Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+----+------------------------------+
| In the Matter of                 | )  | File No. EB-03-MD-011        |
|                                  |    |                              |
| APCC Services, Inc.,             | )  |                              |
|                                  |    |                              |
| Data Net Systems, LLC,           | )  |                              |
|                                  |    |                              |
| Davel Communications, Inc.,      | )  |                              |
|                                  |    |                              |
| Jaroth, Inc. d/b/a Pacific       | )  |                              |
| Telemanagement                   |    |                              |
|                                  | )  |                              |
| Services, and                    |    |                              |
|                                  | )  |                              |
| Intera Communications Corp.,     |    |                              |
|                                  | )  |                              |
| Complainants,                    |    |                              |
|                                  | )  |                              |
| v\.                              |    |                              |
|                                  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
+----------------------------------+----+------------------------------+

)

Network IP, LLC, and )

Network Enhanced Telecom, LLP, )

)

Defendants. )

order

Adopted: October 26, 2005 Released: October 27, 2005

By the Chief, Enforcement Bureau:

# Introduction 

1.  In this Order, pursuant to sections 1.3 and 1.727 of the
    Commission's rules,[^1] we grant in substantial part a motion[^2]
    filed by Complainants (collectively, "APCC") for waiver of the
    six-month filing deadline set forth in section 1.718 of the
    Commission's rules.[^3] For statute of limitations purposes, rule
    1.718 allows the filing date of a formal complaint to "relate back"
    to the filing date of a prior informal complaint regarding the same
    claim, but only if, *inter alia*, the formal complaint is filed
    within six months of the defendant's response to the informal
    complaint. Here, APCC's counsel attempted to file APCC's formal
    complaint on the very last day of the applicable six-month period.
    The formal complaint was automatically rejected, however, because
    APCC's counsel submitted the wrong filing fee. Consequently, absent
    a waiver and brief extension of the six-month filing deadline in
    rule 1.718, the statute of limitations will bar a significant
    portion of APCC's damages claim, perhaps amounting to a potential
    loss of millions of dollars.

2.  For the reasons stated below, we conclude that the hardship APCC
    would suffer as a result of their counsel's administrative errors
    outweighs the need to enforce our procedural rules strictly,
    especially given that NET's and the Commission's interest in
    finality would not be materially undermined by a brief extension of
    the deadline. Thus, under the unique circumstances here, we find
    that the public interest is better served by granting the waiver to
    allow some small flexibility in the deadline established by rule
    1.718.

    **II. BACKGROUND**

3.  Complainants are, *inter alia*, billing and collection agents for
    numerous independent payphone service providers ("PSPs").[^4] NET is
    a switch-based reseller.[^5] On behalf of Complainants' PSP
    principals, the Formal Damages Complaint seeks recovery of
    "dial-around" payphone compensation from Defendants under rule
    64.1300,[^6] which implements (along with other rules) section 276
    of the Communications Act of 1934, as amended (the "Act").[^7]

4.  Under rule 1.718, for purposes of tolling the statute of
    limitations, the filing date of a formal complaint can "relate back"
    to the filing date of a prior informal complaint involving the same
    parties and the same matter, but only if the formal complaint is
    filed within six months after the defendant's response to the
    informal complaint.[^8] Here, on September 30, 2002, APCC filed an
    informal complaint against NET[^9] seeking recovery of payphone
    compensation from one quarter before the quarter ending on September
    30, 2000[^10] (two years before the filing date, the limitations
    period under section 415 of the Act[^11]) to November 23, 2001 (the
    regulatory cut-off date for the kind of compensation at issue[^12]).
    NET filed its response to APCC's informal complaint on November 19,
    2002.[^13] Therefore, pursuant to the six-month deadline under rule
    1.718, May 19, 2003 was the last date on which APCC could file a
    formal complaint that would relate back to September 30, 2002 (the
    filing date of the informal complaint) and thereby retain the full
    potential recovery period of April 1, 2000 -- November 23, 2001.

