**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | File No. EB-05-MD-007        |
|                                  | * |                              |
| Contel of the South, Inc. d/b/a  | ) |                              |
| Verizon Mid-States, Verizon      | * |                              |
| California Inc., The Micronesian | * |                              |
| Telecommunications Corporation,  |   |                              |
| Verizon Delaware Inc., Verizon   | * |                              |
| Florida Inc., Verizon Maryland   | * |                              |
| Inc., Verizon New England Inc.,  | ) |                              |
| Verizon New York Inc., Verizon   | * |                              |
| New Jersey Inc., Verizon North   | * |                              |
| Inc., Verizon Northwest Inc.,    |   |                              |
| Verizon South Inc., Verizon      | * |                              |
| Pennsylvania Inc., GTE Southwest | * |                              |
| Inc., Verizon Washington, D.C.   | ) |                              |
| Inc., and Verizon West Virginia, | * |                              |
| Inc.,                            | * |                              |
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| Complainants,                    | * |                              |
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| v\.                              | ) |                              |
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| Operator Communications, Inc.,   | * |                              |
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| Defendant.                       | * |                              |
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+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: December 21, 2007 Released: January 4, 2008**

By the Commission: Commissioner Copps concurring and issuing a
statement.

**I. INTRODUCTION**

1.  In this Memorandum Opinion and Order, we grant in part a formal
    complaint[^1] filed by the Verizon Telephone Companies[^2] against
    Operator Communications, Inc. ("OCI") pursuant to section 208 of the
    Communications Act of 1934, as amended ("Act").[^3] Verizon alleges
    that OCI violated sections 201 and 276 of the Act[^4] by failing to
    pay Verizon payphone compensation required by sections 64.1301(a)
    and (c) of the Commission's rules,[^5] and by failing to pay certain
    presubscribed interexchange carrier ("PIC") charges imposed in
    Verizon's tariff. For the reasons discussed below, we grant
    Verizon's Complaint with respect to Commission rules 64.1301(a) and
    (c), and order OCI to pay damages in the amount of such compensation
    due, plus interest. We dismiss Verizon's PIC charges claim without
    prejudice to filing in an appropriate forum on the ground that it is
    a collections action and thus not cognizable under the Act.

    **II. BACKGROUND**

2.  At all relevant times, Verizon was a Local Exchange Carrier ("LEC")
    and a payphone service provider ("PSP").[^6] OCI was the PIC for
    thousands of payphones in the United States, including payphones
    owned by Verizon.[^7]

3.  Section 276 of the Act directs the Commission to "establish a per
    call compensation plan to ensure that all \[PSPs\] are fairly
    compensated for each and every completed intrastate and interstate
    call using their payphone . . . ."[^8] Pursuant to section 276, the
    Commission established a per call compensation scheme, *inter alia*,
    for access code and subscriber 800 (collectively "dial-around")
    calls, and 0+ calls.[^9] An "access code" call is a payphone call in
    which the caller dials a sequence of numbers that connects the
    caller to an interexchange carrier ("IXC") other than the payphone's
    PIC.[^10] A "subscriber 800 call" is a payphone call to an 800
    number assigned to a particular subscriber.[^11] A "0+ call" is a
    payphone call in which the caller dials "0" plus the called number.
    A 0+ call is always automatically routed to the payphone's PIC.[^12]

4.  The Commission's per call compensation plan did not take effect,
    however, until October 7, 1997, the date on which carriers were
    required to install the call tracking technology necessary to
    implement the plan. Until that time, for the period April 16, 1997
    to October 6, 1997 (the "Interim Period"), the Commission determined
    that PSPs would be compensated for dial-around and 0+ calls on a
    per-payphone basis.[^13] Accordingly, the Commission promulgated
    rules 64.1301(a) and (c), obligating certain carriers to compensate
    PSPs for Interim Period dial-around and 0+ calls "per payphone per
    month."[^14]

    **III. DISCUSSION**

    **A. OCI's Failure to Pay Interim Period Dial-Around Compensation
    Violates Section 201(b) of the Act.**

5.  We conclude that OCI violated section 201(b) of the Act by failing
    to pay Verizon dial-around compensation as required by Commission
    rule 64.1301(a).[^15] That rule provides:

> In the absence of a negotiated agreement to pay a different amount,
> each entity listed in Appendix A of the \[*Fifth Payphone Compensation
> Order*\] must pay default compensation to \[PSPs\] for \[dial-around\]
> calls for the \[Interim Period\] in the amount listed in Appendix A
> per payphone per month.[^16]

As explained in the *Fifth Payphone Compensation Order*, Appendix A
allocates Interim Period dial-around compensation to each of the
carriers listed by estimating that carrier's proportionate share of the
payphone calls market during the Interim Period.[^17] OCI's assigned
share is \$0.01776232 per payphone.[^18]

6.  The parties have stipulated that they did not have a negotiated
    agreement governing Interim Period compensation for dial-around
    calls, and that OCI has not compensated Verizon for any such
    calls.[^19] In addition, the parties agree as to the number of
    Verizon payphones that were in service during the Interim
    Period.[^20] Accordingly, Verizon has established each element of
    its rule 64.1301(a) claim.

