Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| Communications Vending           | * | File Nos. EB-02-MD-018 -- 030   |
| Corporation of                   | * |                                 |
|                                  | ) |                                 |
| Arizona, Inc., *et al.*,         | ) |                                 |
|                                  | * |                                 |
| Complainants,                    | * |                                 |
|                                  |   |                                 |
| v\.                              | * |                                 |
|                                  | * |                                 |
| Citizens Communications Company  | ) |                                 |
|                                  | ) |                                 |
| f/k/a Citizens Utilities Company | ) |                                 |
| and                              | ) |                                 |
|                                  | ) |                                 |
| Citizens Telecommunications      | ) |                                 |
| Company                          | ) |                                 |
|                                  | ) |                                 |
| d/b/a Citizens Telecom, *et      | ) |                                 |
| al.*,                            | ) |                                 |
|                                  | * |                                 |
| Defendants                       | * |                                 |
+----------------------------------+---+---------------------------------+
|                                  |   |                                 |
+----------------------------------+---+---------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: November 15, 2002 Released: November 19, 2002**

By the Commission:

# introduction

1.  In this Memorandum Opinion and Order, we partially grant 13 formal
    complaints[^1] filed by independent payphone providers ("IPPs")
    against local exchange carriers ("LECs"), asserting that Defendants
    violated Sections 201(b) and 203(c) of the Communications Act of
    1934, as amended, [^2] and Part 69 of the Commission's rules, [^3]
    by improperly assessing end user common line ("EUCL") charges on the
    Complainants' payphones. These complaints were brought by
    Communications Vending Corporation of Arizona, Inc ("CVCA"), IMR
    Capital Corporation ("IMR"), Indiana Telcom Corporation, Inc.
    ("ITC"), National Telecoin Corporation, Inc. ("NTC"), NSC
    Communications Public Services Corporation ("NSC"), and Payphone
    Systems (collectively "Complainants") against Citizens,[^4]
    Qwest,[^5] Verizon,[^6] ALLTEL,[^7] SBC,[^8] BellSouth,[^9]
    Century,[^10] and TDS[^11] (collectively "Defendants").[^12]

2.  We note that approximately 3000 informal complaints pending with the
    Commission raise virtually identical issues to those we rule on
    today.[^13] Many of the parties in these thirteen cases are also
    involved in the pending informal complaints. Given the similarity in
    the issues and the parties, we believe the rulings contained in this
    order will facilitate informal resolution among the parties of the
    pending informal complaints. Finally, we note that, because the
    Commission amended its access charge rules on April 15, 1997, the
    issues addressed in this order will only have retrospective
    application.[^14]

# BACKGROUND AND sUMMARY

3.  As noted above, the Complainants in these cases are independent
    payphone providers, and the Defendants are local exchange carriers,
    to whose telephone lines Complainants' payphones were
    connected.[^15] The complaints concern EUCL charges that the
    Defendants imposed on Complainants' pay telephones from 1986 through
    April 15, 1997.[^16]

## The History of the EUCL Dispute 

4.  The issue of EUCL charges for payphones first arose several years
    ago, after the Commission first adopted access charge rules that
    required LECs to impose EUCL charges. A review of the history of
    this issue will help to put the current disputes into context.

5.  When the Commission first adopted access charge rules in 1982, it
    permitted LECs to recover certain non-traffic sensitive costs from
    end users through the monthly, flat-rated EUCL charge.[^17] Because
    the end users of public payphones,[^18] however, consist of the
    \"transient general public,\" rather than identifiable
    subscribers,[^19] the Commission in 1983 exempted public payphones
    from the EUCL charge.[^20] The Commission determined that the EUCL
    charge should be imposed on semi-public payphones,[^21] however,
    because subscribers to that service constitute identifiable business
    end users.[^22]

6.  At the time the access charge scheme was developed, the only
    entities authorized to provide payphone service were LECs.[^23] IPPs
    were later permitted to enter the market in 1984, essentially
    interposing a 'middle man,' as it were, between the LECs and the
    ultimate payphone users.[^24] The controversy here was created
    because the access charge rules were not modified in 1984 to specify
    the manner of imposing EUCL charges on IPP payphones.

7.  With the advent of IPP payphones in 1984, Defendants, on their own
    accord, determined that IPPs were end users and assessed the EUCL
    charge on all IPP payphones, irrespective of whether they were
    public or semi-public.[^25] Defendants, however, did not assess the
    EUCL on their own public payphones.[^26] The IPPs disputed these
    charges, and two IPPs lodged informal complaints (in 1988 and
    1989).[^27] In response to both, Commission staff interpreted the
    Commission's rules and found that the LECs' assessment on the IPPs
    was permissible.[^28] Subsequently, on April 21, 1989, the American
    Public Communications Council ("APCC"), a payphone industry
    association, filed with the Commission a petition seeking a
    declaratory ruling that the Commission's rules do not authorize the
    assessment of the EUCL because the IPPs are not "end users" and they
    only owned public payphones.[^29] Also in 1989, the United States
    District Court for the Western District of Wisconsin referred to the
    Commission a complaint filed by C.F. Communications Corporation
    ("CFC"), an IPP, which challenged the assessment of the EUCL charge
    by certain LECs.[^30]

8.  Pursuant to the district court's primary jurisdiction referral, on
    May 10, 1989, CFC filed 13 formal complaints with the Commission
    objecting to the LECs' assessment of EUCL charges.[^31] The Common
    Carrier Bureau and the Commission denied CFC's claims.[^32] In the
    *CFC I* *Order*, the Commission determined that CFC\'s payphones
    were subject to EUCL charges because CFC was an \"end user\" and
    that CFC\'s payphones were not \"public telephones\" under the
    Commission's rules.[^33] The D.C. Circuit, however, rejected the
    Commission\'s determinations and remanded the case to the
    Commission.[^34] The Court held that CFC was not an "end user," and,
    alternatively, that the Commission had improperly discriminated
    between similarly situated services (IPP-owned and LEC-owned public
    payphones) without a rational basis.[^35]

9.  In its April 13, 2000 *Liability Order* on remand, the Commission
    applied the Court's analysis and found that CFC and the other IPPs
    cannot be considered \"end users\" under Section 69.2(m).[^36] The
    Commission also determined, however, that irrespective of whether
    CFC was an "end user," the primary determination the Commission
    should have made was whether CFC's payphones were "public" or
    "semi-public."[^37] Accordingly, the Commission found that the LECs
    imposed an unreasonable charge in violation of Section 201(b) by
    classifying all IPP payphones as semi-public and assessing EUCL
    charges against IPP payphones that were deployed in the same manner
    as LEC-owned \"public payphones.\"[^38]

10. The Commission also rejected arguments that awarding damages to the
    IPPs would be inappropriate because the LECs were acting in
    accordance with Commission rules. The Commission found that the
    access charge orders did not, in fact, require carriers to assess
    the EUCL charge indiscriminately on all IPP-owned payphones, given
    that the rules required LECs to evaluate whether individual
    payphones should be classified as \"public\" or \"semi-public."[^39]
    The Commission, thus, ruled that the IPPs were entitled to
    damages.[^40] The *Liability Order* was upheld on appeal.[^41] In
    particular, the Court held that "it was appropriate for the FCC to
    find the LECs liable for the EUCL charges."[^42] Because the
    Commission had not ruled on individual damages claims, the Court
    also stated that it would "express no opinion as to the Commission's
    authority to impose damages on the LECs for charges that they may
    have collected in reliance on the agency's initial (and mistaken)
    interpretations of the *Access Charge Reconsideration* rules."[^43]

## The Current Cases

11. As a result of the D.C. Circuit's 1997 decision, the Commission
    received several thousand informal complaints from late 1997 through
    1998 raising claims similar to those asserted by CFC.[^44] Because
    the issues raised by the IPPs in their informal complaints were
    similar to those being considered by the Commission in the remand
    proceeding, for administrative efficiency, Commission staff issued a
    waiver order tolling for a number of informal complaints the
    six-month relation back requirement contained in Section 1.718 of
    the Commission's rules.[^45] Pursuant to the waiver order, any
    informal complaint relating to issues raised in the CFC proceeding
    that had to be converted to a formal complaint pursuant to Section
    1.718 after June 15, 1998, would be deemed to relate back to the
    filing date of the relevant informal complaint if it was filed no
    later than 90 days after a final nonappealable order had been
    entered in that proceeding.[^46] The Enforcement Bureau has extended
    the waiver order several times since then to allow parties to await
    the Commission's adjudication of the formal complaints presently
    before us.[^47]

12. The cases now before us arise from a number of the
    previously-mentioned informal complaints, which have been converted
    to formal complaints. Complainants allege that Defendants violated
    the Commission's rules,[^48] as well as Sections 201(b) and 203(c)
    of the Act[^49] by imposing EUCL charges on Complainants'
    payphones.[^50] Complainants assert here that it was not proper to
    assess the EUCL on any of their payphones, regardless of whether
    they were public or semi-public, because Complainants are not "end
    users."[^51] Complainants also seek a waiver of the Section 415(b)
    statute of limitations in order to obtain damages for all improperly
    assessed EUCL charges, regardless of when their informal complaints
    were filed.[^52]

13. Defendants deny Complainants' allegations and maintain that their
    imposition of EUCL charges on Complainants' payphones was consistent
    with the Commission's rules.[^53] Furthermore, Defendants raise a
    number of defenses regarding the payment of damages to Complainants.
    In particular, Defendants argue that, regardless of liability,
    equitable principles bar any recovery by Complainants.[^54]
    Defendants also maintain that any recovery of damages is subject to
    the two-year limitations period in Section 415 of the Act.[^55] In
    addition, Defendants argue that certain claims should be barred for
    procedural reasons.[^56]

14. In order to expedite resolution of the key legal issues common to
    these complaints (and to the pending informal complaints), we
    bifurcated the proceeding, deferring the calculation of
    Complainants' individual damages claims and related
    Complainant-specific damages issues to a later phase.[^57]

## Summary of the Decision

15. In this order we conclude that the LEC Defendants violated Section
    201(b) of the Act and Part 69 of the Commission's rules by imposing
    EUCL charges on IPP payphones, and that Complainants are entitled to
    recover damages. Further, we decline to toll the applicable statute
    of limitations of Section 415(b), and therefore, such damages are
    limited to the period beginning two years prior to the filing of the
    informal complaints.

# Defendants violated the act and commission rules by imposing eucl charges on complainants' payphones

16. Complainants assert that Defendants' imposition of EUCL charges on
    their payphones violated the Act and the Commission\'s rules. We
    have already found, in the 2000 *Liability Order*, that imposing
    EUCL charges on public IPP payphones violated Section 201(b) of the
    Act and Part 69 of the Commission\'s rules.[^58] Complainants ask us
    to affirm that that ruling applies to these cases, and Defendants do
    not challenge the applicability of the *Liability Order*. Therefore,
    we affirm and apply that portion of the *Liability Order* here.

17. We also find, as explained below, that Defendants violated Section
    201(b) of the Act and Part 69 of the Commission\'s rules by imposing
    EUCL charges on semi-public IPP phones.

## Defendants Violated Section 201(b) of the Act and Part 69 of the Commission's Rules by Imposing a EUCL Charge on Complainants\' Payphones, Because the IPPs Were Not "End Users"

18. In the *Liability Order*, the Commission found that the IPPs "cannot
    be considered 'end users' under Section 69.2(m), because they do not
    own the premises where their payphones are located."[^59] In light
    of the Court\'s concerns that the Commission had improperly
    discriminated between similarly-situated payphone services, however,
    the Commission also stated that, "irrespective" of whether IPPs are
    "end users," the "appropriate distinction to apply to determine
    whether the EUCL would apply to \[IPP\] payphones was the
    'public/semi-public' distinction."[^60] Thus, the Commission
    concluded in that case that the imposition of EUCL charges on
    ***public*** IPP payphones was improper, but that the assessment of
    such charges on semi-public IPP phones was permissible.[^61] The
    *Liability Order* was upheld by the D.C. Circuit.[^62]

19. Complainants here raise an argument that has never been addressed in
    light of the public/semi-public distinction established in the
    *Liability Order*.[^63] Complainants contend that it was unlawful
    for Defendants to assess EUCL charges on ***any*** IPP payphones --
    including semi-public payphones. The Complainants argue that both
    the Commission and D.C. Circuit have squarely held that IPPs were
    not "end users" within the meaning of Section 69.2(m), and thus they
    were not subject to the rule governing EUCL charges at all. As a
    result, according to Complainants, notwithstanding the Commission's
    prior statement in the *Liability Order*, the semi-public/public
    distinction is actually irrelevant to the issue of whether EUCL
    charges were properly assessed on IPP payphones.[^64] We agree. We
    find that, because Complainants were not "end users" within the
    meaning of Section 69.2(m), they were not within the scope of the
    EUCL rule, and charges levied against them -- regardless of whether
    the payphones were public or semi-public -- were unlawful.

20. There is no question that the Commission\'s rules allowed LECs to
    impose EUCL charges, as the name itself suggests, only on "end
    users":

> A charge that is expressed in dollars and cents per line per month
> shall be assessed upon ***end users*** that subscribe to local
> exchange telephone service, Centrex or semi-public coin telephone
> service to the extent they do not pay carrier common line charges.
> [^65]

If an entity is an "end user" as defined by the rules, only then is it
necessary to determine whether it "subscribe\[s\] to . . . semi-public"
service.[^66] Under the plain language of the rule, however, if an
entity is not an "end user" in the first place, then the semi-public
distinction is irrelevant.