5.  On May 19, 2003, the filing deadline under rule 1.718, APCC's
    counsel attempted to file a formal complaint against NET. APCC's
    counsel submitted the wrong filing fee, however: \$165 per defendant
    instead of the \$170 required by Commission rules at that time.[^14]
    In addition, APCC's counsel submitted a single check rather than a
    check for each defendant. Because APCC submitted an inadequate
    filing fee, Mellon Bank automatically rejected and returned the
    formal complaint.[^15] As a result, the formal complaint was not
    "filed" on May 19, 2003, and APCC missed the six-month deadline
    under rule 1.718.[^16]

6.  According to APCC, it submitted the wrong filing fee (and thus
    missed the six-month deadline under rule 1.718) because its counsel
    consulted only the hard-copy version of the Code of Federal
    Regulations ("CFR"), dated October 1, 2002, which contained a filing
    fee amount \-- \$165 per defendant \-- that had been superseded by
    the time APCC filed its formal complaint in May 2003. The new fee of
    \$170 per defendant, although adopted in July 2002, did not become
    effective until after publication of the October 1, 2002 CFR, and so
    was not reflected therein.[^17]

7.  On June 3, 2003, APCC filed a revised version of the formal
    complaint, along with the correct filing fee.[^18] That same day,
    APCC also filed the instant motion for waiver and extension of rule
    1.718's six-month relation-back deadline from May 19, 2003 to June
    3, 2003.[^19] APCC argues that we should waive and extend the filing
    deadline because (i) APCC's counsel made a good faith effort to file
    on time; (ii) the fee error was *de minimis* and administrative;
    and (iii) denying a waiver would impose a severe and undue penalty
    on Complainants' small PSP clients.[^20] NET vehemently opposes the
    Motion, arguing, *inter alia*, that (i) APCC has not met its heavy
    burden of showing "special circumstances" warranting a waiver of the
    Commission's filing deadline, and (ii) the errors of APCC's counsel
    here are precisely the kind of negligent acts that the Commission
    has repeatedly refused to excuse, despite the prospect of harsh
    consequences.[^21]

# DISCUSSION

8.  Our resolution of APCC's Waiver Motion will affect the amount of
    payphone compensation damages to which Complainants' PSP clients may
    be entitled.[^22] Specifically, the potential recovery period will
    be about nine months shorter if we deny the Waiver Motion than if we
    grant the Waiver Motion.[^23] Although the record does not yet
    permit us to ascribe a precise dollar value to that time
    differential, that differential may well amount to millions of
    dollars.[^24]

9.  The standards governing our assessment of APCC's request to waive
    rule 1.718 are well established:

    Generally, the Commission may grant a waiver for good cause shown.
    The Commission may exercise its discretion to waive a rule where the
    particular facts make strict compliance inconsistent with the public
    interest. In addition, the Commission may take into account
    considerations of hardship, equity, or more effective implementation
    of overall policy on an individual basis. Waiver is therefore
    appropriate only if special circumstances warrant a deviation from
    the general rule, and such a deviation will serve the public
    interest.[^25]

    Put differently, "\[w\]hile an applicant for a waiver faces a heavy
    burden of persuasion, the Commission must give a 'hard look' to
    meritorious waiver requests and may grant such requests where the
    waiver will not undermine the policy of the general rule and where
    public interest considerations require the waiver."[^26] Applying
    those standards to the facts here, we largely grant but partially
    deny APCC's Waiver Motion, for the reasons described below.

10. APCC missed the six-month filing deadline under rule 1.718 because
    its counsel made two easily avoidable mistakes: (i) consulting only
    the hard-copy version of the CFR to learn the filing fee, rather
    than also consulting readily available, and more frequently updated,
    on-line versions of the CFR (*e.g.*, Westlaw, LEXIS); and (ii)
    waiting until the last day to file the formal complaint. NET
    contends that we should not relieve Complainants of the consequences
    of their counsel's negligence, just as the Commission has refrained
    from doing so in numerous, allegedly analogous circumstances.[^27]
    For the following reasons, we disagree with NET.

