> Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | EB Docket No. 01-99          |
|                                  | * |                              |
| C.F. Communications Corp., et    | ) | File Nos. E-89-170,          |
| al.,                             | * | E-89-171, E-89-172,          |
|                                  | * | E-89-179, E-89-180,          |
| Complainants,                    |   | E-89-181, E-89-182, E-92-97, |
|                                  | * | E-93-34, E-93-35, E-93-36,   |
| v\.                              | * | E-93-37, E-93-38, E-93-39,   |
|                                  | ) | E-93-40, E-93-41, E-93-42,   |
| Century Telephone of Wisconsin,  | * | E-93-43, E-93-44, E-93-45,   |
| Inc., et al.,                    | * | E-93-46, E-93-47, E-93-48,   |
|                                  |   | E-93-49, E-93-50, E-93-56,   |
| Defendants.                      | * | E-93-57, E-93-58, E-93-59,   |
|                                  | * | E-93-60, E-93-61, E-93-62,   |
|                                  | ) | E-93-73, E-93-74, E-93-081   |
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+----------------------------------+---+------------------------------+

HEARING DESIGNATION ORDER

**Adopted:** April 20, 2001 **Released:** April 24, 2001

By the Chief, Enforcement Bureau:

# Introduction

1.  Pursuant to the Commission's rules,[^1] we initiate a consolidated
    hearing in this Hearing Designation Order ("HDO") for the
    above-captioned formal complaints to determine the Complainants'
    damages.[^2] The Commission has previously ruled that the defendant
    local exchange carriers ("LECs" or "Defendants") violated section
    201(b) of the Communications Act of 1934, as amended, ("Act") and
    Part 69 of the Commissions' rules[^3] by improperly assessing End
    User Common Line ("EUCL") charges upon the Complainants, a group of
    independent payphone providers ("IPPs" or "Complainants").[^4] This
    HDO resolves certain outstanding issues and refers others, including
    whether Complainants are entitled to an award of damages, to an
    Administrative Law Judge ("ALJ").

# background 

## Procedural Status

2.  A number of LECs have sought review of the *Liability Order* to the
    U.S. Court of Appeals for the D.C. Circuit.[^5] Also, several IPPs
    have sought review of the *Reconsideration Order* in that Court.[^6]
    The Court has not issued a ruling to date in either case. Sprint
    recommends that the hearing be held in abeyance pending resolution
    of the *Liability Order's* appeal.[^7] We reject this proposal
    because we believe that proceeding promptly and efficiently with the
    disposition of the claims for damages will provide guidance in other
    similar disputes currently before the Commission.[^8]

3.  Pursuant to its finding that Defendants were liable for the improper
    assessment of EUCL charges, the Commission authorized Complainants
    to file supplemental complaints for damages.[^9] In order to
    facilitate settlement discussions, the Commission temporarily waived
    the 60-day deadline for filing such complaints and stated that a
    filing date would be announced at a status conference with all the
    parties.[^10] During the status conference, Enforcement Bureau staff
    informed the parties that the damages phase of this proceeding could
    well be referred to an ALJ for formal hearings.[^11] The parties
    were directed to file proposed HDOs, as well as comments reflecting
    their views on how any such hearing should proceed.[^12] After
    review of these proposed HDOs and consideration of the accompanying
    comments, we designate the above-captioned complaints for hearing
    before an ALJ in the manner set forth below. [^13]

## The End User Common Line Charge

4.  During the period at issue in these cases, the application of the
    end user common line charge on payphone providers depended on
    whether or not a payphone was "public" or "semi-public."[^14] In
    1983, the Commission created the public/semi-public distinction,
    explaining that \"\[a\] pay telephone is used to provide semi-public
    telephone service when there is a combination of general public and
    specific customer need for the service, such as at a gasoline
    station or pizza parlor.\"[^15] By contrast, \"\[a\] pay telephone
    is used to provide public telephone service when a public need
    exists, such as at "an airport lobby, at the option of the telephone
    company and with the agreement of the owner of the property on which
    the phone is placed.\"[^16]