21. Rule 69.2(m) defined "end user" as:

> \[A\]ny customer of an interstate . . . telecommunications service
> that is not a carrier except that a carrier . . . shall be deemed to
> be an 'end user' when such carrier uses a telecommunications service
> for administrative purposes and a\[n\] . . . entity that offers
> telecommunications services exclusively as a reseller shall be deemed
> to be an 'end user' if all resale transmissions offered by such
> reseller originate on the premises of such reseller.[^67]

The D.C. Circuit and the Commission have both previously found that IPPs
are not "end users" under this rule. The Court of Appeals, in its first
decision in *C.F. Communications*, found that CFC was not an "end user"
under the rule,[^68] rejecting the Commission\'s analysis that CFC was
an "end user" because, according to the Commission, it "offers
telecommunications service exclusively as a reseller" with all such
transactions "originat\[ing\] on \[CFC's\] premises."[^69] The
Commission had construed "premises" to mean the actual payphone
equipment, which was owned by the IPPs, but the court rejected that
interpretation. Similarly, on remand, the Commission held that "\[i\]n
light of the court's ruling, we now find that CFC and the other IPPs
cannot be considered 'end users' under Section 69.2(m)."[^70] The
Complainants here, like CFC, do not own the premises on which their
payphones are located;[^71] thus they are not "end users" within the
meaning of 69.2(m). Therefore, they were not subject to the EUCL charge
regardless of whether their payphones were public or semi-public.

22. We recognize that our decision here differs from our conclusion in
    the *Liability Order*. We note also, however, that this is the first
    opportunity we have had to squarely address the argument raised by
    Complainants.[^72] Upon a thorough review of the relevant rules and
    precedents, we now conclude that our prior focus on the
    public/semi-public distinction, rather than the threshold "end user"
    determination, was incorrect.[^73]

23. The D.C. Circuit, in its first decision in *C.F. Communications*,
    criticized the Commission\'s unequal treatment of similarly-situated
    payphones. In the *Liability Order*, the Commission focused on
    treating the IPP and LEC payphones the same in terms of the EUCL
    charge and thus viewed the public/semi-public distinction as
    determinative. Given the clear wording of the access charge rules in
    place at the time, however, because the IPPs were ***not*** "end
    users," as defined by 69.2(m), they were not subject to the EUCL
    charge.[^74] Defendants, moreover, offer ***no*** explanation of how
    a charge that may be levied only on "end users" may be assessed upon
    entities that explicitly have been found not to be "end users."
    Therefore, we find that Defendants' assessment of EUCL charges on
    IPP payphones prior to 1997 -- whether public or semi-public --
    violated Section 201(b) of the Act and Part 69 of the Commission's
    rules. While this differs in part from the *Liability Order*, it is
    important to note that our prior view regarding the imposition of
    EUCL charges on semi-public IPP payphones could not even arguably
    engender further reliance on the part of Defendants since the access
    charge rules were amended ***before*** the *Liability Order* was
    released in April 2000. Any assertion by the LECs regarding reliance
    could only be based on the 1995 Commission Order, or earlier
    pronouncements by the Common Carrier Bureau.

24. Defendants contend that Complainants were "end users," in any event,
    because they were acting as agents of the premises owners (who, they
    argue, were "end users"). Defendants assert that Complainants were
    therefore liable for the EUCL charges to the same extent their
    principals would have been.[^75] We reject this argument.

25. First, Defendants cannot use an agency theory to avoid liability for
    EUCL charges assessed on ***public*** payphones. As discussed in
    detail above, the Commission has previously held that "end users" of
    public payphones are ***exempt*** from EUCL charges.[^76] This
    liability determination was upheld by the D.C. Circuit.[^77] Thus,
    even the premises owners would not have been subject to EUCL
    charges. Defendants admit as much when they acknowledge that they
    did not assess EUCL charges on the owners of the premises where
    their own public payphones were located.[^78]

26. In any event, Defendants have established no basis for imputing any
    liability of the premises owner to the Complainants for any
    payphones (public or semi-public). Defendants claim that
    Complainants were agents of the premises owners by virtue of
    explicit written agency agreements executed by a number of
    Complainants.[^79] Even without such a contract, Defendants claim
    that an agency relationship can be inferred from the
    circumstances.[^80] According to Defendants, only the premises owner
    had the right to authorize installation of a phone on its premises,
    and thus the only way Complainants could have ordered phone service
    from Defendants was "as the agent for the premises owner" and
    subject to the owner's control.[^81]

27. Agency is defined in the Restatement as "the fiduciary relation
    which results from the manifestation of consent by one person to
    another that the other shall act on his behalf and subject to his
    control, and consent by the other so to act." [^82] A critical
    element is that "the principal is to be in control of the
    undertaking."[^83] The "name which the parties give to the relation
    is not determinative,"[^84] and the burden of proving agency rests
    on the party asserting its existence.[^85] We find that neither the
    written agreements nor the circumstances subjected IPPs to the
    premises owner's control, and that the IPPs, in any event, were
    acting in their own interests in installing and maintaining
    payphones.

28. The written agreements relied on by Defendants are licensing
    agreements authorizing IPPs to install and maintain payphones. Under
    these agreements, the premises owners control nothing, but rather
    are paid a commission in consideration for the use of the
    space.[^86] Significantly, the agreements referenced by Defendants
    provide that the IPP has "sole discretion to determine the number of
    payphones to be installed."[^87] The IPP owns, installs and
    maintains the phones and under the agreements is given unrestricted
    access to its phones.[^88] Indeed, several agreements cited by
    Defendants refer to the premises owner as a "space provider" and
    "site provider," which is far from the notion Defendants seek to
    portray of premises owners as "principals" who control and supervise
    their agents (the IPPs).[^89]

29. Nor have Defendants established that an agency relationship can be
    inferred from the circumstances. While authorization to install
    phones on the premises was required, Defendants point to no facts
    suggesting that any premises owner here controlled a Complainant or
    that any Complainant was not acting pursuant to its own independent
    business interests. In sum, no agency relationship existed between
    Complainants and the premises owners on which Defendants can premise
    their claim of imputed liability.

## Section 203

30. Complainants also assert that the imposition of the EUCL charge
    prior to 1997 violated Section 203 of the Act and the Filed Rate
    Doctrine.[^90] Paralleling their Section 201 claim, Complainants
    allege that Defendants' tariffs limited EUCL charges to "end users,"
    and that both the D.C. Circuit and the Commission have specifically
    held that IPPs are not "end users."[^91] Having concluded that
    Defendants violated Section 201(b) by assessing the EUCL charges on
    Complainants prior to 1997, we do not need to reach Complainants'
    tariff violation claims under Section 203 and the Filed Rate
    Doctrine.[^92]

# complainants are entitled to recover damages for defendants' unlawful assessment of eucl charges

31. Having determined that Defendants violated the Act and Commission
    rules by assessing EUCL charges on IPP payphones, we now address the
    extent to which an award of damages is appropriate.[^93] Defendants
    argue that because the Commission approved the practice of imposing
    EUCL charges on Complainants (a decision that was later reversed),
    Complainants' sole remedy for payment of unlawful EUCL charges is
    restitution, which would be limited to the disgorgement of any
    unjust enrichment. Defendants further contend that they were not
    unjustly enriched by collecting EUCL charges from the IPPs because,
    had they not done so, they would have recovered the same amounts
    from the IXCs. Thus, according to Defendants, Complainants are not
    entitled to any recovery. We disagree with Defendants and find that
    the imposition of compensatory damages pursuant to Section 206 of
    the Act is appropriate here.[^94]

## Equitable Considerations Do Not Bar an Award of Damages Here

32. In the *Verizon* case, the LECs contested both liability for the
    illegal assessment of EUCL charges on IPPs as well as the imposition
    of damages. Defendants in that case argued, as they have here, that
    they may not be sanctioned for conduct expressly approved by the
    Commission and that "restitution, and not legal damages, is the sole
    remedy available to the IPPs."[^95] In support of their equitable
    defense to damages here, Defendants suggest that the Court of
    Appeals "effectively overrule\[ed\]" the Commission's prior
    *Liability Order* in terms of damages.[^96] This argument does not
    constitute a basis upon which Defendants can avoid the imposition of
    damages. The *Liability Order* rejected the Defendants' arguments
    that the award of damages would be inappropriate in that proceeding.
    On appeal, the D.C. Circuit declined to address the damages issue on
    grounds that it was not ripe, leaving Defendants free to raise it in
    a subsequent proceeding. [^97] By indicating that Defendants "are
    not foreclosed from presenting their equitable concerns to the
    agency during the next stage of the proceedings," the Court did not
    by any means reject the Commission's position.[^98]

33. We have considered Defendants' equitable defenses and conclude that,
    on balance, any inequity to Defendants in awarding damages is
    outweighed by the imposition of unlawful charges on Complainants. In
    determining whether the LECs could be held liable for violating
    Section 201 of the Act by assessing EUCL charges on IPPs, the D.C.
    Circuit analyzed a line of cases addressing the retroactive
    applications of judicial reversals of agency determinations. In its
    analysis, the D.C. Circuit recognized a distinction between new
    applications of law and "the substitution of new law for old law
    that was reasonably clear."[^99] According to the Court, where the
    case involves "'new applications of existing law, clarifications,
    and additions,' the court starts with a presumption in favor of
    retroactivity."[^100] Retroactivity will be denied, however, "when
    to apply the new rule to past conduct or to prior events would work
    a 'manifest injustice.'"[^101] The Court stated that it has
    articulated its retroactivity standard in a number of ways -- from a
    five-factor balancing test to a three-factor approach -- and most
    recently indicated that the analysis "'boil\[s\] down to a question
    of concerns grounded in notions of equity and fairness.'"[^102] Such
    a balancing of equities likewise compels the conclusion that
    Defendants should be liable to Complainants for damages for the
    unlawful imposition of EUCL charges.

34. Here, the Defendants argue that they assessed the EUCL charges
    "pursuant to the Commission's explicit guidance and direction" since
    at least 1988.[^103] Specifically, Defendants allege that such
    guidance was in the form of two informal staff letters issued in
    response to informal complaints.[^104] As the Commission noted in
    the *Liability Order*, however, the two unpublished staff letters
    "are not binding on the Commission."[^105] And, as the D.C. Circuit
    has stated, advice by staff members does not bind the Commission and
    does not excuse parties who rely on such advice and rulings from the
    consequences of their conduct.[^106] Any purported reliance on these
    letters simply does not constitute a basis upon which Defendants can
    avoid payment of damages.

35. In addition, Defendants maintain that the 1993 Common Carrier Bureau
    order and the 1995 Commission order affirming it (and finding the
    assessment of EUCL charges on IPPs was proper), firmly established
    the Commission's policy.[^107] The Commission order, however, was
    reversed on appeal by the D.C. Circuit on grounds that the
    Commission's interpretation of its own access charge rules was
    clearly erroneous.[^108] The vacated orders did not purport to
    establish new rules or impose new requirements upon the LECs.
    Rather, in adjudicating the lawfulness of the EUCL charges at issue,
    the Commission and its staff interpreted and applied \-- albeit
    erroneously \-- the access charge requirements that had governed the
    LECs' assessment of EUCL charges since 1983.

36. On balance, we believe that the Complainants' equitable interest in
    receiving compensation for payment of unlawfully assessed charges,
    and the Commission's interest in correcting its error and
    adjudicating the case in accordance with the proper interpretation
    of its regulations, outweighs any reliance the Defendants may have
    had in the correctness of the Commission's initial interpretation
    (before it was struck down on judicial review). The D.C. Circuit has
    recognized "a strong equitable presumption in favor of retroactivity
    that would make the parties whole."[^109] Where, as here, the
    Commission in an earlier phase of the case committed legal error, it
    is appropriate for the agency to "put the parties in the position
    they would have been in had the error not been made."[^110] It is
    undisputed that the 1983 access charge rulemaking, correctly
    interpreted, prohibited the LECs from assessing EUCL charges on
    public payphones. Even if the LECs had believed the EUCL charges
    were lawful, the D.C. Circuit in *C.F. Communications* found that
    those charges had violated the requirements in the 1983 access
    charge rulemaking. It was appropriate for the Commission, in
    exercising its adjudicatory authority under Section 208, to require
    the LECs to reimburse the Complainants for the unlawful charges they
    paid. As the Court of Appeals stated in the *Verizon* case:

> \[T\]he agency pronouncements on which the LECs relied were
> subsequently held by this court to be mistaken as a matter of law. As
> such, the FCC's *Liability Order* was largely an exercise in error
> correction. We have previously held that administrative agencies have
> greater discretion to impose their rulings retroactively when they do
> so in response to judicial review, that is, when the purpose of
> retroactive application is to rectify legal mistakes identified by a
> federal court.[^111]
>
> Awarding damages put the parties in the position they would have been
> in if the Commission's error had not been made.