7.  OCI's defenses to this claim lack merit. First, OCI argues that
    Verizon "may not use the Commission's complaint process to collect
    debts . . . owed by customers for tariffed charges."[^21] The
    Commission has distinguished between rules that impose an obligation
    to pay, and rules that merely permit a carrier to levy a charge.
    Failure to pay pursuant to the former is actionable under the Act,
    while failure to pay in the latter instance is not.[^22] In the
    "collections action" cases on which OCI relies, the complainant
    sought amounts allegedly owed solely pursuant to tariff and, for
    that reason, did not state a claim for violation of the Act or
    Commission rules.[^23] In this case, however, Verizon seeks to
    enforce compensation obligations explicitly imposed upon IXCs by
    Commission rules, and thus may bring the case here. The Commission
    has stated that, "failure to pay \[payphone compensation\] in
    accordance with the Commission's payphone rules ... constitutes both
    a violation of section 276 and an unjust and unreasonable practice
    in violation of section 201(b) of the Act."[^24]

8.  OCI further contends that rule 64.1301(a) is unlawful because it is
    retroactive. Specifically, OCI argues that, "for the duration of
    what is now referred to as the Interim Period and through 2002, no
    effective FCC rules established a payphone compensation obligation
    from IXCs."[^25] Therefore, according to OCI, the promulgation of
    these rules in 2002 (with the release of the *Fifth Payphone
    Compensation Order*) is improper retroactive rulemaking.[^26] This
    very argument, however, was considered and rejected by the
    Commission in the *Fourth* and *Fifth Payphone Compensation Orders*,
    and thus this defense is conclusively precluded. As the Commission
    explained there, it was not engaged in retroactive rulemaking, but
    rather was implementing the mandate of the D.C. Circuit, which
    directed the Commission to set a new interim rate for dial-around
    compensation.[^27]

9.  Verizon therefore has established that it is entitled to rule
    64.1301(a) compensation from OCI. The parties in this case have
    stipulated to the amount of compensation owed to Verizon.
    Specifically, the parties agree that, if the number of Verizon
    payphones in service during the Interim Period is applied to the
    dial-around compensation amount attributed to OCI in Appendix A of
    the *Fifth Payphone Compensation Order*, OCI's liability to Verizon
    pursuant to rule 64.1301(a) is \$49,503 before the application of
    interest.[^28] We so find.[^29]

    **B. OCI's Failure to Pay Interim Period 0+ Compensation Violates
    Section 201(b) of the Act.**

10. We also conclude that OCI violated section 201(b) of the Act by
    failing to pay Verizon 0+ compensation pursuant to Commission rule
    64.1301(c).[^30] That rule provides:

> In the absence of a negotiated agreement to pay a different amount, if
> a \[PSP\] was not compensated for 0+ calls originating during the
> \[Interim Period\], ... an \[IXC\] to which the payphone was
> presubscribed during this same time period must compensate the \[PSP\]
> in the default amount of \$4.2747 per payphone per month during the
> same time period ....[^31]

It is well established that the complainant in a section 208 formal
complaint proceeding has the burden of establishing, by a preponderance
of the evidence, that the defendant has violated the Act or Commission
rules or orders.[^32] Verizon and OCI stipulate that they have not
negotiated an agreement governing compensation for 0+ calls, and that
OCI has not paid Verizon any Interim Period 0+ compensation.[^33]
Verizon further submitted uncontroverted evidence that it received no
compensation for the 0+ calls at issue here that originated during the
Interim Period.[^34] The parties disagree, however, as to the number of
Verizon payphones that were presubscribed to OCI during the Interim
Period.

11. In order to calculate the amount of 0+ compensation owed, Verizon
    relies on OCI records establishing, for each month of the Interim
    Period, the number of Verizon payphones that delivered at least one
    0+ call to OCI. [^35] OCI concedes that a payphone that delivered a
    0+ call to OCI in a particular month must have been presubscribed to
    OCI for at least some portion of that month, because all 0+ calls
    are automatically routed to the payphone's PIC.[^36] Based on this
    evidence, Verizon proffers three alternative methods for calculating
    the number of Verizon payphones presubscribed to OCI. We find that
    Verizon's third method accurately calculates the number of such
    payphones.