5.  Given that the end users of public payphones are the "transient
    general public," the Commission determined that the owners and
    operators of these payphones would not be assessed a EUCL charge
    because there was no fair and practical mechanism for passing the
    charge on to the actual cost causers, *i.e.*, the end user
    callers.[^17] Yet, the Commission held that payphones classified as
    \"semi-public\" would be subject to a EUCL charge.[^18] Amendments
    to the Commission's rules following passage of the
    Telecommunications Act of 1996 mandate that both IPPs and LECs pay
    EUCL charges for all of their payphones, and thus this proceeding
    concerns rules that are not currently in effect.[^19]

## The Commission's *Liability* *Order*

### IPPs Not End Users

6.  The Commission's *Liability Order* responded to the court\'s remand
    of an earlier Commission ruling.[^20] The Commission's earlier
    ruling held that IPP payphones were subject to a EUCL charge because
    the IPPs were \"end users\" pursuant to section 69.2(m) of the
    rules.[^21] But on remand from an appeal of that decision, the
    Commission reversed itself and concluded in the *Liability Order*
    that, although C.F. Communications and other IPPs own the payphones,
    they cannot be considered \"end users\" under section 69.2(m),
    because they do not own the premises where their payphones are
    located.[^22]

### IPPs Must Pay EUCL Charge

7.  Nonetheless, the *Liability Order* did not relieve the IPPs of the
    obligation to pay EUCL charges for their use of the Defendants'
    common lines in all instances. The Commission concluded that,
    irrespective of whether an IPP was an "end user," the primary
    determination... was whether the payphone is "public" or
    "semi-public."[^23] The *Liability Order* found that the LECs chose
    to assess EUCL charges on all IPP payphones without regard to where
    they were located or the manner in which they were used.[^24] The
    *Liability Order* concluded that the Defendants had imposed an
    unreasonable charge in violation of section 201(b)[^25] and Part 69
    of the Commission's rules to the extent that they assessed and
    collected EUCL charges against the Complainants' *public*
    payphones.[^26]

# SUBSTANTIVE MATTERS

## Untimely Issues

8.  When the Bureau sought proposed HDOs from the parties, it stated
    that parties could also submit comments regarding the procedure of
    the hearing.[^27] A number of Complainants, however, included
    numerous substantive arguments apparently intended to expand the
    scope of their damages complaints.[^28] Each of these arguments is
    rejected as untimely because each should have been raised in a
    timely filed reconsideration petition to the *Liability Order*.[^29]
    Complainants are, therefore, barred from asserting any of these
    claims in their supplemental complaints.

## Statute of Limitations

9.  In this section, we address various arguments raised by the parties
    regarding the statute of limitations.

### October 1997 Court of Appeals Decision

10. Certain Complainants contend that the "cause of action for recovery
    of EUCL charges did not accrue for purposes of the two year statute
    of limitations set forth in 47 U.S.C. § 415 until the October 1997
    decision by the Court of Appeals" to enable "each complainant to
    recover all EUCL charges they incurred so long as they filed a
    formal complaint no later than two years after that decision."[^30]
    Because all of the complaints at issue in this HDO were filed well
    before 1997, we find that this argument is irrelevant and decline to
    address it at this juncture.[^31]

### American Public Communication Council Petition

11. Certain Complainants argue that a 1989 Petition for Declaratory
    Ruling filed by the American Public Communications Council ("APCC")
    concerning the EUCL assessment on IPPs should be considered a
    section 208 complaint.[^32] In its view, such a complaint would
    enable some or all of the Complainants (who are APCC members) to
    recover damages for the two-year period prior to the filing of that
    1989 petition. We note, however, that APCC did not invoke the
    section 208 process and did not seek any damages in its petition.
    Moreover, our formal complaint filing rules in effect at that time
    did not provide for such petitions to be converted into formal
    complaints. Thus, APCC's petition cannot be deemed a section 208
    complaint.

