Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+----+------------------------------+
| In the Matter of                 | )  | File No. EB-05-MD-009        |
|                                  |    |                              |
| Operator Communications, Inc.,   | )  |                              |
|                                  |    |                              |
| Complainant,                     | )  |                              |
|                                  |    |                              |
| v\.                              | )  |                              |
|                                  |    |                              |
| 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.,                            | )\ |                              |
|                                  | )\ |                              |
| Defendants.                      | )\ |                              |
|                                  | )\ |                              |
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|                                  | )\ |                              |
|                                  | )\ |                              |
|                                  | )\ |                              |
|                                  | )\ |                              |
|                                  | )  |                              |
+----------------------------------+----+------------------------------+

Memorandum opinion and order

Adopted: December 9, 2005 Released: December 9, 2005

By the Commission:

# introduction

1.  In this Memorandum Opinion and Order, we dismiss a formal
    complaint[^1] filed by Operator Communications, Inc. ("OCI") against
    the Verizon Telephone Companies[^2] pursuant to section 208 of the
    Communications Act of 1934, as amended ("Act").[^3] OCI's Formal
    Complaint seeks, *inter alia*, a refund of certain presubscribed
    interexchange carrier charges ("PICCs") that Verizon billed to OCI
    from April 1998 to April 2001. OCI did not initiate its claim for
    refund, however, until July 6, 2004, more than six years after the
    charges began, and more than three years after the charges ceased.
    OCI has proffered no valid basis to excuse the delay in initiating
    its claims. Consequently, OCI's claim is barred by the two-year
    statute of limitations in section 415 of the Act.[^4] To promote
    fairness and finality, a party seeking from the Commission the
    serious remedy of a monetary damages award against a particular
    common carrier must do so in strict accordance with the requirements
    of the Act and our rules.

# background

## The Parties

2.  At all relevant times, OCI was a presubscribed 0+ interexchange
    carrier for payphones owned by the Verizon Telephone Companies.[^5]
    The presubscribed interexchange carrier is selected by either the
    owner of the payphone or the location provider to provide long
    distance services for coinless calls made by callers dialing "0"
    plus the telephone number. OCI provides operator-assisted calling
    service, primarily from local exchange carrier ("LEC") pay
    telephones.[^6] The Verizon Telephone Companies ("Verizon") are the
    affiliated incumbent local exchange carriers and wholly owned
    (directly or indirectly) subsidiaries of Verizon Communications
    Inc.[^7] Verizon serves territories formerly served by Bell Atlantic
    entities, NYNEX entities, and GTE.[^8]

## The Notice and Comment Proceeding

3.  On May 4, 1998, the Commission issued a Public Notice seeking
    comments regarding whether and to what extent the Commission's rules
    permitted LECs to bill PICCs for lines serving LEC-owned
    payphones.[^9] The Commission initiated that proceeding (the
    "Notice-and-Comment Proceeding") in response to several letters \--
    including a letter dated April 22, 1998 from OCI to the Chief of the
    Common Carrier Bureau[^10] \-- questioning the lawfulness of such
    PICCs then being billed by LECs.[^11]

4.  Later in 1998, Bell Atlantic filed comments and reply comments, and
    OCI filed comments, in the Notice-and-Comment Proceeding.[^12] In
    1999, OCI filed in the Notice-and-Comment Proceeding a motion for
    interim relief \-- to which Bell Atlantic filed an Opposition \--
    and a request to file a supplement to its motion for interim
    relief.[^13] OCI sought in those filings a Commission order
    directing Bell Atlantic to refrain from taking adverse action
    against OCI based on OCI's refusal to pay PICCs on payphone
    lines.[^14] The Commission did not rule on OCI's Interim Request and
    Supplement Request in the Notice-and-Comment Proceeding, which
    remains open.[^15] The last OCI filing in the Notice-and-Comment
    Proceeding was its Supplement Request, dated August 20, 1999.[^16]

5.  Between April 1998 and April 2001, in reliance on various tariff
    provisions, Verizon assessed the PICC on OCI for lines serving
    Verizon-owned payphones.[^17] OCI ultimately paid those charges,
    protesting to Verizon as it did so.[^18]

6.  On June 25, 2003, in a proceeding other than the Notice-and-Comment
    Proceeding, the Commission issued an order addressing the questions
    raised in the Notice-and-Comment Proceeding.[^19] Specifically, the
    *Payphone PICC Order* "establish\[ed\] that payphone lines are
    exempted from the PICC on a going-forward basis .... Therefore,
    price cap LECs that still assess the PICC on multi-line business
    lines must adjust their rates in their October 1, 2003 tariff
    filings to reflect that the PICC no longer applies to payphone
    lines."[^20] The *Payphone PICC Order* went on to state that the
    Commission "ma\[d\]e no finding with respect to the application of
    PICCs prior to the effective date of this Order."[^21]

## OCI's Claim for Damages from Verizon

7.  On July 6, 2004, pursuant to section 1.716 of our rules,[^22] OCI
    filed an informal complaint against Verizon seeking (i) lost profits
    and (ii) refunds of the PICCs that Verizon assessed OCI from April
    1998 to April 2001.[^23] OCI contended that the *Payphone PICC
    Order*'s exemption of payphone lines from PICCs applies
    retroactively and renders Verizon's PICCs unlawful under sections
    201(b) and 276 of the Act. After Verizon responded by denying OCI's
    claim,[^24] OCI "converted" its informal complaint to a formal
    complaint pursuant to section 1.718 of our rules.[^25]

8.  Verizon asserts three defenses to OCI's claim. First, Verizon argues
    that the two-year statute of limitations in section 415 of the Act
    bars OCI's claim, because the claim accrued upon OCI's receipt of
    each PICC bill, and OCI received the last such bill in April 2001,
    much more than two years before OCI filed the July 6, 2004 informal
    complaint.[^26] Second, in Verizon's view, Verizon's PICCs were
    lawfully tariffed when assessed on OCI through April 2001, and the
    Commission's subsequent exemption of payphone lines from PICCs in
    the 2003 *Payphone PICC Order* applies prospectively only.[^27]
    Third, according to Verizon, Verizon assessed most of the PICCs at
    issue pursuant to tariffs that were filed on a "streamlined" basis
    pursuant to section 204(a)(3) of the Act,[^28] so most of the
    charges are "deemed lawful" and cannot form the basis of a damages
    award.[^29]

9.  For the following reasons, we hold that the two-year statute of
    limitations in section 415 of the Act bars OCI's claim in its
    entirety. Consequently, we dismiss OCI's Formal Complaint without
    reaching Verizon's other affirmative defenses.

