting any damages
    award by amounts paid by the Debit Card Providers to APCC: (i)
    Network alleges that its contracts with the Debit Card Providers
    obligated the Debit Card Providers to pay dial-around compensation;
    and (ii) Network references a letter it sent to the Debit Card
    Providers reminding them of their alleged contractual obligation to
    pay dial-around compensation.[^161] Based on only these two pieces
    of evidence, combined with the absence of direct, contrary evidence
    from APCC, Network argues that "the only logical assumption" to draw
    is that all of the Debit Card Providers' payments to APCC were for
    payphone calls carried by a Network switch.[^162]

62. We reject Network's argument, for several reasons. First, the
    contractual language on which Network relies does not appear in many
    of its contracts with the Debit Card Providers.[^163] Second, even
    where it does appear, the contractual language is ambiguous about
    whether a Debit Card Provider must pay dial-around compensation to
    PSPs.[^164] Third, standing alone, Network's single letter
    "reminding" Debit Card Providers to pay dial-around compensation
    directly to PSPs cannot support an inference that any or all of the
    dial-around compensation paid by Debit Card Providers to APCC was
    for calls handled by Network's switches, in the absence of evidence
    of other admonishments and reminders. Indeed, give the contractual
    language's ambiguity, it is equally if not more reasonable to assume
    that the Debit Card Providers simply ignored Network's letter
    because the letter conflicted with their interpretation of the
    contract.[^165]

63. Finally, even if Network were correct that the contracts obligated
    Debit Card Providers to pay compensation to APCC for the calls at
    issue here, the contracts' lack of exclusivity would still fatally
    undermine Network's position. In particular, Network would still
    have to prove which payments (if any) were for calls handled by a
    Network switch rather than for any other kinds of calls. And despite
    urging from Commission staff, [^166] Network failed to offer any
    such proof -- or even an arguably reasonable proxy for allocating
    the Debit Card Providers' payments between Network-switched calls
    and non-Network switched calls. Network seems to assume that, if it
    can provide any evidence suggesting that some of the Debit Card
    Providers' payments might be for Network-switched calls, then we
    will simply infer that *all* of the payments were, in fact, for
    Network-switched calls. Network's assumption is incorrect.[^167]

64. To summarize, Network has the burden of proving that payments made
    by Debit Card Providers to APCC were for payphone calls at issue
    here, *i.e.*, calls handled by a Network switch, as opposed to calls
    handled by facilities-based carriers other than Network. Network has
    failed to meet that burden. Therefore, the payments made by Debit
    Card Providers to APCC provide no basis for reducing the amounts
    owed by Network to APCC.[^168]

# CONCLUSION

65. Because Network was the last facilities-based carrier for 11,622,941
    completed calls from APCC's payphones from October 1, 1999 through
    November 22, 2001, Network owes APCC \$.24 for each of those calls,
    which amounts to \$2,789,505.84, plus prejudgment interest at an
    annual rate of 11.25% (to be calculated by the parties). All of
    Network's asserted grounds for eliminating or reducing the amount it
    owes APCC lack merit. Specifically, the Enforcement Bureau was
    correct to waive rule 1.718's six-month deadline for filing a formal
    complaint that relates back to the filing date of the September 2002
    Informal Complaint; APCC's March 2002 Informal Complaint was
    effectively served; both the March 2002 Informal Complaint and the
    September 2002 Informal Complaint effectively named Network Enhanced
    Telecom, LLP as a Defendant; neither the statute of limitations nor
    any equitable doctrine bars or reduces APCC's claims on tardiness
    grounds; and the record does not demonstrate that the damages award
    should be reduced by amounts received by APCC from collateral
    sources. Consequently, APCC's Damages Complaint is granted in its
    entirety.

# ORDERING CLAUSES

66. **ACCORDINGLY**, **IT IS ORDERED**, pursuant to sections 1, 4(i),
    4(j), 201(b), 208, 209, and 276 of the Communications Act of 1934,
    as amended, 47 U.S.C. §§ 151, 154(i), 154(j), 201(b), 208, 209, 276,
    and sections 1.106, 1.716-1.736 and 64.1300-64.1320 of the
    Commission's rules, 47 C.F.R. §§ 1.106, 1.716-1.736,
    64.1300-64.1320, that the petition of Defendants NetworkIP, LLC and
    Network Enhanced Telecom, LLP for reconsideration of the Bureau's
    order granting the Complainants'motion for a waiver of section 1.718
    of the Commission's rules, 47 C.F.R. § 1.718, **IS DENIED.**

67. **IT IS FURTHER ORDERED**, pursuant to sections 1, 4(i), 4(j),
    201(b), 208, 209, and 276 of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 151, 154(i), 154(j), 201(b), 208, 209, 276,
    and sections 1.716-1.736 and 64.1300-64.1320 of the Commission's
    rules, 47 C.F.R. §§ 1.716-1.736, 64.1300-64.1320, that the
    above--captioned formal complaint is hereby **GRANTED** in its
    entirety, and this proceeding **IS** **TERMINATED**.

68. **IT IS FURTHER ORDERED**, pursuant to sections 1, 4(i), 4(j),
    201(b), 208, 209, and 276 of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 151, 154(i), 154(j), 201(b), 208, 209, 276,
    and sections 1.716-1.736 and 64.1300-64.1320 of the Commission's
    rules, 47 C.F.R. §§ 1.716-1.736, 64.1300-64.1320, that defendants
    Network IP, LLC and Network Enhanced Telecom, LLP **SHALL PAY** to
    Complainants APCC Services, Inc., Data Net Systems, LLC, Davel
    Communications, Inc., Jaroth, Inc. d/b/a Pacific Telemanagement
    Services, and Intera Communications Corp., within 90 days of release
    of this Order, damages in the amount of \$2,789,505.84, plus
    interest at an annual rate of 11.25%, computed beginning on the
    first day of the quarter following the quarter after the quarter in
    which the billed call was made, continuing through the date of
    payment, excluding the period May 19, 2003 to June 3, 2003.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

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height="6.944444444444445e-4in"}

[^1]: Supplemental Complaint for Damages, File No. EB-03-MD-011 (filed
    Apr. 4, 2005) ("Damages Complaint").

[^2]: 47 U.S.C. § 208.

[^3]: 47 C.F.R. § 1.722.

[^4]: *See, e.g.*, 47 C.F.R. §§ 64.1300, 1310. Unless otherwise
    indicated, all C.F.R. references to Part 64 of the Commission's
    rules refer to the rules in effect from October 1, 1999 through
    November 22, 2001. The parties refer to the relevant period as
    ending on Nov. 23, 2001, mirroring references made in various letter
    rulings and orders discussed herein. Because a new payphone
    compensation methodology had to be in place on November 23, 2001, as
    discussed below, we believe it is clearer to say that the period
    under discussion here ran "through November 22, 2001."

[^5]: 47 U.S.C. §§ 201(b), 208, 209, 276.

[^6]: We incorporate by reference the facts found during the liability
    proceeding involving these parties in *APCC Services, Inc. v.
    NetworkIP, LLC and Network Enhanced Telecom*, *LLP*, Memorandum
    Opinion and Order, 20 FCC Rcd 2073 (Enf. Bur. 2005) ("*Bureau
    Liability Order*"), *aff'd*, Order on Review, 21 FCC Rcd 10488
    (2006) ("*Commission Liability Order*").

[^7]: *See, e.g.*, *Bureau Liability Order*, 20 FCC Rcd at 2074, ¶ 2.

[^8]: *See, e.g.*, *Bureau Liability Order*, 20 FCC Rcd at 2074, ¶ 2.

[^9]: *See, e.g.*, *Bureau Liability Order*, 20 FCC Rcd at 2074, ¶ 2.

[^10]: *See, e.g*.,. *Bureau Liability Order*, 20 FCC Rcd at 2074, ¶ 2.
    "Coinless" payphone calls are those initiated, not by depositing
    coins in the payphone, but rather by dialing a special access number
    that triggers a specific service (which may or may not then require
    the dialing of additional numbers), such as directory assistance,
    operator service, toll-free (*e.g.*, "800") service, and calling
    card service (either pre-paid or credit card). *See, e.g.*, *Bureau
    Liability Order*, 20 FCC Rcd at 2075, ¶ 4.

[^11]: *See, e.g.*, *Bureau Liability Order,* 20 FCC Rcd at 2077, ¶ 9.

[^12]: *See, e.g.*, *Bureau Liability Order,* 20 FCC Rcd at 2077, ¶ 9.