12. First, Verizon asks us to assume that if a Verizon payphone
    delivered at least one 0+ call at any time during the Interim
    Period, it must have been presubscribed to OCI for the entire five
    and a half months of that period. [^37] Because the rules require
    monthly compensation regardless of whether any 0+ calls are carried,
    Verizon contends that OCI owes default compensation for each of
    those phones for each month of the Interim Period.[^38] OCI argues,
    on the other hand, that the Verizon payphones could have changed
    PICs at any time during the Interim Period because the IXC market
    was highly competitive, slamming was pervasive and OCI's market
    share was in decline.[^39] Though Verizon is correct that
    compensation is due regardless of whether 0+ calls were made, the
    conclusion that a phone was presubscribed to OCI for the entire five
    and a half month period based on a single call is too attenuated,
    and we decline to base an award of 0+ compensation on this
    assumption. As OCI notes, "'where an issue is left in doubt by proof
    so that a trier of fact would be required to speculate, the party on
    which the burden of proof ultimately rests must lose.'"[^40]

13. Second, acknowledging that some of the payphones may not have been
    presubscribed to OCI for the entire Interim Period,[^41] Verizon
    asks us to assume that if at least one 0+ call from a Verizon
    payphone was delivered to OCI during a calendar quarter, then the
    payphone was presubscribed to OCI for that quarter.[^42] For the
    same reasons, however, we find that there is an insufficient basis
    on which to determine that a phone was presubscribed for a calendar
    quarter based only upon proof that the phone was presubscribed to
    OCI during some point in that quarter.

14. Third, Verizon asks us to assume that if at least one 0+ call from a
    Verizon payphone was delivered to OCI during a particular month, the
    payphone was presubscribed to OCI for that entire month.[^43] OCI
    concedes that these figures "indicate\[\], by a preponderance of the
    evidence, the *actual* Verizon payphones \[for\] which OCI was the
    presubscribed carrier."[^44] OCI nevertheless contends that Verizon
    has not established that the payphones remained presubscribed to OCI
    for the entire month and that, as a result, no 0+ compensation is
    due.[^45] OCI argues that PIC changes could occur at any time, and
    that, therefore, "\[i\]t is not possible to tell whether OCI was the
    presubscribed carrier for the entire month, or only for a portion of
    the month."[^46]

15. Contrary to OCI's position, however, rule 64.1301(c) does not
    require Verizon to prove that its payphones were presubscribed to
    OCI the entire month in order to recover.[^47] The rule only
    obligates Verizon to demonstrate that OCI was the PIC at some point
    during the month,[^48] which Verizon has done. Again, Verizon bases
    its claim for compensation on evidence that establishes the number
    of payphones that were presubscribed to OCI for at least a portion
    of each month of the Interim Period. Accordingly, we find that
    Verizon has established by a preponderance of the evidence the
    number of its payphones that were presubscribed to OCI each month of
    the Interim Period.

16. OCI further argues that Verizon's claim should be denied because
    Verizon cannot show, as required by rule 64.1301(c), that it "was
    not compensated for 0+ calls originating during the \[Interim
    Period\]."[^49] OCI does not assert that another carrier compensated
    Verizon for the payphones at issue. Rather, according to OCI,
    Verizon included a number of 0+ calls delivered from Verizon
    payphones to OCI in payphone call data submitted in the record of
    the *Fifth Payphone Compensation Order* proceeding for the purpose
    of the Commission's Appendix A calculations.[^50] OCI reasons that
    Appendix A thus overstates OCI's share of the payphone call market
    to the extent of these 0+ calls, thereby obligating OCI to pay
    excessive Interim Period dial-around compensation.[^51]

17. OCI's argument is flawed. By definition, the figures included in
    Appendix A are utilized solely for purposes of determining an IXC's
    liability for dial-around, not 0+, compensation.[^52] OCI's
    position, at best, is a challenge to Appendix A of the *Fifth
    Payphone Compensation Order* and, therefore, to OCI's obligation to
    pay dial-around compensation. Yet, OCI does not argue that Appendix
    A is unlawful and that Verizon's claim for *dial-around
    compensation* should be denied. Such a collateral attack on the
    *Fifth Payphone Compensation Order*, in any event, would be time
    barred.[^53]

18. In sum, we find that OCI's defenses fail and that Verizon has
    established its claim for Interim Period 0+ compensation pursuant to
    rule 64.1301(c). [^54] Applying the rule 64.1301(c) default amount
    to the number of Verizon payphones that were presubscribed to OCI
    during the Interim Period, OCI is liable to Verizon for Interim
    Period compensation in the amount of \$504,120.00, before
    interest.[^55]