# discussion

## Absent Tolling, the Two-Year Statute of Limitations Bars OCI's Claim.

10. The two-year statute of limitations in section 415 of the Act
    applies to OCI's claim.[^30] That "statute of limitations is a
    statute of repose, designed to protect a potential defendant against
    stale and vexatious claims by ending the possibility of litigation
    after a reasonable period of time has elapsed."[^31] Consequently,
    "\[s\]ection 415 ... must be applied even if to do so produces
    hardships."[^32]

11. It is well established that a customer's claim challenging the
    lawfulness of a carrier's charges accrues when the customer receives
    the carrier's bill containing the allegedly unlawful charges.[^33]
    Applying that rule here, a portion of OCI's damages claim accrued
    each time OCI received a PICC bill from Verizon from April 1998 to
    April 2001.[^34] Accordingly, under the two-year statute of
    limitations set forth in section 415 of the Act, portions of OCI's
    damages claim began to expire in April 2000, and the claim lapsed
    altogether in April 2003. Consequently, absent some basis for
    tolling the running of the limitations period, we must dismiss as
    time-barred OCI's July 2004 claim for PICC refunds.

12. OCI does not dispute the foregoing operation of the statute of
    limitations. OCI asserts two grounds, however, for tolling the
    running of the limitations period: (1) general principles of equity
    and (2) the pendency of the Notice-and-Comment Proceeding. We
    consider and reject each of those grounds below.

## Principles of Equity Do Not Warrant Tolling.

13. OCI argues that principles of equity warrant tolling of the
    limitations period applicable to its damages claim against Verizon,
    because (i) OCI had to pay Verizon's PICC bills in order to avoid
    serious harm to its business; (ii) Verizon knowingly assumed the
    risk that the Commission would ultimately find the payphone PICCs
    unlawful; (iii) Verizon's payphone PICCs did not serve to reimburse
    Verizon for any incurred costs; (iv) the Commission's PICC rules
    were ambiguous, as applied to payphone lines; (v) OCI actively
    participated in the Notice-and-Comment Proceeding; (vi) the
    Commission did not resolve the Notice-and-Comment Proceeding
    expeditiously; (vii) OCI consistently protested to Verizon regarding
    the payphone PICCs; and (viii) "OCI had no other \[remedial\]
    options.... It was stuck in a notice and comment proceeding."[^35]
    Put differently, according to OCI, it would be unfair to enforce the
    statute of limitations against OCI, given that doing so would harm
    OCI more than it would benefit Verizon, and OCI did everything it
    could and should have done to preserve its claim. We reject OCI's
    argument, for the following reasons.

14. OCI has not cited any precedent (and we have found none) in which
    either the Commission or a court has tolled the operation of section
    415 on "equitable" grounds like those proffered by OCI here. "The
    construction of section 415 by the Commission and the federal courts
    has been strict and exceptions to its application have been confined
    to narrow circumstances."[^36] Indeed, the Commission has identified
    only one circumstance that warrants equitable tolling of section 415
    -- fraudulent concealment by the defendant of the facts giving rise
    to the claim.[^37] As the Commission has explained:

> \[Where\] there is no allegation of fraud or deceit, having been
> practiced by the defendant upon complainant to prevent him from
> becoming aware of the facts which are the basis of its claim, *there
> is no way of . . . tolling the statute of limitations*.[^38]

15. Applying that standard here, "there is no way of tolling the statute
    of limitations." OCI has neither shown nor even alleged that Verizon
    concealed the fact that Verizon was assessing PICCs on OCI's
    payphone lines.[^39] In fact, Verizon expressly suggested over five
    years ago that OCI should file a complaint if it sought to recover
    such PICCs.[^40]

16. In a short footnote in its final substantive submission \-- which
    concerns an entirely different issue \-- OCI suggests for the first
    time that Verizon committed fraud by twice telling OCI that Verizon
    would refund paid PICCs if the Commission were to rule that payphone
    PICCs are unlawful.[^41] OCI's suggestion is not only late,[^42] but
    also erroneous. One Verizon statement was nothing more than a
    recognition by Bell Atlantic that OCI's agreement to pay disputed
    charges was not a concession by OCI of the charges' validity; no
    reference to refunds was made.[^43] The other Verizon statement was
    one made merely by a GTE billing specialist that "appropriate"
    credits would be provided if the Commission were to rule in OCI's
    favor.[^44] However, OCI could not have reasonably believed that
    "appropriate" credits would include those sought more than two years
    after the disputed charges were imposed, especially given that,
    several months *after* this statement by a GTE billing specialist,
    attorneys for GTE's imminent purchaser (Bell Atlantic) expressly
    notified OCI of the need to file a complaint.[^45] Indeed, OCI has
    presented no argument or evidence that it refrained from filing a
    complaint in reliance on either of these statements. Thus, OCI has
    fallen short of meeting the high evidentiary burden of showing
    fraud.[^46] Consequently, we reject OCI's contention that we should
    equitably toll the operation of section 415 in this case.