[^13]: *See, e.g.*, *Bureau Liability Order,* 20 FCC Rcd at 2077, ¶ 10.
    Some of the Debit Card Providers did not, in fact, sell calling
    cards directly to end users, but rather resold Network's services to
    other entities, which then sold calling cards directly to end users.
    Some provided "PIN-based services." *Id*. Neither party asserts that
    these nuances have any bearing on the issues here.

[^14]: *See, e.g.*, *Bureau Liability Order,* 20 FCC Rcd at 2077, ¶ 11.

[^15]: *See, e.g.*, *Bureau Liability Order,* 20 FCC Rcd at 2077, ¶ 10.

[^16]: *Id.*

[^17]: *Bureau Liability Order*, 20 FCC Rcd at 2074-2077, ¶¶ 3-8. *See
    In the Matter of Request to Update Default Compensation Rate for
    Dial-around Calls from Payphones*, Report and Order, 19 FCC Rcd
    15636, 15659 at n.203 (2004) ("*Update Order*"); *Implementation of
    the Pay Telephone Reclassification and Compensation Provisions of
    the Telecommunications Act of 1996*, Third Report and Order and
    Order on Reconsideration of the Second Report and Order, 14 FCC Rcd
    2545, 2638 at ¶ 203 (1999) (some subsequent history omitted)
    ("*Third Order*"); Third Order on Reconsideration and Order on
    Clarification, 16 FCC Rcd 20922, 20924 at ¶ 6 (2001)
    ("*Clarification Order*"); Fourth Order on Reconsideration and Order
    on Remand, 17 FCC Rcd 2020, 2023 at ¶ 7 (2002) (some subsequent
    history omitted) ("*Fourth Order*"); Revised Answer to Formal
    Complaint, File No. EB-03-MD-011 (filed Sept. 15, 2003) ("Liability
    Answer") at 5 ¶ 8; Complainants' Initial Brief of Issues Designated
    by the Commission's Oct. 6, 2005 Letter Ruling, File No.
    EB-03-MD-011 (filed Oct. 28, 2005) ("Complainants' Initial Brief on
    Damages") at 2.

[^18]: Informal Complaint, File No. EB-02-MDIC-0017 (filed Mar. 29,
    2002) ("March 2002 Informal Complaint").

[^19]: Informal Complaint, File No. EB-02-MDIC-0071 (filed Sept. 30,
    2002) ("September 2002 Informal Complaint"). *See, e.g.,* Damages
    Complaint at 3, ¶ 3 and 4, ¶ 6; Answer to Supplemental Complaint for
    Damages, File No. EB-03-MD-011 (filed May 31, 2005) ("Damages
    Answer") at 2, ¶ 3 and 3 ¶ 6; Joint Statement, File No. EB-03-MD-011
    (filed July 15, 2005) ("Damages Joint Statement") at 5, 7, ¶¶ (1)
    and (13).

[^20]: *See, e.g.*, *Bureau Liability Order,* 20 FCC Rcd at 2078-79, ¶
    13.

[^21]: Formal Complaint, File No. EB-03-MD-011 (filed June 3, 2003)
    ("Liability Complaint").

[^22]: 47 C.F.R. § 1.722.

[^23]: *See, e.g.*, *Bureau Liability Order,* 20 FCC Rcd at 2074, n.6.

[^24]: Supporting these conclusions was a determination that, with
    respect to the coinless payphone calls at issue, Network (and not
    the Debit Card Providers) was the last facilities-based carrier
    within the meaning of the Commission's rules and orders. *Bureau
    Liability Order,* 20 FCC Rcd at 2080, 2081-82, 2083-85, ¶¶ 8, 9-10,
    11-13, 22-26.

[^25]: *Bureau Liability Order*, *supra*.

[^26]: *Commission Liability Order*, *supra*.

[^27]: *See* ¶ 11, *infra*.

[^28]: *See, e.g.*, Damages Answer; Defendants' Initial Brief on
    Unresolved Issues, File No. EB-03-MD-011 (filed Oct. 28, 2005)
    ("Defendants' Initial Brief on Damages"); Defendants' Reply Brief on
    Unresolved Issues, File No. EB-03-MD-011 (filed Nov. 14, 2005)
    ("Defendants' Reply Brief on Damages"); Defendants' Motion and
    Memorandum of Points and Authorities to Compel Full Response to
    Interrogatory No. 4, File No. EB-03-MD-011 (filed Nov. 10, 2005)
    ("Motion to Compel").

[^29]: 47 U.S.C. §§ 201(b), 208, 209, 276. Note, however, that the
    prejudgment interest period is to be reduced by fifteen days. *See*
    Parts III.A, III.B.1., *infra*.

[^30]: *See, e.g.*, *Implementation of the Pay Telephone
    Reclassification and Compensation Provisions of the
    Telecommunications Act of 1996*, Fifth Order on Reconsideration and
    Order on Remand, 17 FCC Rcd 21274, 21284-85 at ¶¶ 30-32 (2002)
    ("*Fifth Order*"); *Fourth Order,* 20 FCC Rcd at 2024 n.28; *Third
    Order*, 14 FCC Rcd at 2630-31, ¶¶ 187-189; *Implementation of the
    Pay Telephone Reclassification and Compensation Provisions of the
    Telecommunications Act of 1996*, Report and Order, 11 FCC Rcd 20541,
    20598-99 at ¶ 115 (1996) ("*First Order*")*; Implementation of the
    Pay Telephone Reclassification and Compensation Provisions of the
    Telecommunications Act of 1996,* Order, 13 FCC Rcd 7303, 7305 at ¶ 4
    (Com. Carr. Bur. 1998) ("*Coding Digit Waiver Order*"); *APCC
    Services, Inc. v. TS Interactive, Inc*., Memorandum Opinion and
    Order, 19 FCC Rcd 10456, 10463 at ¶ 18 (Enf. Bur. 2004) ("*APCC v.
    TSI*").

[^31]: 47 U.S.C § 415(b).

[^32]: *See, e.g.*, *Third Order*, 14 FCC Rcd at 2638, ¶ 203;
    *Clarification Order,* 16 FCC Rcd at 20924, ¶ 6; *Fourth Order,* 17
    FCC Rcd at 2023, ¶ 7; *Bureau Liability Order*, 20 FCC Rcd at
    2074-2077, ¶¶ 3-8. Network asserts that, if a payphone compensation
    claim does not accrue until two quarters after a call is made, then
    APCC cannot obtain recovery for calls completed in the two quarters
    preceding November 23, 2001.  Defendants\' Initial Brief on Damages
    at 16-17 and n.7.  Network\'s assertion confuses the concepts of
    liability attachment and claim accrual.  Liability for a call
    attaches when the call is completed; but a claim for non-payment of
    that liability does not accrue until a carrier fails to pay on the
    payment due date.  *See* Part III.B.4, *infra*.  If it were
    otherwise, a PSP could sue a carrier on the day after a call was
    completed, before a bill was even rendered. Thus, Network is liable
    for all calls completed through November 22, 2001, even though some
    of APCC's claims for Network's failure to pay on that liability
    accrued after that date.  

[^33]: *See, e.g.*, n.32, *supra*; Liability Answer at 14, ¶ 16;
    Complainants' Initial Brief on Damages at 2.

[^34]: *See, e.g.,* APCC, Inc. v. NetworkIP, LLC and Network Enhanced
    Telecom, LLP, Letter from Alexander P. Starr to Counsel, File No.
    EB-03-MD-011 (rel. Oct. 6, 2005) ("*ISC Order*") at 3-4; Joint
    Proposed Order, File No. EB-03-MD-011 (filed Sept. 30, 2005) at 3-4.

[^35]: *See, e.g.*, *Update Order,* 19 FCC Rcd at 15661, ¶ 79; *Bell
    Atlantic -- Delaware, Inc. v. Frontier Communications Services,
    Inc.*, Memorandum Opinion and Order, 16 FCC Rcd 8112, 8115 at ¶ 17
    and n.43 (2001) ("*Bell Atlantic v. Frontier*"); *Implementation of
    the Pay Telephone Reclassification and Compensation Provisions of
    the Telecommunications Act of 1996,* Second Report and Order, 13 FCC
    Rcd 1778, 1805-06 at ¶¶ 59-60 (1997) (some subsequent history
    omitted) ("*Second Order*"); *Third Order,* 14 FCC Rcd at 2630-2631,
    ¶¶ 187-189; *APCC v. TSI*, 19 FCC Rcd at 10466, ¶ 22; *Illinois Bell
    Telephone Co., Inc. v. One-Call Communications, Inc*., Memorandum
    Opinion and Order, 16 FCC Rcd 16697, 16703 at ¶ 13, n.43 (Enf. Bur.
    2001). *See generally US Sprint Communications Limited Partnership
    v. Pacific Northwest Bell Telephone Co*., Memorandum Opinion and
    Order, 8 FCC Rcd 1288, 1298 (1993); *TeleDial America, Inc. v.
    Michigan Bell Telephone Co*., Order, 8 FCC Rcd 1171 (1993); *MCI
    Telecommunications Corp. v. AT&T Co.*, Memorandum Opinion and Order,
    94 F.C.C. 2d 332 (1983).

