Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+----+------------------------------+
| In the Matter of                 | )  | > File No. EB-05-MD-01       |
|                                  |    |                              |
| American Cellular Corporation    | )  |                              |
| and Dobson Cellular Systems,     |    |                              |
| Inc.,                            | )  |                              |
|                                  |    |                              |
| > Complainants,                  | )  |                              |
| >                                |    |                              |
| > v\.                            | )  |                              |
|                                  |    |                              |
| BellSouth Telecommunications,    | )  |                              |
| Inc.,                            |    |                              |
|                                  | )  |                              |
| > Defendant.                     |    |                              |
|                                  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
+----------------------------------+----+------------------------------+

Memorandum opinion and order

Adopted: January 31, 2007 Released: January 31, 2007

By the Chief, Enforcement Bureau:

# Introduction

1.  In this Memorandum Opinion and Order, we dismiss with prejudice a
    formal complaint[^1] filed by American Cellular Corporation and
    Dobson Cellular Systems, Inc. (collectively "Dobson") against
    BellSouth Telecommunications, Inc. ("BellSouth")[^2] pursuant to
    section 208 of the Communications Act of 1934, as amended
    ("Act").[^3] The Complaint asserts three claims against BellSouth.
    First, Dobson alleges that BellSouth over-billed Dobson for certain
    shared facilities in Georgia, Kentucky, and Tennessee, in violation
    of section 251(c)(2)(D) of the Act and sections 51.703(b) and
    51.709(b) of the Commission's rules ("Count 1").[^4] Second, Dobson
    alleges that BellSouth over-billed for reciprocal compensation in
    Georgia, Kentucky, and Tennessee, in violation of sections 251(b)(5)
    and 251(c)(2)(D) of the Act and section 51.703(a) of the
    Commission's rules ("Count 2").[^5] Third, Dobson alleges that
    BellSouth refused to lower certain reciprocal compensation rates in
    Georgia and Tennessee to the rates established in the Commission's
    *ISP Order*, and consequently BellSouth charged Dobson excessive
    reciprocal compensation rates ("Count 3").[^6] For the reasons
    explained below, we hold that each of the claims in Dobson's
    Complaint is time-barred under the two-year statute of limitations
    in section 415(b) of the Act,[^7] and must be dismissed.

# Background

## The Parties

2.  During the period relevant to this dispute, Dobson was a
    telecommunications carrier that owned or managed commercial mobile
    radio service networks in Georgia, Kentucky, and Tennessee.[^8]
    BellSouth is an incumbent local exchange carrier ("incumbent LEC")
    providing service in Georgia, Kentucky, and Tennessee.[^9] During
    the relevant period, Dobson and BellSouth exchanged
    telecommunications traffic, as defined in section 51.701(b)(2) of
    the Commission's rules, pursuant to interconnection agreements in
    Georgia, Kentucky, and Tennessee.[^10]

## Facts Relevant to Counts 1 and 2

3.  The parties' interconnection agreements provided that each party
    would bear the costs of using shared facilities to deliver
    traffic.[^11] The interconnection agreements also provided that each
    party would pay reciprocal compensation at stated rates for traffic
    originated by one party and terminated by the other party.[^12]
    Accordingly, under the interconnection agreements, each party was to
    periodically bill the other party only for the other's use of the
    shared facilities, and only for traffic terminated by the billing
    party.[^13]

4.  Although the interconnection agreements required each party to pay
    only for its respective portion of the shared facilities and for the
    telecommunications traffic terminated on the other's network,
    BellSouth periodically billed Dobson, and Dobson ultimately paid,
    for the *entire* cost of the shared facilities and for the
    telecommunications traffic terminated by both parties.[^14] That is,
    BellSouth's bills to Dobson did not include deductions for
    BellSouth's use of the shared facilities, or for traffic originated
    by BellSouth and terminated by Dobson.[^15] Although the record is
    unclear when BellSouth sent Dobson these bills, the record reflects
    that on June 3, 2002, after having received, and paid in full, all
    of BellSouth's bills, Dobson sent BellSouth several invoices
    requesting refunds to account for (1) BellSouth's use of the shared
    facilities, and (2) telecommunications traffic originated by
    BellSouth and terminated by Dobson.[^16]

5.  Dobson's June 3, 2002 Refund Requests listed July 3, 2002 as the
    "due date" for payment of the refunds by BellSouth.[^17] BellSouth,
    however, did not pay the June 3, 2002 Refund Requests on the due
    date. Instead, BellSouth's first payment on the June 3, 2002 Refund
    Requests occurred on January 7, 2003, when BellSouth sent Dobson
    several letters stating that BellSouth was making a partial payment
    on the June 3, 2002 Refund Requests and disputing the balance of the
    refunds allegedly due.[^18] In March 2003, BellSouth made additional
    partial payments on the June 3, 2002 Refund Requests, but sought a
    repayment of some of the amounts that BellSouth had refunded to
    Dobson in January 2003.[^19] The parties continued to exchange
    communications concerning payments on the June 3, 2002 Refund
    Requests through the Spring of 2003, but failed to reach agreement
    concerning amounts owed on those Requests.[^20]

## Facts Relevant to Count 3

6.  The Commission's *ISP Order*, which became effective on June 14,
    2001, permitted an incumbent local exchange carrier to take
    advantage of reduced compensation rates for "ISP-bound" traffic[^21]
    if it offered to exchange all traffic subject to section 251(b)(5)
    of the Act at that same lower rate.[^22] BellSouth chose to take
    advantage of the reduced rates for ISP-bound traffic established in
    the *ISP Order*, but did not unilaterally implement those new rates
    in its agreements with interconnecting carriers, including
    Dobson.[^23] Rather, BellSouth's policy was to make the new rates
    available via negotiated amendments to interconnection agreements,
    upon request.[^24] Dobson made such a request in September 2001, and
    the parties engaged in negotiations to amend their interconnection
    agreements in Georgia, Tennessee, and Kentucky over the next several
    months.[^25] During this negotiation period, BellSouth continued to
    bill Dobson, and Dobson continued to make reciprocal compensation
    payments, at the higher, pre-*ISP Order* rates specified in the
    existing interconnection agreements.[^26]

7.  On February 8, 2002, Dobson transferred its operations in Georgia
    and Tennessee to Verizon Wireless.[^27] Shortly thereafter, Dobson
    informed BellSouth on February 15, 2002 that, in view of the
    transfer of the Georgia and Tennessee markets, Dobson's request for
    a new or amended interconnection agreement would "now be limited to
    Kentucky."[^28] The parties eventually negotiated a new
    interconnection agreement for Kentucky that incorporated the *ISP
    Order*'s lower rates, retroactive to the *ISP Order*'s effective
    date of June 14, 2001.[^29] The parties failed, however, to
    negotiate new or amended agreements for Georgia and Tennessee.[^30]
    BellSouth stopped billing Dobson in Georgia and Tennessee after
    February 2002,[^31] but never adjusted its past charges to Dobson in
    those states to conform to the lower reciprocal compensation rates
    in the *ISP Order*.[^32]

8.  On June 3, 2002, Dobson sent BellSouth cover letters, along with the
    June 3, 2002 Refund Requests, stating, *inter alia*, that Dobson was
    entitled to an adjustment of BellSouth's past reciprocal
    compensation charges based on the *ISP Order*.[^33] Communications
    between the parties attempting to resolve this issue continued
    through the Spring of 2003.[^34] The parties, however, failed to
    reach an agreement.[^35]