17. In addition, even assuming, *arguendo*, that we could equitably toll
    the operation of section 415 on some basis other than fraudulent
    concealment, OCI's proffered bases are not compelling. First, as
    fully explained *infra*,[^47] OCI's contention that it had no choice
    but to await the outcome of the Notice-and-Comment Proceeding before
    filing a complaint for damages against Verizon is unfounded. As
    Verizon itself pointed out to OCI in 1999, at all relevant times OCI
    could have filed a complaint for damages against Verizon if OCI had
    an interest in pursuing that remedy. [^48] Second, even within the
    context of the Notice-and-Comment Proceeding, OCI did not diligently
    pursue the remedy it seeks here: OCI's submissions never mentioned a
    request for refunds or lost profits;[^49] and OCI submitted its last
    pleading in that Proceeding in 1999, [^50] and then remained silent
    for almost four years before the Commission answered the payphone
    PICC questions raised in that Proceeding. Third, even after the
    Commission answered the payphone PICC questions raised in that
    Proceeding,[^51] OCI waited another year before filing its informal
    complaint for damages against Verizon.[^52]

18. Finally, OCI's assertion that applying the statute of limitations
    would unfairly allow a large company like Verizon to retain
    ill-gotten gains at the expense of a small company like OCI
    similarly provides no basis for tolling section 415. As the
    Commission has frequently stated, "the fact that application of
    section 415 of the Act may result in hardship in some instances does
    not mean Congress intended that the statute be tolled or that a
    defendant may be estopped from reliance thereon."[^53] Indeed,
    statutes of limitations inherently involve the potential for denying
    otherwise valid claims. In recently affirming the Commission's
    holding that section 415 barred certain damages claims brought by
    relatively small independent payphone providers ("IPPs") against
    relatively large local exchange carriers ("LECs") (including
    Verizon), the D.C. Circuit observed:

> While it is certainly true that the Commission's decision \[not to
> equitably toll section 415\] allows the LECs to keep money that ...
> they collected unlawfully, that is both the nature of a statute of
> limitations and the consequence of the IPPs' failure to file and
> pursue their complaints in a timely manner.[^54]

That observation is particularly apt in this proceeding, because here,
unlike in the D.C. Circuit case, Verizon asserts several defenses that
the Commission has not decided; consequently, here, unlike in the D.C.
Circuit case, it is not clear that Verizon collected the charges
unlawfully.

19. In sum, we reject OCI's contention that we should equitably toll the
    running of the limitations period under section 415. OCI has shown
    neither fraudulent concealment by Verizon nor any other basis to
    warrant such tolling.

## The Pendency of the Notice-and-Comment Proceeding Does Not Warrant Tolling.

20. OCI also contends that the pendency of the Notice-and-Comment
    Proceeding tolls the running of the limitations period for OCI's
    damages claim against Verizon. In OCI's view, once the Commission
    chose to examine the lawfulness of payphone PICCs in the context of
    the Notice-and-Comment Proceeding, OCI allegedly had no choice but
    to await that Proceeding's outcome before filing its damages
    claim.[^55] According to OCI:

> \[C\]arriers did not have the same options they have today for filing
> complaints against other carriers. OCI's only option -- particularly
> since the Commission already initiated a proceeding addressing the
> matter -- was to submit pleadings, comments, motions, and form orders
> in the \[Notice-and-Comment Proceeding\] .... \[A\]ny other initiative
> at the Commission would be duplicative.[^56]

21. OCI's fundamental premise is incorrect. It simply is not true that
    an aggrieved party could not file an adjudicatory complaint for
    damages against a particular defendant while a general,
    notice-and-comment proceeding involving similar issues was
    pending.[^57] No Commission rule or order creates such a bar, and
    OCI cites to none. Recognizing this, Verizon pointed out to OCI the
    need to file a complaint in 1999,[^58] as did Qwest,[^59] which OCI
    failed to do. Indeed, the Commission's rules contemplate the
    possibility of simultaneous complaint and non-complaint proceedings.
    Rule 1.721(a)(9) requires a plaintiff to indicate "whether the
    complaint seeks prospective relief identical to the relief proposed
    or at issue in a notice-and-comment proceeding that is concurrently
    before the Commission. . . ."[^60] Thus, the fact that the
    Notice-and-Comment Proceeding was pending did not bar OCI from
    filing, at a minimum, an informal complaint to preserve its rights
    and did not toll the limitations period applicable to OCI's
    adjudicatory damages claim against Verizon.[^61] Indeed, under
    closely analogous circumstances, the D.C. Circuit recently confirmed
    that the filing of a petition for declaratory ruling by a trade
    association does not toll the statute of limitations for damages
    complaints by individual payphone providers addressing the same
    underlying conduct.[^62]

22. OCI analogizes the situation here to situations in which courts,
    invoking the administrative exhaustion doctrine, toll the
    limitations period for filing a court claim while a party pursues
    all available administrative remedies.[^63] That analogy does not
    bear out. The administrative exhaustion doctrine addresses the
    adjudicatory functions of, and the relationships between, agencies
    and courts and does not apply in this wholly intra-agency context.
    The question here concerns the complaint and non-complaint functions
    within the Commission itself, not the complaint functions of the
    Commission and courts; and, as previously stated, there is no
    Commission rule or order requiring "exhaustion" of general
    notice-and-comment procedures before a particular plaintiff may file
    an adjudicative complaint for damages against a specific
    defendant.[^64]

23. Almost as an aside, OCI cursorily suggests in its Formal Complaint
    that its submissions in the Notice-and-Comment Proceeding constitute
    an informal complaint for damages under Commission rules and thereby
    tolled the running of the limitations period of section 415.[^65] We
    reject that suggestion. An "informal complaint" filed pursuant to
    sections 1.716 -- 1.718 of the Commission's rules constitutes a
    "complaint" within the meaning of section 415 of the Act and thus
    tolls the running of the limitations period.[^66] Although the
    Commission's rules regarding the content of informal complaints are
    not extensive, they do require the complainant to put a defendant
    and the Commission on fair notice that the complainant is
    seeking (i) the initiation of the Commission's section 208 complaint
    procedures (ii) regarding a particular defendant and (iii) a
    specific remedy that may later be sought in a formal complaint.[^67]

