Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of                 | ) | File Nos. E-93-062,          |
|                                  |   | E-93-074, E93-081, E-93-034, |
| C.F. Communications Corp., et    | ) | E-93-035, E-93-036,          |
| al.,                             |   | E-93-037, E-93-038,          |
|                                  | ) | E-93-039, E-93-040,          |
| Complainants                     |   | E-93-041, E-93-042,          |
|                                  | ) | E-93-043, E-93-044,          |
| v\.                              |   | E-93-045, E-93-056,          |
|                                  | ) | E-93-050, E-93-046,          |
| Century Telephone of Wisconsin,  |   | E-93-047, E-93-048, E-93-049 |
| Inc., et al.                     | ) |                              |
|                                  |   |                              |
| Defendants.                      | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
+----------------------------------+---+------------------------------+

**ORDER ON RECONSIDERATION**

**Adopted: July 17, 2000 Released: July 19, 2000**

By the Commission:

**I. INTRODUCTION**

1.  In this Order, we grant in part and deny in part two petitions filed
    by parties in the above-captioned formal complaint proceedings
    requesting reconsideration and/or clarification of the April 13,
    2000 Memorandum Opinion and Order on Remand granting the complaints
    with respect to liability.[^1] In the *Liability Order*, we reversed
    a previous decision of the Commission that had been vacated by the
    D.C. Circuit and remanded to us for further consideration consistent
    with that court's opinion. On remand, we found that the defendant
    local exchange companies had improperly assessed end-user common
    line charges upon the complainant independent payphone providers.
    Accordingly, we granted the 33 formal complaints before the
    Commission as to liability, and initiated a process for determining
    damages in those cases.[^2]

2.  We also noted in the *Liability Order* that approximately 3,000
    informal complaints have also been filed by independent payphone
    providers alleging the same claims raised in the 33 formal
    complaints. Pursuant to the Commission's rules, the filing of an
    informal complaint may, in effect, toll the statute of limitations
    applicable to such complaints under specific circumstances. In
    particular, our rules provide that a complainant whose informal
    complaint is not satisfied by the carrier may file a formal
    complaint, and that such formal complaint:

> will be deemed to relate back to the filing of the informal complaint:
> Provided, That the formal complaint: (a) Is filed within 6 months from
> the date of the carrier's report, (b) makes reference to the date of
> the informal complaint, and (c) is based on the same cause of action
> as the informal complaint.[^3]

3.  Each of the petitions challenges conclusions in the *Liability*
    *Order* concerning the application of this "relating-back"
    provision. In particular, each petition objects to portions of the
    following conclusions from that order:

> In light of the foregoing, we reject BellSouth's assertion that the
> Commission's rules prevent a complainant who has filed a formal
> complaint within six months of the carrier's response to its informal
> complaint from recovering damages dating back two years from the
> filing of its informal complaint. Section 1.718 clearly provides for
> such "relating back." Similarly, we reject complainants' argument that
> this "relating back" provision is dependent upon when the Commission
> has "disposed" of an informal complaint. Rather, the clear language of
> section 1.718 of the rules allows for "relating back" of damages only
> if a complainant files a formal complaint within 6 months "from the
> date of the carrier's report."[^4]

**II. DISCUSSION**

**A. BellSouth Petition**

4.  BellSouth requests clarification and/or reconsideration of the first
    part of the above-quoted language that, it asserts, denotes a
    misreading of the arguments made in its pleadings.[^5] BellSouth
    does not question the statement of the law reflected in this
    paragraph; but, rather, asserts that this statement does not
    accurately reflect the argument made in its pleading. BellSouth
    explains that it is concerned that such a statement could be
    construed to bar it from raising statute of limitations arguments in
    the supplemental damages phase of the proceeding. Accordingly,
    BellSouth requests that we clarify that we did not intend to address
    the merits of BellSouth's statute of limitations defense with
    respect to any particular complainant, or alternatively reconsider
    this finding.[^6] Ascom filed an opposition arguing, in part, that
    BellSouth's petition was premature since the *Liability Order* makes
    no determination concerning the application of the statute of
    limitation to any particular complaint.[^7]

5.  We need not address whether the *Liability Order* accurately
    reflects BellSouth's pleadings because the order makes no findings
    concerning the application of the relating-back rule to any
    particular complaint or complainant. Thus, BellSouth will be
    entitled to make these arguments during the supplemental damages
    proceeding. We note that Ascom, which is the only complainant with a
    pending formal complaint against BellSouth, agrees that the
    *Liability Order* deferred these issues to the damages phase of the
    proceeding.