37. We do not believe that any purported reliance on the Commission's
    vacated orders should exempt Defendants from paying damages. The
    LECs began assessing EUCL charges on all IPP-owned payphones years
    ***before*** the agency issued the staff letters or the vacated
    orders.[^112] Moreover, the vacated orders never became settled law
    on which the LECs were entitled to rely. The IPPs immediately sought
    judicial review, thereby putting the LECs on notice that the Court
    might invalidate them and adopt a different interpretation of the
    1983 access charge requirements. In fact, in refuting Complainants'
    arguments for tolling the statute of limitations, Defendants
    themselves "emphasize at the outset that there was never a final,
    unappealable determination by any tribunal that Complainants were
    without a remedy for the charges imposed here."[^113] As the D.C.
    Circuit stated in the *Verizon* case:

> \[T\]he agency orders on which the LECs claim to have relied not only
> had never been judicially confirmed, but were under unceasing
> challenge before progressively higher legal authorities. .. Because
> the object of the LECs' reliance was neither settled (but was rather
> perpetually enmeshed in litigation) nor 'well-established,' . . . we
> are skeptical that retroactive liability against the LECs would impose
> a manifest injustice.[^114]

38. Moreover, to the extent that Defendants might have recovered their
    costs from IXCs if they had not assessed the EUCL on IPPs,
    Defendants are not entirely without recourse. Commission rules
    provide a mechanism whereby Defendants can seek to demonstrate that
    the damages paid to the Complainants constitute "extraordinary cost
    changes," thus increasing the permitted price caps.[^115]
    Complainants, on the other hand, have no other practical recourse.
    They were required to pay the EUCL to maintain their payphone
    service despite their legal objections. An award of damages here is
    justified in order to "make whole parties who are clearly injured"
    by unlawful rates.[^116] The IPPs should not be deprived of a remedy
    for paying unlawful rates merely because the Commission made a legal
    error in an earlier phase of this adjudication. The Commission has
    the authority "to 'undo what was wrongfully done by virtue of its
    prior order.'"[^117]

39. Therefore, assuming that equitable considerations are appropriate in
    a Section 208 complaint case, we find that the balance of equities
    tips decidedly in favor of awarding damages to Complainants, and we
    decline to grant any equitable offset based on claims of detrimental
    reliance. Defendants will be required to pay damages to Complainants
    based on the amount of EUCL charges assessed.

## Complainants Are Not Limited To Recovery in Restitution

40. Defendants contend that, "\[w\]here a party pays amounts pursuant to
    an agency's requirements, and those requirements are later held to
    be unlawful, the payor has, if anything, a claim for
    restitution."[^118] Contrary to the Defendants' insistence that an
    action in restitution for unjust enrichment is the sole remedy
    available to Complainants, the Communications Act explicitly
    provides Complainants with a legal remedy for redress of injuries
    suffered as a result of a carrier's violation of the Act.
    Defendants' assertion ignores the fact that Complainants have
    invoked this statutory scheme.

41. An action in restitution is fundamentally different from the
    statutory claim for damages which Complainants have brought. As the
    D.C. Circuit has stated, Section 206 of the Act is "phrased in
    mandatory terms: A carrier that has violated the Act 'shall be
    liable to the person or persons injured thereby for the full amount
    of damages sustained in consequence of any such violation.'"[^119]
    Section 209, likewise, provides that, if the Commission determines
    that a complainant is entitled to an award of damages, the
    Commission "shall" order the carrier to pay the complainant the sum
    to which it is entitled.[^120] Thus, Section 206 -- in explicit
    terms -- makes the Defendants liable to the Complainants in damages
    for any injuries they inflicted on the IPPs by unlawfully assessing
    EUCL charges. And Section 209 requires the Commission, upon making
    the necessary findings, to order the Defendants to pay such damages.
    Therefore, because we have found that the imposition of damages
    would not work a manifest injustice,[^121] we believe that Sections
    206 and 209 require the imposition of damages in this case.

42. Significantly, moreover, the statute does ***not*** limit
    Complainants' remedy to restitution -- nor should such a theory be
    superimposed upon the statute. Damages is a form of remedy that is
    wholly distinct from equitable remedies such as restitution:

> Restitution measures the remedy by the defendant's gain and seeks to
> force disgorgement of that gain. It differs in its goal or principle
> from damages, which measures the remedy by the plaintiff's loss and
> seeks to provide compensation for that loss.[^122]

Compensatory damages are designed to make the plaintiff whole, while
restitution looks at the extent to which a defendant has
benefited.[^123] The purpose of Section 206, by its terms, is to
compensate ***Complainants*** for the injury sustained as a result of
violations of the Act. And the D.C. Circuit has determined that the
measure of damages in a Section 208 case is the difference between the
charges paid and the "just and reasonable" rate.[^124] In these cases,
because the charge was unlawful, the just and reasonable rate was zero.
Thus, the Complainants are entitled to damages based on the amount of
EUCL charges actually assessed and paid during the relevant time period.

43. Defendants ignore the statutory damages provision and, in essence,
    seek to substitute in its place a requirement that Complainants seek
    recovery via an action for restitution. Defendants base their
    position on a Restatement provision which provides that :

> A transfer or taking of property, in compliance with/or otherwise in
> consequence of a judgment that is subsequently reversed or avoided,
> gives the disadvantaged party a claim in restitution to the extent
> necessary to avoid unjust enrichment.[^125]

This provision, however, merely reflects the fact that injured parties,
in certain circumstances, have an independent ground for recovery in
restitution.[^126] The D.C. Circuit has squarely held, however, that
where, as here, a statutory mechanism exists, an equitable action in
restitution is ***not*** appropriate.[^127]Complainants here brought
their claim for damages under Section 206, and nothing in the
Restatement -- or any other authority cited by Defendants -- vitiates
Complainants' right to invoke the statutory damages remedy.

44. The cases relied on by Defendants do not support their view that
    restitution is the sole remedy available to Complainants here.
    Defendants rely on *Atlantic Coast Line Railroad Co. v. Florida*,
    295 U.S. 301 (1993), for the proposition that equitable restitution
    is the only available remedy for Complainants here. Defendants claim
    that "the statute at issue there -- the Interstate Commerce Act
    ("ICA") -- was functionally identical to the Communications Act in
    the remedies it provided."[^128] The plaintiffs in *Atlantic Coast
    Line*, however, did not file a complaint against the defendants
    pursuant to the ICA, but rather brought a common-law action for
    restitution. Thus, the court in *Atlantic Coast Line* did not
    interpret or apply the provisions of the ICA that were "functionally
    identical" to Sections 206-209 of the Act, but applied principles of
    restitution. Indeed, the Court emphasized that the ICC lacked
    authority in that instance to give reparations or damages.[^129]
    Nothing in this or any other case cited by Defendants stands for the
    proposition that Complainants are relegated to restitution when a
    statutory right to damages exists.

45. Similarly, *Abbotts Dairies Division of Fairmont Foods, Inc. v.
    Butz*, 584 F.2d 12 (3d Cir. 1978), *Moss v. Civil Aeronautics
    Board*, 521 F.2d 298 (D.C. Cir. 1975), and *Texas Puerto Rico,
    Inc. v. Department of Consumer Affairs*, 60 F.3d 867 (1st Cir.
    1995), relied on by Defendants, involved ***no*** statutory
    provision conferring the right to recover damages comparable to
    Sections 206 and 209 of the Act. Lacking such a statutory basis,
    these cases involved an analysis of equitable restitution.[^130] In
    sum, the cases have no relation to the claim brought by the
    Complainants here, and by no means provide a basis to read into
    Section 206 a requirement that damages be limited to restitution in
    this or any other situation.

## Even Under Principles of Restitution, Defendants Would Be Liable for Unlawfully Assessed EUCL Charges

46. Analyzing Complainants' causes of action under principles of
    restitution, in any event, would result in an award of damages to
    Complainants. "\[T\]he fundamental characteristic of unjust
    enrichment is 'that defendant has been unjustly enriched ***by
    receiving something . . . that properly belongs to the
    plaintiff***."[^131] Such a determination is made as between the two
    parties involved:

> \[U\]njust enrichment refers to corrective justice . . . It does not
> invite judgments about the fair distribution of wealth in society, but
> about what is right between two particular people. . .[^132]

47. The Defendants assert that, if they had not assessed the EUCL
    charges on the IPPs, they could have assessed higher CCL charges on
    the interexchange carriers ("IXCs"). Thus, according to Defendants,
    they were not enriched. [^133] Defendants, in fact, were enriched
    because they unlawfully assessed and collected payments from the
    Complainants.[^134] And the enrichment was unjust because the
    assessments and collections violated Section 201(b) and the
    Commission's access charge requirements. Section 201(b) requires
    "all charges" of a communications carrier to be just and
    reasonable.[^135] The carrier "having initially filed the rates and
    either collected an illegal return or failed to collect a sufficient
    one must . . . shoulder the hazards incident to its actions
    including not only the refund of any illegal gain but also its
    losses where its filed rate is found to be inadequate."[^136] Every
    customer has the right to be charged lawful rates, and this right is
    not conditioned upon the rates other ratepayers may be charged for
    other services. Defendants thus may not justify unlawful charges to
    the Complainants by asserting that they had failed to assess the
    maximum lawful CCL charge on the IXCs. Requiring the Defendants to
    pay damages thus would be consistent with equitable restitution
    principles because it merely would require the carriers "to give up
    what they never should have collected."[^137]

# Complainants' Recovery Period is Limited to Two Years Prior to the Filing of their Informal Complaints 

48. Section 415 of the Act requires an action for damages to be filed
    within two years of the time a cause of action accrues. Thus,
    damages are available only for the two-year period preceding the
    filing of a complaint. In these cases, informal complaints were
    filed in the late 1997/early 1998 time frame.[^138] Complainants,
    nevertheless, seek to recover EUCL payments from Defendants for the
    entire period during which Defendants assessed the EUCL on each
    Complainant.[^139] Complainants make two types of arguments to
    support their claims. First, Complainants make various assertions
    about why the Commission should deem the cause of action to have
    accrued either when the D.C. Circuit issued the *C.F.
    Communications* Order, or when the Commission issued the *Liability
    Order* in 2000. Complainants claim that it would have been futile
    for them to have pursued their claims prior to the issuance of these
    orders, in light of the Commission's prior rulings to the contrary,
    even though other complainants with identical claims were
    continuously appealing the Commission's determinations.[^140] As
    additional support for their contentions, Complainants cite to
    various cases to assert that subsequent favorable precedent can
    revive a time-barred claim.[^141] As discussed below, we find,
    however, that the causes of action accrued when the EUCL charges
    were imposed.

49. Second, Complainants assert that, irrespective of the accrual date
    of their causes of action, the statute of limitations should be
    tolled on equitable and administrative grounds, based on the filing
    of a petition for declaratory ruling by a payphone trade association
    (APCC) and the voluminous number of informal complaints.
    Complainants seek a waiver, under Section 1.3 of our Rules, of the
    application of Section 415(b) of the Act, which provides a party
    with two years from the date the cause of action accrues to file a
    complaint.[^142] Based on Commission and court precedent, as well as
    the facts of this case, as discussed below, we decline to extend the
    recovery period for which Complainants may collect damages beyond
    the limitations period set out in Section 415(b) of the Act.

## Complainants' Causes of Action Accrued at the Time That The EUCL Charges Were Assessed

50. The purpose of Section 415 is "to protect a potential defendant
    against stale and vexatious claims by ending the possibility of
    litigation after a reasonable period of time has elapsed."[^143]
    Thus, we review Complainants' assertions from the perspective
    that: 1) Complainants have an affirmative obligation to "exercise
    due diligence in preserving \[their\] legal rights";[^144] and 2)
    the Commission and the federal courts strictly construe Section 415
    and exceptions to its application have been confined to narrow
    circumstances, such as fraudulent concealment.[^145] Based on the
    circumstances of this case, we find that Complainants did not make
    sufficient efforts to pursue their claims, nor have they provided
    any other basis for determining that the cause of action accrued
    later than the time the EUCL charges were assessed.

51. Under Section 415(b), a cause of action accrues at the date of the
    injury, if it is readily discoverable.[^146] If the injury is not
    readily discoverable, the cause of action accrues when the litigant
    discovers the injury.[^147] In these cases, all of the Complainants
    have provided affidavits stating that they were aware of the EUCL
    charge and that they believed these charges were unlawful from the
    start.[^148] Thus, the injury in these complaints was not only
    "readily discoverable," but in fact had been discovered from the
    time Complainants received their first bill containing the EUCL
    assessment.[^149] Indeed, Complainants also state that they were
    aware of the formal complaints filed by the other IPPs.[^150]
    Moreover, Complainants' participation in the APCC petition for
    declaratory ruling seeking to overturn the EUCL's application on
    them further belies their argument that they were not aware they had
    a cause of action until the issuance of the D.C. Circuit's *C.F.
    Communications* decision.[^151] Hence, we reject the claim that
    their causes of action accrued no earlier than October 31, 1997, the
    date of the *C.F. Communications* decision or the Commission's
    *Liability Order* of 2000.[^152]

52. We do not find Complainants' arguments about the futility of
    previously pursuing their claims to be an adequate basis for tolling
    the requirements of Section 415(b), or finding that the cause of
    action accrued at a time other than the date of injury. Complainants
    argue that adverse Commission and judicial rulings prior to the
    Court's issuance of the *C.F. Communications* decision deprived them
    of "any practicable" opportunity to pursue their claims.[^153] The
    facts of this case indicate otherwise.