[^36]: Although Network disputes the use of the 11.25% rate, *see* para.
    **\[13\]**, *infra*, the parties agree that interest should be
    computed annually. Complainants' Initial Brief on Damages at 6;
    Defendants' Reply Brief on Damages at 3, n.5. *See, e.g.*,
    *Implementation of the Pay Telephone Reclassification and
    Compensation Provisions of the Telecommunications Act of 1996: AT&T
    Request for Limited Waiver of the Per-Call Compensation Obligation,*
    Memorandum Opinion and Order, 13 FCC Rcd 10893, 10895 at ¶ 3 (Com.
    Carr. Bur. 1998) ("*Coding Digit Waiver Grant Order*").

[^37]: *See, e.g.*, n.30, *supra*.

[^38]: *See, e.g.*, *Coding Digit Waiver Grant Order,* 13 FCC Rcd at
    10895, ¶ 3. Our award of prejudgment interest excludes the period
    May 19, 2003 to June 3, 2003, however. *See* Part III.B.1., *infra*.

[^39]: *See* Damages Answer at 14-15, ¶¶ 39-40; Defendants' Initial
    Brief on Damages at 22-25 (citing *General Communication, Inc. v.
    Alaska Communications Systems Holding*, Memorandum Opinion and
    Order, 16 FCC Rcd 2834, 2862 at ¶ 72 (2001) ("*GCI v. Alaska*"), and
    *Starpower Communications, LLC v. Verizon South, Inc.*, Memorandum
    Opinion and Order, 18 FCC Rcd 23625, 23635 at ¶ 19 (2003)
    ("*Starpower v. Verizon"*)).

[^40]: *See, e.g.*, Damages Answer at 14-15, ¶¶ 39-40; Defendants'
    Initial Brief on Damages at 22-25; Defendants' Reply Brief on
    Damages at 2, n.3.

[^41]: *Commission Liability Order*, 21 FCC Rcd at 10490, ¶ 6*; Bureau
    Liability Order*, 20 FCC Rcd at 2085, ¶ 26.

[^42]: 47 U.S.C. § 415.

[^43]: *See, e.g.*, nn.35, 36, *supra*; *see also* *Bell
    Atlantic-Delaware, Inc.. v. MCI Telecommunications Corp.*,
    Memorandum Opinion and Order, 16 FCC Rcd 8112, 8120 at ¶ 17 and n.43
    (2001); *Rainbow Programming Holdings, Inc. v. Bell Atlantic-New
    Jersey, Inc.*, Memorandum Opinion and Order, 15 FCC Rcd 11754, 11763
    at ¶ 26 (Enf. Bur. 2000); *Mile Hi Cable Partners, LP v. Public
    Service Company of Colorado*, Order, 15 FCC Rcd 11450, 11458-59 at ¶
    14 (Cable Ser. Bur. 2000). Our research reveals that the Commission
    awards prejudgment interest in the vast majority of cases. In fact,
    the failure to award prejudgment interest, absent some compelling
    reason, may constitute an abuse of discretion. *See, e.g.,*
    *National Communications Ass'n, Inc. v. AT&T Co.*, 1999 WL 258263
    (S.D.N.Y. Apr. 29, 1999) (citations omitted). It may be that denying
    prejudgment interest is appropriate only if either the complainant
    has itself acted unlawfully, or the principal amount of damages is
    uncertain, or the complainant will be made whole through some other
    mechanism, such as statutory treble damages. None of those
    circumstances exists here.

[^44]: *See, e.g.*, Damages Answer at 14-15, ¶ 39; Defendants' Initial
    Brief on Damages at 23-24; Defendants' Reply Brief on Damages at 3,
    n.5.

[^45]: *See, e.g.*, Damages Answer at 14-15, ¶ 39 (citing *Starpower v.
    Verizon.,* 18 FCC Rcd at 23635 ¶ 19 (2003)); Defendants' Initial
    Brief on Damages at 23-24 (citing *Fourth Order,*17 FCC Rcd at 2033,
    ¶¶ 32-33; *Fifth Order*, 17 FCC Rcd at 21307, ¶¶ 99-101; *GCI v.
    Alaska,* 16 FCC Rcd at 2863, ¶ 74)).

[^46]: *See, e.g.*, *Update Order*, 19 FCC Rcd at 15661, ¶ 79; *Fifth
    Order*, 17 FCC Rcd at 21283-85, 21307, ¶¶ 28-31, 99-100; *Fourth
    Order*, 17 FCC Rcd at 2033, ¶ 33 (stating that, "while that approach
    \[of using the 11.25% rate\] *remains fitting in its context*, in
    the very different context of one-time ... true-up payments, a
    commercially-oriented rate is most suitable") (emphasis added);
    *Bell Atlantic v. Frontier*, 16 FCC Rcd at 8120, ¶ 17 n.43 (ordering
    the computation of prejudgment interest at 11.25% and noting that
    the "use of the 11.25 percent interest rate is unique to cases in
    which IXCs are late in making payments to PSPs, and is not
    necessarily applicable in other contexts"); *Third Order*, 14 FCC
    Rcd at 2630-31, ¶¶ 187, 189; *APCC v. TS Interactive*, 19 FCC Rcd at
    10466-67, ¶¶ 20-21; *Illinois Bell v. OneCall*, 16 FCC Rcd at 16703,
    ¶ 13 n.43 (stating that "\[t\]he Commission has previously
    determined that an 11.25% interest rate is appropriate when IXCs are
    late in making payments to PSPs").

[^47]: *APCC Services, Inc. v. Network IP, LLC and Network Enhanced
    Services, LLP*, Order, 20 FCC Rcd 16727 (Enf. Bur. 2005) ("*Waiver
    Order*").

[^48]: Petition for Reconsideration, File No. EB-03-MD-011 (filed Nov.
    22, 2005) ("Petition") at 5-7; Reply to Complainants' Opposition to
    Defendants' Petition for Reconsideration, File No. EB-03-MD-011
    (filed Dec. 16, 2005) ("Petition Reply") at 3-4.

[^49]: Petition at 7-9; Petition Reply at 9.

[^50]: Petition at 8-17; Petition Reply at 5-10.

[^51]: Our rules permit us to adjudicate a petition for reconsideration
    of an order issued pursuant to delegated authority. 47 C.F.R. §
    1.106(a)(1). Doing so makes sense here, given that this Order
    resolves all other outstanding issues. *See generally* 47 U.S.C. §§
    154(i), (j); 47 C.F.R. § 1.1. Moreover, by adjudicating the Petition
    in conjunction with resolving all other outstanding issues, we
    render moot APCC's otherwise compelling objection that the Petition
    improperly seeks interlocutory relief. *See* Opposition to
    Defendants' Petition for Reconsideration, File No. EB-03-MD-011
    (filed Dec. 9, 2005) ("Opposition to Recon.") at 6-7 (citing 47
    C.F.R. § 1.106(a)(1) (stating that "\[p\]etitions for
    reconsideration of ... interlocutory actions will not be
    entertained")).

[^52]: 47 C.F.R. §§ 1.716-1.718.

[^53]: 47 C.F.R. §§ 1.720-1.736.

[^54]: 47 U.S.C. § 415(b).

[^55]: *See, e.g., Operator Communications, Inc. v. Contel of the South,
    Inc.*, Memorandum Opinion and Order, 20 FCC Rcd 19783, 19792 at ¶ 23
    (2005).

[^56]: 47 C.F.R. § 1.718 (stating, 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 . . . ").

[^57]: September 2002 Informal Complaint. In Network's view, the *Waiver
    Order*'s statement that APCC's informal complaint effectively named
    Network Enhanced Telecom, LLP, as a defendant is incorrect. Petition
    at 3 n.2. We reject Network's assertion elsewhere in this Order.
    *See* Part III.B.3.*, infra***.**

[^58]: *See, e.g.,* September 2002 Informal Complaint. As explained
    previously, due to certain unique characteristics of payphone
    billing and payment cycles, payphone compensation claims accrue on
    the first day of the quarter following the quarter after the quarter
    in which the call was made. Thus, an informal complaint filed on
    September 30, 2002 allows recovery for calls made from April 1, 2000
    forward. *See, e.g.,* Part III.A, *supra*. Network points out that
    APCC's September 2002 Informal Complaint purports to seek recovery
    back to October 7, 1997. Petition at 3 n.2. It has subsequently
    become clear, however, that APCC is seeking recovery for only the
    shorter period described above. *See, e.g*., *ISC Order* at 3-4, ¶¶
    12-13; Complainants' Initial Brief on Damages at 2-3.