    **C. Verizon's Claim for PIC Charges is a Mere Collections Action.**

19. We dismiss without prejudice Verizon's claim that OCI's failure to
    pay Verizon's tariffed PIC charges for the period June 30, 2002 to
    October 1, 2003 violates section 201 of the Act.[^56] As OCI argues,
    this claim is indeed a "collections action."[^57] Although
    purporting to allege a violation of the Act, Verizon in fact states
    only an action for recovery of charges due under the terms of its
    tariff. Unlike the payphone compensation rules (requiring IXCs to
    pay),[^58] the Commission's PIC charge regime permitted IXCs to
    assess the charge on payphone lines.[^59] As the Commission recently
    reiterated, "the Commission does not act as a collection agent for
    carriers with respect to unpaid tariffed charges."[^60]

    **D. Verizon is Entitled to Pre-Judgment Interest at the Applicable
    IRS Rate for Corporate Overpayments.**

20. Verizon is entitled to interest on the amounts owed it by OCI
    pursuant to rule 64.1301(a) and (c) at the applicable IRS rate for
    corporate overpayments, accruing on the second day of the second
    quarter following the quarter in which the calls were made. The
    Commission concluded in the *Fourth* and *Fifth* *Payphone
    Compensation Orders* that PSPs are entitled to interest on Interim
    Period compensation pursuant to rule 64.1301(a) and (c) at the
    applicable IRS rate for corporate overpayments.[^61] The Commission
    also concluded that, in accordance with the quarterly payment system
    applicable to payphone compensation, interest would begin to accrue
    on the second day of the second quarter following the quarter in
    which the calls were made.[^62] Accordingly, Verizon is entitled to
    such an award here.

21. OCI argues that the Commission should not award prejudgment
    interest, asserting that the "\[f\]acts described by Verizon do not
    demonstrate that an award of interest is warranted ...."[^63] Yet,
    as discussed, the Commission has already explicitly held that PSPs
    such as Verizon are entitled to prejudgment interest. The Commission
    explained that such an accrual period was necessary to ensure that
    PSPs "receive\[\] full compensation for this period."[^64] Nor does
    OCI identify any "facts described by Verizon" which would cause us
    to make an exception here.[^65]

    **IV. ORDERING CLAUSES**

22. ACCORDINGLY, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j), 201,
    208, and 276 of the Act, 47 U.S.C. §§ 151, 154(i), 154(j), 201, 208,
    276, and sections 1.720-1.736 and 64.1301 of the Commission's rules,
    47 C.F.R. §§ 1.720-1.736, 64.1301, that the above-captioned formal
    complaint is GRANTED IN PART and DISMISSED WITHOUT PREJUDICE IN
    PART.

23. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j), 201, 208,
    and 276 of the Act, 47 U.S.C. §§ 151, 154(i), 154(j), 201, 208, 276,
    and sections 1.720-1.736 and 64.1301 of the Commission's rules, 47
    C.F.R. §§ 1.720-1.736, 64.1301, that, within 90 days of release of
    this Order, OCI shall pay Verizon (a) damages (i) pursuant to
    Commission rule 64.1301(a), 47 C.F.R. § 64.1301(a), in the amount of
    \$49,503.00, and (ii) pursuant to Commission rule 64.1301(c), 47
    C.F.R. § 64.1301(c) in the amount of \$504,120.00; and (b) interest
    on such damages at the applicable IRS rate for corporate
    overpayments, accruing on the second day of the second quarter
    following the quarter in which the calls at issue were made, and
    continuing through the date of payment.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

**CONCURRING STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

Re: *Contel of the South, Inc. d/b/a Verizon Mid-States, et al. v.
Operator Communications, Inc.*, File No. EB-05-MD-007

While I agree with the Commission's decision in this case and believe
that the parties are entitled to a decision, I concur in this Order to
point out that the period of uncompensated payphone calls at issue
occurred over 10 years ago, and the Defendant has subsequently sold the
majority of its corporate assets and no longer provides
telecommunications services. Thus, the practical impact of today's
decision appears to be somewhat limited. I therefore must question
whether the damages awarded to the Complainants at this late date
constitute merely a Pyrrhic victory.

[^1]: Formal Complaint of Verizon, File No. EB-05-MD-007 (filed May 13,
    2005) ("Complaint").

[^2]: Contel of the South, Inc. d/b/a Verizon Mid-States, Verizon
    California Inc., The Micronesian Telecommunications Corporation,
    Verizon Delaware Inc., Verizon Florida Inc., Verizon Maryland Inc.,
    Verizon New England Inc., Verizon New York Inc., Verizon New Jersey
    Inc., Verizon North Inc., Verizon Northwest Inc., Verizon South
    Inc., Verizon Pennsylvania Inc., GTE Southwest Inc., Verizon
    Washington, D.C. Inc., and Verizon West Virginia, Inc. *See* Revised
    Joint Statement of Stipulated Facts, Disputed Facts, and Key Legal
    Issues, File No. EB-05-MD-007 (filed Aug. 8, 2005) ("Revised Joint
    Statement") at 2, ¶ 4.