53. Between 1984 and 1988, there was no statement from the Commission
    about the validity of the charges, and thus, no arguably adverse
    ruling that could have prevented Complainants from filing
    complaints. Under the Commission's rules, the two unpublished
    letters by an individual FCC staff member in response to informal
    complaints issued in 1988 and 1989[^154] could not be used as
    precedent against other complainants.[^155] Moreover, when the full
    Commission spoke to the validity of the charges in 1995,[^156] that
    decision did not become final. Indeed, that decision was remanded to
    the Commission after being successfully appealed by the affected
    complainants.[^157] Thus, the Commission's decision upholding
    Defendants' manner of assessing the EUCL was subject to judicial
    review and pending legal challenges to that decision made the
    legality of Defendants' behavior uncertain.[^158] Complainants
    themselves stated in seeking to refute Defendants' reliance argument
    that "\[a\]ny purported reliance on Commission letters or decision
    still under appeal would have been unreasonable as a matter of
    law."[^159]

54. Complainants also argue that they could not have feasibly pursued
    their claims in other forums because district courts would have
    referred them to the Commission, as the Court did with the *C.F.
    Communications* case.[^160] We disagree. Because the Commission had
    not issued a final determination on the legality of the EUCL
    assessment on IPPs, Complainants could have pursued their claims in
    either forum, irrespective of whether the district court would have
    referred the IPPs' claims to the Commission.[^161] In any case, the
    fact that approximately 30 similarly-situated IPPs did manage to
    pursue over 50 claims in a timely manner and prevailed on this issue
    of liability puts Complainants' impossibility argument to
    rest.[^162]

55. We are not persuaded that we should conclude in this instance that
    the accrual date is other than the date the injury was first
    discovered, i.e. the date when the IPPs received their first EUCL
    bills.[^163] New favorable precedent does not revive a time-barred
    claim.[^164] As appellate courts have held, the "application of the
    statute of limitations cannot be made to depend upon the constantly
    shifting state of the law"[^165] because such "delayed accrual could
    result in an outpouring of stale, difficult to defend claims,
    contrary to the policy underlying limitations statutes."[^166]
    Complainants could have filed their complaints on a timely basis and
    sought to have the Commission override its previous views.

56. Complainants' reliance on the *Container Corp.,*[^167] *Hartford
    Life*,[^168] *Red Chevrolet*,[^169] *Neely*,[^170] and
    *Slaaten*[^171] decisions is misplaced because they all involve
    circumstances in which the newly issued decision created a new cause
    of action or revealed the existence of a cause of action for the
    first time.[^172] Complainants, however, believed that Defendants'
    EUCL assessments were inconsistent with the Commission's rules at
    the time of their first bills; the *C.F. Communications* decision
    did not create Complainants' cause of action, or put them on notice
    that they had a claim. *Western Union*[^173] is also inapposite
    because the finding there that a cause of action would have accrued
    on the date of the Commission order setting certain final rates was
    based on the fact that the rates at issue were "interim prescribed
    rates which the Commission later found to be inadequate" and that
    the facts upon which the complaint was based were "inherently
    unknowable by potential complainants until the Commission issued its
    decision."[^174]

57. Similarly, *ITT World Communications*[^175] is not persuasive
    because this proceeding is not Complainants' first and only
    opportunity to obtain the requested relief. Like a number of other
    IPP complainants, they could have filed a complaint at the time they
    discovered the EUCL charge on their bill, either at the Commission
    or in federal district court, to pursue their legal remedies.[^176]
    In addition, because the Commission's EUCL rules were imposed on
    Complainants starting in 1984 and Complainants were aware that
    Defendants were violating Section 69.104(a) from the first
    assessment of the EUCL charge upon them, Complainants' reliance on
    *AirTouch* is misplaced.[^177] Moreover, under the reasoning put
    forth by Complainants, the *C.F. Communications* complaint would
    have been dismissed as prematurely filed. Thus, we conclude that the
    cause of action in this proceeding accrued when Defendants assessed
    the EUCL charge upon Complainants.[^178]

## Complainants Have Not Demonstrated that the Statute of Limitations Should Be Tolled on Equitable or Administrative Grounds

58. We also reject Complainants' argument that, regardless of the
    accrual date of their causes of action, the statute of limitations
    should be tolled on equitable and administrative grounds by the
    APCC's filing of its 1989 and 1995 petitions for declaratory
    ruling.[^179] Complainants' equitable arguments are based on a Ninth
    Circuit case applying California law, that enunciates a three-part
    test that Complainants claim the Commission should apply in this
    instance.[^180] According to *Ervin*, a case that does not involve
    Section 415 of the Act, a statute of limitations can be tolled if a
    plaintiff has given timely notice to defendant of its claim, the
    delay in the filing of the claim does not prejudice the defendant,
    and the plaintiff has acted reasonably and in good faith.[^181]

59. We find that the Commission's strict approach to the application of
    Section 415(b) of the Act[^182] is more consistent with the United
    States Supreme Court's position in *Irwin*, extending equitable
    relief only "sparingly" where the claimant exercised "due diligence
    in preserving his legal rights."[^183] As discussed above, it is
    readily apparent that Complainants did not act with anything
    approaching due diligence. Thus, we are not persuaded that the
    situation before us merits an equitable tolling of the limitations
    period.

60. With regard to Complainants' reliance on *Ervin*, we note, as an
    initial matter, that federal agencies are not required to follow
    state law. Thus, California law does not govern our interpretation
    of Section 415(b). In any case, even if we were to apply the
    three-part test enunciated in *Ervin*, Complainants would not
    prevail. First, we disagree with Complainants' position that the
    APCC's filing of two petitions for declaratory ruling in 1989 and
    1995 constitute timely notice of their current claims, filed under
    Section 208 of the Act.[^184] The individual Defendants in these
    cases could not have reasonably assumed, based on the APCC petition
    for declaratory ruling, that they would have been sued by these
    particular Complainants, or that they would be liable for damages.
    Second, given that Defendants would not have known to preserve the
    relevant records related to the informal complaints before us prior
    to the filing of the informal complaints by Complainants, extending
    the recovery period as Complainants advocate would prejudice
    Defendants.[^185] Lastly, as we have previously stated, we find
    Complainants' failure to file complaints, in light of the fact that
    a number of other IPPs preserved their rights to damages through the
    appropriate procedures set out in our rules, to be
    unreasonable.[^186] Indeed, in light of the overlap of counsel, it
    borders on the incomprehensible. As the *C.F. Communications* case
    demonstrates, filing protective complaints was not an exercise in
    futility.

61. We also note that the decisions that Complainants cite as examples
    of the Commission's tolling the limitations period, based on Section
    1.3 of our Rules, are not on point. Those cases involved waivers of
    the six-month conversion deadline in Section 1.718 of our Rules
    where informal complaints were already filed, rather than a tolling
    of the statutory limitations period.[^187]

62. We also reject Complainants' assertion that we should toll the
    statute of limitations, based on the APCC filing or the filing of
    other IPP complaints, for reasons of adjudicatory efficiency.
    Complainants argue that the filing of a large number of formal or
    informal complaints might have been administratively burdensome for
    the Commission.[^188] We note that Complainants did not
    contemporaneously approach the Commission for guidance on how to
    handle numerous complaints. Thus, we are not persuaded by their
    argument ***after the fact*** that they need not have filed
    complaints sooner because of their concern for our administrative
    burden.

63. Although there is expense and effort of litigating claims in light
    of adverse precedent, they do not "provide a basis for suspending
    the statute of limitations period. The only sure way to determine
    whether a suit can be maintained is to try it."[^189] We see no
    reason in this instance to depart from our precedent limiting the
    doctrine of equitable tolling.[^190]

64. We, therefore, agree with Defendants that Section 415 limits
    Complainants' claims for recovery to those charges levied no earlier
    than two years prior to the date Complainants filed their informal
    complaints.[^191] Because the charges at issue ceased on April 15,
    1997, we can only award damages where informal complaints were filed
    by April 15, 1999.

# complainants have established that the informal complaints underlying these formal complaints were timely filed

65. We reject Defendants' arguments disputing the filing of certain
    informal complaints that underlie some of the formal complaints at
    issue here. Defendants urge the Commission to dismiss formal
    complaints for which a complainant cannot provide what Defendants
    consider to be contemporaneous documentary evidence of filing its
    underlying informal complaint.[^192] For instance, because the
    copies of the informal complaints submitted by ITC, NSC, and
    Payphone Systems lack Commission date stamps, BellSouth and SBC
    argue that the Complainants have not met their burden of showing
    that the complaints were filed.[^193] Although conceding that CVC
    filed an informal complaint against it, Qwest disputes the date on
    which CVC filed the complaint because the copy in this record lacks
    a Commission date stamp.[^194] BellSouth also contests the filing of
    the informal complaint against it by ITC because BellSouth's records
    do not reflect any receipt of this complaint.[^195] In addition,
    BellSouth and SBC assert that the lack of a signature on the ITC
    complaints filed against them is further indicia of improper
    filing.[^196]

66. There are unique circumstances surrounding the processing of the
    EUCL charge informal complaints that we must address here. First,
    our survey of the Commission's informal complaint files and
    electronic database indicates that, due to the administrative
    difficulties the Commission encountered in processing these several
    thousand informal complaints, some informal complaints do not bear a
    date stamp. In other cases, it is evident that the date stamp was
    not affixed by the staff contemporaneously with the receipt of the
    informal complaint. In addition, we have determined that certain
    complaint files were prematurely closed and discarded as a result of
    difficulties experienced during a database conversion, even though
    the complaints had not been resolved.[^197] Thus, a properly filed
    complaint may not appear in the database or the Commission's files.
    We also have concerns that, in some instances, the filing date noted
    in the database was not the actual date of receipt. We must take
    these circumstances into account in assessing Defendants' arguments.

67. In light of the Commission's rules, all the circumstances, and the
    totality of the information before us, we find that the copies of
    the informal complaints in this record constitute contemporaneous
    documentary evidence of filing.[^198] Consequently, we conclude that
    the informal complaints at issue here were properly filed on the
    dates noted below.

68. As a preliminary matter, we dispense with the lack of signature
    issue for the ITC complaints. We note that our rules regarding
    informal complaints do not require that an informal complaint
    include a signature.[^199] Moreover, the Commission's copies of the
    informal complaints submitted by ITC also lack signatures, so the
    fact that Complainants' copies are not signed does not detract from
    their probative value.[^200]

69. As to the complaints that lack date stamps, we recognize that the
    lack of a date stamp is significant, but nevertheless conclude that
    the lack of a date stamp alone should not bar a complainant from
    pursuing its claim in these specific circumstances. The Commission
    has previously required the submission of date stamped copies as
    authoritative proof of filing,[^201] but we note that those cases
    involved more formal filings and instances where the Commission had
    no record of initially receiving the filing in question.[^202] In
    these unique circumstances, where some properly-filed complaints
    were not properly date-stamped by Commission staff, we find that we
    must consider all probative evidence. On this record, we conclude
    that evidence of Complainants' standard mailing practices[^203] and
    the date on the contested informal complaint are additional
    indicators of whether and when an informal complaint was filed.
    Complainants request that we establish a general presumption that an
    informal complaint had been timely filed based on a combination of
    certain documentary and testimonial evidence.[^204] Because the
    determinations in this proceeding will serve as precedent in future
    matters, we do not find it necessary to establish such a
    presumption.

70. With regard to the specific informal complaints at issue here, we
    find that there is sufficient evidence in the record to conclude
    that the informal complaints were filed and to determine the dates
    of these filings. We note that not only are the ITC, NSC, and
    Payphone Systems complaints against SBC listed in the Commission's
    database as having been filed,[^205] but that SBC responded to the
    informal complaints at issue and acknowledged that its response was
    based on complaints filed with the Commission.[^206] We find these
    indicia provide a sufficient basis for concluding that the informal
    complaints were filed.

71. Although ITC's informal complaint against BellSouth is not in the
    database, we find that ITC has met its burden of showing that it is
    more than likely that an informal complaint against BellSouth was
    filed. ITC has provided evidence showing that it properly mailed
    several other informal complaints on the same day (September
    15, 1997) and in the same package as the informal complaint against
    BellSouth. The other informal complaints mailed that day are in the
    Commission's database.[^207] Thus, we find it reasonable to conclude
    that the ITC complaint against BellSouth was in fact filed with the
    Commission.[^208]

72. We also conclude that there is enough evidence in the record to
    establish a specific date on which each of these informal complaints
    was filed. Regarding the ITC complaint against BellSouth, we note
    that the Commission's database lists several different filing dates
    for the informal complaints filed against multiple Defendants,
    despite evidence that they were mailed on the same day, and in the
    same package.[^209] To avoid unfairness to ITC from the Commission's
    administrative problems, we conclude that, in this instance where
    ITC has submitted evidence that it followed proper mailing
    procedures in filing its informal complaints, we will deem the date
    of mailing (September 15, 1997) to be the filing date.[^210] Because
    ITC had mailed to the Commission its informal complaint against
    BellSouth in the same package as the complaints it filed against
    ALLTEL, Ameritech (now SBC), Century, TDS, and Verizon North, we
    also deem the filing date for those informal complaints to be
    September 15, 1997.

73. We note that there is a discrepancy between the date listed in the
    database (December 2, 1997) for the filing of the NSC complaint
    against PacBell (now SBC) and the date on the informal complaint
    (December 31, 1997). We ascribe this discrepancy to the
    administrative problems encountered in processing these complaints,
    as described above. In the absence of specific evidence of the date
    on which the NSC Complaint arrived at the Commission, we will
    presume that it was filed on the date indicated on the complaint,
    i.e., December 31, 1997. SBC also contests the dates on which ITC
    and Payphone Systems filed their informal complaints. As noted
    above, we are satisfied by the evidence ITC provided that it
    properly filed its informal complaint against Ameritech and deem
    September 15, 1997 as the filing date for this complaint. We also
    conclude that SBC has provided no evidence to show that the January
    8, 1998, filing date claimed by Payphone Systems, and reflected in
    the Commission's records, is inaccurate.[^211]

74. With regard to the filing date of the CVC informal complaint against
    Qwest, we find that the return receipt and Mr. Kerivan's testimony
    establish that CVC mailed the informal complaint to the Commission
    on September 29, 1997, and that the postal service delivered the
    complaint to the Commission on October 3, 1997.[^212]

# based on the unique circumstances of these cases, we waive our settlement certification requirement in section 1.721(a)(8) of the Commission's rules.