24. OCI's submissions in the Notice-and-Comment Proceeding did none of
    those things. OCI's April 1998 Letter and subsequent Comments were
    not styled as complaints, did not reference the complaint provisions
    of the Act or the Commission's rules, did not name any Verizon
    entity as a particular target of their actions, and did not request
    the specific remedy of monetary damages against a particular
    defendant, which remedy "can only be obtained from the Commission
    within the parameters established by Sections 206-209 of the Act and
    Sections 1.711 through 1.735 of the Commission's rules."[^68] The
    same is true of OCI's Interim and Supplement Requests (except that
    those did pertain to Verizon).[^69]

25. Because OCI's submissions lacked the fundamental traits of an
    informal complaint, the Commission plainly and correctly did not
    handle OCI's submissions as an informal complaint under the
    Commission's rules. OCI never asked the Commission to treat its
    submissions as an informal complaint, and never notified the
    Commission that it believed its submissions constituted an informal
    complaint that could ultimately entitle it to monetary damages in a
    formal complaint proceeding against Verizon. Further, Verizon
    plainly did not view OCI's submissions as a complaint, because
    Verizon suggested in response to these filings that OCI ought to
    *file* a complaint.[^70] Even after this explicit invitation, OCI
    did not respond by saying its submissions already constituted an
    informal complaint or separately file a complaint. Given these
    circumstances, we find that OCI's submissions in the
    Notice-and-Comment Proceeding do not constitute an informal
    complaint that tolled the operation of section 415.[^71]

26. The rulings in *MCI v. PacTel* and *Communications Vending v. FCC*
    support these conclusions. Both of those cases soundly reject
    belated attempts to re-characterize as complaints submissions
    closely akin to those of OCI here, *i.e.*, letters that neither
    referenced any complaint provisions nor sought damages from a
    particular defendant.[^72] Accordingly, OCI's submissions in the
    Notice-and-Comment Proceeding did not toll the running of the
    limitations period set forth in section 415 of the Act.

27. Even if we were to disregard reason and precedent to treat OCI's
    submissions in the Notice-and-Comment Proceeding as an informal
    complaint, section 415 would still time-bar OCI's Formal Complaint
    for two reasons. First, if we were to liberally construe OCI's
    submissions in the Notice-and-Comment Proceeding as an informal
    complaint, then we would also have to liberally construe Verizon's
    submissions in the Notice-and-Comment Proceeding as a "response" to
    OCI's informal complaint, in which case OCI would have had six
    months from Verizon's response (or until 2000) to file a formal
    complaint that would "relate-back" to the filing date of OCI's
    informal complaint.[^73] OCI missed that deadline by several years.
    Second, 47 C.F.R. § 1.716 requires an informal complaint to state
    "the specific relief or satisfaction sought," and the filing date of
    a formal complaint relates back to the prior filing date of the
    informal complaint only if, *inter alia*, the formal complaint "is
    based on the same cause of action as the informal complaint."[^74]
    Because OCI's submissions in the Notice-and-Comment Proceeding did
    not seek the specific relief that OCI seeks in this formal complaint
    proceeding (*i.e.*, retrospective money damages), OCI's formal
    complaint filed in 2005 is not based on the same cause of action as
    OCI's Notice-and-Comment submission and thus does not relate back to
    OCI's 1998-1999 "informal complaint."[^75]

# conclusion 

28. OCI's claim against Verizon for monetary damages accrued no later
    than April 2001. The applicable statute of limitations is two years.
    Therefore, absent some basis for tolling of the running of the
    two-year limitations period, OCI's claim expired in April 2003, well
    before OCI filed this formal complaint. All of the bases proffered
    by OCI for such tolling lack merit. Therefore, the statute of
    limitations bars OCI's formal complaint.

# ordering Clause 

29. ACCORDINGLY, IT IS HEREBY ORDERED that, pursuant to sections 1,
    4(i), 4(j), 208, and 415 of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 151, 154(i), 154(j), 208, and 415, the formal
    complaint filed by Operator Communications, Inc. is DISMISSED WITH
    PREJUDICE.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch Secretary

[^1]: Formal Complaint of Operator Communications, Inc., File No.
    EB-05-MD-009 (filed June 3, 2005) ("Formal 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-009 (filed Aug. 8, 2005) ("Revised Joint
    Statement") at 1, n.1.

[^3]: 47 U.S.C. § 208.

[^4]: 47 U.S.C. § 415.

[^5]: *See, e.g.*, Revised Joint Statement at 2, ¶ 2. OCI was formerly
    known as Oncor. *See* Joint Statement of Stipulated Facts, Disputed
    Facts, and Key Legal Issues, File No. EB-05-MD-009 (filed July 12,
    2005) ("Joint Statement") at Exhibits JS-15, 17, 20, 22.

[^6]: OCI is no longer a going concern. *See Contel of the South, Inc.
    d/b/a/Verizon Mid-States v. Operator Communications, Inc.,* Answer
    and Affirmative Defenses of Operator Communications, Inc., File No.
    EB-05-MD-007 (filed June 23, 3005) Tab D (Legal Analysis) at 1. Its
    only "assets" appear to be this claim against Verizon and similar
    claims that it filed in 2005 against SBC Communications, Inc., Qwest
    Corporation, and Sprint Corporation, all of whom raise the same
    limitations defense as does Verizon here. *See OCI v. SBC
    Communications, Inc.*, Informal Complaint of Operator
    Communications, Inc., File No. EB-05-MDIC-0017 (filed June 17,
    2005); *OCI v. Sprint Corp.*, Informal Complaint of Operator
    Communications, Inc., File No. EB-05-MDIC-0019 (filed June 17,
    2005); *OCI v. Qwest Corp.*, Informal Complaint of Operator
    Communications, Inc., File No. EB-05-MDIC-0018 (filed June 17,
    2005).