### Damages Recovery Back To September 6, 1995

12. Certain Complainants also contend that Complainants who filed their
    complaints [after]{.underline} September 6, 1995 \-- the date the
    Commission issued the order[^33] upholding the Bureau's denial of
    the complaints \-- should be permitted to recover EUCL damages back
    to September 6, 1993.[^34] These Certain Complainants assert that
    the Common Carrier Bureau's October 14, 1993 Order[^35] and the
    Commission's September 6, 1995 Order denying them the relief they
    sought "made it futile" for Complainants to file complaints for EUCL
    charges at that time. Because the last complaint at issue in this
    proceeding was filed in 1993, we decline to address this argument at
    this time, as it is irrelevant to any of the complaints affected by
    this HDO.

## Equity Considerations

13. Because the LECs assessed EUCL charges indiscriminately on the IPPs'
    public and semi-public payphones, Certain Complainants contend that
    Defendants are estopped from claiming EUCL charges for Complainants'
    semi-public payphones.[^36] We reject this view. As a way of
    recovering their costs, the LECs were lawfully entitled to assess
    the EUCL on semi-public payphones. Thus, the Defendants may retain
    the EUCL charge for the IPPs' semi-public payphones.

# PROCEDURAL DESIGNATIONS 

## A. Procedural and Evidentiary Rules {#a.-procedural-and-evidentiary-rules .unnumbered}

14. This Proceeding shall be governed by section 1.201 through
    1.364[^37] of the Commission's rules of practice for hearing
    proceedings, to the extent practicable for the adjudication of these
    issues.[^38] The ALJ may, in his discretion, require that the
    parties submit all or any portion of their case in writing if he
    determines that such written submission would contribute
    significantly to the disposition of the proceeding.[^39]

## Consolidation

15. We conclude that consolidating the supplemental complaints into a
    single proceeding will provide greater administrative
    efficiency.[^40]

## Statute Of Limitations

16. Consistent with prior Commission precedent, when ruling on the time
    period of a damages complaint, the ALJ must consider the following
    elements.

17. Complaints for damages are subject to a two-year statute of
    limitations period starting from the date on which the formal
    complaint was filed.[^41] Several Complainants may have filed
    informal complaints about improper EUCL charges prior to their
    filing of formal complaints. The *Liability Order* states, pursuant
    to section 1.718 of the Commission's rules, that a formal complaint
    is deemed to relate back to the filing of an informal complaint if
    the formal complaint: (1) is filed within six months from the date
    of the carrier\'s response to the informal complaint; (2) makes
    reference to the date of the informal complaint; and, (3) is based
    on the same cause of action as the informal complaint.[^42] If the
    unsatisfied informal complainant fails to file a formal complaint
    within the six-month period, the complainant is deemed to have
    abandoned the informal complaint and the statute of limitations runs
    from the date the formal complaint was filed.[^43]

18. In the *Reconsideration Order*, the Commission deferred to the
    damages phase of this proceeding the issue of whether each formal
    complaint for damages would qualify under the relating back
    rules.[^44] Accordingly, Complainants and Defendants may present
    arguments concerning the application of the relating-back rule to
    any particular complaint or Complainant.

19. There is an outstanding issue as to whether Ascom is subject to the
    same limitations period as its bankrupt predecessor.[^45] We find
    that this issue requires a factual determination which the Bureau
    cannot make without additional information provided by Ascom. We,
    therefore, refer this issue to the ALJ for a decision.

## Discovery

20. Discovery shall be conducted in accordance with sections 1.311-1.325
    of the Commission's rules.[^46]

## The Burdens of Proceeding and Burden of Proof

21. Complainants have both the burden of proceeding with the
    introduction of evidence and the burden of proving damages.[^47]
    Given the passage of time, determining the exact number of public
    and semi-public payphones may be difficult. We therefore encourage
    the parties to consider proxies that can be used to obtain a
    reasonable estimation of that number.[^48]

## Bureau Participation 

22. The Enforcement Bureau shall be a party to the proceeding and will
    determine its level of participation, as appropriate, on an
    issue-by-issue basis. Pursuant to section 1.47(c) of the
    Commission's rules, the Bureau shall be served with documents in the
    same manner as other parties.