11. "Considerations of hardship, equity, \[and\] more effective
    implementation of overall policy" support waiver of rule 1.718 under
    the particular facts here.[^28] Denying a waiver could deprive
    APCC's principals -- numerous independent payphone service providers
    \-- of the right to millions of dollars in compensation. That would
    cause APCC's principals to bear substantial hardship due to the lack
    of reasonable care taken by APPC's counsel. Moreover, that would
    allow APCC's counsel's failures to impinge upon an overall policy of
    section 276 of the Act \-- "to ensure that all payphone service
    providers are fairly compensated for each and every completed
    intrastate and interstate call using their payphone...."[^29] Given
    these unique circumstances, this case is a situation where the
    "Commission may exercise its discretion to waive a rule ...
    \[because\] the particular facts make strict compliance inconsistent
    with the public interest."[^30]

12. We recognize that the errors by APCC's counsel are difficult to
    excuse, given that they were easily avoidable, and APCC's law firm
    is highly experienced, resourceful, and knowledgeable in
    communications law, and therefore should be expected to know and
    closely adhere to Commission processes. On the other hand, APCC's
    counsel did *try* to file the formal complaint on time, and they
    corrected their error and filed another formal complaint 15 days
    later. There is no evidence of any attempt to "game" the system to
    obtain some undue advantage. During the weeks leading up to the
    deadline, APCC was in frequent contact with NET, discussing the
    status of the dispute and the prospects for pre-complaint
    settlement.[^31] NET knew all along that, in the absence of a
    settlement, APCC planned to file a formal complaint; and APCC
    attempted in good faith to do just that, finally succeeding shortly
    after the deadline passed. For all these reasons, waiving the filing
    deadline would not materially undermine a primary purpose of rule
    1.718 at stake here, which is to ensure finality, certainty, and
    repose for prospective defendants.

13. We cannot completely overlook, however, the fact that the efficient
    and effective functioning of the Commission's complaint processes,
    both informal and formal, requires close attention and adherence to
    the Commission's procedural rules, including filing fees and
    deadlines like that established in rule 1.718. Thus, we will
    consider the carelessness of APCC's counsel in crafting the scope of
    our waiver.[^32]

14. In light of all of the specific facts previously described, we
    conclude that the public interest would best be served by waiving
    and extending rule 1.718's filing deadline -- and thereby allowing
    the formal complaint's filing date of June 3, 2003 to relate back to
    the informal complaint's filing date of September 30, 2002 -- for
    all aspects of APCC's compensation claim, *except* for prejudgment
    interest accrued during the 15-day period between when APCC should
    have filed its formal complaint with the correct fee (May 19, 2003)
    and when APCC did file its formal complaint with the correct fee
    (June 3, 2003). [^33] This substantial, but not complete, grant of
    APCC's Waiver Motion achieves an appropriate balance of the public
    interests in avoiding undue hardship, promoting the Act's
    substantive policy objectives, and discouraging disregard of the
    Commission's procedural requirements.[^34]

    **IV. CONCLUSION**

15. The Commission has discretion in granting or rejecting waiver
    requests, and in fashioning any grant of a waiver. In the unique
    circumstances here, we find that the errors that APCC's counsel
    committed should not deprive Complainants' PSP principals of the
    chance to recover compensation for the period in question,
    especially because allowing the waiver does not materially detract
    from NET's and the Commission's interest in finality. Further,
    APCC's counsel did make a good faith effort to comply with the
    filing deadline, and promptly corrected the failure to do so. As
    described above, we have crafted a grant that serves the public
    interest in this case, while admonishing APCC's counsel to pay
    appropriate regard to the Commission's procedural rules.