[^59]: Response to Informal Complaint, File No. EB-02-MDIC-0071 (filed
    Nov. 19, 2002).

[^60]: As discussed elsewhere herein, prior to the September 2002
    Informal Complaint, APCC had submitted a different informal
    complaint on March 29, 2002. S*ee* Parts II.B, III.B.2-3. The
    September 2002 Informal Complaint seeks recovery of per-call
    dial-around compensation for payphone calls involving Network and
    all carriers other than Sprint, whereas the March 29, 2002 informal
    complaint seeks such recovery only for payphone calls involving
    Network and Sprint. *See* Part II.B, *supra*.

[^61]: *See, e.g.*, Supplemental Complaint for Damages \[rejected\],
    File No. EB-03-MD-011 (served May 19, 2003) ("Attempted Damages
    Complaint") at 31 (Certificate of Service); Damages Joint Statement
    at 9, ¶ (9); *Waiver Order*, 20 FCC Rcd at 16729, ¶ 5.

[^62]: Attempted Damages Complaint at 31; Opposition to Complainants'
    Motion for a 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") at 2; Damages Joint Statement at 9 (stating that
    Complainants "submitted" a formal complaint on May 19, 2003);
    *Waiver Order*, 20 FCC Rcd at 16729, ¶ 5; *but see* Damages Answer
    at 2, ¶ 7 (stating that Defendants never received the May 19, 2003
    complaint **).**

[^63]: 47 C.F.R. § 1.1106. *See* 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") at 4-5.

[^64]: *See generally* 47 C.F.R. § 1.1116(a). *See, e.g.*, Waiver Motion
    at 5; Opposition to Waiver Motion at 2; Damages Answer at 4; Damages
    Joint Statement at 9.

[^65]: *See, e.g.*, 47 C.F.R. § 1.1116(a)(2).

[^66]: *See* *Waiver Order*, 20 FCC Rcd at 16729, ¶ 6; Waiver Motion at
    4-5, 7-9.

[^67]: *See* *Waiver Order*, 20 FCC Rcd at 16729, ¶ 7; Liability
    Complaint, *supra*.

[^68]: Waiver Motion.

[^69]: *See, e.g. ,Waiver Order* at 5, 15-17. The financial differential
    between the two recovery periods (*i.e.*, April 1, 2000 through
    November 22, 2001 with the waiver, versus January 2, 2001 through
    November 22, 2001 without) is over one million dollars in principal
    amounts owed. *See Waiver Order* at 4, n.23; *ISC Order* at 3-4, ¶¶
    12, 13.

[^70]: *Waiver Order*, 20 FCC Rcd at 16730-31, ¶ 9 (quoting *Application
    for Review by Information Technology Dept. of State of North
    Dakota*, Order, 18 FCC Rcd 21521, 21524 at ¶ 9 (2003) ("*North
    Dakota Order"*), *rev'd on other grounds*, *In the Matter of Request
    for Review of the Decision of the Universal Service Administrator by
    Bishop Perry Middle School, New Orleans, LA*, Order, 21 FCC Rcd 5316
    (2006) ("*Schools and Libraries Waiver Order*"). 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." *Id.* (quoting
    *Application of Winstar Broadcasting*, Memorandum Opinion and Order,
    17 FCC Rcd 6126, 6128 at ¶ 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).

[^71]: Opposition to Waiver Motion.

[^72]: *See* n.69, *supra.*

[^73]: *Waiver Order*, 20 FCC Rcd at 16730-33**,** ¶¶ 8-14 (relying
    upon, *inter alia*, *Metricom, Inc. Request for Waiver of Section
    27.208(A) of the Commission's Rules*, Order, 13 FCC Rcd 890
    (Wireless Tel. Bur. 1998) ("*Metricom Waiver Order*") (granting
    two-day waiver of payment deadline, because delay was 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) ("*SCS Waiver Order*") (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) ("*MFRI Waiver Order*") (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)
    ("*Longstreet Waiver Order*") (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) ("*Farley
    Waiver Order*") (granting three-day waiver of filing deadline,
    because improper filing on due-date was caused by clerical error)).

[^74]: *Waiver Order*, 20 FCC Rcd at 16732**,** ¶¶ 12-13. 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.

[^75]: 47 U.S.C § 276(b)(1). *See generally, Schools and Libraries
    Waiver Order, supra.*

[^76]: Petition at 5-7; Petition Reply at 3-4. Network inexplicably
    failed to raise this issue in its Opposition to APCC's Waiver
    Motion; consequently, we could have declined to address this issue
    here. *See, e.g.*, *Knology, Inc. v. Georgia Power Co.*, Memorandum
    Opinion and Order, 18 FCC Rcd 24615, 24617 n.16, 24624 (2003)
    ("*Knology v. Georgia Power*") (and cases cited therein) (declining
    to consider belatedly raised issues).

[^77]: *See, e.g.*, *In the Matter of Meredith/New Heritage Strategic
    Partners, L.P.*, Memorandum Opinion and Consolidated Order, 9 FCC
    Rcd 6841, 6842 at ¶ 6 (1994) ("*Meredith*") (stating that,
    "\[w\]here the time limit is not set by statute, but is regulatory
    in nature, the Commission may exercise its discretion and accept
    late-filed materials in appropriate circumstances, upon a showing of
    good cause").

[^78]: Petition at 8-9 (quoting *Meredith*, 9 FCC Rcd at 6843, ¶ 9).

[^79]: Petition at 9 (quoting *Meredith*, 9 FCC Rcd at 6843, ¶ 10, and
    also citing *In the Matter of Time Warner
    Entertainment/Advance-Newhouse Partnership v. Florida Power & Light
    Co.*, Order on Reconsideration, 14 FCC Rcd 18899, 18901 at ¶ 5
    (Cable Serv. Bur. 1999) ("*Time Warner*"); *In Re Applications of
    Clifford Stanton Heinz Trust*, Memorandum opinion and Order, 11 FCC
    Rcd 5354, 5358 at ¶ 20 (Wireless Tel. Bur. 1996) ("*Heinz Trust*")).
    *See* Petition at 7-9, 11-12; Petition Reply at 9.

[^80]: *Id*.

[^81]: Like the statute of limitations issue discussed above, Network
    inexplicably failed to raise this waiver standard issue in its
    Opposition to APCC's Waiver Motion; consequently, we could have
    declined to address this issue here. *See, e.g.*, *Knology v.
    Georgia Power,* 18 FCC Rcd at 24617 n.16, 24624.

[^82]: *Meredith*, 9 FCC Rcd at 6843, ¶ 9 (emphasis added). *See In the
    Matter of Northeast Gwinnett Cablevision*, Memorandum Opinion and
    Order, 13 FCC Rcd 10282, 10284 at ¶ 6 (Cable Serv. Bur. 1998)
    ("*Northeast Gwinnett Cablevision*") (stating that "\[t\]he
    Commission made it clear in its decision in \[*Meredith*\] that it
    will strictly apply the good cause standard in connection with
    filing deadlines *initiating* adjudicatory proceedings....")
    (emphasis added). Network implicitly acknowledges that the
    *Meredith* standard applies only to deadlines for pleadings that
    initiate an adjudicatory proceeding. *See* Petition at 2 (stating
    that, "\[i\]n cases involving pleadings that *initiate*
    adjudications, deadlines may be waived only if Complainants had a
    legitimate reason ....") (emphasis added); Petition Reply at 9 n.6.

[^83]: *See generally* *In the Matter of: Continental Cablevision of
    Massachusetts, Inc.*, Memorandum Opinion and Order, 13 FCC Rcd 13782
    (1998) (applying *Meredith* standard to a deadline for filing a
    complaint initiating a proceeding); *In the Matter of Falcon
    Cablevision*, Memorandum Opinion and Order, 16 FCC Rcd 8845 (Cable
    Serv. Bur. 2001) (same); *In the Matter of Falcon Cablevision*,
    Consolidated Memorandum Opinion and Order, 16 FCC Rcd 4633 (Cable
    Serv. Bur. 2001) (same); *Northeast Gwinnett Cablevision*, *supra*
    (same); *Falcon Classic Cable v. McCreary County, KY*, Memorandum
    Opinion and Order, 13 FCC Rcd 6489 (Cable Serv. Bur. 1998) (same);
    *In the Matter of Falcon Cablevision*, Memorandum Opinion and Order,
    12 FCC Rcd 4190 (Cable Serv. Bur. 1997) (same); *but see* *Time
    Warner*, *supra*; *Heinz Trust*, *supra*; *In the Matter of:
    Telenois, Inc.*, Order, 10 FCC Rcd 9530 (Cable Serv. Bureau 1995)
    (applying *Meredith* standard to deadlines for filing application
    for review, opposition to reconsideration petition, and opposition
    to rate complaint, respectively).