    **B. Independent Payphone Providers' Petition**

6.  Several of the complainant independent payphone providers request
    reconsideration of the rejection in the above-quoted language of
    complainants' argument that the application of the relating-back
    provision is dependent upon when the Commission "disposes" of an
    informal complaint, rather than the receipt of the carrier's
    report.[^8] Complainants' petition merely rehashes the precise
    arguments raised in its previous pleadings and rejected in the
    *Liability Order*.[^9] Accordingly, we see no reason to reconsider
    our previous conclusion. As we stated in the *Liability Order*, the
    explicit language of section 1.718 unambiguously limits the
    relating-back provision to formal complaints "filed within 6 months
    from the date of the carrier's report."[^10] We find no support for
    complainants' assertion that "Section 1.717, . . ., clearly
    authorizes complainants to await disposition of their informal
    complaint by the Commission before filing a formal complaint."[^11]
    Nothing in section 1.717 or 1.718 can be read to restrict the
    explicit scope of section 1.718 in the way proffered by
    complainants. Indeed, complainants' argument disregards the fact
    that the Commission is not required to notify each complainant about
    the disposition of its complaint.[^12]

7.  To the extent that complainants are suggesting some form of
    detrimental reliance with regard to Ascom Communications, Inc.,
    based on a letter sent by Commission staff that may have suggested
    Ascom could file after the six month period had passed, we reject
    this outright.[^13] The six month period had passed well before
    issuance of the letter, and, consequently, Ascom had no basis for
    assuming it might be granted an exemption from the clear language
    contained in section 1.718.[^14] We therefore deny complainants'
    petition for reconsideration.

    **III. CONCLUSION**

8.  ACCORDINGLY, IT IS ORDERED, pursuant to sections 4(i) and 208 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 208,
    and section 1.106 of the Commission's rules, 47 C.F.R. § 1.106, that
    the Petition for Clarification and/or Reconsideration filed by
    BellSouth Telecommunications, Inc. is GRANTED IN PART AND DENIED IN
    PART as described herein.

9.  IT IS FURTHER ORDERED, pursuant to sections 4(i) and 208 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 208,
    and section 1.106 of the Commission's rules, 47 C.F.R. § 1.106, that
    Complainants' Petition for Reconsideration IS DENIED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Magalie Roman Salas
>
> Secretary

[^1]: *C.F. Communications Corp. v. Century Telephone of Wisconsin,
    Inc*., FCC 00-133 (rel. April 13, 2000) (*Liability Order*). Not all
    of the complainants or defendants sought reconsideration of the
    *Liability Order*. The file numbers listed in the caption above
    apply to those complainants or defendants who sought reconsideration
    of the *Liability Order*. Certain defendants in these complaints
    (although not BellSouth) have filed appeals of the *Liability*
    *Order* in the Court of Appeals for the D.C. Circuit. *Bell
    Atlantic, et al. v. FCC*, No. 00-1207 (D.C. Cir. filed May 15,
    2000).

[^2]: *Liability Order* at paras. 40-43. Commission staff subsequently
    issued a letter ruling delaying the initiation of this process in
    light of the appeals filed by defendants with the D.C. Circuit.
    Letter of Glenn T. Reynolds, Chief, Market Disputes Resolution
    Division, Enforcement Bureau, dated June 8, 2000.

[^3]: 47 C.F.R. § 1.718.

[^4]: *Liability Order* at para. 37.

[^5]: BellSouth Telecommunications, Inc. Amended Petition for
    Clarification and/or Reconsideration at 5-6 (BellSouth Petition).

[^6]: *Id.*

[^7]: Opposition of Ascom Communications, Inc. to Petition and Amended
    Petition for Clarification and/or Reconsideration of BellSouth
    Telecommunications, Inc. at 5-6.

[^8]: Complainants' Petition for Reconsideration at 1-2 (Complainants'
    Petition). Several of the defendant local exchange carriers filed in
    opposition to this petition. *See* Opposition of BellSouth
    Telecommunications, Inc.; Opposition of Southwestern Bell Telephone
    Company, Wisconsin Bell, Inc. and Michigan Bell Telephone Company.

[^9]: *See* Brief of Complainants (filed Dec. 18, 1998). Indeed, we note
    that much of the language in complainants' petition appears to be
    identical to that in their December 18, 1998 pleading.

[^10]: 47 C.F.R. § 1.718.

[^11]: Complainants' Petition at 7.

[^12]: *See* 47 C.F.R. § 1.717 (stating that "\[w\]here there are clear
    indications from the carrier's report or from other communications
    with the parties that the complaint has been satisfied, the
    Commission may, in its discretion, consider a complaint proceeding
    to be closed, without response to the complainant.").

[^13]: Complainants' Petition at 7-8.

[^14]: Ascom filed its informal complaint on August 5, 1990 and
    BellSouth denied this complaint in writing on November 1, 1990.
    BellSouth Petition at 3. The letter sent by Commission staff was
    dated November 13, 1993. Complainants' Petition at 7.