    **V. ORDERING CLAUSE**

16. Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j),
    201(b), 208, and 276 of the Communications Act of 1934, as amended,
    47 U.S.C. §§ 151, 154(i), 154(j), 201(b), 208, and 276, and sections
    1.3, 1.711-1.736, and 64.1300-64.1320 of the Commission's rules, 47
    C.F.R. §§ 1.3, 1.711-1.736, 64.1300-64.1320, and the authority
    delegated pursuant to sections 0.111 and 0.311 of the Commission's
    rules, 47 C.F.R. §§ 0.111, 0.311, that Complainants' motion for
    partial waiver of section 1.718 of the Commission's rules IS GRANTED
    to the extent set forth above, and is otherwise DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    Kris A. Monteith

    Chief, Enforcement Bureau

[^1]: 47 C.F.R. §§ 1.3, 1.727.

[^2]: APCC Services, *et. al*., v. NetworkIP, LLC and Network Enhanced
    Telecom, LLP, Complainants' Motion for Partial Waiver of Section
    1.718 of the Commission's Rules, File No. EB-03-MD-011 (filed June
    3, 2003) ("Waiver Motion"). Defendants (collectively, "NET") opposed
    the motion, and APCC replied. *See* APCC Services, *et. al*., v.
    NetworkIP, LLC and Network Enhanced Telecom, LLP, Opposition to
    Complainants' Motion for Partial Waiver of Section 1.718 of the
    Commission's Rules, File No. EB-03-MD-011 (filed June 9, 2003)
    ("Opposition to Waiver Motion"); APCC Services, *et. al*., v.
    NetworkIP, LLC and Network Enhanced Telecom, LLP, Complainants'
    Reply to Defendants' Opposition to Complainants' Motion for Partial
    Waiver of Section 1.718, File No. EB-03-MD-011 (filed June 17, 2003)
    ("Reply"). Because rule 1.727(h) precludes a reply to an opposition
    to a motion, 47 C.F.R. § 1.727(h), APCC filed a motion for leave to
    file a reply along with their Reply. APCC Services, *et. al*., v.
    NetworkIP, LLC and Network Enhanced Telecom, LLP, Complainants'
    Conditional Motion for Leave to File a Reply, File No. EB-03-MD-011
    (filed June 17, 2003). NET opposed the motion. APCC Services, *et.
    al*., v. NetworkIP, LLC and Network Enhanced Telecom, LLP,
    Defendants' Opposition to Complainants' Conditional Motion for Leave
    to File a Reply, File No. EB-03-MD-011 (filed June 23, 2003).
    Because we do not rely on any submission other than the Waiver
    Motion and the Opposition to Waiver Motion, we dismiss as moot
    APCC's motion for leave to file a reply.

[^3]: 47 C.F.R. § 1.718.

[^4]: *See, e.g.,* APCC Services, *et al*., v. NetworkIP, LLC and
    Network Enhanced Telecom, LLP, Supplemental Complaint for Damages,
    File No. EB-03-MD-011 (filed Apr. 4, 2004) ("Formal Damages
    Complaint") at 2. Although the Formal Damages Complaint does not
    specify the number of PSPs represented by Complainants, it is clear
    that such PSPs are quite numerous. *See, e.g*., Formal Damages
    Complaint at Attachments 16, 21, 25 and 29.

[^5]: Formal Damages Complaint at 2; APCC Services, *et al*., v.
    NetworkIP, LLC and Network Enhanced Telecom, LLP, Answer to Damages
    Complaint, at 2, File No. EB-03-MD-011 (filed May 31, 2005)
    ("Answer").

[^6]: 47 C.F.R. § 64.1300. *See* Formal Damages Complaint, *supra*.

[^7]: 47 U.S.C. § 276.

[^8]: 47 C.F.R. § 1.718 (providing, in pertinent part, that a formal
    complaint "will be deemed to relate back to the filing date of the
    informal complaint: *Provided*, That the formal complaint: (a) Is
    filed within six months from the date of the carrier's \[*i.e.,* the
    defendant's\] report . . . ").