75. Defendants assert that we should dismiss certain of Complainants'
    claims because Complainants did not notify Defendants in their
    certified settlement letters that these claims would be included in
    the formal complaints, as required by Section 1.721(a)(8) of the
    Commission's rules.[^213] The specific claims that Defendants seek
    to have dismissed are based on (1) Section 203 of the Act, (2) the
    filed rate doctrine, (3) the argument that Defendants violated the
    Act by assessing EUCL charges on the lines used to provide both
    semi-public and public service, and (4) the argument that
    Complainants' status as carriers rather than "end users" means that
    Defendants could not assess EUCL charges on any lines that
    Complainants ordered.[^214] Complainants argue that Section
    1.721(a)(8) does not require a complainant to state each specific
    cause of action that might be included in its formal complaint, and
    that to do so would unreasonably expand the scope and purpose of the
    rule.[^215]

76. While we do have concerns about whether Complainants' certified
    settlement letters met the requirements of Section 1.721(a)(8) of
    our rules, we find it appropriate in this case to waive this rule on
    our own motion. As explained below, we do so because it is clear
    that Defendants in this case had adequate notice, prior to receiving
    the settlement certification, of all the claims Complainants have
    asserted, and because there is no evidence that the parties have not
    attempted settlement in accordance with the Commission's rules.

77. The Commission's first objective when complaint issues arise is to
    promote settlement efforts to enable parties to resolve disputes on
    their own before resorting to adjudication.[^216] To this end, the
    Commission's rules require that complainants and defendants certify
    in their respective complaints and answers that the possibility of
    settlement was discussed before the complaint was filed with the
    Commission.[^217] Specifically, Section 1.721(a)(8) states that the
    complainant must certify that prior to the filing of the formal
    complaint, "the complainant mailed a certified letter outlining the
    allegations that form the basis of the complaint it anticipated
    filing with the Commission to the defendant carrier. . . ." The
    Commission has emphasized that this rule requires verification that
    the parties discussed the "facts and issues in dispute prior to the
    filing of the complaint."[^218]

78. In order to meet the Commission's objective of promoting settlement,
    rule 1.721(a)(8) would generally require complainants to provide
    defendants with adequate notice of each of their enumerated
    claims.[^219] We find that given the unique facts of this case,
    Defendants had adequate notice of the nature of the claims that
    Complainants were likely to assert against them even before they
    received the settlement letters. This notice came in several forms.
    First, the informal complaints against Defendants that preceded the
    formal complaints set out Complainants' argument that the IPPs are
    not "end users" under the Commission's rules, thereby implicitly
    including the argument that they are not subject to EUCL charges for
    any of their payphones.[^220]

79. Second, in 2001, the Enforcement Bureau initiated a hearing
    proceeding before an administrative law judge to determine the
    amount of damages that defendant local exchange carriers owed to
    certain IPPs for the unlawful assessment of EUCL charges.[^221] All
    of the defendants in the instant proceeding, except Qwest, were a
    party to that proceeding.[^222] Prior to issuing the order referring
    the damages issue to an Administrative Law judge, the Enforcement
    Bureau sought proposed hearing designation orders and comments from
    the parties regarding the procedures for hearing.[^223] The
    complainants in those cases, who were represented by the same
    counsel who represent the current Complainants, had asserted that
    because IPPs were found not to be "end users" within the meaning of
    Section 69.104(a), the collection of EUCL charges for semi-public
    payphones was unlawful.[^224] The Enforcement Bureau rejected those
    claims as untimely, stating that they should have been raised in a
    timely filed reconsideration petition to the *Liability
    Order*.[^225] Nevertheless, the Enforcement Bureau clearly described
    the claims, thereby informing Defendants of their existence.[^226]
    Thus, it is reasonable to assume that Defendants were on notice that
    these same claims might be raised in a subsequent adjudication of
    the thousands of pending informal complaints. Finally, all of the
    Defendants have been aware of the nature of the claims contained in
    the formal and informal complaints for a number of years because, as
    we have stated previously, they have had a number of opportunities
    to engage in settlement discussions with the Complainants, often
    with the involvement of Commission staff.[^227]

80. Accordingly, we conclude both that Defendants have had adequate
    notice of the allegations that form the basis of the formal
    complaints and that settlement discussions have occurred. We
    therefore find that it is appropriate to waive Section 1.721(a)(8)
    of our rules. This waiver is based on the unique circumstances of
    these proceedings, in particular, the parties' involvement in
    adjudicating and mediating the relevant issues over a lengthy period
    of time, and is not an indication that a complainant in any other
    proceeding may fail to ensure that a defendant receive adequate
    notice of the claims being asserted against it.

# CONCLUSION AND ORDERING CLAUSES

81. For the reasons discussed above, we conclude that Defendants\'
    imposition of EUCL charges on the Complainants violated Section
    201(b) of the Act and Part 69 of the Commission\'s rules.

82. ACCORDINGLY, IT IS ORDERED, pursuant to Sections 1, 4(i), 4(j),
    201(b), and 208 of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 151, 154(i), 154(j), 201(b), and 208, that the formal
    complaints filed by Communications Vending Corporation of Arizona,
    Inc., IMR Capital Corporation, Indiana Telcom Corporation, Inc.,
    National Telecoin Corporation, Inc., NSC Communications Public
    Services Corporation, and Payphone Systems ARE PARTIALLY GRANTED.

83. IT IS FURTHER ORDERED that the APCC Petition for Declaratory Ruling
    filed in 1989 is DISMISSED as moot as a result of the *Liability
    Order* and this Order.

84. IT IS FURTHER ORDERED that, the February 27, 2002 Letter Ruling is
    VACATED to the extent it relates to the provision of copies of
    supporting documentation.

85. IT IS FURTHER ORDERED that the Qwest Petition for Reconsideration,
    the SBC Application for Review, and the TDS Request for
    Clarification are DISMISSED as moot.

86. IT IS FURTHER ORDERED that, Communications Vending Corporation of
    Arizona, Inc., IMR Capital Corporation, Indiana Telcom Corporation,
    Inc., National Telecoin Corporation, Inc., NSC Communications Public
    Services Corporation, and Payphone Systems, in accordance with
    Section 1.722 of the Commission\'s Rules, 47 C.F.R. § 1.722, MAY
    FILE supplemental complaints concerning damages after the Bureau's
    release of a Hearing Designation Order in this proceeding.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**Appendix A**

*1) Communications Vending Corporation of Arizona, Inc. v. Citizens
Communications Company f/k/a Citizens Utilities Company and Citizens
Telecommunications Company d/b/a Citizens Telecom,* Supplement to Formal
Complaint, File No. EB-02-MD-018 (filed April 26, 2002) ("CVCA v.
Citizens Complaint")

*2) Communications Vending Corporation of Arizona, Inc. v. Qwest
Corporation f/k/a US West Communications, Inc. and as
Successor-in-Interest to Mountain Bell Telephone Company,* Supplement to
Formal Complaint, File No. EB-02-MD-019 (filed April 26, 2002) ("CVCA v.
Qwest Complaint")

*3) IMR Capital Corporation v. Verizon New England Inc. f/k/a New
England Telephone Company*, Supplement to Formal Complaint, File No.
EB-02-MD-020 (filed April 26, 2002) ("IMR v. Verizon New England
Complaint")

*4) Indiana Telcom Corporation, Inc. v. Alltel Corporation, Western
Reserve Telephone Company-Alltel, Alltel Ohio, Inc. and Alltel Indiana,
Inc.,* Supplement to Formal Complaint, File No. EB-02-MD-021 (filed
April 26, 2002) ("ITC v. Alltel Complaint")

*5) Indiana Telcom Corporation, Inc. v. Indiana Bell Telephone Company,
Inc. D/B/A Ameritech Indiana and Ohio Bell Telephone Company, Inc. d/b/a
Ameritech Ohio,* Supplement to Formal Complaint, File No. EB-02-MD-022
(filed April 26, 2002) ("ITC v. Ameritech Complaint")

*6) Indiana Telcom Corporation, Inc. v. BellSouth Telecommunications,
Inc. f/k/a South Central Bell Telephone Company,* Supplement to Formal
Complaint, File No. EB-02-MD-023 (filed April 26, 2002) ("ITC v.
BellSouth Complaint")

*7) Indiana Telcom Corporation, Inc. v. CenturyTel, Inc. and Century
Telephone of Central Indiana, Inc. f/k/a Central Indiana Telephone
Company,* Supplement to Formal Complaint, File No. EB-02-MD-024 (filed
April 26, 2002) ("ITC v. Century Complaint")

*8) Indiana Telcom Corporation, Inc. v. Telephone and Data Systems,
Inc., TDS Telecommunications Corporation, Tipton Telephone Company, Inc.
d/b/a TDS Telcom, Communications Corporation of Indiana d/b/a TDS
Telcom, and Home Telephone Company of Pittsboro, Inc.*, Supplement to
Formal Complaint, File No. EB-02-MD-025 (filed April 26, 2002) ("ITC v.
TDS Complaint")

*9) Indiana Telcom Corporation, Inc. v. Verizon North Inc. f/k/a GTE
North, Incorporated and as Successor-in-Interest to Contel of Indiana,
Inc.,* Supplement to Formal Complaint, File No. EB-02-MD-026 (filed
April 26, 2002) ("ITC v. Verizon North Complaint")

*10) National Telecoin Corporation v. Verizon Delaware Inc. f/k/a Bell
Atlantic-Delaware, Inc.; Verizon New Jersey, Inc. f/k/a Bell
Atlantic-New Jersey, Inc.; and Verizon Pennsylvania Inc. f/k/a Bell
Atlantic-Pennsylvania, Inc.,* Supplement to Formal Complaint, File No.
EB-02-MD-027 (filed April 26, 2002*)* ("NTC v. Verizon Delaware
Complaint")

*11) NSC Communications Public Services Corporation v. Pacific Bell
Telephone Company,* Supplement to Formal Complaint, File No.
EB-02-MD-028 (filed April 26, 2002) ("NSC v. PacBell Complaint")

*12) Payphone Systems v. Citizens Telecommunications Company of
California, Inc. f/k/a Citizens Utilities Company of California, Inc.,*
Supplement to Formal Complaint, File No. EB-02-MD-029 (filed April 26,
2002*)* ("Payphone Systems v. Citizens Complaint");

*13) Payphone Systems v. Pacific Bell Telephone Company*, Supplement to
Formal Complaint, File No. EB-02-MD-030 (filed April 26, 2002)
("Payphone Systems v. PacBell Complaint")

[^1]: ^    ?^ *See* Appendix A for a list of the complaints at issue in
    this proceeding. Due to procedural deficiencies, the Commission
    rejected the formal complaints initially filed by Complainants on
    April 17, 2002. *See* Letter from Tracy E. Bridgham, Special
    Counsel, Market Disputes Resolution Division, Enforcement Bureau, to
    Albert H. Kramer and Katherine J. Henry, counsel for Complainants
    (rel. Apr. 23, 2002) ("April 23, 2002 Letter Ruling") at 2. The
    Commission consolidated the refiled complaints for administrative
    convenience. *See* Letter from Radhika V. Karmarkar, Deputy Chief,
    Market Disputes Resolution Division, Enforcement Bureau, to all
    counsel, File Nos. EB-02-MD-018 -- 030 (rel. May 1, 2002) ("May 1,
    2002 Letter Ruling") at 5.

[^2]: ^ ?^ 47 U.S.C. §§ 201(b) and 203(c). Telecommunications Act of
    1996, Pub. L. No. 104-104, 110 Stat. (1996) (the "Act").

[^3]: 47 C.F.R. §§ 69.1 *et seq.* (1987 -- 1997). Unless otherwise
    indicated, all C.F.R. references to Part 69 of the Commission's
    rules refer to the rules in effect prior to April 15, 1997.

[^4]: "Citizens" refers collectively to Citizens Communications Company
    f/k/a Citizens Utilities Company, Citizens Telecommunications
    Company d/b/a Citizens Telcom, and Citizens Telecommunications
    Company of California, Inc. f/k/a Citizens Utilities Company of
    California, Inc.

[^5]: "Qwest" refers collectively to Qwest Corporation f/k/a US West
    Communications, Inc., a Successor-in-Interest to Mountain Bell
    Telephone Company.

[^6]: "Verizon" refers collectively to Verizon New England Inc. f/k/a
    New England Telephone Company, Verizon North Inc. f/k/a GTE North,
    Incorporated, a Successor-in-Interest to Contel of Indiana, Inc.,
    Verizon Delaware Inc. f/k/a Bell Atlantic-Delaware, Inc., Verizon
    New Jersey, Inc. f/k/a Bell Atlantic-New Jersey, Inc., and Verizon
    Pennsylvania, Inc. f/k/a Bell Atlantic-Pennsylvania, Inc.