## Facts Relevant to All Counts

9.  On May 14, 2003, Dobson notified BellSouth that it was invoking the
    alternative dispute resolution ("ADR") provisions in the parties'
    interconnection agreements.[^36] Under the ADR provisions, the
    parties agreed to "initially" refer disputed issues to certain
    company representatives, and if no resolution was reached within
    thirty days, either party was permitted to pursue other
    remedies.[^37] The ADR process failed to produce settlement of the
    disputed issues within 30 days after Dobson initiated the
    process.[^38]

10. On June 24, 2003, Dobson filed an informal complaint at the
    Commission pursuant to section 1.716 of the Commission's rules
    raising each of the three claims that it asserts in the instant
    formal Complaint.[^39] Specifically, Dobson alleged that
    BellSouth: (1) failed to pay refunds owed due to BellSouth's use of
    shared facilities; (2) failed to pay refunds owed to Dobson for
    reciprocal compensation; and (3) failed to retroactively offer
    Dobson the *ISP Order*'s rates in Georgia and Tennessee.[^40] On
    August 8, 2003, BellSouth filed a response to the Informal Complaint
    disputing all three claims, and declining to satisfy Dobson's
    demands for payment of the amounts in issue.[^41] On August 22,
    2003, pursuant to rule 1.718, the Market Disputes Resolution
    Division of the Enforcement Bureau sent a letter to Dobson's counsel
    stating that Dobson had exhausted all remedies under the informal
    complaint process, and that the Division was closing the informal
    complaint file.[^42] The Informal Complaint Closure Letter explained
    that, under section 1.718 of the Commission's rules, Dobson had the
    right to file a formal complaint against BellSouth at the
    Commission, and for statute of limitations purposes the filing date
    of the formal complaint would be deemed to "relate back" to the
    filing date of the Informal Complaint, provided Dobson filed the
    formal complaint within six months of BellSouth's response to the
    Informal Complaint.[^43] The Informal Complaint Closure Letter
    further advised Dobson that, under rule 1.718, if Dobson did not
    file a formal complaint within this six-month period, *i.e.*, by
    February 8, 2004, it would "be deemed to have abandoned the
    unsatisfied informal complaint."[^44]

11. Dobson did not file a formal complaint at the Commission within the
    six-month window provided under rule 1.718. Instead, on February 4,
    2004, Dobson filed a complaint in the United States District Court
    for the Western District of Kentucky that raised the same claims
    presented in Dobson's Informal Complaint.[^45] On October 16, 2004,
    the District Court dismissed Dobson's complaint for lack of subject
    matter jurisdiction, concluding that "section 207 \[of the Act\]
    precludes a complainant from filing suit in federal court once she
    has initiated the administrative complaint process with the FCC
    either by filing a formal or informal complaint."[^46] Dobson then
    filed the original version of the instant Complaint with the
    Commission on January 10, 2005.[^47]

# Discussion

## Dobson's Claims are Governed by the Statute of Limitations in Section 415(b) of the Act

12. Section 415(b) of the Act provides a two-year limitations period
    applicable to "\[a\]ll complaints against carriers for the recovery
    of damages...."[^48] All three counts of Dobson's Complaint against
    BellSouth seek the recovery of damages.[^49] Thus, the two-year
    limitations period of section 415(b) governs all counts of Dobson's
    Complaint.[^50]

13. We find unpersuasive Dobson's argument that the four-year
    limitations period in 28 U.S.C. § 1658(a) applies to Dobson's
    claims.[^51] Section 1658(a) is a "fallback" provision that applies
    only where no specific statute of limitations governs the particular
    claim at issue.[^52] Because claims (like Dobson's) for recovery of
    damages from carriers are specifically governed by the limitations
    period set forth in section 415(b) of the Act, the default statute
    of limitations set forth in 28 U.S.C. § 1658(a), and cases applying
    it, are inapposite.[^53] Accordingly, the limitations period set
    forth in 28 U.S.C. § 1658(a) has no application here.[^54]

## The Two-Year Limitations Period of Section 415(b) Bars Dobson's Claims

14. We note at the outset that "the purpose of Section 415 is 'to
    protect a potential defendant against stale and vexatious claims by
    ending the possibility of litigation after a reasonable period of
    time has elapsed.'"[^55] Section 415 serves as an absolute,
    non-discretionary bar to the Commission's consideration of tardy
    complaints against carriers seeking the recovery of damages for
    violations of the Act.[^56] The Commission and the federal courts
    strictly construe section 415, and have consistently held that it
    must be applied even if to do so produces hardship.[^57] Thus,
    exceptions to section 415's application have been confined to narrow
    circumstances, such as fraudulent concealment.[^58]

15. Under section 415(b), a claim accrues on the date of the
    injury.[^59] If the injury is not readily discoverable, the claim
    accrues, and the limitations period begins to run, when the
    complainant "'discovers, or with due diligence should have
    discovered, the injury that is the basis of the action.'"[^60] A
    complainant has "an affirmative obligation to 'exercise due
    diligence in preserving \[its\] legal rights,'"[^61] and it is
    "required to make a diligent inquiry into the facts and
    circumstances that would support that claim" as soon as it receives
    notice "that it might have a claim."[^62]

### All Three of Dobson's Claims Accrued More Than Two Years Before Dobson Filed Its Complaint, And Thus Are Time-Barred

16. Dobson argues that it "could not have even arguably been aware that
    it had a potential claim" against BellSouth under Counts 1 and 2
    until it received letters from BellSouth on January 7, 2003
    partially disputing the June 3, 2002 Refund Requests.[^63] Dobson
    contends, moreover, that BellSouth did not "unequivocally
    notif\[y\]" Dobson that it disputed the Refund Requests until
    BellSouth informed Dobson in a June 4, 2003 e-mail message that
    BellSouth would make no further payments on Dobson's Refund
    Requests.[^64] To support this contention, Dobson asserts that
    BellSouth's position changed materially in March 2003, when
    BellSouth made additional payments on some Refund Requests and
    sought repayment of some of the refunds it had made to Dobson.[^65]

17. Dobson focuses on the wrong events. Under the "discovery" rule
    described above, where, as here, a claim asserts that a bill
    overstates the claimant's true debt, the claim accrued when the
    claimant received the allegedly erroneous bill.[^66] Whether and
    when the billing party insists that the bill is correct is
    irrelevant. Here, the record does not reflect exactly when Dobson
    received BellSouth's bills containing the alleged overcharges for
    the shared facilities and reciprocal compensation. The record does
    indicate, however, that Dobson did receive all such bills by June 3,
    2002.[^67] Consequently, Dobson's claims accrued no later than June
    3, 2002, which is much more than two years before Dobson filed the
    original version of this instant Complaint on January 10, 2005.
    Accordingly, absent some basis for tolling, section 415(b) bars
    Counts 1 and 2.[^68]

18. Turning to Count 3, we find that Dobson's claim that BellSouth
    failed to charge the reduced rates established in the *ISP Order*
    accrued in September 2001, when Dobson admits it first requested
    that BellSouth bill Dobson at the lower *ISP Order* rates.[^69] At
    that point, Dobson knew that BellSouth had elected to implement the
    *ISP Order*'s lower rates with other carriers, and that BellSouth
    was neither charging Dobson the lower rates nor offering to provide
    the lower rates to Dobson through an amendment to the parties'
    existing interconnection agreements, or through a separate
    agreement, as Dobson contends BellSouth was required to do.[^70]
    Dobson thus knew by September 2001 that it had been injured by
    BellSouth's failure to implement the new, reduced *ISP Order* rates
    in its interconnection relationship with Dobson.[^71]

19. We reject Dobson's suggestion that Count 3 did not accrue until June
    4, 2003, when BellSouth "unequivocally notified Dobson" in an e-mail
    communication that BellSouth intended to dispute Dobson's request
    for ISP rate adjustments in Tennessee and Georgia.[^72] Again, a
    claim accrues under section 415(b), not when a defendant explicitly
    disputes the claim, but when the complainant discovers, or with due
    diligence should have discovered, the injury that forms the basis of
    the claim.[^73] Here, Dobson knew, or should have known, in
    September 2001 that BellSouth was not billing Dobson at the reduced
    rates to which Dobson believed it was entitled under the *ISP
    Order*. Consequently, Dobson's claim in Count 3 accrued in September
    2001, far more than two years before January 10, 2005. Accordingly,
    absent some basis for tolling, section 415(b) bars Count 3.