[^9]: APCC Services, *et al*., v. NetworkIP, LLC, Informal Complaint,
    File No. EB-02-MDIC-0071 (filed Sept. 30, 2002).

[^10]: Due to certain unique characteristics of payphone billing and
    payment cycles, payphone compensation claims can extend back a
    quarter of a year farther than most other kinds of claims. Thus, an
    informal complaint filed on September 30, 2002 allows recovery back
    to April 1, 2000. *See generally Pay Telephone Reclassification and
    Compensation Provisions of the Telecommunications Act of 1996,*
    Third Report and Order, 14 FCC Rcd 2545, 2631 at paras. 187-190
    (1999) (subsequent history omitted); *see also*, *APCC Services et
    al. v. TS Interactive*, Memorandum Opinion and Order, 19 FCC Rcd
    10456, 10459 at para. 18 (Enf. Bur. 2004); APCC Services, *et al*.
    v. NetworkIP, LLC and Network Enhanced Telecom, LLP, Letter from
    Commission Staff to Counsel, File No. EB-03-MD-011 (rel. Oct. 6,
    2005) ("ISC Order").

[^11]: 47 U.S.C. § 415.

[^12]: *See, e.g.,* Formal Damages Complaint at 6, n.8; 8-9, paras.
    11-12. *See generally* *Pay Telephone Reclassification and
    Compensation Provisions of the Telecommunications Act of 1996*,
    Report and Order, 18 FCC Rcd 19975, 19983-86 at paras. 16-24 (2003)
    (subsequent history omitted); *Pay Telephone Reclassification and
    Compensation Provisions of the Telecommunications Act of 1996*,
    Second Order on Reconsideration, 16 FCC Rcd 8098, 8105 at para. 16
    (2001) (subsequent history omitted).

[^13]: Answer at 3.

[^14]: 47 C.F.R. § 1.1106.

[^15]: *See generally* 47 C.F.R. § 1.1116(a).

[^16]: 47 C.F.R. § 1.1116(a)(2).

[^17]: Waiver Motion at 4-5, 7-9.

[^18]: APCC Services, *et al*. v. NetworkIP, LLC and Network Enhanced
    Telecom, LLP, Formal Complaint, File No. EB-03-MD-011 (filed June 3,
    2003) ("Formal Liability Complaint"). *See* APCC Services, *et al*.
    v. NetworkIP, LLC and Network Enhanced Telecom, LLP, Defendants'
    Answer to Formal Complaint, File No. EB-03-MD-011 (filed July 28,
    2003) ("Liability Answer"); APCC Services, *et al*. v. NetworkIP,
    LLC and Network Enhanced Telecom, LLP, Complainants' Reply to
    Defendants' Answer, File No. EB-03-MD-011 (filed Sept. 24, 2003)
    ("Liability Reply").

[^19]: Waiver Motion, *supra*.

[^20]: Waiver Motion at 5, 7-9, 12, 15-17.

[^21]: Opposition to Waiver Motion at 5-15. NET also argues that APCC's
    Waiver Motion actually seeks dispositive rulings on three issues,
    thus bringing the Motion under rule 1.727(b), whose pleading
    requirements the Motion does not meet. *Id*. at 15-18. We reject
    NET's assertion, because it is clear that the Waiver Motion seeks
    merely a waiver of the rule in question, 47 C.F.R. § 1.718, and the
    dispositive issues mentioned by NET are argued not in the Waiver
    Motion but in the Formal Liability Complaint.