[^3]: 47 U.S.C. § 208.

[^4]: 47 U.S.C. §§ 201, 276.

[^5]: 47 C.F.R. § 64.1301(a), (c).

[^6]: Revised Joint Statement at 2, ¶¶ 2, 4.

[^7]: Revised Joint Statement at 2, ¶ 2; Complaint at 2, ¶ 2; Initial
    Brief of Operator Communications, Inc., File No. EB-05-MD-007 (filed
    Sept. 23, 2005) ("OCI Initial Br."), Exhibit 10 (Interrogatory and
    Document Request Responses) at Exhibit C (Table).

[^8]: 47 U.S.C. § 276(b)(1)(A).

[^9]: *Implementation of the Pay Telephone Reclassification and
    Compensation Provisions of the Telecommunications Act of 1996*,
    Report and Order, 11 FCC Rcd 20541 (1996) (subsequent history
    omitted) ("*First Payphone Compensation Order*"); *Implementation of
    the Pay Telephone Reclassification and Compensation Provisions of
    the Telecommunications Act of 1996*, Fourth Order on Reconsideration
    and Order on Remand, 17 FCC Rcd 2020 (2002) (subsequent history
    omitted) ("*Fourth Payphone Compensation Order"*); *Implementation
    of the Pay Telephone Reclassification and Compensation Provisions of
    the Telecommunications Act of 1996*, Fifth Order on Reconsideration
    and Order on Remand, 17 FCC Rcd 21274 (2002) (subsequent history
    omitted) ("*Fifth Payphone Compensation Order*").

[^10]: *First Payphone Compensation Order*, 11 FCC Rcd at 20549, ¶ 16
    n.34.

[^11]: *First Payphone Compensation Order,* 11 FCC Rcd at 20549, ¶ 16
    n.35. "\[T\]he term 'subscriber 800 calls' includes other sequences
    of numbers that the FCC deems, or may deem in the future, the
    equivalent of subscriber 800 numbers, such as numbers with an '888'
    code." *Id*.

[^12]: *Fourth Payphone Compensation Order*, 17 FCC Rcd at 2028, ¶ 21.
    0+ calls include collect, credit card, and third number billing
    calls. *See First Payphone Compensation Order*, 11 FCC Rcd at 20549,
    ¶ 16 n.33.

[^13]: *See* *Fourth Payphone Compensation Order*, 17 FCC Rcd at
    2020-22, ¶¶ 1-4; *Fifth Payphone Compensation Order*, 17 FCC Rcd at
    21276-79, ¶¶ 2-9.

[^14]: 47 C.F.R. § 64.1301(a), (c).

[^15]: *See* Complaint at 13, ¶ 50 (alleging that OCI's failure to pay
    rule 64.1301(a) compensation violates sections 201 and 276 of the
    Act, and "Commission orders concerning payphone compensation.") *See
    also Global Crossing Telecomm. v. Metrophones Telecomm.*, 127 S.Ct.
    1513, 1520 (2007) (refusing to pay payphone compensation required by
    Commission rules violates section 201(b) of the Act).

[^16]: 47 C.F.R. § 64.1301(a).

[^17]: *Fifth Payphone Compensation Order*, 17 FCC Rcd at 21289, ¶¶
    47-48.

[^18]: *See* *Fifth Payphone Compensation Order*, 17 FCC Rcd at 21313
    (stating that OCI is to pay \$0.01772023 per payphone per month) and
    21315 (stating that ONCOR Communications is to pay \$0.00004209 per
    payphone per month). OCI admits, for the purposes of this
    litigation, that it is responsible for the obligations attributed to
    "ONCOR Communications" in Appendix A. *See* Revised Joint Statement
    at 7, ¶ 34.

[^19]: *See* Revised Joint Statement at 5, ¶¶ 25-26, 8-9, ¶¶ 38, 40-41.
    *See* Complaint, Tab F (Fouke Decl.) at 3, ¶ 9.

[^20]: Specifically, the parties agree that, (i) 493,230 Verizon
    payphones were in service in the second quarter of 1997, (ii)
    479,272 Verizon payphones were in service in the third quarter of
    1997, and (iii) 514,895 Verizon payphones were in service in the
    fourth quarter of 1997. *See* Final \[sic\] Brief in Support of
    Verizon's Complaint, File No. EB-05-MD-007 (filed Sept. 23, 2005)
    ("Verizon Initial Br.") Attachment 4 (Joint Statement of Additional
    Stipulated Facts) at 1, ¶ 1.