### The Interconnection Agreements' ADR Provisions Provide No Basis for Delayed Accrual of the Claims or Tolling of the Limitations Period

20. Dobson argues that section 415(b)'s two-year limitations period did
    not begin to run on all three counts in the Complaint until the
    parties had exhausted the 30-day procedure set forth in the ADR
    provisions of the parties' interconnection agreements.[^74] The ADR
    provisions provided:

    Except as otherwise stated in this Agreement, the parties agree that
    if any dispute arises as to the interpretation of any provision of
    this agreement or as to the proper implementation of this Agreement,
    the parties will initially refer the issue to the individuals in
    each company that negotiated the Agreement. If the issue is not
    resolved within 30 days, either party may petition the \[state
    commission\] for a resolution of the dispute, and/or pursue any
    other remedy available to it at law or in equity.[^75]

    Dobson maintains that, because it did not invoke the ADR procedures
    until May 13, 2003, it did not have the "present ability to bring
    legal action" until 30 days later, on June 13, 2003.[^76] Dobson
    contends that the two-year limitations period thus did not begin to
    run until June 13, 2003, when Dobson acquired a "right to sue" under
    the terms of the ADR provisions.[^77]

21. We reject this argument for delayed accrual of Dobson's claims. As
    discussed above, where, as here, the claim alleges over-billing, the
    claim accrues upon receipt of the allegedly erroneous bill.[^78]
    There is no legal basis for finding that an over-billing claim (such
    as the claims in Counts 1 and 2), or a claim that a party charged
    excessive reciprocal compensation rates (such as the claim in Count
    3), accrues under section 415(b) on the date when the complainant
    acquires a "right to sue" under a private agreement.

22. Moreover, we reject Dobson's suggestion that the parties' reliance
    on the ADR process provides a basis for tolling the limitations
    period for two reasons. First, the text of the ADR provisions does
    not reflect any intent by both parties to toll the limitations
    period. The ADR provisions state only that, once the procedure is
    invoked, the parties will seek to resolve the dispute internally for
    thirty days, and may then pursue other appropriate remedies.[^79] If
    anything, the swiftness of the ADR process reflects an intent *not*
    to toll the limitations period.

23. Second, and more importantly, even if we were to interpret the ADR
    provisions as an agreement by the parties to toll the limitations
    period until completion of the ADR process, as Dobson urges us to
    do,[^80] we would nonetheless conclude that the limitations period
    in section 415(b) was not tolled by such an agreement. As noted
    above, the Commission and the federal courts have allowed tolling of
    the limitations period of section 415 only in very limited
    circumstances, such as instances of fraudulent concealment.[^81]
    Indeed, the Commission has observed that where "there is no
    allegation of fraud or deceit having been practiced by the
    defendants upon complainant to prevent him from becoming aware of
    the facts which are the basis of its claim, there is no way of \...
    tolling the statute of limitations."[^82] Thus, a private agreement
    to toll the limitations period, without more, simply does not meet
    these narrow grounds for tolling.[^83]

24. Our conclusion that tolling is unavailable here is underscored by
    the record evidence showing that Dobson failed diligently to pursue
    the ADR procedures available under the interconnection
    agreements.[^84] Under these agreements, initiation of the dispute
    resolution procedures was entirely within Dobson's control.[^85]
    Dobson failed promptly to invoke these procedures, however, and
    instead waited over eleven months from the time it sought refunds
    from BellSouth in June 2002 to initiate the ADR process on May 14,
    2003.[^86] Thus, we cannot conclude that the limitations period
    should be equitably tolled in Dobson's favor, where Dobson delayed
    triggering the ADR procedures.[^87]

### The Statute of Limitations Was Not Tolled During the Pendency of the District Court Case

25. We also reject Dobson's contention that the two year limitations
    period was tolled during the 278-day pendency of Dobson's District
    Court case.[^88] Dobson asserts that, under the allegedly
    controlling test referenced in *Irwin v. Department of Veteran's
    Affairs*, "once a cause of action has accrued, the limitations
    period may be suspended or tolled where the claimant has actively
    pursued his judicial remedies by filing a defective complaint during
    the statutory period."[^89] Applying that standard here, Dobson
    argues that its filing of the District Court Complaint constitutes
    an active pursuit of judicial remedies sufficient to toll section
    415(b).

26. Dobson's reliance on *Irwin* is misplaced. The *Irwin* court, in
    refusing to toll the limitations period in that case, determined
    that such equitable relief should be granted only "sparingly," where
    the claimant exercised "due diligence in preserving his legal
    rights."[^90] In this case, the record shows that Dobson failed to
    act with due diligence, for two reasons.[^91]

27. First, Dobson's commencement of an action in a clearly inappropriate
    forum reveals the *absence* of the kind of due diligence required
    for equitable tolling under *Irwin*.[^92] Specifically, Dobson
    should have known when it filed its action in federal court that,
    under section 207 of the Act and unanimous precedent, its earlier
    filing of the Informal Complaint with the Commission would very
    likely be deemed to constitute an election of forums that barred
    Dobson from pursuing identical claims in federal court.[^93] Indeed,
    in dismissing Dobson's complaint for lack of subject matter
    jurisdiction, the District Court noted that Dobson had failed to
    provide any authoritative support for its assertion that prior cases
    applying section 207 in a manner that would bar Dobson's court
    action were "simply wrong."[^94] Moreover, following the District
    Court's dismissal, Dobson waited over three months before filing the
    instant Complaint with the Commission.[^95]

28. Second, the Informal Complaint Closure Letter that Commission staff
    sent to Dobson on August 22, 2003 specifically advised Dobson that
    it could file a formal complaint with the Commission that would
    relate back to the June 23, 2003 filing date of Dobson's Informal
    Complaint under section 1.718 of the Commission's rules, so long as
    Dobson filed its formal complaint "within six months of the date" of
    BellSouth's August 8, 2003 response.[^96] Thus, Dobson knew that it
    could preserve its claims against BellSouth by filing a formal
    complaint with the Commission on or before February 8, 2004. Dobson
    inexplicably failed to file a formal complaint with the Commission
    within this six-month window, however, and instead, in an apparent
    attempt at "forum shopping," filed a complaint in the District Court
    on February 4, 2004.[^97] In failing to file by February 8, 2004,
    Dobson forfeited its entitlement to the relation-back privileges of
    rule 1.718. Moreover, based on this record, Dobson cannot show that
    it exercised "due diligence in pursuing \[its\] legal rights,"[^98]
    and thus it cannot satisfy the narrow grounds for equitable
    tolling.[^99]