[^22]: In its formal complaint filed on June 3, 2003, APCC asked that
    the issue of liability be addressed first, and that the issue of
    damages be decided in a subsequent phase of the proceeding if APCC
    prevailed in the first phase. Formal Liability Complaint at 1-2**.**
    *See* 47 C.F.R. § 1.722 (providing for such "bifurcation" of
    liability and damages determinations). During the liability phase of
    this proceeding, we deferred ruling on the instant Waiver Motion
    until the damages phase (if any), because the outcome of the Motion
    would affect only the amount of damages, not NET's liability. APCC
    Services, *et al*. v. NetworkIP, LLC and Network Enhanced Telecom,
    LLP, Notice of Formal Complaint, File No. EB-03-MD-011 (rel. July 8,
    2003). We then ruled in APCC's favor on liability on February 1,
    2005, *APCC Services, et al. v. NetworkIP, LLC and Network Enhanced
    Telecom, LLP*, Memorandum Opinion and Order, 20 FCC Rcd 2073 (Enf.
    Bur. 2005) ("*Bureau* *Liability Order*"), whereupon APCC filed a
    supplemental complaint for damages on April 4, 2005. APCC's Waiver
    Motion is now ripe for decision, because such decision will
    determine the length of the potential damages recovery period. We
    note further that NET filed an application for review of the *Bureau
    Liability Order* on March 1, 2005, which is pending. APCC Services,
    *et al*., v. NetworkIP, LLC and Network Enhanced Telecom, LLP,
    Application for Review of Liability Order, File No. EB-03-MD-011
    (filed March 1, 2005).

[^23]: With the waiver, the relevant period for damages is April 1, 2000
    to November 23, 2001; without the waiver, it is January 3, 2001 to
    November 23, 2001. *See, e.g.,* ISC Order at 2; APCC Services, *et
    al*. v. NetworkIP, LLC and Network Enhanced Telecom, LLP, Letter
    from Commission Staff to Counsel, File No. EB-03-MD-011 (rel. June
    21, 2005) ("June 21 Letter") at 3; APCC Services, *et al*. v.
    NetworkIP, LLC and Network Enhanced Telecom, LLP, Letter from
    Commission Staff to Counsel, File No. EB-03-MD-011 (rel. Oct. 6,
    2005). *See supra,* n.10.

[^24]: *See* Formal Damages Complaint at Attachment 22; APCC Services,
    *et al*. v. NetworkIP, LLC and Network Enhanced Telecom, LLP,
    Defendants' Call Completion Data, File No. EB-03-MD-011 (filed Sept.
    2, 2005); ISC Order at 4.

[^25]: *Application for Review by Information Technology Dept. of State
    of North Dakota*, Order, 18 FCC Rcd 21521, 21524 at para. 9 (2003)
    ("*North Dakota Order*").

[^26]: *Application of Winstar Broadcasting*, Memorandum Opinion and
    Order, 17 FCC Rcd 6126, 6128 at para. 9 (2003) ("*Winstar Order"*).
    *See*, *e.g.*, *Delta Radio, Inc. v. FCC*, 387 F.3d 897, 900-901
    (D.C. Cir. 2004); *Mountain Solutions, Ltd., Inc. v FCC*, 197 F.3d
    512, 517-522 (D.C. Cir. 1999); *Northeast Cellular Telephone v.
    FCC*, 897 F.2d 1164, 1166 (D.C. Cir. 1990).