[^7]: *See, e.g.*, Revised Joint Statement at 2, ¶¶ 3-4.

[^8]: *See, e.g.*, *Contel of the South, Inc. d/b/a/Verizon Mid-States
    v. Operator Communications, Inc.*, Revised Joint Statement of
    Stipulated Facts, Disputed Facts, and Key Legal Issues, File No.
    EB-05-MD-007 (filed Aug. 8, 2005) at 10, ¶¶ 49-50.

[^9]: Formal Complaint at Exhibit 2 (Commission Seeks Comment on
    Specific Questions Related to Assessment of Presubscribed
    Interexchange Carrier Charges on Public Payphone Lines, CCB/CPD No.
    98-34 (rel. May 4, 1998)) ("Public Notice").

[^10]: Formal Complaint at Exhibit 1 (Letter dated Apr. 22, 1998 to
    Chief, Common Carrier Bureau, from General Counsel, Oncor, Re:
    Application of Presubscribed Interexchange Carrier (PICC) Charges to
    Pay Telephones Owned by Local Exchange Carriers) ("April 1998
    Letter").

[^11]: *See* Public Notice at 3.

[^12]: Formal Complaint at Exhibit 3 (Comments of Oncor Communications,
    Inc.); Joint Statement at Exhibit JS-18 (Comments of Bell Atlantic),
    JS-19 (Reply Comments of Bell Atlantic). Other commenters included
    SBC, US West, Sprint, Southern New England Telephone, One Call
    Communications, National Operator Services, GTE Service Corporation,
    Cleartel Communications, BellSouth, MCI, and the American Public
    Communications Council. *See, e.g.*, Formal Complaint at 6, n.18.

[^13]: *See* Formal Complaint at Exhibit 4 ("Interim Request"); Joint
    Statement at Exhibit JS-21; Formal Complaint at Exhibit 7
    ("Supplement Request").

[^14]: Interim Request at 1, 4-5, 10; Supplement Request at 1-2.

[^15]: *See* Revised Joint Statement at 9, ¶ 68.

[^16]: *See* Formal Complaint at 32-33, ¶ 73.

[^17]: *See* Revised Joint Statement at 4-7, ¶¶ 25, 29-53.

[^18]: *See, e.g., id.* at 4-7, ¶¶ 26-55; 10-12, ¶¶ 75-84.

[^19]: *Access Charge Reform, Price Cap Performance Review for Local
    Exchange Carriers*, Order on Reconsideration, 18 FCC Rcd 12626
    (2003) ("*Payphone PICC Order*").

[^20]: *Payphone PICC Order*, 18 FCC Rcd at 12629-30, ¶¶ 8-9.

[^21]: *Id*. at 12629, ¶ 8. The Commission also noted that "\[p\]rice
    cap LECs may recover the revenue previously recovered through
    assessing the PICC on payphone lines by adjusting their multi-line
    business PICCs." *Id*. at 12629-30, ¶ 9.

[^22]: 47 C.F.R. § 1.716.

[^23]: Informal Complaint, File No. EB-04-MDIC-0096 (filed July 6, 2004)
    ("Informal Complaint").

[^24]: Letter from Kathleen Grillo, Verizon, to Radhika Karmarkar,
    Enforcement Bureau, File No. EB-04-MDIC-096 (filed Sept. 3, 2004).

[^25]: 47 C.F.R. § 1.718. *See* Formal Complaint. *See also* Letter from
    Alexander P. Starr, Enforcement Bureau, to Danny Adams, counsel for
    OCI, and Karen Zacharia, counsel for Verizon, File No. E05-MD-006
    (filed May 23, 2005) (extending until June 3, 2005 OCI's deadline to
    convert its informal complaint into a formal complaint pursuant to
    rule 1.718).

[^26]: *See, e.g.*, The Verizon Telephone Companies' Supplemental Answer
    to Operator Communications, Inc.'s Complaint, File No. EB-05-MD-009
    (filed June 30, 2005) ("Verizon Answer") at 18-22, ¶¶ 52-64; 31-32;
    Supplemental Legal Analysis in Support of Verizon's Supplemental
    Answer, File No. EB-05-MD-009 (filed June 30, 2005) ("Verizon Legal
    Analysis") at 1, 4-10; Verizon's Initial Brief, File No.
    EB-05-MD-009 (filed Aug. 25, 2005) at 1, 8; Verizon's Reply Brief,
    File No. EB-05-MD-009 (filed Sept. 9, 2005) at 1-2.

[^27]: *See* Verizon Answer at 7-9, ¶¶ 18-19, 21-24; 11-12, ¶ 31; 15-16,
    ¶¶ 42-45; 24, ¶ 71; 26-27, ¶¶ 76-81; 32-33. *See also* Verizon Legal
    Analysis at 1-3, 9-13; Verizon's Initial Brief at 1; Verizon's Reply
    Brief at 1.

[^28]: 47 U.S.C. § 204(a)(3).

[^29]: *See* Verizon Answer at 27-28, ¶¶ 82-83; 33. *See also* Verizon
    Legal Analysis at 1, 3, 13-16; Verizon's Initial Brief at 2, 9.

[^30]: 47 U.S.C. § 415(b) and (c), providing that all complaints against
    carriers for the recovery of damages shall be filed with the
    Commission within two years from the time the cause of action
    accrues.