# Conclusion

29. Dobson's claims for refunds in Counts 1 and 2 accrued no later than
    June 3, 2002. Dobson's claim for refunds in Count 3 accrued no later
    than September 2001. Section 415(b) of the Act applies to all of
    Dobson's claims, and provides a limitations period of two years.
    Therefore, absent some basis for tolling of the two-year limitations
    period, Dobson's claims in Counts 1 and 2 expired by June 3, 2004,
    and Dobson's claim in Count 3 expired in September 2003, well before
    Dobson filed this formal complaint on January 10, 2005. All of the
    bases proffered by Dobson for such tolling lack merit. Therefore,
    the two-year statute of limitations of section 415(b) of the Act
    bars Dobson's formal complaint.[^100]

# Ordering Clause

30. ACCORDINGLY, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j), 208,
    and 415(b) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 151, 154(i), 154(j), 208 and 415(b), that the formal complaint
    filed by American Cellular Corporation and Dobson Cellular Systems,
    Inc. is DISMISSED with prejudice.

    FEDERAL COMMUNICATIONS COMMISSION

    Kris Anne Monteith

    Chief, Enforcement Bureau

[^1]: Amended Formal Complaint of American Cellular Corporation and
    Dobson Cellular Systems, Inc., File No. EB-05-MD-01 (filed Jan. 31,
    2005) ("Complaint"). Dobson's filed the original version of its
    Complaint on January 10, 2005. Formal Complaint, File No.
    EB-05-MD-01 (filed Jan. 10, 2005).

[^2]: On December 29, 2006, the Commission approved the merger of AT&T
    Inc. and BellSouth Corporation. *See*
    http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-269275A1.pdf,
    *FCC Approves Merger of AT&T Inc. and BellSouth Corporation*, News
    Release, Docket 06-74 (rel. Dec. 29, 1996). Notwithstanding the
    merger, the Defendant in this order will be referred to as
    "BellSouth."

[^3]: 47 U.S.C. § 208.

[^4]: 47 U.S.C. § 251(c)(2)(D); 47 C.F.R. §§ 51.703(b), 51.709(b);
    *see*, *e.g*., Complaint at 2, 7-11.

[^5]: 47 U.S.C. §§ 251(b)(5), 251(c)(2)(D); 47 C.F.R. § 51.703(a);
    *see*, *e.g*., Complaint at 2, 11-12. For purposes of this order
    only, we will assume, without deciding, that a violation of section
    251(b)(5) is cognizable under section 208 of the Act.

[^6]: *In the Matter of Implementation of the Local Competition
    Provisions in The Telecommunications Act of 1996, Intercarrier
    Compensation for ISP-Bound Traffic*, CC Docket Nos. 96-98, 99-68,
    Order on Remand and Report and Order, 16 FCC Rcd 9151 (2001)
    (subsequent history omitted) ("*ISP Order*"); *see*, *e.g*.,
    Complaint at 2, 12-14. For purposes of this order only, we will
    assume, without deciding, that a violation of the *ISP Order*
    constitutes a violation of the Act cognizable under section 208 of
    the Act.

[^7]: 47 U.S.C. § 415(b).

[^8]: Joint Statement, File No. EB-05-MD-01, at 2, ¶ 1 (filed Apr. 19,
    2005) ("Joint Statement"); Complaint at 3.

[^9]: Joint Statement at 2, ¶ 2; Complaint at 4; BellSouth
    Telecommunications, Inc.'s Answer to the Amended Formal Complaint of
    American Cellular Corporation and Dobson Cellular Systems, Inc.,
    File No. EB-05-MD-01, at 7 (filed Feb. 15, 2005) ("Answer").

[^10]: 47 C.F.R. § 51.701(b)(2); Joint Statement at 2 ¶ 3.

[^11]: Joint Statement at 3, ¶ 4; Complaint at 7; Complaint Exhibit A at
    4, ¶ V.B (Georgia Interconnection Agreement); Complaint Exhibit B at
    4, ¶ V.B (Kentucky and Tennessee Interconnection Agreements); Answer
    at 9.

[^12]: Joint Statement at 3, ¶ 4; Complaint at 4-5; Complaint Exhibit A
    at 3, ¶ IV.B; Complaint Exhibit B at 3, ¶ IV.B; Answer at 9.

[^13]: Joint Statement at 3, ¶ 4; Complaint Exhibit A at 3-4, ¶¶ IV.B,
    V.B; Complaint Exhibit B at 3-4, ¶¶ IV.B, V.B. *See*, *e.g*.,
    Complaint at 5 (stating that the parties' interconnection agreements
    provided that "BellSouth would not charge for interconnection
    facilities to the extent such facilities are used to carry traffic
    originated by customers of BellSouth"); *id*. at 6 (stating that
    BellSouth's bills "made no provision for credits on account of
    BellSouth traffic terminated by \[Dobson\] or for that portion of
    the facilities that was utilized to carry BellSouth originated
    calls").

[^14]: Joint Statement at 3, ¶ 4; Complaint at 7-11; Reply at 8-9.

[^15]: *See*, *e.g*., Complaint Exhibit U, Declaration of Andrea Metcalf
    ("Metcalf Decl.") at 1, ¶ 4; Joint Statement at 3, ¶ 5.

[^16]: Complaint Exhibit E (refund requests from Dobson to BellSouth
    dated June 3, 2002 ("June 3, 2002 Refund Requests" or "Refund
    Requests")); Joint Statement at 3, ¶¶ 4-5; Answer at 37 (describing
    BellSouth's bills submitted to Dobson). BellSouth's bills covered
    periods from December 2000 to January 2002 in Georgia, October 2000
    to February 2002 in Tennessee, and October 2000 to March 2002 in
    Kentucky. Metcalf Decl. at 1-2, ¶¶ 4-5; June 3, 2002 Refund
    Requests. The record does not explain why Dobson did not send its
    Refund Requests to BellSouth until as much as 19 months after the
    traffic at issue occurred.

[^17]: June 3, 2002 Refund Requests; Metcalf Decl. at 1, ¶ 4. The
    interconnection agreements pursuant to which Dobson issued these
    Refund Requests to BellSouth provided that charges for local
    interconnection were to be billed and paid monthly, and that late
    charges could be assessed on the invoiced amounts if the
    interconnection charges were not paid within thirty days of the due
    date. Complaint Exhibit A at 3, ¶ IV.B; Complaint Exhibit B at 3, ¶
    IV.B.

[^18]: Metcalf Decl. at 2, ¶ 5; Complaint Exhibit F (letters dated Jan.
    7, 2003, from Gloria Orr of BellSouth to Andrea Metcalf of Dobson
    regarding the June 3, 2002 Refund Requests); Joint Statement at 4, ¶
    7.

[^19]: Complaint Exhibit O (Letters from Gloria Orr of BellSouth to
    Andrea Metcalf of Dobson, dated March 27, 2003); Metcalf Decl. at 2,
    ¶ 6; Joint Statement at 4, ¶ 7.

[^20]: Joint Statement at 3-4, ¶¶ 5-7. Dobson alleges that BellSouth
    owes Dobson a refund of \$293,202 for the claims underlying Counts 1
    and 2. *Id.* at 4, ¶ 7.

[^21]: *See ISP Order*, 16 FCC Rcd at 9151, ¶ 1 (describing "ISP-bound"
    traffic as "telecommunications traffic delivered to Internet service
    providers (ISPs)").