[^7]: "ALLTEL" refers collectively to ALLTEL Corporation, Western
    Reserve Telephone Company-ALLTEL, ALLTEL Ohio, Inc. and ALLTEL
    Indiana, Inc.

[^8]: "SBC" refers collectively to Indiana Bell Telephone Company, Inc.
    d/b/a Ameritech Indiana and Ohio Bell Telephone Company, Inc. d/b/a
    Ameritech Ohio ("Ameritech") and Pacific Bell Telephone Company
    ("PacBell"). SBC Telecommunications, Inc. is the parent company of
    Ameritech and PacBell.

[^9]: "BellSouth" refers collectively to BellSouth Telecommunications,
    Inc. f/k/a South Central Bell Telephone Company.

[^10]: "Century" refers collectively to CenturyTel, Inc. and Century
    Telephone of Central Indiana, Inc. f/k/a Central Indiana Telephone
    Company.

[^11]: "TDS" refers collectively to Telephone and Data Systems, Inc.,
    TDS Telecommunications Corporation, Tipton Telephone Company, Inc.
    d/b/a TDS Telcom, Communications Corporation of Indiana d/b/a TDS
    Telcom, and Home Telephone Company of Pittsboro, Inc.

[^12]: Citizens, ALLTEL, Century, and TDS maintain that certain
    affiliated entities named in the complaints against them are not
    proper parties to this proceeding because the entity in question did
    not provide local exchange services to the particular Complainant.
    Defendants, however, concede that each of the complaints at issue
    has named the entities that did actually provide service to the
    Complainants. *See* Supplemental Consolidated Joint Statement
    Concerning Issues 1 and 4 Identified in the Commission's August 7,
    2002 Letter Ruling (filed Aug. 15, 2002) ("First Supplemental Joint
    Statement") at 4, ¶¶ 10-11; 7, ¶¶ 20, 26-28; 12-13, ¶¶ 42, 48-49;
    14-15, ¶¶ 51-52, 58. Because this issue bears on the entities from
    whom Complainants may recover damages, we will defer its resolution
    to the next phase of this proceeding.

[^13]: *See* FCC Open and Pending List of EUCL Informal Complaints,
    dated June 29, 2001 ("June 29, 2001 FCC Open and Pending List of
    EUCL Informal Complaints").

[^14]: *See Implementation of the Pay Telephone Reclassification and
    Compensation Provisions of the Telecommunications Act of 1996*,
    First Report and Order, 11 FCC Rcd 20541, ¶ 187 (1996), vacated in
    part on other grounds, *Illinois Pub. Telecomms. Ass'n v. FCC*, 123
    F.3d 693 (D.C. Cir. 1997); *Implementation of the Pay Telephone
    Reclassification and Compensation Provisions of the
    Telecommunications Act of 1996*, Report and Order on
    Reconsideration, 11 FCC Rcd 21233, ¶ 207 (1996).

[^15]: *See e.g.* CVCA v. Citizens Complaint at I-4, ¶ 1. We note that
    this information appears on the same page in all the complaints at
    issue. *See also* Consolidated Answer of Citizens Defendants to
    Formal Complaints and Supplements to Formal Complaints, File Nos.
    EB-02-MD-018 and EB-02-MD-029 (filed June 28, 2002) ("Citizens
    Consolidated Answer") at 2, ¶ B3; Qwest Corporation's Answer to
    CVCA's Formal Complaint, File No. EB-02-MD-019 (filed June 28, 2002)
    ("Qwest Answer") at I-9, ¶ 3; Answer of Verizon New England Inc. to
    IMR Capital Corporation's Complaint, File No. EB-02-MD-020 (filed
    June 28, 2002) ("Verizon New England Answer") at A-6, ¶ 3; Revised
    Answer of ALLTEL Corporation, Western Reserve Telephone Company,
    ALLTEL Ohio, Inc., and ALLTEL Indiana, Inc., File No. EB-02-MD-021
    (filed July 15, 2002) ("ALLTEL Supplemental Answer") at I-5, ¶¶ 6;
    8; Consolidated Answer of Indiana Bell Company, Ohio Bell Telephone
    Company, and Pacific Bell Telephone Company, File Nos. EB-02-MD-022
    and EB-02-MD-028; EB-02-MD-030; (filed June 28, 2002) ("SBC Answer")
    at 5-6, ¶¶ 1, 3; 6-7, ¶¶ 1, 3; 7-8, ¶¶ 1, 3; Answer of BellSouth
    Telecommunications, Inc., File No. EB-02-MD-023 (filed June 28,
    2002) ("BellSouth Answer") at I-4, ¶¶ B1, B3; Revised Answer of
    CenturyTel, Inc. and CenturyTel of Central Indiana, Inc., File No.
    EB-02-MD-024 (filed July 15, 2002) ("Century Supplemental Answer")
    at I**-**5, ¶¶ 6, 8; Defendants Telephone and Data Systems, Inc.,
    TDS Telecommunications Corporation, Tipton Telephone Company, Inc.,
    Communications Corporation of Indiana and Home Telephone Company of
    Pittsboro, Inc.'s Answer to Complaint, File No. EB-02-MD-025 (filed
    June 28, 2002) ("TDS Answer") at 3, ¶¶ B1, B3; Answer of Verizon
    North Inc. to Indiana Telcom Corporation's Complaint, File No.
    EB-02-MD-026 (filed June 28, 2002) ("Verizon North Answer") at A-7,
    ¶ 3; Answer of Verizon Delaware Inc., Verizon New Jersey Inc. and
    Verizon Pennsylvania Inc. to National Telecoin Corporation's
    Complaint, File No. EB-02-MD-027 (filed June 28, 2002) ("Verizon
    Delaware et al. Answer") at A-6, ¶ 3; First Supplemental Joint
    Statement at 4, ¶¶ 10-11; 5, ¶ 12; 6, ¶ 18; 16, ¶¶ 59, 61.

[^16]: Complainants filed informal complaints regarding the controversy
    at issue in the above-referenced formal complaints during 1997 and
    1998. Subsequent waiver orders extended the time for converting the
    informal complaints to formal complaints until June 30, 2003.
    Therefore, provided the informal complaints were properly filed, the
    formal complaints at issue here were timely filed. *See* 47 U.S.C. §
    415(b). *See also Informal Complaints Filed By Independent Payphone
    Service Providers* *Against Various Local Exchange Carriers Seeking
    Refunds of End User Common Line Charges*, Order (EB DA 02-1890)
    (rel. Aug. 2, 2002), at ¶ 2 ("*Third Waiver Order*"); *Informal
    Complaints Filed By Independent Payphone Service Providers* *Against
    Various Local Exchange Carriers Seeking Refunds of End User Common
    Line Charges*, Order, 17 FCC Rcd 2115, 2116, at ¶ 3 (EB 2002)
    ("*Second Waiver Order*"); *Informal Complaints Filed By Independent
    Payphone Service Providers Against Various Local Exchange Carriers
    Seeking Refunds of End User Common Line Charges*, Order, 16 FCC Rcd
    3669, 3671, at ¶ 5 (CCB 1999) ("*First Waiver Order*").

[^17]: ^ ?^ *See MTS and WATS Market Structure*, Third Report and Order,
    93 FCC 2d 241, 243, ¶ 3; 280, ¶ 128 (1983) ("*Access Charge*
    Order"), modified on recon., 97 FCC 2d 682 (1983) ("*First
    Reconsideration Order"*) modified on further recon., 97 FCC 2d 834
    (1984), aff\'d and remanded in part sub nom., *National Ass\'n of
    Regulatory Util. Comm\'rs v. FCC*, 737 F.2d 1095 (D.C. Cir. 1984).
    *See also* *C.F. Communications Corp. v. FCC*, 128 F.3d 735, 736-7
    (D.C. Cir. 1997) (*"C.F. Communications"*).

[^18]: \"A pay telephone is used to provide public telephone service
    when a public need exists, such as at an airport lobby, at the
    option of the telephone company and with the agreement of the owner
    of the property on which the phone is placed.\" *First
    Reconsideration Order*, 97 FCC 2d at 704 n.41.

[^19]: A private business or residential telephone would constitute an
    identifiable subscriber. *C.F. Communications Corp., et al. v.
    Century Telephone of Wisconsin, Inc., et. al.*, Memorandum Opinion
    and Order on Remand, 15 FCC Rcd 8759, 8762, ¶ 10 (2000) ("*Liability
    Order"*).

[^20]: *First Reconsideration Order*, 97 FCC 2d at 705, ¶ 58.

[^21]: "A pay telephone is used to provide ***semi-public*** telephone
    service when there is a combination of general public and specific
    customer need for the service, such as at a gasoline station or
    pizza parlor." *First Reconsideration Order,* 97 FCC 2d at 704, n.41
    (emphasis added).

[^22]: *Id.* at 706, ¶ 60. The NTS costs of operating public payphones
    would in effect be subsidized by all interstate callers through the
    Carrier Common Line Charge ("CCL") assessed on IXCs. *Id.* at 705, ¶
    58.

[^23]: *Liability Order,* 15 FCC Rcd at 8763, ¶ 13.

[^24]: *See Registration of Coin Operated Telephones*, Memorandum
    Opinion and Order, 49 Fed. Reg. 27763 (1984).

[^25]: Consolidated Joint Statement (filed July 29, 2002) at 31, ¶ 127.

[^26]: *Id*. at 47, ¶ 205; 59, ¶ 276; 72, ¶ 350; 85, ¶ 417; 100, ¶ 495;
    114, ¶ 574; 126, ¶ 644; 141, ¶ 721; 155, ¶ 799; 170, ¶ 875; 183, ¶
    941; 197, ¶ 1005; 206, ¶ 1055.

[^27]: *See e.g.* CVCA v. Citizens Complaint, Exh. 11 (American Payphone
    Systems, Inc. Informal Complaint, IC-88-04679, dated May 12, 1988);
    Exh. 13 (Letter from Anita J. Thomas, Carrier Analyst, Informal
    Complaints and Public Inquiries Branch, Enforcement Division, Common
    Carrier Bureau, FCC, to LeRoy Manke, Coon Valley Farmers Telephone
    Co, IC-89-03671, (Apr. 4, 1989) ("Apr. 4, 1989 Anita J. Thomas
    Letter").

[^28]: *See e.g.* CVCA v. Citizens Complaint, Exh. 12 (Letter from Anita
    J. Thomas, Carrier Analyst, Informal Complaints and Public Inquiries
    Branch, Enforcement Division, Common Carrier Bureau, FCC, to Lance
    C. Norris, American Payphones, Inc., IC-88-04679, (Sept. 14, 1988)
    ("Sept. 14, 1988 Anita J. Thomas Letter"); Apr. 4, 1989 Anita J.
    Thomas Letter. The staff letters appear to have been based on a
    determination that the telephone lines provided to the IPPs were
    "ordinary 'common lines'" and that such "\[o\]rdinary business
    telephone lines taken out of the local exchange service tariff
    \[were\] not exempt from subscriber line charges." Sept. 14, 1988
    Anita J. Thomas Letter at 1.

[^29]: The American Public Communications Council Petition for
    Declaratory Ruling (filed April 21, 1989) ("APCC Petition").
    Although the Commission has not yet ruled on APCC's petition, the
    *Liability Order* and our ruling today renders it moot.

[^30]: *C.F. Communications Corp. v. CenturyTel. of Wisconsin*,
    89-C-0168-C, Order (W.D. Wis. 1989).

[^31]: CFC and several other IPPs subsequently filed 52 additional
    formal complaints raising the same allegations raised by CFC in its
    initial complaints. The Commission did not consolidate these
    complaints with the initial 13 complaints. For further discussion of
    these complaints s*ee Liability Order*, 15 FCC Rcd at 8760, ¶¶ 2,
    4-6.

[^32]: *C.F. Communications Corp. v. Century Telephone of Wisconsin,
    Inc. et. al*., Memorandum Opinion and Order, 8 FCC Rcd 7334 (1993)
    ("*Bureau CFC Order"*); *C.F. Communications Corp. v. Century
    Telephone of Wisconsin*, *Inc., et. al.*, Memorandum Opinion and
    Order, 10 FCC Rcd 9775 (1995) ("*CFC I Order"*); *C.F.
    Communications Corp., et. al. v. Michigan Bell Telephone Co., et.
    al.*, Memorandum Opinion and Order, 12 FCC Rcd 2134 (1997) ("*CFC II
    Order"*).

[^33]: *CFC I Order*, 10 FCC Rcd at 9779, ¶¶ 16-20. The Commission
    reasoned that IPP payphones did not fall within the definition of
    "public telephone" under the rules at the time and thus were not
    exempt from the EUCL charge. *Id*. at 20.

[^34]: *C.F. Communications Corp. v. FCC*, 128 F.3d 735 (D.C. Cir. 1997)
    (*"C.F. Communications"*); *see also C.F. Communications Corp. v.
    FCC*, No. 97-1202, slip op. (D.C. Cir. 1997).

[^35]: *C.F. Communications,* 128 F.3d at 740. In addition, the Court
    concluded that the definition of "public telephone" relied on by the
    Commission had no bearing on the IPP service, but rather related to
    how the LECs recovered their investment in payphone equipment. *Id*.

[^36]: *Liability Order,* 15 FCC Rcd at 8768, ¶ 24.

[^37]: *Id.* at 8768, ¶ 25.

[^38]: *Id.* at 8766, ¶ 20; 8768, ¶ 26.

[^39]: *Id.* at 8768, ¶ 27.

[^40]: *Id.* at 8769, ¶ 28.