[^31]: *Bunker Ramo Corp. v. The Western Union Telegraph Co., New York,
    N.T.*, Memorandum Opinion and Order, 31 FCC 2d 449, 453-4, ¶ 12
    (Rev. Bd. 1971) ("*Bunker Ramo v. Western Union*"). *See*, *e.g.*,
    *Communications Vending Corp. of Arizona, Inc. v. Citizens
    Communications Co.*, Memorandum Opinion and Order, 17 FCC Rcd 24201,
    24222-23, ¶ 50 (2002) ("*EUCL Order*"), *aff'd*, *Communications
    Vending Corp. of Arizona, Inc. v. FCC*, 365 F.3d 1064 (D.C. Cir.
    2004) ("*Communications Vending v. FCC*"); *US Sprint Communications
    Co. v. American Telephone & Telegraph Co.*, Memorandum Opinion and
    Order, 9 FCC Rcd 4801, 4803, ¶ 10 (1994) ("*US Sprint v. AT&T"*).

[^32]: *Michael J. Valenti and Real Estate Market Place of New Jersey
    T/A Real Estate Alternative v. American Telephone and Telegraph
    Co.*, Memorandum Opinion and Order, 12 FCC Rcd 2611, 2621-22, ¶ 24
    (1997) ("*Valenti v. AT&T*"), *quoting* *Municipality of Anchorage
    d/b/a Anchorage Telephone Utility v. Alascom, Inc.*, Memorandum
    Opinion and Order, 4 FCC Rcd 2472, 2476, ¶ 30 (Com. Car. Bur. 1989)
    ("*Anchorage v. Alascom*"). *See*, *e.g.*, *Communications Vending
    v. FCC*, 365 F.3d at 1075.

[^33]: *See, e.g., MCI Telecommunications Corp. v. U S West
    Communications, Inc.,* Memorandum Opinion and Order, 15 FCC Rcd
    9328, 9329-30, ¶ 5 (2000); *AT&T Corp. v. Bell Atlantic --
    Pennsylvania*, Memorandum Opinion and Order, 14 FCC Rcd 556, 565, ¶
    19 (1998); *Aetna Life Insurance Co. v. American Telephone and
    Telegraph Co.*, 3 FCC Rcd 2126, 2128-29, ¶ 12 (1988);
    *Tele-Valuation, Inc. v. American Telephone and Telegraph Co.*,
    Memorandum Opinion and Order, 73 FCC 2d 450, 452, ¶ 4 (1979)
    ("*Tele-Valuation v. AT&T*"); *see also Communications Vending v.
    FCC*, 365 F.3d at 1073.

[^34]: We note that OCI's claims accrued at this time notwithstanding
    the ongoing Notice-and-Comment proceeding, in which the Commission
    was evaluating the validity of PICC charges such as those at issue
    here. *See, e.g.*, *Communications Vending Corp.,* 365 F.3d at
    1073-74 (rejecting argument that "a cause of action cannot accrue
    \[under section 415 of the Act\] when the controlling law does not
    recognize its validity"), citing *Atchison, Topeka & Santa Fe Ry.
    Co. v. ICC*, 851 F.2d 1432 (D.C. Cir. 1988) (reversing ICC
    conclusion that party's cause of action did not accrue until agency
    resolved relevant legal question). Below, we also conclude that the
    ongoing proceeding does not form a basis for tolling the two-year
    limitations period. *See infra* Part III.C.

[^35]: Formal Complaint at 29, ¶ 67. *See, e.g.*, Formal Complaint at
    4-9, ¶¶ 8-9, 18-19; 12-17, ¶¶ 28, 30-36, 38-39; 19, ¶¶ 45-47; 29-34,
    ¶¶ 65-75. *See* *also* Initial Brief of Operator Communications,
    Inc., File No. EB-05-MD-009 (filed Aug. 25, 2005) ("OCI Brief") at
    14-15; Letter from Danny E. Adams, counsel for OCI, to Marlene H.
    Dortch, Secretary, FCC, File No. EB-05-MD-009 (filed Sept. 9, 2005,
    in lieu of a reply brief).

[^36]: *Anchorage v. Alascom*, 4 FCC Rcd at 2475, ¶ 23. *See*, *e.g.*,
    *Communications Vending v. FCC*, 365 F.3d at 1075 ("The Commission
    has construed \[section 415\] strictly. . . We too have set a high
    hurdle for equitable tolling, allowing a statute to be tolled 'only
    in extraordinary and carefully circumscribed instances.'"); *Valenti
    v. AT&T*, 12 FCC Rcd at 2621-22, ¶ 24, *quoting* *Armstrong
    Utilities, Inc. v. General Telephone Co. of Pennsylvania*, 25 FCC 2d
    385, 389, ¶ 11 (1971) ("*Armstrong Utilities v. General Telephone*")
    ("The construction of Section 415, both by the Commission and the
    federal courts, has been 'strict'....").

[^37]: *EUCL Order*, 17 FCC Rcd at 24222, n.145; *Valenti v. AT&T*, 12
    FCC Rcd at 2621-22, ¶ 24; *US Sprint v. AT&T*, 9 FCC Rcd at 4802, ¶
    10; *Anchorage v. Alascom*, 4 FCC Rcd at 2475, ¶ 23; *Tele-Valuation
    v. AT&T*, 73 FCC2d at 452-3, ¶ 4 and n.7; *U.S. Cablevision v. New
    York Telephone Co.*, Memorandum Opinion and Order, 46 FCC 2d 704,
    706-7, ¶ 5 (1974) ("*Cablevision v. New York Tel*"); *Bunker Ramo v.
    Western Union*, 31 FCC 2d at 453-4, ¶ 12; *Armstrong Utilities v.
    General Telephone*, 25 FCC 2d at 390, ¶ 15.