[^21]: Answer and Affirmative Defenses of Operator Communications, Inc.,
    File No. EB-05-MD-007 (filed June 23, 2005) ("Answer"), Tab D (Legal
    Analysis) at 12-13 (citing *Illinois Bell Telephone Co. v. AT&T*,
    Memorandum Opinion and Order, 4 FCC Rcd 5268, *recon. denied*, 4 FCC
    Rcd 7759 (1989), *Beehive Telephone, Inc. v. Bell Operating Cos.*,
    Memorandum Opinion and Order, 10 FCC Rcd 10562 (1995), and *Long
    Distance/USA, Inc. v. Bell Telephone Co. of Pa.*, Memorandum Opinion
    and Order, 7 FCC Rcd 408 (Com. Carrier Bur. 1992)); OCI Initial Br.
    at 32-34 (same).

[^22]: *See U.S. TelePacific Corp. v. Tel-America of Salt Lake City,
    Inc*., Memorandum Opinion and Order, 19 FCC Rcd 24552, 24556 n.28
    (2004) ("\[T\]he Commission does entertain claims to recover unpaid
    payphone compensation pursuant to section 276 of the Act . . . and
    sections 64.1300 through 64.1320 of the Commission's rules . . . .
    Unlike the statutory provisions and Commission rules regarding
    access charges -- which speak only to the duties of the charging
    carrier and not to the duties of the customer -- section 276 of the
    Act and section 64.1300 of the Commission's rules specifically
    impose an obligation on the 'customer' to pay payphone compensation
    charges. Therefore, a failure to pay payphone compensation charges
    constitutes a violation of the Act itself, which is actionable under
    section 208.")

[^23]: *See* *Illinois Bell Telephone Co.*, 4 FCC Rcd at 5270, ¶¶ 15-18
    (dismissing complaints alleging that defendant failed to pay
    tariffed rates for special access services on the ground that the
    Commission's complaint procedure is not "a collection mechanism for
    carriers"); *Beehive Telephone, Inc.*, 10 FCC Rcd at 10569, ¶ 37,
    n.90 (dismissing cross-complaint for amounts billed pursuant to
    tariff); *Long Distance/USA, Inc.*, 7 FCC Rcd at 412, ¶ 13
    (dismissing cross-complaint seeking payment for tariffed switched
    access service charges). *See generally* *U.S. Telepacific Corp.*,
    19 FCC Rcd 24552.

[^24]: *In re Pay Telephone Reclassification and Compensation Provisions
    of the Telecommunications Act of 1996*, Report and Order, 18 FCC Rcd
    19975, 19990, ¶ 32 (2003) (subsequent history omitted). *Accord*
    *APCC Services, Inc. v. NetworkIP, LLC*, Order on Review, 21 FCC Rcd
    10488, 10494-95, ¶ 16 (2006). *See Global Crossing Telecomm.*, 127
    S.Ct. at 1520 (violation of Commission payphone compensation rules
    violates section 201(b)).

[^25]: Answer Tab D (Legal Analysis) at 3-4.

[^26]: *See* Answer Tab C (Summary) at i, Tab D (Legal Analysis) at 2-5,
    Tab E (Answer and Affirm. Defenses) at 14-15, ¶¶ 76-78.

[^27]: *See* *Fourth Payphone Compensation Order*, 17 FCC Rcd at 2022, ¶
    5 n.18; *Fifth Payphone Compensation Order*, 17 FCC Rcd at 21294, ¶
    62 (citing *Ill. Pub. Telecomm. Ass'n v. FCC*, 117 F.3d 555, 565,
    *clarified on reh'g*, 123 F.3d 693 (D.C. Cir. 1997), *cert. denied
    sub nom*. *Virginia State Corp. Comm'n v. FCC*, 523 U.S. 1046
    (1998), in which the court, in vacating the Commission's rule
    governing compensation for dial-around calls, stated, "The FCC must
    now set a new interim rate ...").

[^28]: *See* Verizon Initial Br. Attachment 4 (Joint Statement of
    Additional Stipulated Facts) at 1, ¶ 2.

[^29]: Because Verizon will receive all the relief to which it is
    entitled under section 201(b) of the Act, we dismiss without
    prejudice Verizon's claims under section 276 of the Act and
    Commission orders.

[^30]: *See* Complaint at 13, ¶ 47 (alleging that OCI's failure to pay
    rule 64.1301(c) compensation violates sections 201 and 276 of the
    Act, and "Commission rules concerning OCI's payphone compensation").

[^31]: 47 C.F.R. § 64.1301(c).

[^32]: *Hi-Tech Furnace Systems, Inc. v. FCC*, 224 F.3d 781, 787 (D.C.
    Cir. 2000) (affirming the Commission's decision to impose the burden
    of proof on the complainant). *See* *Consumer.Net v. AT&T Corp*,
    Order, 15 FCC Rcd 281, 284-85, ¶ 6 (1999); *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, 22615, ¶ 291
    (1997).

[^33]: *See* Revised Joint Statement at 5, ¶¶ 25-26.