# damages instructions

## Measure of Damages

23. The scope of the hearing is limited to determining the proper amount
    of damages to which Complainants are entitled.[^49] The measure of
    damages is the amount of EUCL payments Defendants assessed and
    collected from the Complainants for their public payphones.[^50]
    Based on the *Liability Order's* findings, each Complainant must
    demonstrate the number of public payphones it had, under the
    definition established in the *First Reconsideration Order*,[^51] as
    clarified in the *Liability Order,*[^52] and the amount of EUCL
    charges it paid for those public payphones.[^53] In addition, each
    Complainant must calculate the applicable amount of interest due on
    those improperly assessed charges.[^54]

## Defenses to Damages Claim

24. During the liability phase, the Commission rejected Defendants'
    argument that Complainants had not been damaged financially by the
    improper assessment of EUCL charges.[^55] Given that this no-damages
    defense has been thoroughly considered, Defendants are barred from
    raising it during the hearing. Defendants may, however, demonstrate
    that the improperly assessed EUCL charges were not paid.

# ordering clauses

25. ACCORDINGLY, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j),
    201(b), 203(c), 206, 207 and 208 of the Communications Act of 1934
    as amended, 47 U.S.C. §§ 151,154 (i), 154 (j), 201 (b), 203(c), 206,
    207, and 208 and sections 0.111, 0.311, 1.722(d)(1) and 69.105(a) of
    the Commission's rules, 47 C.F.R. §§ 0.111, 0.311, 1.722(d)(1) and
    69.105(a), that the above-captioned complaints ARE DESIGNATED FOR A
    CONSOLIDATED HEARING before an Administrative Law Judge, at a time
    and place to be specified in a subsequent Order, upon the following
    issues:

    \(1\) To determine the relevant time period of each complaint
    pursuant to section 415 of the Act, section 1.718 of the
    Commission's rules, and the *Waiver Order*;

## (2) To determine how many payphones each Complainant owned during the period covered in issue (1) were "public";[^56] {#to-determine-how-many-payphones-each-complainant-owned-during-the-period-covered-in-issue-1-were-public .unnumbered}

\(3\) To determine the amount of EUCL charges paid for the "public"
payphones identified in Issue (2) above, over the time period determined
under Issue (1) above;

## (4) To determine, in light of the evidence adduced under the foregoing issues, the amount of damages, if any, to which each Complainant is entitled; {#to-determine-in-light-of-the-evidence-adduced-under-the-foregoing-issues-the-amount-of-damages-if-any-to-which-each-complainant-is-entitled .unnumbered}

## (5) To determine the amount of interest, if any, that each Complainant shall be awarded.  {#to-determine-the-amount-of-interest-if-any-that-each-complainant-shall-be-awarded. .unnumbered}

26. IT IS FURTHER ORDERED, that to avail themselves of the opportunity
    to be heard and the right to present evidence, the designated
    parties, pursuant to section 1.221 (c) of the Commission's rules
    SHALL FILE in triplicate, within twenty (20) days of the mailing of
    this Order by the Secretary, a WRITTEN NOTICE OF APPEARANCE, stating
    an intention to appear on the date fixed for the hearing and present
    evidence on the issues specified in this Order.

27. IT IS FURTHER ORDERED, that the rules of practice and procedure
    governing this hearing will be in accordance with the Commission's
    *Hearing Proceedings*, 47 C.F.R. §§ 1.201 -- 1.364 subject to the
    ALJ's discretion to regulate the hearing.

28. IT IS FURTHER ORDERED, that all Discovery shall be conducted in
    accordance with 47 C.F.R. §§ 1.311 -- 1.325, subject to the ALJ's
    discretion.

29. IT IS FURTHER ORDERED, that Complainants shall have both the burden
    of proceeding with the introduction of evidence and the burden of
    proof on all issues.

30. IT IS FURTHER ORDERED, that the Enforcement Bureau shall be a party
    to the proceeding.

31. IT IS FURTHER ORDERED, that the Secretary of the Commission shall
    cause to have this Order published in the Federal Register.