[^27]: Opposition to Waiver Motion at 5-15. *See, e.g*., *North Dakota
    Order*, 18 FCC Rcd 21521(denying one-day waiver of USF filing
    deadline, even though mere administrative errors caused applicant's
    day-late postmark); *Application for Review of Denial of Vista
    Communications, Inc.'s Request for Waiver*, Memorandum Opinion and
    Order, 18 FCC Rcd 16957 (2003) (denying waiver of installment
    payment deadlines, because applicant's confusion and uncertainty
    over its installment payment schedule, and its lack of knowledge
    regarding the grace period provisions, did not amount to good
    cause), *aff'd*, *Vista Communications, Inc. v. FCC*, 2004 WL
    1171431 (D.C. Cir. 2004); *Southern Communications Systems*, *Inc.*,
    Memorandum Opinion and Order, 15 FCC Rcd 25103 (2000) (denying
    four-day waiver of payment deadline, because employee's illness,
    lack of internal coordination, and sloppy record-keeping did not
    amount to good cause) (Furchtgott-Roth dissenting), *aff'd*, Second
    Memorandum Opinion and Order, 16 FCC Rcd 18357 (2001); *Inforum
    Communications, Inc. Waiver Request for Late Acceptance of BTA
    Installment Payment*, Order, 19 FCC Rcd 83 (ASA Div., Wireless Tel.
    Bur. 2004) (denying 2-day waiver of payment deadline, because
    absence of officers authorized to make payment did not amount to
    good cause); *Request for Review of the Decision of the Universal
    Service Administrator by School District of Durand*, Order, 18 FCC
    Rcd 9697 (TAP Div., Wireline Comp. Bur. 2003) (denying waiver of USF
    filing deadline, because confusion about complicated requirements
    does not amount to good cause).

[^28]: *North Dakota Order*, 18 FCC Rcd at 21524, para. 9.

[^29]: 47 U.S.C. § 276(b)(1)(A).

[^30]: *North Dakota Order*, 18 FCC Rcd at 21524, para. 9. *See, e.g.,
    Metricom, Inc. Request for Waiver of Section 27.208(A) of the
    Commission's Rules*, Order, 13 FCC Rcd 890 (Wireless Tel. Bur. 1998)
    (granting two-day waiver of payment deadline, because delay caused
    by applicant's bank's error in transmitting payment to Mellon Bank);
    *Southern Communications Systems, Inc. Request for Waiver of Section
    24.711(a)(2) of the Commission's Rules*, Order, 12 FCC Rcd 1532
    (Wireless Tel. Bur. 1997) (granting one-day waiver of payment
    deadline, because of applicant's prior record of compliance, prompt
    remedial action, and good faith effort to pay on time); *MFRI, Inc.*
    *Request for Waiver of Section 24.711(a)(2) of the Commission's
    Rules*, Order, 12 FCC Rcd 1540 (Wireless Tel. Bur. 1997) (granting
    one-day waiver of payment deadline, because applicant attempted to
    pay on time and failed only due to administrative errors);
    *Longstreet Communications Int'l, Inc. Request for Waiver of Section
    24.711(a)(2) of the Commission's Rules*, Order, 12 FCC Rcd 1549
    (Wireless Tel. Bur. 1997) (granting nine-day waiver of payment
    deadline, because of applicant's prior record of compliance, prompt
    remedial action, and good faith effort to pay on time); *Application
    of Fred Farley for Authority to Construct and Operate a Domestic
    Public Cellular Radio Telecommunications Service*, Memorandum
    Opinion and Order, 4 FCC Rcd 4670 (Com. Car. Bur. 1989) (granting
    three-day waiver of filing deadline, because improper filing on
    due-date caused by clerical error).

[^31]: Waiver Motion at 4, n.5; Opposition to Waiver Motion at 4-5;
    Liability Answer at 17.

[^32]: *See* n. 27, *supra.*

[^33]: In other words, the calculation of prejudgment interest on APCC's
    award of payphone compensation in this damages proceeding will
    [exclude]{.underline} the period from May 19, 2003 to June 3, 2003.

[^34]: *Cf.*, *e.g.*, *Metricom*, *supra*; *Southern Communications*,
    *supra*; *MFRI*, *supra*; *Longstreet Communications*, *supra* (all
    four orders waiving deadlines, but denying movants a "complete
    waiver" and requiring movants to pay penalties for missing
    deadlines). NET also argues that we should deny the Waiver Motion
    because, even had APCC made appropriate fee payments, the formal
    complaint would have been dismissed for failure to comply with the
    Commission's pleading requirements. Opposition to Waiver at 10-12.
    We decline to engage in such *post-hoc* speculation here. It is
    possible that supplementation rather than dismissal would have been
    ordered. Thus, NET's argument does not counsel against waiver here.