[^34]: *See* Complaint, Tab F (Fouke Decl.) at 3, ¶ 9.

[^35]: *See* Verizon Initial Br. at 2 and Attachment 3 (Fouke Decl.) at
    2-3, ¶¶ 5-7; Opposition Brief of Verizon, File No. EB-05-MD-007
    (filed Oct. 7, 2005) ("Verizon Opp. Br.") at 3; Reply Brief of
    Verizon, File No. EB-05-MD-007 (filed Oct. 14, 2005) ("Verizon Reply
    Br.") at 1; OCI Initial Br. at 30-31, Exhibit 10 (OCI's Responses to
    Interrogatory and Document Production Requests) at 2-3.
    Specifically, in each month of the Interim Period, OCI carried at
    least one 0+ call from the following number of Verizon payphones:
    April: 21,513 payphones; May: 21,970 payphones; June: 21,424
    payphones; July: 20,721 payphones; August: 20,033 payphones;
    September: 18,738 payphones; and October: 18,456 payphones. *Id.*
    OCI subsequently stated that its initial calculation was incorrect,
    and that it carried a slightly smaller number of 0+ calls from
    Verizon payphones during the Interim Period. *See* Opposition Brief
    of Operator Communications, Inc., File No. EB-05-MD-007 (filed Oct.
    7, 2005) ("OCI Opp. Br.") at 8 and Exhibit A. OCI's attempt to
    revise the record was not substantiated by a declaration or
    affidavit, and therefore must be rejected.

[^36]: *See* OCI Initial Br. at 1, 30, Exhibit 10 (OCI's Responses to
    Interrogatory and Document Production Requests) at 2; OCI Opp. Br.
    at 6.

[^37]: *See* Verizon Initial Br. at 5-6; Verizon Opp. Br. at 2-7;
    Verizon Reply Br. at 1-2.

[^38]: *Id.*

[^39]: *See* Supplemental Responses to Answer and Affirmative Defenses,
    File No. EB-05-MD-007 (filed June 30, 2005) ("Supp. Answer"), Tab 1
    (Hargrave Decl.) at 2-3, ¶¶ 6-10; OCI Initial Br. at 6-7, 11, 31-32;
    OCI Opp. Br. at i-ii, 3-8; Letter from Danny A. Adams, counsel OCI,
    to Secretary, FCC, File No. EB-05-MD-007 (filed Oct. 14, 2005) ("OCI
    Reply Br.") at 2-3.

[^40]: OCI Opp. Br. at 7 (citing *Clark v. Wilbur*, 913 F. Supp. 463
    (S.D. W. Va. 1996), *aff'd*, 139 F.3d 888 (4^th^ Cir. 1998)).

[^41]: *See* Verizon Initial Br. 7, Tab 3 (Fouke Decl) at 4, ¶ 11.

[^42]: *See* Verizon Initial Br. at 7-9, Attachment 3 (Fouke Decl.) at
    5-6, ¶ 15; Verizon Opp. Br. at 7-9; Verizon Reply Br. at 1-2.

[^43]: *See* Verizon Initial Br. at 9-11; Verizon Opp. Br. at 3, 9;
    Verizon Reply Br. at 1-2.

[^44]: OCI Initial Br. at 30-31 (emphasis in original).

[^45]: *See* OCI Initial Br. at 28 ("Although OCI does not dispute that
    some unknown number of Verizon payphones were presubscribed to OCI
    during the Interim Period, the exact number is not established by
    Verizon"); OCI Opp. Br. at 7-8; OCI Reply Br. at 1-2.

[^46]: OCI Opp. Br. at 7-8.

[^47]: 47 C.F.R. § 64.1301(c).

[^48]: *See* 47 C.F.R. § 64.1301(c) ("an \[IXC\] to which the payphone
    was presubscribed during this same time period must compensate the
    \[PSP\] ... per payphone per month during the same time period . .
    .").

[^49]: 47 C.F.R. § 64.1301(c).

[^50]: *See* Answer, Tab D (Legal Analysis) at 6 and Exhibit 1 (Letter
    from Verizon to Secretary, FCC); OCI Initial Br. at 16-17, 23.

[^51]: *See* Answer, Tab D (Legal Analysis) at 6-7 ("Because this amount
    \[due under Commission rule 64.1301(a)\] is inflated by an amount
    reflecting OCI's 0+ calls, OCI compensates Verizon for 0+ traffic
    through this \[rule 64.1301(a)\] obligation .... Therefore,
    Verizon's claim for 0+ compensation should be dismissed"); OCI
    Initial Br. at 16-17, 23; OCI Opp. Br. at 9 n.29.