    FEDERAL COMMUNICATIONS COMMISSION

    David H. Solomon, Chief

> Enforcement Bureau

**APPENDIX A**

Alcazar Ltd.

American Payphone, Inc.

Ascom Communication, Inc

B.D.A. Sales Inc.

Bell Telephone Co. of Pennsylvania

Best Payphones, Inc.

C&P Telephone Co. of Maryland

C&P Telephone Co. of Virginia

C.F. Communications Corp.

Carolina Telephone Co.

Century Telephone of Wisconsin, Inc.

Crescent Communications

GTE Florida, Inc.

GTE North, Inc.

GTE South, Inc.

Just Telephone Inc.

Kayson Communication

Michigan Bell Telephone Co.

Millicom Services Co.

Mosinee Telephone Co.

New England Telephone and Telegraph Co.

New Jersey Bell Telephone Co.

NYPAY Communications Co.

New York Pay Phone Systems, Inc.

New York Telephone Co.

North West Telephone Co.

Southern Bell Telephone and Telegraph

Southwestern Bell Telephone Co.

Telebeam Telephone

Turtle Lake Telephone Co.

United Telephone Co. of Florida

United Telephone Co. of Pennsylvania

Utelco, Inc.

Wisconsin Bell, Inc.

[^1]: 47 C.F.R. § 1.722(d)(1) ("Issues concerning the amount, if any, of
    damages may be either designated by the Enforcement Bureau for
    hearing before, or, if the parties agree, submitted for mediation
    to, a Commission Administrative Law Judge."). S*ee also*
    *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,
    22555 (1998); *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, FCC 01-78 (rel. Mar. 7, 2001).

[^2]: *See* Appendix A for a list of the parties.

[^3]: 47 U.S.C. § 201(b); 47 C.F.R. §§ 69.1 *et seq.* Unless otherwise
    indicated, all C.F.R. references are to the 2000 edition. We refer
    to prior C.F.R. editions in instances where the prior rules were
    different than the current rules.

[^4]: *C.F. Communications Corp., et al. v. Century Telephone of
    Wisconsin, Inc., et. al.*, Memorandum Opinion and Order on Remand,
    15 FCC Rcd 8759 (2000) ("*Liability Order*"); recon. denied, 15 FCC
    Rcd 22906 (2000). This order reversed a previous decision of the
    Commission that had been vacated by the D.C. Circuit and remanded to
    the Commission for further consideration consistent with that
    court's opinion. *See C.F. Communications Corp. v. FCC*, 128 F.3d
    735 (D.C. Cir. 1997) ("*Appeals Court Decision"*).

[^5]: In its July 19, 2000 *Reconsideration Order*, the Commission
    affirmed certain of its determinations in the *Liability Order*.
    *C.F. Communications Corp., et al. v. Century Telephone of
    Wisconsin, Inc., et. al.*, Order on Reconsideration, 15 FCC Rcd
    22906 (2000) ("*Reconsideration Order"). See Bell Atlantic Telephone
    Companies, et al*. *v. FCC*, No. 00-1207 (D.C. Cir. filed May 15,
    2000).

[^6]: *See* *Alcazar Homes Ltd. d/b/a Alcazar Ltd., et al.* v. FCC, No.
    00-1404 (D.C. Cir. filed Sept. 10, 2000).

[^7]: Sprint Proposed HDO at 5 (filed Oct. 13, 2000).

[^8]: There are many informal complaints from IPPs raising the same
    issues involved in the instant complaints. *See* *Liability Order*,
    15 FCC Rcd at 8761.

[^9]: *Id.* at 8771.

[^10]: *Id.*

[^11]: *See* Sept. 25, 2000 Letter Ruling from Tejal Mehta, Enforcement
    Bureau, FCC, to Counsel for Parties. File Nos. E-93-060 through 62;
    E-93-074; E-93-081; E-93-034 through 50; E-93-056 ("*Letter
    Ruling")*.