[^84]: We note that, in the most recent Commission-level reference to
    *Meredith*, the Commission implied that the *Meredith* standard
    might not materially differ from the general waiver standard. *In re
    Application of Independent Communications, Inc.*, Memorandum Opinion
    and Order, 15 FCC Rcd 7080, 7082 at ¶ 8 (1999) (stating that,
    "\[i\]n demonstrating good cause \[for a deadline waiver\] in
    connection with adjudicatory pleadings, a party need only provide a
    legitimate reason for not being able to file pleadings within the
    time specified as opposed to 'unusual or compelling
    circumstances'....").

[^85]: *See Meredith, supra; Time Warner, supra; Heinz Trust, supra.*

[^86]: Petition at 10-12; Petition Reply at 9.

[^87]: *North Dakota Order*, 18 FCC Rcd at 21524, ¶ 9.

[^88]: *See, e.g*., n.73, *supra; Schools and Libraries Waiver Order*,
    21 FCC Rcd at 5321, 5323, 5324, 5326-27, ¶¶ 11, 14, 16, 20, 22; *In
    the Matter of Federal-State Joint Board on Universal Service, North
    River Telephone Cooperative,* Order, 2006 WL 3814766, \_\_ FCC Rcd
    \_\_, DA 06-2584 (Wireline Comp. Bur. Dec. 28, 2006) at ¶ 6; *In the
    Matter of Requests for Review and Waiver of the Decision of the
    Universal Service Administrator by Alaska Gateway School District et
    al.,* Order, 21 FCC Rcd 10182, 10186 (Wireline Comp. Bur., Sept. 14,
    2006) ("*Alaska Gateway Order*") at ¶ 7; *In the Matter of
    Federal-State Joint Board on Universal Service: Cellular South
    Licenses, Inc. Petition for Waiver of Section 54.802(a) of the
    Commission's Rules*, Order, 21 FCC Rcd 9165, 9168-69 (Wireline Comp.
    Bur., Aug. 14, 2006) at ¶¶ 8-9; *In the Matter of Federal-State
    Joint Board on Universal Service; Dixon Telephone Co., Lexcom
    Telephone Co., Citizens Telephone Co. of Higginsville, Missouri
    Petitions for Waiver of Section 54.301 Local Switching Support Data
    Submission Reporting Date*, Order, 21 FCC Rcd 1717 (Wireline Comp.
    Bur. 2006); *In the Matter of Federal-State Joint Board on Universal
    Service; Fibernet, LLC Petition for Waiver of FCC Rule
    54.307(c)(4),* Order, 20 FCC Rcd 20316, (Wireline Comp. Bur. 2005);
    *In the Matter of Federal-State Joint Board on Universal Service;
    Alliance Communications Cooperative, Inc. and Hills Telephone Co.,
    Inc., East Ascension Telephone Co., LLC, Columbus Telephone Co.
    Petitions for Waiver of Section 54.301 Local Switching Support Data
    Submission Reporting Date*, Order, 20 FCC Rcd 18250 (Wireline Comp.
    Bur. 2005); *In the Matter of Federal-State Joint Board on Universal
    Service; Citizens Communications and Frontier Communications
    Petition for Waiver of Section 54.802(a) of the Commission's Rules*,
    Order, 20 FCC Rcd 16761 (Wireline Comp. Bur. 2005).

[^89]: Petition at 12-14.

[^90]: *Waiver Order*, 20 FCC Rcd at 16727-28, 16730, 16733, ¶¶ 1, 8,
    15.

[^91]: Petition at 11-12.

[^92]: *See, e.gSchools and Libraries Waiver Order* at ¶¶ 11
    ("applicants' errors could not have resulted in an advantage for
    them"), 14, 16, 20, 22; *Metricom Waiver Order*, 13 FCC Rcd at 891,
    ¶ 6; *SCS Waiver Order*, 12 FCC Rcd at 1534, ¶ 8; *MFRI Waiver
    Order*, 12 FCC Rcd at 1542, ¶ 7; *Longstreet Waiver Order*, 12 FCC
    Rcd at 1551**,** ¶ 7. *See also Alaska Gateway Order*, 21 FCC Rcd at
    10185-86, ¶ 7; *Request for Waiver Filed byUtica City School
    District,* Order, 21 FCC Rcd 8758 (Wireline Comp. Bur. 2006).

[^93]: Petition at 15-17.

[^94]: *Bureau Liability Order*, 20 FCC Rcd at 2077-78, ¶ 11. Many, if
    not all, of Network's contracts with Debit Card Providers might be
    construed to require the Debit Card Providers to hold Network
    harmless for payphone compensation due on calls made with the Debit
    Card Providers' products. *See* Liability Answer at Att. B.

[^95]: *See generally, Schools and Libraries Waiver Order*, 21 FCC Rcd
    at 5321, 5323, 5324, 5326-27, *¶¶* 11, 14, 16, 20, 22 (granting
    waivers to prevent substantial financial harm that would otherwise
    result from minor, good-faith procedural mistakes). Network also
    asserts that APCC's failure to prosecute its claims diligently
    counsels against waiver of rule 1.718. Petition at 15-16. To the
    extent that Network is referring to APCC's failure to sue the Debit
    Card Providers, Network's argument mischaracterizes the proper
    targets of APCC's collection efforts. *See Commission Liability
    Order, supra*; *Bureau Liability Order*, *supra* (both holding that
    Network, and not the Debit Card Providers, are liable to APCC). To
    the extent that Network is referring to APCC's failure to sue
    Network until September 30, 2002, the two-year statute of
    limitations in section 415(b) of the Act adequately addresses any
    concerns arising from the timing of APCC's action.

[^96]: 47 C.F.R. § 1.716.

[^97]: 47 C.F.R. § 1.717.

[^98]: 47 C.F.R. § 1.47(h) (emphasis added).

[^99]: 47 C.F.R. § 1.47(d).

[^100]: *See, e.g.*, March 2002 Informal Complaint; Damages Joint
    Statement at 6; APCC Services, Inc. v. NetworkIP, LLC and Network
    Enhanced Telecom, LLP, Complainants' Initial Brief on Issues
    Designated by the Commission's June 21, 2005 Letter Ruling, File No.
    EB-03-MD-011 (filed July 1, 2005) ("Complainants' Initial Brief on
    Service"), Attachment 10 at 2, ¶ 4.

[^101]: *See, e.g.*, March 2002 Informal Complaint; September 2002
    Informal Complaint.

[^102]: *See* Forms 499-A for 2001 and 2002 for NetworkIP, LLC,
    contained in a database maintained by the Universal Service
    Administrative Co. and accessible through the Enforcement Bureau
    listing on the Commission's website,
    [www.fcc.gov](http://www.fcc.gov/). Network does not deny APCC's
    allegation that NetworkIP, LLC lacked a designated agent in the
    District of Columbia as of March 29, 2002. *See* Damages Complaint
    at 3 n.2.

[^103]: *APCC Services, Inc. v. NetworkIP, LLC*, Official Notice of
    Informal Complaint, File No. EB-02-MDIC-0017 (April 17, 2002)
    ("First Notice") (directing a response within 30 days);
    Complainants' Initial Brief on Service, Attachment 4; March 2002
    Informal Complaint; Damages Joint Statement at 5-6; Complainants'
    Initial Brief on Service at 7 and Attachment 10 at 2, ¶ 4.

[^104]: *See, e.g.*, March 2002 Informal Complaint at 4; Damages Joint
    Statement at 6.

[^105]: *See, e.g.*, Damages Answer at 3; Defendants' Brief Regarding
    Complaints' \[*sic*\] Failure to Serve the March 29, 2002, Informal
    Complaint, File No. EB-03-MD-011 (filed July 1, 2005) ("Defendants'
    Initial Brief on Service") at 7, n.5; Defendants' Reply Brief
    Regarding Complainants' Failure to Serve the March 29, 2002 Informal
    Complaint, File No. EB -03-MD-011 (filed July 11, 2005)
    ("Defendants' Reply Brief on Service") at 8; Damages Joint Statement
    at 7 ¶ (16).