[^22]: *ISP Order*, 16 FCC Rcd at 9193, ¶ 89. According to Dobson, once
    an incumbent LEC, such as BellSouth, elected to take advantage of
    those rates, it became obligated to offer the same lower rates to
    interconnecting carriers such as Dobson. Supplemental Joint
    Statement, File No. EB-05-MD-01, at 11-13 (filed May 27, 2005)
    ("Supplemental Joint Statement"). At that point, Dobson contends,
    the two carriers were supposed to implement the new rates through an
    amendment to an existing interconnection agreement, or by entering
    into a separate, stand-alone agreement. Supplemental Joint Statement
    at 10-13; Supplement to Reply of American Cellular Corporation and
    Dobson Cellular Systems, Inc. to Answer of BellSouth
    Telecommunications, Inc., File No. EB-05-MD-01, at 9 (filed Apr. 26,
    2005) ("Reply Supplement").

[^23]: Joint Statement at 5, ¶ 9. The record does not reflect the exact
    date when BellSouth elected to take advantage of the *ISP Order*'s
    lower compensation rates for ISP-bound traffic.

[^24]: *Id.*

[^25]: *Id.* The record does not reflect the exact date in September
    2001 when Dobson first requested the reduced rates. Complaint
    Exhibit S (Amended Declaration of David M. Wilson) ("Wilson Decl.")
    at ¶ 5.

[^26]: Joint Statement at 6, ¶ 9.

[^27]: *Id*. at 4, ¶ 8.

[^28]: Complaint Exhibit W (Memorandum from David Wilson, counsel for
    Dobson, to Langley Kitchings, counsel for BellSouth, dated Feb. 15,
    2002).

[^29]: Joint Statement at 5-6, ¶ 9.

[^30]: *Id*.

[^31]: Wilson Decl. at 2-3, ¶¶ 5-7; Complaint Exhibit V (spreadsheet
    prepared by Dobson); Supplemental Joint Statement Exhibit B (Letter
    from David Wilson, counsel for Dobson, to Randy Ham of BellSouth,
    dated Oct. 1, 2002).

[^32]: Reply at 31-32; Joint Statement at 5-6, ¶¶ 9-10.

[^33]: Metcalf Decl. at 2, ¶ 7; June 3, 2002 Refund Requests. Dobson's
    cover letters did not specify the amount of the requested
    adjustments. *Id*. According to Dobson, the amount of the requested
    adjustments was set forth in a spreadsheet that Dobson's counsel
    attached to an October 1, 2002 letter to BellSouth requesting a
    "true-up" of amounts billed and collected by BellSouth in Tennessee,
    Georgia, and Kentucky during the period between the effective date
    of the *ISP Order* and the dates when the Tennessee and Georgia
    markets were transferred to Verizon Wireless. *See*, *e.g*., Wilson
    Decl. at 2, ¶ 5; Supplemental Joint Statement Exhibit B; Complaint
    Exhibit V.

[^34]: Complaint at 8-11; Reply at 17-18; Joint Statement at 3-5;
    Supplemental Joint Statement at 5-8. These communications also
    concerned the parties' other outstanding disputes, described above.
    *See supra* para. 5.

[^35]: Dobson alleges that BellSouth owes Dobson a refund of \$30,753.62
    for the claims underlying Count 3. Joint Statement at 8, ¶ 1.

[^36]: Complaint Exhibit A at 15, ¶ XIX; Complaint Exhibit B at 15, ¶
    XVIII; Wilson Decl. at 3, ¶ 8; Complaint Exhibit Y at 3 (E-mail from
    David Wilson, counsel for Dobson, to Rhona Reynolds of BellSouth,
    dated May 14, 2003).

[^37]: Complaint Exhibit A at 15, ¶ XIX; Complaint Exhibit B at 15, ¶
    XVIII.

[^38]: Wilson Decl. at 3, ¶ 8; Reply at 19-20; Supplemental Joint
    Statement at 7-8.

[^39]: Letter from David Wilson, counsel to Dobson, to Suzanne
    Tetreault, Enforcement Bureau, File No. EB-03-MDIC-0019 (filed Jun.
    23, 2003) ("Informal Complaint"); 47 C.F.R. § 1.716.

[^40]: Informal Complaint at 2-5.

[^41]: Letter from Lisa Spooner Foshee and Theodore C. Marcus,
    BellSouth, to Alexander Starr, Chief, Market Disputes Resolution
    Division, Enforcement Bureau, File No. EB-03-MDIC-0019 (filed Aug.
    8, 2003).

[^42]: Letter from Christopher Olsen, Assistant Chief, Market Disputes
    Resolution Division, Enforcement Bureau, to David Wilson, counsel to
    Dobson, File No. EB-03-MDIC-0019 (Aug. 22, 2003) ("Informal
    Complaint Closure Letter").

[^43]: 47 C.F.R. § 1.718; Informal Complaint Closure Letter at 1-2.

[^44]: Informal Complaint Closure Letter at 2; 47 C.F.R. § 1.718.

[^45]: Answer Exhibit E ("District Court Complaint"); Joint Statement at
    6, ¶ 12; Answer Exhibit H ("District Court Opinion") at 1.

[^46]: District Court Opinion at 2 (quoting *Stiles v. GTE Southwest
    Inc*., 128 F.3d 904, 907 (5^th^ Cir. 1997) ("*Stiles v. GTE*")).
    *See* 47 U.S.C. § 207 (providing that a person may file a complaint
    at the Commission or in District Court, but that the person "shall
    not have the right to pursue both remedies").

[^47]: Dobson attempted to file a formal complaint on December 27, 2004,
    but that complaint was dismissed without prejudice because Dobson
    failed to comply with several of the Commission's formal complaint
    rules. Letter from Lisa B. Griffin, Deputy Chief, Market Disputes
    Resolution Division, Enforcement Bureau, to David Wilson, counsel to
    Dobson (Dec. 30, 2004).

[^48]: 47 U.S.C. § 415(b).

[^49]: *See*, *e.g*., Complaint at 1-2.

[^50]: Section 415(b) does not apply to claims seeking damages based on
    "overcharges" as that term is defined in section 415(g) of the Act.
    *See* 47 U.S.C. § 415(g) (defining "overcharges" as "charges for
    services in excess of those applicable thereto under the schedule of
    charges lawfully on file with the Commission"). None of the charges
    at issue in Dobson's Complaint meets the limited definition of
    "overcharges" set forth in section 415(g), and neither party
    contends that Dobson's claims seek recovery of "overcharges" within
    that definition.

[^51]: Reply Supplement at 7-8 (citing *E.spire Communications, Inc. v.
    Baca*, 269 F. Supp. 2d 1310 (D.N.M. 2003); *Verizon Maryland, Inc.
    v. RCN Telecom Services, Inc*., 232 F. Supp. 2d 539 (N.D. Md. 2002);
    *Bell-Atlantic-Pennsylvania v. Pennsylvania Public Utilities
    Commission*, 107 F. Supp. 2d 653 (E.D. Pa. 2000)).

[^52]: 28 U.S.C. § 1658(a) (providing that, "*except as otherwise
    provided by law*, a civil action arising under an Act of Congress
    ... may not be commenced later than 4 years after the cause of
    action accrues") (emphasis added). *See, e.g*., *North Star Steel
    Co. v. Thomas*, 515 U.S. 29, 34 n.1 (1995) (describing section 1658
    as a "general, 4-year limitations period for any federal statute
    \[enacted after Dec. 1, 1990\] without one of its own"); *Campbell
    v. Amtrak*, 163 F. Supp. 2d 19, 22 (D.D.C. 2001) (describing section
    1658 as the "federal default statute of limitations").