[^12]: *Id.*

[^13]: We issue this designation order pursuant to sections 4(i), 4(j)
    and 208 (a) of the Communications Act and sections 0.111 and 0.311
    of the Commission's rules. 47 U.S.C. § § 154 (i), 154 (j), 208 (a);
    47 C.F.R. § 0.111, 0.311. *See also* 47 C.F.R. § 1.722(d)(1).

[^14]: *Liability Order,*15 FCC Rcd at 8768.

[^15]: *MTS and WATS Market Structure*, Order on Reconsideration, 97 FCC
    2d 682, 704, n.40 (1983) ("*First Reconsideration Order*"). At the
    time the Commission developed this scheme for payphone access
    charges, the only existing payphones were owned by LECs.

[^16]: *Id.* at 704, n.41.

[^17]: *Id.* at 705.

[^18]: *Id.* at 706.

[^19]: *See Liability Order*, 15 FCC Rcd at 8761 *citing*
    *Implementation of the Pay Telephone Reclassification and
    Compensation Provisions of the Telecommunications Act of 1996*,
    First Report and Order, 11 FCC Rcd 20541, ¶ 187 (1996) ("*First
    Payphone Order"*); *Implementation of the Pay Telephone
    Reclassification and Compensation Provisions of the
    Telecommunications Act of 1996*, Report and Order on
    Reconsideration, 11 FCC Rcd 21233, ¶ 207 (1996).

[^20]: *See* *Appeals Court Decision,* 128 F.3d at 742; *see also* *C.F.
    Communications Corp. v. Century Telephone of Wisconsin, Inc. et.
    al*., Memorandum Opinion and Order, 8 FCC Rcd 7334, 7335-36 (1993)
    ("*Bureau Order"*); *C.F. Communications Corp. v. Century Telephone
    of Wisconsin*, *Inc., et. al.*, Memorandum Opinion and Order, 10 FCC
    Rcd 9775 (1995); *C.F. Communications Corp., et. al. v. Michigan
    Bell Telephone Co., et. al.*, 12 FCC Rcd 2134 (1997).

[^21]: The Commission's ruling was pursuant to section 69.2(m) which
    provides that \"a carrier other than a telephone company\" is an end
    user when it \"offers telecommunications services exclusively as a
    reseller\" and all of its \"resale transmissions \... originate on
    the premises of such reseller.\" *Bureau Order*, 8 FCC Rcd at 7336.
    *See also* 47 C.F.R. § 69.2(m).

[^22]: *Liability Order*, 15 FCC Rcd at 8768.

[^23]: *Id.*

[^24]: *Id.* at 8766, 8768. *See* *also* *Appeals Court Decision*, 128
    F.3d at 741.

[^25]: *Id.* at 8768, 8773.

[^26]: *Id.* at 8768.

[^27]: *See* *Letter Ruling*.

[^28]: *See* Comments of Certain Complainants Regarding Hearing
    Designation Order, filed Oct. 13, 2000 ("Certain Complainants'
    Comments") at 10-13 and Comments of Kayson Communications Inc. and
    Best Payphones Inc. Regarding Hearing Designation Order, filed on
    Oct. 23, 2000 ("Kayson and Best Comments") at 3 (arguing that
    because IPPs were found to not be end-users users within the meaning
    of section 69.104(a), the collection of EUCL charges for semi-public
    payphones is unlawful); Certain Complainants' Comments at 14
    (contending that the Commission's *Liability Order* constitutes a
    "new" construction of the Access Charge rules); Certain
    Complainants' Comments at 8 (arguing that the collection of EUCL
    charges from IPPs by the LECs violates section 203 of the Act
    because IPPs are not end users and the the LECs' tariffs specify
    that EUCL charges will be assessed on "end users" ); Certain
    Complainants' Comments at 14-16 (arguing that New York Telephone
    Company's state tariff should have bearing on this damages
    proceeding). In addition, Certain Complainants contend that
    Defendants must bear the burden of proving which payphones were used
    primarily for semi-public use. *See* Certain Complainants' Comments
    at 16.