[^106]: *See, e.g.*, Complainants' Initial Brief on Service at
    Attachment 3; Damages Answer at 3; Damages Joint Statement at 6 ¶
    (9). In addition, in October 2002, the Commission sent another
    notice \-- to the same address as the First Notice -- directing a
    response to the March 2002 Informal Complaint. *APCC Services, Inc.
    v. NetworkIP, LLC and Network Enhanced Telecom, LLP*, Official
    Notice of Informal Complaint, Notice of Possible Enforcement Action,
    File No. EB-02-MDIC-0017 (Oct. 9, 2002) ("Second Notice");
    Complainants' Initial Brief on Service at Attachment 5; Damages
    Joint Statement at 7.

[^107]: *See, e.g.*, September 2002 Informal Complaint**,** *supra*;
    Damages Joint Statement at 7, ¶ (13); Defendants' Initial Brief on
    Service at 6. APCC mailed the September 19, 2002 letter and the
    September 2002 Informal Complaint to a different address than it
    mailed the March 2002 Informal Complaint. *Compare* March 2002
    Informal Complaint *with* September 2002 Informal Complaint *and*
    Complainants' Initial Brief on Service at Attachment 3.

[^108]: September 2002 Informal Complaint at 2 n.3.

[^109]: *See, e.g.*, Complainants' Initial Brief on Service, Attachment
    8 at 2; Damages Joint Statement at 7.

[^110]: NetworkIP, LLC also never responded in writing to APCC's
    September 19, 2002 letter. *See* Complainants' Initial Brief on
    Service at 4.

[^111]: *See, e.g.,* Liability Answer at 7, ¶ 25, 15; Damages Answer at
    27, ¶ 94, 30, ¶¶ 101-102; Defendants' Initial Brief on Service at
    2-7; Defendants' Reply Brief, File No. EB-03-MD-011 (filed July 11,
    2005) ("Defendants' Reply Brief on Service") at 1-6.

[^112]: *See, e.g.,* Liability Answer at 14-16; Damages Answer at 14;
    Petition at 3 and n.2, 16 and n.23 Defendants' Initial Brief on
    Service at 4-5, 7, n.5; Defendants' Reply Brief on Service at 2,
    4-6.

[^113]: *See, e.g.,* Liability Answer at 14-16; Damages Answer at 14;
    Petition at 3 and n.2, 16 and n.23; Defendants' Initial Brief on
    Damages at 12; Defendants' Initial Brief on Service at 4-5, 7, n.5;
    Defendants' Reply Brief on Service at 2, 4-6. Network also contends
    that the filing date of the June 2003 Damages Complaint cannot
    relate back to the filing date of the March 2002 Informal Complaint,
    because the time between those two filings exceeded the six-month
    period specified in rule 1.718. *See* Damages Answer at 27; Petition
    at 3, 16; Defendants' Initial Brief on Damages at 13-14. To support
    that contention, Network suggests that where, as here, no response
    to an informal complaint is filed, the six-month relation-back
    period should be deemed to start running from the filing date of the
    informal complaint (or thereabouts), rather than from a non-existing
    response; otherwise, the dispute could linger indefinitely in the
    informal complaint phase, undermining the rule's goal of promoting
    speed and finality. Defendants' Initial Brief on Damages at 13-14.
    Network's contention lacks merit. As previously explained, the
    rule's plain language clearly provides that the six--month period
    runs from the date of the defendant's response, not from the date of
    the informal complaint. 47 C.F.R. § 1.718. Moreover, a defendant has
    the power to prevent undue lingering of claims by simply filing a
    response. Finally, the Commission has ample authority to manage the
    informal complaint docket so as to prevent claims from becoming
    stale. *See, e.g.*, 47 U.S.C. §§ 154(i)-(j); *Implementation of the
    Telecommunications Act of 1996: Amendment of Rules Governing
    Procedures to be Followed When Formal Complaints Are Filed Against
    Common Carriers*, Report and Order, 12 FCC Rcd 22497, 22501, 22539,
    22559, at ¶¶ 5, 95, 128, 144 (1997) ("*Formal Complaints Order*")
    (subsequent history omitted). Here, Network never filed a response
    to the March 2002 Informal Complaint, so the six-month period
    applicable to that Informal Complaint (as opposed to the September
    2002 Informal Complaint) had not even begun to run when APCC filed
    the June 2003 Damages Complaint.

[^114]: *See, e.g.*, Defendants' Initial Brief on Service at 2-7;
    Defendants' Reply Brief on Service at 1-6.

[^115]: Indeed, rather than attempt to provide Network actual notice of
    the informal complaint via U.S. mail, the Commission could have
    simply "posted" the informal complaint in the Commission Secretary's
    Office. 47 U.S.C. § 1.47(h).

[^116]: NetworkIP, LLC and the affiliate for which Mr. Williams worked
    had common officers, a common address (including suite number), and
    a common phone number. Liability Answer at 18; Complainants' Reply
    Brief of Issues Designated by the Commission's June 21, 2005 Letter
    Ruling, File No. EB-03-MD-011 (filed July 11, 2005) ("Complainants'
    Reply Brief on Service") at 2-3 and Attachment 1. Further, that
    affiliate was named in several of the contracts submitted in the
    record by Network as guarantor of NetworkIP and NET obligations to
    customers. *See, e.g*., Liability Answer at Attachment B-30. In
    addition, Mr. Williams, at the Dallas address, had been Sprint's
    contact for its business relationship with NetworkIP for at least a
    year. Complainants' Initial Brief on Service at 3 and Attachment 3.

[^117]: *See* n.142, *infra*.

[^118]: Opposition to Motion for Waiver at 4; Defendants'Initial Brief
    on Service at 2-3; Complainants' Reply Brief on Service at 4;
    Damages Joint Statement at 6;
    [www.networkip.net](http://www.networkip.net/). Further, the
    telephone at that address (a number provided for NetworkIP by local
    directory assistance) was answered "NetworkIP," and the receptionist
    confirmed the Dallas address as NetworkIP's address. Complainants'
    Initial Brief on Service, Attachment 10 at 2.

[^119]: *See* Initial Brief on Service at Attachment 13.

[^120]: March 2002 Informal Complaint at 4.; Liability Complaint at 12,
    ¶ 24 and Attachment 10; Damages Joint Statement at 6, ¶ (3);
    Complainants' Initial Brief on Service at 2 and Attachment 1.

[^121]: Complainants' Initial Brief on Service at 6-7 and Attachment 10.
    Further, as APCC notes, complainants in the dial-around compensation
    context often do not have nearly as much useful identifying
    information (or access to such information) as does a typical
    plaintiff in court serving process on a typical defendant. *See*
    Complainants' Reply Brief on Service at Attachment 4. Unlike a
    typical plaintiff in court, dial-around complainants "are obliged by
    law to allow calls from payphones that will be routed to any carrier
    for completion, including calls that during the period covered by
    this dispute were completed by FBRs \[facilities-based resellers\]
    who were unknown to Complainants and whom Complainants had no means
    of identifying and tracking." Complainants' Reply Brief on Service
    at 7. *See, e.g.*, *Pay Telephone Reclassification and Compensation
    Provisions of the Telecommunications Act of 1996*, Further Notice of
    Proposed Rulemaking, 18 FCC Rcd 11003, 11107 at ¶ 7 (2003); *Pay
    Telephone Reclassification and Compensation Provisions of the
    Telecommunications Act of 1996: Petitions for Clarification,* Third
    Order on Reconsideration and Order on Clarification, 16 FCC Rcd
    20922, 20924 at ¶ 6 (2001); *Second Order*, 16 FCC Rcd at 8103, ¶ 8;
    *Coding Digit Waiver Grant Order,* 13 FCC Rcd at 10915-16, ¶ 38.

[^122]: *See generally* *State of Wisconsin -- Educational
    Communications Board v. DirecTV*, Memorandum Opinion and Order, 18
    FCC Rcd 20261 (Media Bur. 2003) (finding service to be adequate
    under circumstances analogous to those here).

[^123]: *See, e.g.,* *In the Matter of Implementation of the
    Telecommunications Act of 1996: Amendment of Rules Governing
    Procedures to Be Followed When Formal Complaints Are Filed Against
    Common Carriers*, Order on Reconsideration, 16 FCC Rcd 5681, 5685 at
    ¶ 33 (2001); *Formal Complaints Order*, 12 FCC Rcd at 22503, 22530,
    ¶ 20 and n.48, ¶ 73 and n.204; *In the Matter of Implementation of
    the Telecommunications Act of 1996: Amendment of Rules Governing
    Procedures to Be Followed When Formal Complaints Are Filed Against
    Common Carriers,* Report and Order, 3 FCC Rcd 1806, 1811-12 at ¶ 47
    (1988).