[^41]: *See Verizon Telephone Companies v. FCC*, 269 F.3d 1098 (DC Cir.
    2001) ("*Verizon*").

[^42]: *Id.* at 1101.

[^43]: *Id.*

[^44]: *Liability Order,* 15 FCC Rcd at 8766, ¶ 7. The Commission's
    database presently lists close to 3000 informal complaints disputing
    the EUCL charge. *See* June 29, 2001 FCC Open and Pending List for
    EUCL Informal Complaints.

[^45]: *First Waiver Order*, 16 FCC Rcd at 3671, ¶ 5; 3672, ¶ 8.

[^46]: *Id.* at 3671, ¶ 5; *Liability Order,* 15 FCC Rcd at 8773, ¶ 39.

[^47]: *Third Waiver Order*, at ¶ 2*; Second Waiver Order*, 17 FCC Rcd
    at 2226, ¶ 3.

[^48]: During the relevant period, 47 C.F.R. § 69.104(a) stated:

    > A charge that is expressed in dollars and cents per line per month
    > shall be assessed upon end users that subscribe to local exchange
    > telephone service, Centrex or semi-public coin telephone service
    > to the extent they do not pay carrier common line charges....

[^49]: Section 201(b) of the Act provides, in pertinent part, that
    "\[a\]ll charges \[and\] practices... in conjunction with such
    communications service shall be just and reasonable, and any such
    charge \[or\] practice...that is unjust or unreasonable is hereby
    declared to be unlawful." 47 U.S.C. § 201(b). Section 203(c) of the
    Act states that a carrier must provide communications services in
    strict accordance with the terms and conditions contained in its
    tariff. 47 U.S.C. § 203(c). Section 203(c), therefore, prohibits the
    imposition of a charge not specified in a carrier's tariff. *See
    AT&T v. Central Office Telephone, Inc.*, 524 U.S. 214, 222 (1988).

[^50]: *See, e.g.* CVCA v. Citizens Complaint at II-1- II-3, ¶¶ 1-3;
    II-6 -- II-12, ¶¶ 10-22; II-13 -- II-14, ¶¶ 23-25. Because the
    citations to the legal analysis sections of all the complaints are
    identical, citations to Complainants' legal analysis will
    hereinafter be referred to as "Complainants' Legal Analysis." *See*
    Letter from Katherine J. Henry, counsel for Complainants, dated Oct.
    17, 2002, to Rosemary McEnery, Attorney, Market Disputes Resolution
    Division, Enforcement Bureau, Federal Communications Commission.

[^51]: *See* Complainants' Legal Analysis at II-3 -- II-5, ¶¶ 4-7; II-5
    -- II-6, ¶ 8.

[^52]: *Id.* at II-28 -- II-57, ¶¶ 50-99.

[^53]: *See* Citizens Memorandum of Law, File Nos. EB-02-MD-018 and
    EB-02-MD-029 (filed July 15, 2002) ("Citizens Supplemental Answer")
    at III-23 -- III-32; Qwest Corporation's Revised Legal Analysis in
    Support of its Answer to the Formal Complaint of CVCA, File No.
    EB-02-MD-019 (filed July 15, 2002) ("Qwest Supplemental Answer") at
    III-5 -- III-13; Supplemental Answer of Verizon New England Inc. to
    IMR Capital Corporation's Complaint, File No. EB-02-MD-020 (filed
    July 15, 2002) ("Verizon New England Supplemental Answer") at B20 --
    B29; ALLTEL Supplemental Answer at IV-1 -- IV-3; SBC's Revised Legal
    Analysis, File Nos. EB-02-MD-022; EB-02-MD-028; and EB-02-MD-030;
    (filed July 15, 2002) ("SBC Supplemental Answer") at III-23 --
    III-31; BellSouth Supplemental Legal Analysis, File No. EB-02-MD-023
    (filed July 15, 2002) ("BellSouth Supplemental Answer") at II-22 --
    II-30; Century Supplemental Answer at IV-1 -- IV-3; TDS Telecom's
    Supplemental Answer to ITC's Complaint, File No. EB-02-MD-025 (filed
    July 15, 2002) ("TDS Supplemental Answer") at 21 - 30; Supplemental
    Answer of Verizon North Inc. to Indiana Telcom Corporation's
    Complaint, File No. EB-02-MD-026 (filed July 15, 2002) ("Verizon
    North Supplemental Answer") at B-20 -- B-29; Supplemental Answer of
    Verizon Delaware Inc., Verizon New Jersey Inc. and Verizon
    Pennsylvania Inc. to National Telecoin Corporation's Complaint, File
    No. EB-02-MD-027 (filed July 15, 2002) ("Verizon Delaware
    Supplemental Answer") at B-20 -- B-29.

[^54]: Citizens Supplemental Answer at III-4 -- III-20; Qwest
    Supplemental Answer at III-14 -- III-31; Verizon New England
    Supplemental Answer at B-3 -- B-20; ALLTEL Supplemental Answer at
    IV-5 -- IV-6; SBC Supplemental Answer at III-3 -- III-23; BellSouth
    Supplemental Answer at II-3 -- II-20; Century Supplemental Answer at
    IV-3 -- IV-6; TDS Supplemental Answer at 3 - 20; Verizon North
    Supplemental Answer at B-3 -- B-20; Verizon Delaware Supplemental
    Answer at B-3 -- B-20.

[^55]: Citizens Supplemental Answer at III-33 -- III-53; Qwest
    Supplemental Answer at III-32 -- III-55; Verizon New England
    Supplemental Answer at B-28 -- B-52; ALLTEL Supplemental Answer at
    IV-7 -- IV-9; SBC Supplemental Answer at III-33 -- III-52; BellSouth
    Supplemental Answer at II-30 -- II-55; Century Supplemental Answer
    at IV-7 -- IV-9; TDS Supplemental Answer at 30 - 53; Verizon North
    Supplemental Answer at B-28 -- B-52; Verizon Delaware Supplemental
    Answer at B-30 -- B-53.

[^56]: Citizens Supplemental Answer at III-56 -- III-60; Qwest
    Supplemental Answer at III-55 -- III-58; Verizon New England
    Supplemental Answer at B-54 -- B-55; ALLTEL Supplemental Answer at
    IV-9 - IV-10; SBC Supplemental Answer at III-57 -- III-61; BellSouth
    Supplemental Answer at II-55 - II-60; Century Supplemental Answer at
    IV-9 - IV-10; TDS Supplemental Answer at 53 - 58; Verizon North
    Supplemental Answer at B-53 -- B-54; Verizon Delaware Supplemental
    Answer at B-54.

[^57]: *See* May 1, 2002 Letter Ruling at 7. Section 208(a) of the Act
    provides the Commission with discretion to bifurcate liability and
    damages issues on its own motion. *See Implementation of the
    Telecommunications Act of 1996: Amendment of Rules Governing
    Procedures to be Followed When Formal Complaints Are Filed Against
    Common Carriers*, Memorandum Opinion and Order, 12 FCC Rcd 22497,
    22575 (1997) ("*Formal Complaints Order*"). *See also* *Verizon*,
    269 F.3d at 1105.

    In light of the bifurcation, we hereby vacate our February 27, 2002
    Letter Ruling to the extent it relates to the provision of copies of
    supporting documentation, and the corresponding confidentiality
    designation, because these materials relate only to the damages
    phase. *See* Letter from Tracy E. Bridgham, Special Counsel, Market
    Disputes Resolution Division, Enforcement Bureau to all counsel,
    File Nos. EB-02-MD-018 -- 030 (Feb. 27, 2002) ("February 27, 2002
    Letter Ruling"). Having vacated the Letter Ruling, the motions of
    several Defendants challenging it are thus dismissed as moot. *See*
    Letter from Aimee Jimenez, counsel for Qwest, to Tracy Bridgham,
    Special Counsel, Market Disputes Resolution Division, Enforcement
    Bureau, File Nos. EB-02-MD-018 -- 030 (Feb. 28, 2002) ("Qwest
    Petition for Reconsideration"); SBC's Application for Review, File
    Nos. EB-02-MD-018 -- 030 (filed Mar. 29, 2002) ("SBC Application for
    Review"); Letter from Margot Humphrey, counsel for TDS, to Tracy
    Bridgham, Special Counsel, Market Disputes Resolution Division,
    Enforcement Bureau, File Nos. EB-02-MD-018 -- 030 (Feb. 28, 2002)
    ("TDS Request for Clarification"). To the extent the TDS Request for
    Clarification sought an initial ruling on the statute of limitations
    issue, that request is also moot.

[^58]: *See Liability Order*, 15 FCC Rcd at 8766, ¶ 20.

[^59]: *Id.* at 8768, ¶ 24.

[^60]: *Id.* at 8767, ¶ 21.

[^61]: *See* i*d*. at 8766-71, ¶¶ 20-25, 33.

[^62]: *Verizon,* 269 F.3d at 1112.

[^63]: Complainants in the prior case did not raise this "end user"
    argument in a petition for reconsideration following the *Liability
    Order* -- nor was it presented to the Court of Appeals.

[^64]: *See* Complainants' Legal Analysis at II-5 - II-6, ¶¶ 8-9.

[^65]: 47 C.F.R. § 69.104(a) (emphasis added).

[^66]: *Id.*

[^67]: 47 C.F.R. § 69.2(m).

[^68]: *See C.F. Communications*, 128 F.3d at 739. The Court reasoned
    that, because CFC is a "carrier," then it can only be an "end user"
    under the rule (1) if it "uses a telecommunications service for
    administrative purposes" (and no one suggested that IPPs used
    payphones for such purposes) or (2) if CFC "offers
    telecommunications services exclusively as a reseller" and if all
    such transactions "originate on the premises of such reseller."
    *Id.* at 738. Thus, the Court's conclusion that calls did not
    originate on CFC's premises necessarily means that CFC is ***not***
    an "end user." *See id.* at 740.

[^69]: *C.F. Communications*, 128 F.3d at 737-38.

[^70]: *Liability Order*, 15 FCC Rcd at 8768, ¶ 24.

[^71]: Defendants concede that Complainants "had no property interest
    whatsoever in the premises where their payphones were installed."
    Citizens Supplemental Answer at III-25; Qwest Supplemental Answer at
    III-8; Verizon New England Supplemental Answer at B-23; ALLTEL
    Supplemental Answer at IV-2; SBC Supplemental Answer at III-25;
    BellSouth Supplemental Answer at II-24; Century Supplemental Answer
    at IV-2; TDS Supplemental Answer at 24; Verizon North Supplemental
    Answer at B-23; Verizon Delaware Supplemental Answer at B-23.

[^72]: *See* n.63, *supra.*

[^73]: We note that the public/semi-public distinction may well prove to
    be a distinction without a difference. Complainants contend that
    virtually all the IPP-owned payphones were public. This is
    consistent with the Commissions' understanding of the payphone
    business -- notably that semi-public service was for customers who
    desired coin phones but where the traffic did not justify the
    placement of a payphone. Because of this, it appears unlikely that
    the IPPs, who were new entrants in this market, would have sought to
    provide semi-public service. Because we bifurcated liability and
    damages in the thirteen cases currently before us, however, we left
    discovery regarding whether the IPP phones were public or
    semi-public for the next phase of the proceeding. Thus, we cannot
    unequivocally find here that no IPP-owned semi-public payphones
    existed.

[^74]: 47 C.F.R. § 69.104(a).

[^75]: Citizens Supplemental Answer at III-24 -- III-26; Qwest
    Supplemental Answer at III-7 -- III-9; Verizon New England
    Supplemental Answer at B-22 -- B-24; ALLTEL Supplemental Answer at
    IV-2; SBC Supplemental Answer at III-24 -- III-26; BellSouth
    Supplemental Answer at II-22 -- II-25; Century Supplemental Answer
    at IV-2; TDS Supplemental Answer at 23-25; Verizon North
    Supplemental Answer at B-22 -- B-24; Verizon Delaware Supplemental
    Answer at B-22 -- B-24.

[^76]: *Liability Order*, 15 FCC Rcd at 8762-3, ¶ 11.

[^77]: *See Verizon*, 269 F.3d at 1112.

[^78]: *See* n.26, *supra.*

[^79]: Citizens Supplemental Answer at III-24; Qwest Supplemental Answer
    at III-7; ALLTEL Supplemental Answer at IV-2; SBC Supplemental
    Answer at III-24; BellSouth Supplemental Answer at II-22 - II-23;
    Century Supplemental Answer at Section IV-2; TDS Supplemental Answer
    at 23; Verizon North Supplemental Answer at B-22 - B-23; Verizon
    Delaware Supplemental Answer at B-22 - B-23.

[^80]: Citizens Supplemental Answer at III-25; Qwest Supplemental Answer
    at III-8; Verizon New England Supplemental Answer at B-23; SBC
    Supplemental Answer at III-25; BellSouth Supplemental Answer at
    II-24; TDS Supplemental Answer at 24; Verizon North Supplemental
    Answer at B-23; Verizon Delaware Supplemental Answer at B-23.

[^81]: *Id.*

[^82]: Restatement (Second) of Agency § 1 (1958).

[^83]: *Id.* § 1 cmt. b ("It is the element of continuous subjection to
    the will of the principal which distinguishes the agent from other
    fiduciaries and the agency agreement from other agreements.")

[^84]: *Id.* § 13 cmt. c.

[^85]: *See, e.g., Bancoklahoma Mortgage Corp. v. Capital Title Co.*,
    194 F.3d 1089, 1104 (10^th^ Cir. 1999).