[^53]: None of the cases cited by Dobson involved claims brought against
    carriers for the recovery of damages under section 208 of the Act.
    Rather, these cases involved claims against state commissions for
    injunctive relief, claims for which federal law provides no specific
    limitations period. *See supra* note 50.

[^54]: Dobson also argues that we should apply a variety of lengthy
    state limitations periods, if we were to regard Counts 1 and 2 as
    arising under state contract law. Reply Supplement at 2, 8; Reply of
    American Cellular Corporation and Dobson Cellular Systems, Inc. to
    Answer of BellSouth Telecommunications, Inc., File No. EB-05-MD-01,
    at 17 n.11 (filed Mar. 2, 2005) ("Reply"). We reject Dobson's
    suggestion that state statutes of limitation apply to Dobson's
    Complaint, because Dobson's Complaint does not (and could not here)
    assert state law claims.

[^55]: *Bunker Ramo Corp. v. The Western Union Telegraph Co., New York,
    N.T.*, Memorandum Opinion and Order, 31 FCC 2d 449, 453-54, ¶ 12
    (Rev. Bd. 1971) ("*Bunker Ramo v. Western Union*"). *See*, *e.g.*,
    *Operator Communications, Inc. v. Verizon Telephone Companies*,
    Memorandum Opinion and Order, FCC 05-207, 2005 WL 3069906, ¶ 14
    (rel. Dec. 9, 2005) ("*OCI v. Verizon*"), ¶ 10; *Communications
    Vending Corp. of Arizona, Inc. v. Citizens Communications Co.*,
    Memorandum Opinion and Order, 17 FCC Rcd 24201, 24222-23, ¶ 50
    (2002) ("*Communications Vending Corp. v. Citizens*"), *aff'd,
    Communications Vending Corp. of Arizona v. FCC*, 365 F.3d 1064 (D.C.
    Cir. 2004); *Aetna Life Ins. Co. v. AT&T Co*., Memorandum Opinion
    and Order, 3 FCC Rcd 2126, 2129, ¶ 13 (Com. Car. Bur. 1988) ("*Aetna
    v. AT&T*"), *aff\'d sub nom. US Sprint Communications Co. v. AT&T
    Co.*, Memorandum Opinion and Order, 9 FCC Rcd 4801 (1994) ("*US
    Sprint v. AT&T*"), *aff\'d, Sprint Communications Co. v. FCC*, 76
    F.3d 1221, 1226 (D.C. Cir. 1996 ) ("*Sprint v. FCC*").

[^56]: *See*, *e.g.*, *Michael J. Valenti and Real Estate Market Place
    of New Jersey t/a Real Estate Alternative v. AT&T*, Memorandum
    Opinion and Order, 12 FCC Rcd 2611, 2621-22, ¶ 24 (1997) ("*Valenti
    v. AT&T*"); *MCI Telecommunications Corp. v. Pacific Tel. Co. of
    PA*, Memorandum Opinion and Order, 12 FCC Rcd 13243, 13252, ¶ 15
    (Com. Car. Bur. 1997) ("*MCI v. Pacific Tel*"); *Armstrong
    Utilities, Inc. v. General Telephone Co. of Pennsylvania*,
    Memorandum Opinion, Order, and Temporary Authorization, 25 FCC 2d
    385, 389, ¶ 11 (1970) ("*Armstrong v. General Telephone*").

[^57]: *See*, *e.g.*, *OCI v. Verizon* at ¶ 14; *Communications Vending
    Corp. v. Citizens*, 17 FCC Rcd at 24222, ¶ 50; *Valenti v. AT&T*, 12
    FCC Rcd at 2621-22, ¶ 24; *Municipality of Anchorage d/b/a/
    Anchorage Telephone Utilities v. Alascom, Inc.*, Memorandum Opinion
    and Order, 4 FCC Rcd 2472, 2476, ¶ 30 (Com. Car. Bur. 1989)
    ("*Anchorage v. Alascom*"); *Armstrong v. General Telephone*, 25 FCC
    2d at 389, ¶ 11 (stating, in applying the then one year limitations
    period, that "\[t\]he construction of Section 415, both by the
    Commission and the federal courts, has been 'strict' and claims for
    damages based upon violations accruing more than one year before
    filing, are clearly foreclosed").

[^58]: *See*, *e.g.*, *OCI v. Verizon* at ¶ 14; *Communications Vending
    Corp v. Citizens*, 17 FCC Rcd at 24222, n.145; *Valenti v. AT&T*, 12
    FCC Rcd at 2621-22, ¶ 24; *US Sprint v. AT&T*, 9 FCC Rcd at 4802, ¶
    10; *Anchorage v. Alascom*, 4 FCC Rcd at 2475, ¶ 23;
    *Tele-Valuation, Inc. v. AT&T*, Memorandum Opinion and Order, 73 FCC
    2d 450, 452-53, ¶ 4, n.7 (1979) ("*Tele-Valuation v. AT&T*"); *U.S.
    Cablevision v. New York Telephone Co*., Memorandum Opinion and
    Order, 46 FCC 2d 704, 706-07, ¶ 5 (1974); *Bunker Ramo v. Western
    Union*, 31 FCC 2d at 453-54; *Armstrong v. General Telephone*, 25
    FCC 2d at 390, ¶ 15.

[^59]: *See*, *e.g.*, *Sprint v. FCC*, 76 F.3d at 1226; *MCI
    Telecommunications Corp. v. Teleconcepts*, 71 F.3d 1086, 1091 (3^rd^
    Cir. 1995) ("*MCI v. Teleconcepts*"); *OCI v. Verizon* at ¶ 11;
    *Communications Vending Corp v. Citizens*, 17 FCC Rcd at 24222-23, ¶
    51; *MCI Telecommunications Corp. v. U S West Communications, Inc.*,
    Memorandum Opinion and Order, 15 FCC Rcd 9328, 9330, ¶ 5 (2000).

[^60]: *Sprint v. FCC*, 76 F.3d at 1226 (citations omitted). *See*,
    *e.g*., *MCI Telecommunications Corp. v. FCC*, 59 F.3d 1407, 1428
    (D.C. Cir. 1995); *Communications Vending Corp. v. Citizens,* 17 FCC
    Rcd at 2422-23, ¶ 51.

[^61]: *Communications Vending Corp. v. Citizens*, 17 FCC Rcd at 24222,
    ¶ 50.

[^62]: *Sprint v. FCC*, 76 F.3d at 1228. *See*, *e.g.*, *Communications
    Vending Corp. v. Citizens*, 17 FCC Rcd at 24222-23, ¶ 51.

[^63]: Reply at 18. *See* Reply Supplement at 10-11.

[^64]: Reply at 18.

[^65]: *Id.*

[^66]: *See*, *e.g*., *OCI v. Verizon* at ¶ 11; *Communications Vending
    Corp. v. Citizens*, 17 FCC Rcd at 24222-23, ¶ 51; *Aetna v. AT&T*, 3
    FCC Rcd at 2129, ¶ 13; *Tele-Valuation v. AT&T*, 73 FCC 2d at 452, ¶
    4 ("\[T\]he point of accrual should be fixed as the time the
    customer receives a bill for services. At this point the customer
    may review the charges ... question the carrier, or take any other
    steps necessary to detect and remedy errors. This places a burden of
    prompt detection of overcharges on the party with the greatest
    incentive to do so and penalizes dilatory detection, thereby
    guarding against later attempts to recover for stale claims. Through
    the exercise of diligence the customer may prevent loss; he
    therefore is held knowledgeable at the time he is notified of his
    charges.").