[^124]: *See, e.g.*, Fed.R.Civ.P. 4(m) (and Advisory Committee Notes
    thereto); Wright & Miller, 4B *Federal Practice & Procedure*, § 1137
    (3d ed. 2002). More precisely, the court *must* extend the service
    deadline beyond 120 days if "good cause" to do so exists, and the
    court has broad discretion to extend the service deadline beyond 120
    days even in the absence of good cause. *See, e.g.*, *id.*

[^125]: *See, e.g.*, *id.*

[^126]: Defendants' Reply Brief on Service at 2; Damages Joint Statement
    at 7, ¶ (15).

[^127]: *See, e.g., International Telecharge, Inc. v. Southwestern Bell
    Telephone Co.*, Memorandum Opinion and Order, 11 FCC Rcd 10061,
    10077 at ¶ 43 (Com. Car. Bur. 1996); *Cellular Marketing, Inc. v.
    Houston Cellular Telephone Co.*, Order, 10 FCC Rcd 8897, 8898 at ¶ 6
    (Wireless Tel. Bur. 1995); *Telecable Associates, Inc. v. South
    Central Bell Telephone Co.*, 6 FCC Rcd 6850, 6850 at ¶ 5 (Com. Car.
    Bur. 1991); *UACC Midwest, Inc. v. South Central Bell Telephone
    Co.*, Order, 6 FCC Rcd 6847, 6848 at ¶ 7 (Com Car. Bur. 1991).
    Network maintains that we cannot consider the November 15, 2002
    delivery to NetworkIP, LLC's counsel to be sufficient service,
    because doing so would apply retroactively an unprecedented "actual
    notice" standard that can be adopted only through a
    notice-and-comment rulemaking and applied only prospectively. *See*
    Defendants' Reply Brief on Service at 6. Our ability to cite the
    multiple authorities referenced earlier in this footnote amply
    refutes Network's contention.

[^128]: *See, e.g.,* *Husowitz v. American Postal Workers Union*. 190
    F.R.D. 53, 58 (E.D.N.Y. 1999). Network asserts that some Debit Card
    Providers have gone out of business, which hinders Network's ability
    to seek indemnification. *See, e.g.*, Defendants' Initial Brief on
    Damages at 17-19, 25, Attachment 5. Network does *not* assert,
    however, that those events occurred between March and November 2002.

[^129]: March 2002 Informal Complaint.

[^130]: September 2002 Informal Complaint.

[^131]: Defendants' Initial Brief on Service at 2-9; Defendants' Reply
    Brief on Service at 2-6 .

[^132]: Liability Answer at 15-16; Defendants' Reply Brief on Service at
    7.

[^133]: *Publix Network Corporation,* Order to Show Cause and Notice of
    Opportunity for Hearing, 17 FCC Rcd 11487, 11504 at ¶ 39 (2002)
    (finding that five interrelated companies were, "for legal purposes,
    one and the same") ("*Publix*") (quoting *Petition of Telecable to
    Stay*, Decision, 19 F.C.C. 2d 574, 585 at ¶ 36 (1969) (finding that
    two affiliated companies "must be treated as a single operation")
    ("*Telecable*")) (footnotes omitted). *See, e.g.*, *In re
    Applications of Ameritech Corp., Transferor, and SBC Communications
    Inc*., *Transferee*, Memorandum Opinion and Order, 14 FCC Rcd 14712,
    14898, n.825 (1999); *Petition by Dimension Cable TV, Inc. to Stay,*
    Memorandum Opinion and Order, 27 F.C.C. 2d 43, 46 at ¶ 7 (Rev. Bd.
    1971) (finding that two affiliated entities would be treated as one
    entity for purposes of the proceeding) ("*Dimension*").

[^134]: *See* [www.networkip.net](http://www.networkip.net/) and
    Complainants' Initial Brief on Service at Attachment 12 (the former
    identifying NetworkIP as a privately held company, and the latter
    establishing NET as NetworkIP's "initial member"). APCC asserts that
    NetworkIP is solely owned by NET. Liability Reply at 15.

[^135]: Damages Reply at Att. 5; Complainants' Initial Brief on Service
    at 9, n.22, Attachment 10; Complainants' Reply Brief on Service at
    2-3; [www.networkip.net](http://www.networkip.net/); Defendants'
    Initial Brief on Service at Attachments A and E; Defendants' Reply
    Brief on Service at Attachments A and B; Damages Joint Statement at
    6 ¶ (10).

[^136]: *See, e.g.,* Liability Answer at Attachment B-18.

[^137]: Reply to Defendants' Answer to Formal Complaint, File No.
    EB-03-MD-011 (filed Sept. 24, 2003) ("Liability Reply") at 15-16;
    Complainants' Initial Brief on Service at Attachment 16;
    www.networkip.net.

[^138]: Liability Reply at 15-16; Complainants' Initial Brief on Service
    at Attachment 13; Defendants' Reply Brief on Service at Attachment
    B.

[^139]: Complainants' Initial Brief on Service at 9-10 and Attachment
    14; Defendants' Reply Brief on Service at Attachment B.

[^140]: Complainants' Initial Brief on Service at Attachment 15
    (Comments in CC Docket No. 96-128, Implementation of Payphone
    Classification and Compensation Provisions of the Telecommunications
    Act of 1996 (filed Oct. 9, 2001)).

[^141]: *Publix*, 17 FCC Rcd at 11504, ¶ 39.

[^142]: We recognize that the March 2002 Informal Complaint did not name
    "NetworkIP, LLC" as the defendant, but rather "Network IP, Inc.,"
    which was not the correct name of any relevant entity. We consider
    that to be a trivial, immaterial error, however. Under the
    well-established "misnomer doctrine", we find "Network IP, Inc." and
    "NetworkIP, LLC" to be interchangeable for purposes of initiating
    the complaint proceeding. *See, e.g., Roberts v. Michaels*, 219 F.3d
    775, 777-779 (8^th^ Cir. 2000); *Morrel v. Nationwide Mutual Fire
    Insurance Co.,* 188 F.3d 218, 224 (4^th^ Cir. 1999); *Datskow v.
    Teledyne, Inc.,* 899 F.2d 1298, 1301 (2^nd^ Circ. 1990); *Miller v.
    Northwest Region Library Board*, 348 F.Supp.2d 563, 567 (M.D.N.C.
    2004); *Shoap v. KIWI S.A*., 149 FRD 509 (M.D. PA 1993).

[^143]: *See, e.g.*, Liability Complaint at Attachments 4, 6; Liability
    Answer at 3; APCC Services, Inc. et al. v. NetworkIP, LLC and
    Network Enhanced Telecom, LLP, Brief of Network, File No.
    EB-03-MD-011(filed Dec. 19, 2003) ("Network Liability Brief") at
    3-6, 9-12, nn.9, 18, 24; Opposition to Motion for Waiver at 4.;
    Damages Reply at Exh. 5, ¶ 6; Petition at 16; Defendants' Initial
    Brief on Damages at 6-9 and Exh. 2; Defendants' Reply Brief on
    Damages at 4-5, 9 and Attachments E and H.

[^144]: *See, e.g.*, Defendants' Initial Brief on Damages at 4-9 (citing
    *First Payphone Order,* 11 FCC Rcd at 20598, ¶ 114).

[^145]: *See, e.g.*, Damages Answer at 27; Defendants' Initial Brief on
    Damages at 17.

[^146]: *See, e.g.*, Defendants' Initial Brief on Damages at 4-9, 12.

[^147]: *See, e.g.*, *Operator Communications, Inc. v. Contel of the
    South, Inc.*, Memorandum Opinion and Order, 20 FCC Rcd 19783, 19785
    at ¶ 11 (2005); *MCI Telecommunications Corp. v, US West
    Communications, Inc.*, Memorandum Opinion and Order, 15 FCC Rcd
    9328, 9329-30 at ¶ 5 (2000); *AT&T Corp. v. Bell
    Atlantic-Pennsylvania*, Memorandum Opinion and Order, 14 FCC Rcd
    556, 565 at ¶ 16 (1998); *Aetna Life Ins. Co. v. AT&T Co.*, 3 FCC
    Rcd 2126, 2128-29 at ¶ 12 (1988); *Tele-Valuation, Inc. v. AT&T
    Co.*, Memorandum Opinion and Order, 73 FCC 2d 450, 452 at ¶ 4
    (1979). Nothing in the *First Payphone Order* is to the contrary. In
    the *First Payphone Order*, the Commission held that, "for purposes
    of bringing a complaint before the Commission concerning a
    carrier\'s payment of payphone compensation, the time period for the
    statute of limitations does not begin to run until after the
    carrier-payor considers a compensation claim and issues a final
    denial of the claim." 11 FCC Rcd at 20598, ¶ 114. Read in context,
    that conclusion (i) applies only where, unlike here, the dispute
    concerns ANI verification, and (ii) was designed to liberalize, not
    restrict, the time within which a PSP may bring a compensation
    claim.