[^52]: *See* 47 C.F.R. § 64.1301(a) ("each entity listed in Appendix A
    of the \[*Fifth Payphone Compensation Order*\] must pay default
    compensation to \[PSPs\] for *payphone access code calls and
    payphone subscriber 800 calls* for the \[Interim\] \[P\]eriod...")
    (emphasis added).

[^53]: *See* 47 U.S.C. § 402(a); 28 U.S.C. § 2344 (any party "aggrieved"
    by a "final \[agency\] order may, within 60 days after its entry,
    file a petition to review the order in the court of appeals wherein
    venue lies").

[^54]: OCI also argues that Verizon's rule 64.1301(c) claim should be
    denied because it is a "collection action,", and because rule
    64.1301(c) is retroactive. *See* Answer Tab C (Summary) at i, Tab D
    (Legal Analysis) at 2-5, Tab E (Answer and Affirm. Defenses) at
    14-15, ¶¶ 76-78; OCI Initial Br. at 32-34. We reject these arguments
    for the same reason we reject OCI's virtually identical arguments
    with respect to Verizon's rule 64.1301(a) claim. *See* *supra* at ¶¶
    7-8.

[^55]: *See* Verizon Initial Br., Attachment 3 (Fouke Decl.), Exhibit D
    (Table entitled "0+ Compensation Amounts").

[^56]: *See* Complaint at 14, ¶ 53 (alleging that OCI violated section
    201of the Act and Commission orders by refusing to comply with
    Verizon's tariffed PIC charges).

[^57]: *See* Answer Tab D (Legal Analysis) at 12-13; OCI Initial Br. at
    35.

[^58]: *See supra* at ¶ 4.

[^59]: *See* Complaint Tab E (Legal Analysis) at 16 (citing *Access
    Charge Reform,* First Report and Order, 12 FCC Rcd 15982, 16019, ¶
    92 (1997); *Access Charge Reform,* Order on Reconsideration*,* 18
    FCC Rcd 12626, 12627, ¶ 3 (2003)).

[^60]: *U.S. TelePacific Corp.*, 19 FCC Rcd at 24557, ¶ 11. We dismiss
    without prejudice because Verizon may seek to recover PIC charges
    from OCI in an appropriate forum, including federal district court,
    if it so chooses. *See* *id*. at 24555-56, ¶ 8. *Cf. Global Crossing
    Telecomm.*, 127 S.Ct. at 1520 (refusing to pay payphone compensation
    required by Commission rules violates section 201(b) of the Act);
    *NetworkIP*, 12 FCC Rcd at 10492-95, ¶¶ 12-16 (same).

[^61]: *See Fourth Payphone Compensation Order*, 17 FCC Rcd at 2032, ¶
    31 ("interest shall be paid on interim ... period compensation at
    the rate established under Section 6621 of the Internal Revenue
    Code, 26 U.S.C. § 6621"); *id*. at 2035, ¶ 37 ("the interest rate
    applied to the interim period ... \[is\] the applicable interest
    rate set by the IRS pursuant to Section 6621 of the Internal Revenue
    Code for refund obligations"); *id.* at 2032 n.89 ("Appendix C \[of
    this order\] provides IRS rates for the last quarter of 1996 through
    March 31, 2002 ..."); *id*. at Appendix C (setting forth the IRS
    rate for overpayments); *Fifth Payphone Compensation Order*, 17 FCC
    Rcd at 21307-08, ¶¶ 99-100 (refusing to reconsider the *Fourth
    Payphone Compensation Order* ruling that the IRS-prescribed interest
    rate applies to late payment of Interim Period compensation).

[^62]: *See* *Fifth Payphone Compensation Order*, 17 FCC Rcd at 21308, ¶
    101("\[T\]he IRS-prescribed interest rate will only begin to accrue
    after the date payment normally would have been rendered under the
    quarterly payment system applicable to payphone compensation.
    Consistent with our assumptions under prior orders, the
    IRS-prescribed interest rate for payments that should have been made
    the first quarter of the year will begin accruing on July 2 of the
    same year, for the second quarter of the year on October 2 of that
    same year, for the third quarter on January 2 of the next year, and
    for the fourth quarter on April 2 of the next year.") (citations
    omitted).

[^63]: Answer Tab D (Legal Analysis) at 13-14.

[^64]: *In re* *Pay Telephone Reclassification and Compensation
    Provisions of the Telecommunications Act of 1996*, Third Report and
    Order, and Order on Reconsideration of the Second Report and Order,
    14 FCC Rcd 2545, 2636, ¶ 197 n.427 (1999).

[^65]: OCI argues further that pre-judgment interest should not be
    awarded because "the Commission delayed for five years before
    establishing any compensation obligation in the first place." Answer
    Tab D (Legal Analysis) at 13-14. We reject this argument for the
    same reasons we rejected OCI's argument that rules 64.1301(a) and
    (c) are unlawfully retroactive. *See supra* at ¶ 8.