[^38]: *Valenti v. AT&T*, 12 FCC Rcd at 2621-22, ¶ 24, *quoting*
    *Armstrong Utilities v. General Telephone*, 25 FCC 2d at 390, ¶ 15
    (emphasis added). Although the Commission has implied that that
    there might be some additional basis for equitable tolling, *see*,
    *e.g.*, *Bunker Ramo v. Western Union*, 31 FCC 2d at 453-4, ¶ 12,
    the Commission has never identified or relied upon any basis other
    than fraudulent concealment. In the *EUCL Order*, the Commission
    simply assumed, without deciding, that "due diligence" by the
    plaintiff might warrant tolling, and then demonstrated the absence
    of such diligence. *See EUCL Order*, 17 FCC Rcd at 24225-26, ¶¶
    57-59.

[^39]: *See*, *e.g.*, *Cablevision v. New York Tel*, 46 FCC 2d at 706-7,
    ¶ 5 ("we cannot hold that the statute of limitations was tolled in
    view of complainant's failure to allege any facts whatsoever
    indicating that fraud or deceit was practiced by NYTelco upon
    complainant to prevent complainant from becoming aware of the basic
    facts upon which its claim for reimbursement is based"); *Anchorage
    v. Alascom,* 4 FCC Rcd at 2476, ¶ 30 (denying request for equitable
    estoppel of section 415, because the complainant "has convincingly
    shown neither that Alascom fraudulently concealed facts that were
    relevant and material to the alleged violations of the Act nor that
    Alascom misrepresented, either intentionally or unintentionally, any
    such facts. . . .").

[^40]: Specifically, in one of its filings in the Notice-and-Comment
    Proceeding, Verizon stated: "\[I\]f \[OCI\] truly believes the
    \[PICC\] charge is unlawful, it may file a complaint." Joint
    Statement Exhibit JS-21 (Bell Atlantic Opposition to Oncor Motion
    for Interim Relief, dated June 25, 1999) at 1.

[^41]: OCI Brief at 14-15, n.6.

[^42]: For example, 47 C.F.R. §§ 1.720(b)-(d) and 1.721(a)(5)-(6)
    required OCI to set forth in its Formal Complaint *all the facts and
    legal analyses* upon which the claims are based.

[^43]: *See* Formal Complaint Exhibit 10, Attachment C, at 1.

[^44]: S*ee* Formal Complaint Exhibit 10, Attachment D, at 2.

[^45]: *See* Joint Statement Exhibit JS-21 at 1.

[^46]: *See generally* *Cablevision v. New York Tel*, 46 FCC 2d at
    706-7, ¶ 5; *Anchorage v*. *Alascom*, 4 FCC Rcd at 2476, ¶ 30.

[^47]: *See* Part III(C), *infra*.

[^48]: *See* Joint Statement Exhibit JS-21 at 1. Indeed, US West made
    the same point to OCI in one of Qwest's filings in the
    Notice-and-Comment Proceeding, stating that "Sections 206-209 of the
    Communications Act provide a mechanism whereby Oncor can challenge
    any action which it believes contravenes the provisions of the Act."
    Opposition of US West Communications, Inc. at 8, CCB/CPD No. 98-34
    (filed Dec. 14, 1999).

[^49]: *See* Formal Complaint Exhibits 1, 3, 4, 7.

[^50]: *See, e.g.*, Formal Complaint at 32-33, ¶ 73.

[^51]: *See Payphone PICC Order*.

[^52]: *See* Informal Complaint.

[^53]: *Anchorage v. Alascom*, 4 FCC Rcd at 2476-7, ¶ 32. *See*, *e.g.*,
    *Valenti v. AT&T*, 12 FCC Rcd at 2621-22, ¶ 24; *Communications
    Vending v. FCC*, 365 F.3d at 1075.

[^54]: *Communications Vending v. FCC*, 365 F.3d at 1076 (internal
    quotation marks and citations omitted).

[^55]: *See, e.g.*, Formal Complaint at 16, ¶ 38; 23-28, ¶¶ 54-64. *See
    also* Reply of Operator Communications, Inc., File No. EB-05-MD-009
    (filed June 30, 2005) ("OCI Reply") Legal Analysis at 23-26.

[^56]: Formal Complaint at 16, ¶ 38.

[^57]: OCI's repeated reference to 47 U.S.C. § 207 is mystifying. *See
    e.g.,* Formal Complaint at 15, n.52; 26-7, ¶¶ 60, 62; OCI Reply at
    25-26. Section 207 requires parties seeking recovery of damages to
    file a complaint either with the Commission *or* in federal court,
    but not both. This provision, however, has nothing to do with filing
    a complaint with the Commission while a notice-and-comment
    proceeding is pending at the Commission. Moreover, OCI's unsupported
    suggestion that the complaint procedures somehow did not exist
    during the April 1998-April 2001 timeframe (*see, e.g.*, Formal
    Complaint at 16, ¶ 38) is similarly inexplicable. Rules governing
    the filing of both informal and formal complaints were in place at
    the time and virtually identical to those existing today. *See
    Amendment of Rules Governing Procedures to Be Followed When Formal
    Complaints Are Filed Against Common Carriers*, Report and Order, 12
    FCC Rcd 22497 (1997) (subsequent history omitted). *See also
    Amendment of Rules Governing Procedures to be Followed When Formal
    Complaints are Filed Against Common Carriers*, Report and Order, 8
    FCC Rcd 2614 (1993); *Amendment of Rules Governing Procedures to be
    Followed Where Formal Complaints are Filed Against Common Carriers*,
    Report and Order, 3 FCC Rcd 1806 (1988).

[^58]: Joint Statement Exhibit JS-21 at 1.

[^59]: Opposition of US West Communications, Inc. at 8, CCB/CPD No.
    98-34 (filed Dec. 14, 1999); *see* n.42, *supra*.

[^60]: 47 C.F.R. § 1.721(a)(9).