[^67]: June 3, 2002 Refund Requests; Metcalf Decl. at 1-2, ¶¶ 4-5;
    Answer at 37; Joint Statement at 3, ¶¶ 4-5.

[^68]: The record can plausibly be read to suggest that BellSouth was
    *supposed* to "over-bill" Dobson in the first instance, whereupon
    Dobson would, as a matter of course, bill BellSouth back for the
    overcharge amount. *See generally* Complaint Exhibit C at 6, ¶
    IV.A.4 (new Kentucky interconnection agreement). Such a reading
    would not save Dobson's claims, however. The accrual date would move
    only from June 3, 2002 to July 3, 2002, the day on which the Refund
    Requests became due; and July 3, 2002 is still well more than two
    years before January 10, 2005. Moreover, the claims then might
    constitute "collection actions" that fail at the threshold under
    well-established Commission precedent. *See*, *e.g*., *U.S.
    TelePacific Corp. v. Tel-America of Salt Lake City, Inc*.,
    Memorandum Opinion and Order, 19 FCC Rcd 24552, 24555, ¶ 8 (2004).

[^69]: Joint Statement at 5, ¶ 9; Supplemental Joint Statement at 5;
    Wilson Decl. at ¶ 5.

[^70]: Joint Statement at 5, ¶ 9; Supplemental Joint Statement at 10-13.
    *Cf.* *Airtouch Cellular v. Pacific Bell*, Memorandum Opinion and
    Order, 16 FCC Rcd 13502, 13504, ¶ 6 (2001) ("*Airtouch*") (holding
    that a claim for violating a Commission rule accrued on the rule's
    effective date, even though the parties had to implement the rule by
    amending their interconnection agreement).

[^71]: Even assuming, *arguendo*, that Dobson's claim under Count 3 did
    not accrue in September 2001, we would still conclude that section
    415(b) bars the claim based on two alternative accrual dates, both
    of which pre-date the Complaint by more than two years. First, we
    agree with BellSouth that the claim in Count 3 had accrued by at
    least February 2002, when Dobson received BellSouth's last invoices
    for Georgia and Tennessee. *See* Joint Statement at 3-4, ¶ 6-8;
    Wilson Decl. at 2-3, ¶ 5-7; Complaint Exhibit V (spreadsheet
    prepared by Dobson); Supplemental Joint Statement Exhibit B (Letter
    from David Wilson, counsel for Dobson, to Randy Ham of BellSouth,
    dated Oct. 1, 2002). By that time, Dobson knew, or should have
    known, that BellSouth had failed to bill Dobson at the new ISP rates
    in those markets. Second, Dobson's cover letters to its June 3, 2002
    Refund Requests, which expressly request an adjustment to
    BellSouth's ISP charges, affirm that Dobson knew, as of June 2002,
    that it had been injured by BellSouth's failure to charge Dobson the
    new ISP rates. The claim in Count 3 therefore accrued, at the
    latest, by June 3, 2002.

[^72]: Reply at 18 (citing Complaint Exhibit K); Reply Supplement at 9.

[^73]: *See*, *e.g*., *Sprint v. FCC*, 76 F.3d at 1226.

[^74]: Reply at 16-21; Joint Statement at 11-12, ¶ 2.

[^75]: Complaint Exhibit A at 15, ¶ XIX; Complaint Exhibit B at 15, ¶
    XVIII; Reply at 19-20.

[^76]: Reply at 18-19. *See* Complaint at 14-15.

[^77]: *Id*.

[^78]: *See supra* Part III(B)(1).

[^79]: *See* Complaint Exhibit A at 15, ¶ XIX; Complaint Exhibit B at
    15, ¶ XVIII.

[^80]: Reply at 19.

[^81]: *See supra* Part III(B)(1).

[^82]: *Valenti v. AT&T*, 12 FCC Rcd at 2621-22, ¶¶ 24-25. This also
    explains why Dobson's reliance on labor law cases is misplaced.
    *See* Reply at 18-19 (citing *Frandsen v. Brotherhood of Railway,
    Airline and Steamship Clerks, Freight Handlers, Express and Station
    Employees*, 782 F.2d 674, 681 (7^th^ Cir. 1986) ("*Frandsen v.
    Brotherhood*") and *Volkman v. United Transport Union*, 73 F.3d
    1047, 1054-55 (10^th^ Cir. 1996) ("*Volkman v. United Transport*")).
    Those cases hold that the six-month limitations period applicable to
    unfair representation claims is tolled pending an employee's
    mandatory exhaustion of union remedies. That holding stems from the
    unique attributes of national labor laws and policies regarding the
    complex interrelationships of unions, employees, and employers.
    *Frandsen*, 782 F.2d at 681 (discussing the "national labor policy
    of encouraging workers to pursue internal union remedies, while
    ensuring them a judicial forum in which to resolve disputes");
    *Volkman*, 73 F.3d at 1054-56; *see BalSavage v. Ryder Truck
    Rental*, 712 F. Supp. 461, 471 (D.N.J. 1989) (discussing the
    "federal policy of encouraging private resolution of labor
    disputes"). In any event, unlike the six-month period applicable in
    *Frandsen v. Brotherhood* and *Volkman v. United Transport*, the
    two-year limitations period under section 415(b) provides parties
    ample time to pursue ADR without the need for tolling, especially
    where, as here, the agreements require only 30 days of ADR
    procedures.

[^83]: *See*, *e.g.*, *Midstate Horticultural Co. v. Pennsylvania
    Railroad Co*., 320 U.S. 356, 365-67 (1943) (holding that parties
    cannot, by agreement, waive the limitations period of section 16 of
    the Interstate Commerce Act, on which section 415 of the
    Communications Act is based); *Anchorage v. Alascom*, 4 FCC Rcd at
    2474, 2476, ¶¶ 20, 27 (noting that section 415(b) of the Act is
    based on section 16 of the Interstate Commerce Act). Nor was the
    limitations period tolled, as Dobson has suggested (Reply at 17-18),
    by the parties' on-going correspondence and discussions concerning
    the disputed matters that gave rise to Dobson's Complaint. *See*,
    *e.g.*, *Anchorage v. Alascom*, 4 FCC Rcd at 2475-76, ¶¶ 22, 28
    (observing that "\[i\]f a written agreement is ineffective in
    tolling the statute, certainly oral discussions which contained no
    agreement to toll the statute are insufficient" to do so, and that
    "pursuit of negotiations looking toward a possible settlement of
    outstanding differences does not, in and of itself, generally stay
    or toll operation of the statute of limitations"). That said, we
    strongly encourage parties to make vigorous settlement efforts
    before invoking the Commission's formal complaint procedures. *See*,
    *e.g*., *Implementation of the Telecommunications Act of 1996,
    Amendment of Rules Governing Procedures to be Followed When Formal
    Complaints are Filed Against Common Carriers*, CC Docket No. 96-238,
    Report and Order, 12 FCC Rcd 22497, 22507, 22519-20, 22582, ¶¶ 21,
    48, 198 (1997) (subsequent history omitted). The limitations period
    of two years provides plenty of time to do so; and the Commission's
    informal complaint rules provide a relatively inexpensive procedure
    for creating additional time for settlement negotiations, if
    necessary. *See*, *e.g*., 47 C.F.R. §§ 1.716-1.718; *OCI v. Verizon*
    at ¶ 23.