[^29]: We note that a number of complainants filed a petition for
    reconsideration on May 15, 2000 that could well have incorporated
    these arguments but did not. *See* Complainant's Petition For
    Reconsideration. The Commission ruled on the issues raised in this
    petition in its *Reconsideration Order*, 15 FCC Rcd 22906 (2000).

[^30]: Certain Complainants' Comments at 8.

[^31]: The most recent complaint was filed in 1993. *See* File No.
    E-93-081.

[^32]: Certain Complainants' Comments at 8.

[^33]: *C.F. Communications Corp. v. Century Telephone of Wisconsin*,
    *Inc., et. al.*, Memorandum Opinion and Order, 10 FCC Rcd 9775
    (1995). This decision affirmed the *Bureau Order*. It was
    subsequently vacated by *the Appeals Court Decision*.

[^34]: Certain Complainants' Comments at 8.

[^35]: *Bureau Order*, 8 FCC Rcd 7334, 7335-36 (1993).

[^36]: Certain Complainants' Comments at 15.

[^37]: 47 C.F.R. §§ 1.201- 1.364.

[^38]: 47 C.F.R. § 1.722.

[^39]: *See Hi Tech Furnace Systems, Inc. v. FCC*, 224 F.3d 781, 786
    (D.C. Cir. 2000); 47 U.S.C. §§ 154(i), 154(j); 47 C.F.R. § 1.732(g).

[^40]: Certain Complainants' Comments at 17; Kayson and Best Comments at
    4.

[^41]: 47 U.S.C. § 415.

[^42]: *Id.*

[^43]: *Id;* but see *Informal Complaints Filed By Independent Payphone
    Service Providers Against Various Local Exchange Carriers Seeking
    Refunds of End User Common Line Charges*, File No. 89-170, DA
    99-1858, Common Carrier Bureau (rel. Sept. 10, 1999) ("*Waiver
    Order"*). In its *Waiver Order*, the Common Carrier Bureau, in the
    interests of administrative efficiency, tolled the six month
    relation back requirement contained in section 1.718 for a number of
    informal complaints as of June 15, 1998, as long as the formal
    complaint is filed with the Commission no less than 90 days after a
    final nonappealable order has been entered in the remand
    proceeding*. Id.* at ¶ 5.

[^44]: *Reconsideration Order* at ¶ 5.

[^45]: *See* Ascom et. al Comments at 9.

[^46]: 47 C.F.R §§ 1.311-1.325.

[^47]: *See* *Hi Tech Furnace Systems, Inc. v. FCC*, 224 F.3d 781, 786
    (D.C. Cir. 2000); *see also New Valley Corporation v. Pacific Bell
    Telephone Company*, 15 FCC Rcd 5128 at ¶ 14; and *Liability Order*,
    15 FCC Rcd at 8771. ("Complainants will have to provide evidence
    sufficient to prove among other things, how many of their payphones
    were in fact 'public payphones,' under the definition established in
    the *First Reconsideration Order*, as clarified in the *Liability
    Order*.")

[^48]: *Liability Order*, 15 FCC Rcd at 8771.

[^49]: *Fidelity Radio, Inc*., 1 FCC 2d 66 (1965); *Atlantic
    Broadcasting Co*., 5 FCC 2d 717 (1966).

[^50]: *Liability Order*, 15 FCC Rcd at 8771.

[^51]: *First Reconsideration Order,* 97 FCC 2d at 704, n.40 and n.41.

[^52]: *Liability Order*, 15 FCC Rcd at 8771.

[^53]: The rates for the EUCL charges are to be determined from the
    LECs' tariffs for the relevant time period.

[^54]: The IRS rate of interest for corporate overpayments is the
    appropriate interest rate for this type of proceeding, because the
    rate is easily obtainable and revised on a regular basis. *See U.S.
    Sprint Communications Partnership v. Pacific Northwest Bell
    Telephone Co.*, Memorandum Opinion and Order, 8 FCC Rcd 1288, 1298,
    ¶ 51, n.109 (1993).

[^55]: *See Liability Order*, 15 FCC Rcd at 8770.

[^56]: *Id.* at 8771.