[^61]: OCI warns that, if parties can file complaints while related
    proceedings are pending elsewhere at the Commission, a flood of
    complaints will be filed whenever an unresolved issue of broad
    industry concern arises. *See* Formal Complaint at 28, ¶ 64. As
    stated above, however, our holding here is nothing new; aggrieved
    parties have always had the option to file complaints under those
    circumstances, and the Commission has managed its workload
    accordingly. Moreover, the Commission's informal complaint process
    provides parties a specific but streamlined option for preserving
    damages claims while related issues of broad industry concern are
    addressed in other proceedings. 47 C.F.R. §§ 1.716-1.718. *See
    e.g.*, *AT&T Corp. v. Virgin Islands Telephone Corp. d/b/a
    Innovative Telephone*, Order, File No. EB-01-MDIC-0552 (rel. Nov.
    21, 2004) (extending time for defendant to respond to the informal
    complaint until 90 days after the D.C. Circuit ruled on a different
    case involving substantially similar issues). Indeed, under OCI's
    theory, any notice and comment proceeding would serve to toll the
    statute of limitation for any participating party for any claim for
    damages relating to the subject of the administrative proceeding.
    Such an outcome would eviscerate section 415.

[^62]: *See Communications Vending v. FCC*, 365 F.3d at 1076 ("that
    petition sought only a declaratory ruling that the LECs' imposition
    of EUCL charges was unlawful, so it could neither have tolled the
    statute nor otherwise excused the \[independent payphone
    providers'\] failure to pursue complaints for damages").

[^63]: *See, e.g.*, Formal Complaint at 25-27, ¶¶ 59, 61, 63; OCI Reply,
    Legal Analysis at 25-26.

[^64]: In any event, as OCI acknowledges, the administrative exhaustion
    doctrine applies only when the second action seeks the same remedy
    as the first action. That prerequisite is not met here. The first
    action -- the Notice-and-Comment Proceeding -- involved declaratory
    and injunctive relief; the second action -- this complaint
    proceeding -- involves retrospective monetary damages (*i.e.*,
    refunds and lost profits). Therefore, even on its own terms, the
    administrative exhaustion doctrine does not warrant tolling of the
    limitations period applicable to OCI's complaint for damages against
    Verizon.

[^65]: *See* Formal Complaint at 5, ¶ 11; 22-23, ¶¶ 52 and n.73, 54.
    *See also* OCI Reply at 3, ¶ 10; 7-8, ¶¶ 35-36; 15-16; OCI Reply,
    Legal Analysis at 22-25; OCI Brief at 12-14. OCI's Formal Complaint
    focuses almost exclusively on the two other alleged bases for
    tolling already addressed above: so-called "administrative" tolling
    (Formal Complaint at 23-28, ¶¶ 54-64) and equitable tolling (Formal
    Complaint at 28-34, ¶¶ 65-75). Nevertheless, for the sake of
    completeness, we reach and reject OCI's suggestion.

[^66]: 47 C.F.R. §§ 1.716-1.718.

[^67]: *See, e.g., MCI Telecommunications Corp., v. Pacific Telephone
    Co.*, Memorandum Opinion and Order, 12 FCC Rcd 13243, 13253-54, ¶¶
    17-18 (Com. Car. Bur. 1997) ("*MCI v. Pac Tel*"); 47 C.F.R. §§
    1.716-1.718.

[^68]: *See, e.g., MCI v. Pac Tel*, 12 FCC Rcd at 13,253, ¶ 17. *See*
    April 1998 Letter; Formal Complaint Exhibit 3 (Comments of Oncor
    Communications, Inc.).

[^69]: *See* Interim Request; Supplement Request. One submission
    contains a single footnote citation to 47 C.F.R. § 1.727. *See*
    Supplement Request at 2.

[^70]: *See* Joint Statement Exhibit JS-21.

[^71]: We recognize that, when a letter is submitted to the Commission
    by *pro se* "consumers who have little, if any, familiarity with
    Commission's rules or practices," the Commission may construe the
    rules more liberally. *MCI v. Pac Tel*, 12 FCC Rcd at 13253, n.67.
    However, such an approach has no application where, as here, the
    submissions are by in-house and outside counsel for a communications
    company, all with extensive experience with Commission processes.

[^72]: *See* *MCI v. PacTel*, 12 FCC Rcd at 13252-54, ¶¶ 16-18;
    *Communications Vending v. FCC*, 350 F.3d at 1076. What was said in
    *MCI v. PacTel* is equally apt here: "MCI could have, at any time
    after the February 1990 and September 1990 \[letters to the Bureau
    Chief\], filed claims for damages with the Commission based on the
    allegations in those letters if those were its intentions. At the
    very least, MCI could have acted to put the Bureau, and the
    defendant LECs, on notice that it viewed the February 1990 and
    September 1990 Evans letters as informal complaints that might
    entitle MCI to monetary damages to the extent the alleged violations
    were ultimately proven. Under these circumstances, it would be
    contrary to the policies underlying the statute of limitations to
    permit MCI, years after the fact, to transform the September 1990
    \[letter to the Bureau Chief\] into an informal complaint for
    purposes of pursuing monetary damages claims against the defendant
    LECs that could have been filed with the Commission within two years
    from the time MCI was assessed the charges that form the basis of
    such claims. . . . Were MCI's characterization of the September 1990
    \[letter to the Bureau Chief\] correct, the Commission would have to
    treat virtually every letter or written correspondence to any
    Commission office that raised a question regarding a practice of a
    common carrier as a claim for damages in applying Section 415 of the
    Act. Such a result would be inconsistent with Section 415." 12 FCC
    Rcd at 13254, ¶ 18 and n.70.

[^73]: *See* 47 C.F.R. § 1.718.

[^74]: 47 C.F.R. § 1.718.

[^75]: *See generally* *MCI v. PacTel*, 12 FCC Rcd at 13255, n.74
    (noting the possibility that a formal complaint seeking monetary
    damages may not relate back to an informal complaint not seeking
    monetary damages).