[^84]: Joint Statement at 11-12, ¶ 2.

[^85]: Complaint Exhibit A at 15, ¶ XIX; Complaint Exhibit B at 15, ¶
    XVIII.

[^86]: Joint Statement at 11-12, ¶ 2. Indeed, Dobson's counsel expressly
    opted to delay invoking the ADR procedures. In a communication with
    BellSouth on January 17, 2003, Dobson's counsel stated Dobson
    "hope\[d\] to avoid the dispute resolution procedures of the various
    agreements" between the parties. Complaint Exhibit J (Letter from
    David Wilson, counsel for Dobson, to Bill Mealer of BellSouth, dated
    Jan. 17, 2003); Wilson Decl. at 3, ¶ 8.

[^87]: Moreover, under Dobson's rationale, it could have waited an
    indefinite period of time to invoke the dispute resolution
    provision, then filed a timely complaint with the Commission thirty
    days later.

[^88]: Joint Statement at 12, ¶ 3; Reply at 21-22.

[^89]: Reply at 21 (quoting *Irwin v. Department of Veteran's Affairs*,
    498 U.S. 89, 96 (1991)). *See* Reply Supplement at 13 (citing *Herb
    v. Pitcairn*, 325 U.S. 77 (1945), *Burnett v. New York Central
    Railroad Co*., 380 U.S. 424 (1965) ("*Burnett v. NYC Railroad*"),
    and *Fox v. Eaton Corp*., 615 F.2d 716 (6^th^ Cir. 1980) ("*Fox v.
    Eaton*")).

[^90]: *Irwin v. Department of Veteran's Affairs*, 498 U.S. at 96
    (noting that the "principles of equitable tolling ... do not extend
    to what is at best a garden variety claim of excusable neglect").

[^91]: We also reject Dobson's reliance on *Crown, Cork & Seal Co. Inc.
    v. Parker*, 462 U.S. 345 (1983) ("*Crown, Cork & Seal v. Parker*")
    and *Pavlak v. Church*, 727 F.2d 1425 (9^th^ Cir. 1984), both of
    which involved tolling a limitations period applicable to an
    individual class member's claim pending a ruling on class
    certification motions. In brief, these decisions relied on certain
    unique complexities of class actions that are not present in this
    relatively straightforward complaint proceeding.

[^92]: *See*, *e.g*., *Gibson v. American Bankers Insurance Co*., 289
    F.3d 943, 948 (6^th^ Cir. 2002); *Shofer v. Hack Co*., 970 F.2d
    1316, 1319 (4^th^ Cir. 1992). *See generally* *Fox v. Eaton*, 615
    F.2d at 721 ("\[A\]s a general matter, the filing of an action in a
    court that clearly lacks jurisdiction will not toll the statute of
    limitations.").

[^93]: *See* 47 U.S.C. § 207; *Mexiport, Inc. v. Frontier Communications
    Services, Inc*., 253 F.3d 573 (11^th^ Cir. 2001); *Digitel, Inc. v.
    MCI WorldCom, Inc*., 239 F.3d 187, 190 (2^nd^ Cir. 2001) (stating "a
    party that has filed an informal complaint may not also sue in
    district court"); *Stiles v. GTE*, 128 F.3d at 906-07; *Cincinnati
    Bell Telephone Co. v. Allnet Communication Services, Inc*., 17 F.3d
    921 (6^th^ Cir. 1994); *Bell Atlantic Corp. v. MFS Communications
    Co*., 901 F. Supp. 835 (D.Del. 1995); *U.S. TelePacific Corp. v.
    Tel-America of Salt Lake City, Inc*., Memorandum Opinion and Order,
    19 FCC Rcd 24552, 24556-57, ¶ 10 (2004). *See generally Premiere
    Network Services, Inc. v. SBC Communications, Inc*., No. 04-41574,
    2006 WL 350064 (5^th^ Cir. Feb. 16, 2004); *Valenti v. AT&T*, 12 FCC
    Rcd at 2622, ¶ 26 (holding that the complainant's delay in filing a
    complaint at the Commission was not reasonable "because it was or
    should have been aware of the possibility that the Commission had
    primary or exclusive subject matter jurisdiction and that there
    might be associated statute of limitations problems").

[^94]: District Court Opinion at 2. In this regard, we find Dobson's
    reliance on *Fox v. Eaton* to be misplaced. Reply Supplement at 13.
    In *Fox v. Eaton*, the court held that commencement of an employment
    discrimination action in state court, which was later dismissed for
    lack of subject matter jurisdiction, was sufficient to toll the
    limitations period, where the lack of state court jurisdiction was
    "far from clear" due to conflicting case law on the question. *Fox
    v. Eaton*, 615 F.2d at 719-20. By contrast, Dobson has not cited,
    nor have we found, any conflicting precedent under section 207 of
    the Act that supports Dobson's decision to file a complaint in
    federal court raising the same issues as its earlier Informal
    Complaint before the Commission.

[^95]: Similarly, in *Anchorage v. Alascom*, the Common Carrier Bureau
    held that the complainant could not "deduct from the period of the
    statute of limitations the time during which a prior action
    ultimately dismissed without prejudice was pending." *Anchorage v.
    Alascom*, 4 FCC Rcd at 2474, ¶ 26.

[^96]: 47 C.F.R. § 1.718; Informal Complaint Closure Letter at 2.

[^97]: Answer Exhibit E.

[^98]: *Irwin v. Department of Veteran's Affairs*, 498 U.S. at 96.

[^99]: *See supra* Part III(B)(1).

[^100]: We note that, during this proceeding, we orally denied a motion
    by BellSouth to strike from the record Dobson's references in the
    Complaint to settlement discussions between the parties. Motion to
    Strike Material Related to Confidential Settlement Negotiations,
    File No. EB-05-MD-01 (filed Feb. 15, 2005) ("Motion to Strike");
    Letter from Lisa Saks, Assistant Chief, Market Disputes Resolution
    Division, Enforcement Bureau, to David Wilson, counsel to Dobson,
    and Theodore Marcus, counsel to BellSouth, File No. EB-05-MD-01 (May
    5, 2005). BellSouth's Motion to Strike was premised on Federal Rule
    of Evidence 408, which provides that "\[e\]vidence of (1) furnishing
    or offering \... to furnish, or (2) accepting or offering \... to
    accept, a valuable consideration in compromising or attempting to
    compromise a \[disputed\] claim ... is not admissible to prove
    liability for or invalidity of the claim or its amount." Federal
    Rules of Evidence Rule 408 ("FRE 408"). Nothing in the language of
    FRE 408 requires exclusion of all references to the fact that
    settlement negotiations have occurred; it bars only such references
    that are proffered to prove or disprove liability and/or damages.
    Here, Dobson did not attempt to rely on any of the purported
    references to the parties' settlement discussions to establish that
    BellSouth is liable for damages. In other words, BellSouth failed to
    show that the material it moved to strike reflected an offer of
    compromise upon which Dobson sought to rely to prove liability or
    damages. Consequently, BellSouth's Motion to Strike lacks merit. In
    any event, because we do not rely on any of Dobson's references to
    settlement discussions, BellSouth's Motion to Strike is moot.