[^148]: Liability Answer at 16; Damages Answer at 30, ¶ 103. *See*
    Defendants' Initial Brief on Damages at 9-12, 17-19.

[^149]: *See, e.g.*, Defendants' Initial Brief on Damages at 17-18 and
    Attachment 5.

[^150]: *See, e.g.*, Liability Complaint at 9-11 and Attachments 4, 6;
    Damages Reply at Exh. 5, ¶ 6; Complainants' Reply Brief on Damages
    at 24-26.

[^151]: *See, e.g.*, Complainants' Answer to Defendant's Interrogatories
    4 and 5 (filed Oct. 12, 2005), with Supplement (filed Nov. 10,
    2005), Further Supplement (filed Nov. 15, 2005), and Further
    Supplement (filed Dec. 13, 2005) (together, "Complainants' Rog.
    Responses"); Damages Reply at 26-27 and Attachment E; Damages Joint
    Statement at 12; Complainants' Initial Brief on Damages at 8.

[^152]: *See* Liability Answer at 17; Damages Answer at iv, 31;
    Defendants' Initial Brief on Damages at 20-22; Defendants' Reply
    Brief on Damages at 6-10.

[^153]: *See, e.g.,* Damages Joint Statement at 12; Damages Reply at
    26-27; Defendants' Initial Brief on Damages at 17-19, 25 and Att. 5;
    Defendants' Reply Brief on Damages at 9, Attachment B (directing
    Debit Card Providers to maintain call information).

[^154]: *See, e.g.,* Liability Answer at Attachment B-11, part 2.1.

[^155]: Defendants' Initial Brief on Damages at 20-22 (citing *C.F.
    Communications Corp. v. Century Telephone of Wisconsin, Inc.*,
    Hearing Designation Order, 16 FCC Rcd 8801, 8808 at ¶ 21 (Enf. Bur.
    2001); *New Valley Corp. v. Pacific Bell*, Memorandum Opinion and
    Order, 15 FCC Rcd 5128, 5134 at ¶ 14 (2000); *Hi-Tech Furnace
    Systems, Inc. v. FCC*, 224 F.3d 781, 787 (D.C. Cir. 2000));
    Defendants' Reply Brief on Damages at 9-10.

[^156]: *See, e.g.*, 5 Wright & Miller, *Federal Practice & Procedure*,
    § 1271; *Giles v. General Electric Co.*, 245 F.3d 474, 494 n.36
    (5^th^ Cir. 2001); *Hassan v. U.S. Postal Service*, 842 F.2d 260,
    263 (11^th^ Cir. 1988); *Regency Communications, Inc. v. Cleartel
    Communications, Inc.*, 304 F.Supp.2d 1, 6-7 (D.D.C. 2004). *Cf.*,
    *AT&T Communications v. Northwestern Bell Telephone Co.*, Memorandum
    Opinion and Order, 8 FCC Rcd 1014, 1021 at ¶¶ 21-22 (1993) (stating
    that "AT&T has made a claim for specific damages, and NWB, in turn,
    may properly argue that it is entitled to certain offsets against
    those damages").

[^157]: *Compare* Liability Answer at 17 *and* Damages Answer at iv, 31
    *with* Defendants' Initial Brief on Damages at 20-22.

[^158]: *See, e.g.*, 5 Wright & Miller, *Federal Practice & Procedure*,
    § 1271.

[^159]: Network again faults APCC for declining Network's purported
    offer in 2000 to "assist" APCC in seeking compensation from the
    Debit Card Providers, which Network asserts is the real reason for
    the present lack of available information. *See, e.g.*, Brief of
    Network, File No. EB-03-MD-011(filed Dec. 19, 2003) ("Network
    Liability Brief") at 3-6, 9-10; Petition at 16; Defendants' Initial
    Brief on Damages at 6-8, 9 and Exh. 2. As we have explained
    previously, *see* Part III. B. 4., *supra*; *Bureau Liability
    Order,* 20 FCC Rcd at 2084, ¶¶ 24-25, regardless of any attempt by
    Network to help APCC, APCC had no obligation or right to seek
    information and compensation from the Debit Card Providers, as it
    was Network (and not the Debit Card Providers) who was the last
    facilities-based carrier responsible for paying compensation to
    APCC.

[^160]: Complainants' Initial Brief on Damages at 9; *Bureau Liability
    Order*, 20 FCC Rcd at 2076-77, ¶ 8 (and orders cited therein).

[^161]: Defendants' Reply Brief on Damages at 8-10, Exs. F, G.

[^162]: Defendant's Reply Brief on Damages at 8.

[^163]: *See* Liability Answer at Att. B.

[^164]: A typical version of the contractual language states, in
    pertinent part: "Customer shall be responsible for payment of all
    applicable taxes or assessments *due to local, state, federal, and
    international taxing authorities*, including income, sales, use,
    other excise taxes or assessments (including Universal Service Fund
    and Dial-around Compensation), resulting from Customer's resale of
    the Services to Card Holders unless customer provides appropriate
    tax exempt certificate." Liability Answer at Attachment B-1, p. 2
    (emphasis added). Here, the payments at issue are "due to" a private
    party -- APCC -- not to any "local, state, federal, \[or\]
    international taxing authority". Thus, the contracts do not plainly
    obligate the Debit Card Providers to make such payments. In
    addition, the contractual language applicable to the largest Debit
    Card Provider is similarly ambiguous. It provides, in pertinent
    part: "\[Debit Card Provider\] is responsible for any fees and sales
    or use taxes levied by any taxing or regulatory authority (including
    universal service fees and dial around compensation) upon the
    compensation paid buy \[Debit Card Provider\] for Services and
    Deliverables. \[Network\] will itemize any such fees or sales or use
    taxes levied on \[Network\] by listing them separately on its
    invoices." Liability Answer Attachment B-10. The better reading of
    that provision is that *Network* -- and not the Debit Card Provider
    \-- was obligated to pay dial-around compensation directly to PSPs,
    and then Network could invoice the Debit Card Provider for the
    dial-around compensation that Network had paid to PSPs on the Debit
    Card Provider's behalf.

[^165]: Network also points out that, during pre-complaint settlement
    discussions, APCC indicated that it would deduct from its claim
    against Network sums paid by Debit Card Providers. *See* Defendant's
    Reply Brief on Damages at 7, Ex. E. Even if admissible, *see
    generally* Fed. R. Evid. 408, APCC's statement cannot reasonably be
    interpreted to mean that APCC was willing to reduce Network's
    liability by amounts received from the Debit Card Providers for
    payphone calls having nothing to do with APCC's claim, *i.e.*, calls
    not handled by a Network switch.

[^166]: *See* *ISC Order* at 5 (stating that "the primary purpose of the
    briefs is to provide a calculation of damages (dial-around
    compensation and interest) owed by Defendants to Complainants, if
    any, together with a full explanation of how the amount was
    calculated," and making specific mention of the "double recovery
    issue").

[^167]: The weakness of Network's assertion is highlighted by the fact
    that one of the Debit Card Providers paid APCC almost \$30 million
    in dial-around compensation for payphone calls made during the
    Relevant Period. Supplement to Complainants' Answer to Defendant's
    Interrogatory No.4, File No. EB-03-MD-011 (filed Nov. 10, 2005)
    ("Supplemental Data") at 3 and App. A. Thus, if we were simply to
    assume, as Network would have it, that all of the Debit Card
    Providers' payments were for payphone calls handled by a Network
    switch, then APCC's damages would be wiped out many times over, just
    by this one Debit Card Provider.

[^168]: At the eleventh hour of this proceeding, Network belatedly
    revealed the existence of additional Debit Card Providers, some of
    which paid dial-around compensation to APCC. *See, e.g., APCC v.
    NetworkIP*, Letter from Alexander P. Starr to Counsel, File No.
    EB-03-MD-011 (released Dec. 6, 2005) ("December 6 Letter Ruling").
    This raised the question of how to respond to Network's tardy
    revelation of evidence. *See* December 6 Letter Ruling;
    Complainants' Initial Brief on the Issue of Defendant's
    Late-Produced Evidence, File No. EB-03-MD-011 (filed Jan. 13, 2006);
    Defendants' Brief, File No. EB-03-MD-011 (filed Jan. 13, 2006);
    Complainants' Reply Brief on the Issue of Defendant's Late-Produced
    Evidence, File No. EB-03-MD-011 (filed Jan. 27, 2006); Defendants'
    Reply Brief, File No. EB-03-MD-011 (filed Jan. 27, 2006). That issue
    is now moot, given our determination that Debit Card Providers'
    payments of dial-around compensation to APCC are irrelevant to the
    calculation of damages owed to APCC by Network.