[^86]: *See* Affidavit of William J. Nelson at ¶¶ 6-7, attached as
    Exhibit 7 to the following complaints: ITC v. ALLTEL; ITC v.
    Ameritech; ITC v. BellSouth; ITC v. Century; ITC v. TDS; and ITC v.
    Verizon North (ITC did not "receive any payments, or charge any
    fees, for installing or maintaining payphones at particular
    locations. To the contrary, \[ITC\] invariably had to contract with,
    and pay, site owners or commercial tenants for authorization to
    install and maintain payphones on premises that they owned or
    leased.")

[^87]: *See, e.g.,* TDS Supplemental Answer, Exhibit 10.

[^88]: *Id.*

[^89]: *See* Qwest Supplemental Answer, Exhibit 1, Attachments A and B.

[^90]: *See* Complainants' Legal Analysis at II-13 - II-14, ¶¶ 23-25.

[^91]: *Id.*

[^92]: Several Defendants argue that Complainants' claims pursuant to
    Section 203 of the Act and the filed rate doctrine are barred
    because they did not raise them in their informal complaints. *See*
    TDS Supplemental Answer at 29; Qwest Supplemental Answer at III-13;
    ALLTEL Supplemental Answer at IV-3; BellSouth Supplemental Answer at
    II-29; Century Supplemental Answer at IV-3; Verizon New England
    Supplemental Answer at B-27; Verizon North Supplemental Answer at
    B-27; Verizon Delaware Supplemental Answer at B-27 to B-28. Having
    concluded above that we need not reach the Section 203 and filed
    rate doctrine claims for purposes of this Order, we likewise need
    not address whether the informal complaints adequately raised these
    claims.

[^93]: Although we deferred the calculation of damages until the second
    phase of this proceeding, we analyze the imposition of damages here
    in order to facilitate the resolution of these thirteen formal
    complaints as well as the 3000 pending informal complaints. The
    parties were on notice that we would address these threshold damages
    issues at this stage of the proceeding. *See* May 1, 2002 Letter
    Ruling at 7.

[^94]: While we conclude here that an award of damages is appropriate,
    we defer the calculation of damages for each Complainant to the
    second phase of this proceeding. *See id*. Such calculation will be
    based on the amount of EUCL charges actually paid by each
    Complainant to Defendants during the applicable time period.

[^95]: *Verizon*, 296 F.3d at 1100, 1112.

[^96]: Citizens Supplemental Answer at III-11; Qwest Supplemental Answer
    at III-22; Verizon New England Supplemental Answer at B-11; SBC
    Supplemental Answer at III-11; BellSouth Supplemental Answer at
    II-10 - II-11; TDS Supplemental Answer at 10; Verizon North
    Supplemental Answer at B-11; Verizon Delaware Supplemental Answer at
    B-11. *See also* ALLTEL Supplemental Answer and Century Supplemental
    Answer at IV-3, referencing Citizens Supplemental Answer at
    4-20**.**

[^97]: *Verizon,* 269 F. 3d at 1101, 1112 ("We therefore express no
    opinion as to the Commission's authority to impose damages on the
    LECs for charges that they may have collected in reliance on the
    agency's initial (and mistaken) interpretation of the *Access Charge
    Reconsideration* rules.")

[^98]: *Id.* at 1112.

[^99]: *Id.* at 1109, quoting *Williams Natural Gas Co. v. FERC*, 3 F.3d
    1544, 1554 (D.C. Cir. 1993).

[^100]: *Id.* At 1109, citing *Health Ins. Ass'n of Am. v. Shalala*, 23
    F.3d 412, 424 (D.C. Cir. 1994) (emphasis added).

[^101]: *Id.* (citations omitted).

[^102]: *See id.* at 1109-10, citing *Pub. Serv. Co. of Colo. v. FERC*,
    91 F.3d 1478, 1490 (D.C. Cir. 1996).

[^103]: Citizens Supplemental Answer at III-4 -- III-5; Qwest
    Supplemental Answer at III-15 -- III-16; Verizon New England
    Supplemental Answer at B-3 - B-4; ALLTEL Supplemental Answer at IV-3
    -- IV-4; SBC Supplemental Answer at III-3 -- III-4; BellSouth
    Supplemental Answer at II-3 - II-4; Century Supplemental Answer at
    IV- 3 -- IV-4; TDS Supplemental Answer at 3-4; Verizon North
    Supplemental Answer at B-3 - B-4; Verizon Delaware Supplemental
    Answer at B-3 - B-4.

[^104]: *See id.*, citing Apr. 4, 1989 Anita J.Thomas Letter and Sep.
    14, 1988 Anita J. Thomas Letter.

[^105]: *Liability Order*, 15 FCC Rcd at 8769, ¶ 28.

[^106]: *See e.g., Malkan FM Associates v. FCC*, 935 F.2d 1313, 1319
    (D.C. Cir. 1991) ("*Malkan*").

[^107]: Citizens Supplemental Answer at III-5 -- III-6; Qwest
    Supplemental Answer at III-16 -- III-17; Verizon New England
    Supplemental Answer at B-5; ALLTEL Supplemental Answer at IV-3 --
    IV-4; SBC Supplemental Answer at III-4 -- III-5; BellSouth
    Supplemental Answer at II-4 - II-5; Century Supplemental Answer at
    IV-3 -- IV-4; TDS Supplemental Answer at 3-4; Verizon North
    Supplemental Answer at B-5; Verizon Delaware Supplemental Answer at
    B-5.

[^108]: *C.F. Communications*, 128 F.3d at 742.

[^109]: *Exxon Co., U.S.A. v. FERC*, 182 F.3d 30, 49 (D.C. Cir. 1999).

[^110]: *Id.*

[^111]: *Verizon*, 269 F.3d at 1111 (citations omitted); *see also Pub.
    Utilities Com'n of Calif. V. FERC*, 988 F.2d 154, 163 (D.C. Cir.
    1993) (Agency discretion "is often at its 'zenith' when the
    challenged action relates to the fashioning of remedies.")
    (citations omitted).

[^112]: *See Liability Order*, 15 FCC Rcd at 8768, ¶ 28

[^113]: Citizens Supplemental Answer at III-43; Qwest Supplemental
    Answer at III-42; Verizon New England Supplemental Answer at B-42;
    SBC Supplemental Answer at III-44; BellSouth Supplemental Answer at
    II-42; TDS Supplemental Answer at 41; Verizon North Supplemental
    Answer at B-42; Verizon Delaware Supplemental Answer at B-42.

[^114]: *Verizon*, 269 F.3d at 1110-11 (citations omitted). *See Exxon
    Co.*, 182 F.3d at 49 (Retroactivity is not impermissible where, as
    here, the affected parties have notice "that resolution of some
    specific issue may cause a later adjustment."). *See, e.g., OXY USA,
    Inc. v. FERC*[,]{.underline} 64 F.3d 679, 699 (D.C. Cir. 1995);
    *Transwestern Pipeline Co. v. FERC*, 59 F.3d 222, 232-233 (D.C. Cir.
    1995).

[^115]: *See* 47 C.F.R. § 61.45(d)(vi).

[^116]: *Exxon Co.*, 182 F.3d at 49. *See also Cities of Carlisle and
    Neola, Iowa v. FERC*, 741 F.2d 429, 433 (D.C. Cir. 1984).

[^117]: *Public Utilities Commission of the State of California*, 988
    F.2d at 163, quoting *United Gas Improvement Co. v. Callery*, 382
    U.S. 223, 229 (1965), reh. denied, 382 U.S. 1001 (1966) (ellipses
    and brackets omitted).

[^118]: Citizens Supplemental Answer at III-4; Verizon New England
    Supplemental Answer at B-3; SBC Supplemental Answer at 3; BellSouth
    Supplemental Answer at II-3; TDS Supplemental Answer at 3; Verizon
    North Supplemental Answer at B-3; Verizon Delaware Supplemental
    Answer at B-3. *See also* ALLTEL Supplemental Answer and Century
    Supplemental Answer at IV-2 -- IV-3, incorporating by reference
    Citizens Supplemental Answer at III-4.

[^119]: *MCI Telecommunications Corp. v. FCC*, 59 F.3d 1407, 1414 (D.C.
    Cir. 1995), *cert. denied*, 517 U.S. 1129 (1996), *quoting* 47
    U.S.C. § 206 (emphasis added).

[^120]: 47 U.S.C. § 209.

[^121]: *See* ¶ 33, *supra*.

[^122]: 1 Dan B. Dobbs, *Law of Remedies* § 4.1(1), at 555 (2d ed.
    1993).

[^123]: *See id.*

[^124]: *See MCI*, 59 F. 3d at 1415.

[^125]: Restatement (Third) of Restitution and Unjust Enrichment § 17.

[^126]: *See Restatement (Third) of Restitution and Unjust Enrichment* §
    1 cmt. H (Discussion Draft 2000) ("restitution . . . is itself a
    source of obligations, analogous in this respect to tort or
    contract. A liability in restitution is enforced by restitution's
    own characteristic remedies, just as a liability in contract is
    enforced by what we think of as contract remedies.")

[^127]: *See U.S. v. Associated Transport, Inc.*, 505 F.2d 366, 367-69
    (D.C. Cir. 1995).

[^128]: Complainants' Consolidated Reply at III-9.

[^129]: *Atlantic Coast Line,* 295 U.S. at 312.

[^130]: Similarly, *Towns of Concord, Norwood and Wellesley,
    Massachusetts v. FERC*, 955 F.2d 67 (D.C. Cir 1991), another case
    relied on by Defendants, does not involve a statutory right to
    damages, but rather merely confirms that FERC has discretion in
    ordering rate refunds under the Federal Power Act.

[^131]: *Rapaport v. United States Dep't of the Treasury, Office of
    Thrift Supervision,* 59 F.3d 212, 217 (D.C. Cir. 1995) (emphasis
    added), quoting Dobbs, *Law of Remedies* § 4.1(2); *see also Klein
    v. Arkoma Prod. Co.*, 73 F.3d 779, 786 (8^th^ Cir. 1996) ("a party
    is unjustly enriched when he has received something of value that
    belongs to another").

[^132]: Dobbs, *Law of Remedies* § 4.1(2), at 558; *see also MacDraw,
    Inc. v. CIT Group Equip. Fin., Inc.*, 157 F.3d 956, 963 (2d Cir.
    1998) (unjust enrichment exists when "as between the two parties
    enrichment of the \[defendant is\] unjust.")

[^133]: Citizens Supplemental Answer at III-16; Qwest Supplemental
    Answer at III-26; Verizon New England Supplemental Answer at B-15;
    ALLTEL Supplemental Answer at IV-6; SBC Supplemental Answer at
    III-16; BellSouth Supplemental Answer at II-15; Century Supplemental
    Answer at IV-6; TDS Supplemental Answer at 15; Verizon North
    Supplemental Answer at B-15; Verizon Delaware Supplemental Answer at
    B-15.

[^134]: Proof of such payment will occur in the second phase of this
    proceeding.

[^135]: 47 U.S.C. § 201(b).

[^136]: *FPC v. Tennessee* Gas *Transmission Co.*, 371 U.S. 145, 152-53
    (1962); *see also Liability Order*, 15 FCC Rcd at 8770, ¶ 31.

[^137]: *New England Telephone & Telegraph Co v. FCC.*, 826 F.2d 1101,
    1108 (D.C. Cir. 1987).

[^138]: *See* CVCA v. Citizens Complaint at I-4, ¶ 1; Exh. 1 (Informal
    Complaint filed by CVCA against Citizens, dated Mar. 3, 1998); CVCA
    v. Qwest Complaint at I-4, ¶ 1; Exh. 1 (Informal Complaint filed by
    CVCA against Qwest, dated Sep. 29, 1997); IMR v. Verizon New England
    Complaint at I-4, ¶ 1; Exh. 1 (Informal Complaint filed by IMR
    against Verizon, dated Oct. 6, 1997); ITC v. ALLTEL Complaint at
    I-4, ¶1; Exh. 1 (Informal Complaint filed by ITC against ALLTEL,
    dated Sep. 15, 1997); ITC v. Ameritech Complaint at I-4, ¶ 1; Exh. 1
    (Informal Complaint filed by ITC against. Ameritech, dated Sep. 15,
    1997); ITC v. BellSouth Complaint at I-4, ¶ 1; Exh. 1 (Informal
    Complaint filed by ITC against BellSouth, dated Sep. 15, 1997); ITC
    v. Century Complaint at I-4, ¶ 1; Exh. 1 (Informal Complaint filed
    by ITC against Century, dated Sep. 15, 1997); ITC v. TDS Complaint
    at I-4, ¶ 1; Exh. 1 (Informal Complaint filed by ITC against TDS,
    dated Sep. 15, 1997); ITC v. Verizon North Complaint at I-4, ¶ 1;
    Exh. 1 (Informal Complaint filed by ITC against Verizon North, dated
    Sep. 15, 1997); NTC v. Verizon Delaware Complaint at I-4, ¶ 1; Exh.
    1 (Informal Complaint filed by NTC against Verizon Delawere, dated
    Nov. 4, 1997); NSC v. PacBell Complaint at I-4, ¶ 1; Exh. 1
    (Informal Complaint filed by NSC against PacBell, dated Dec. 31,
    1997); Payphone Systems v. Citizens Complaint at I-4, ¶ 1; Exh. 1
    (Informal Complaint filed by Payphone Systems against Citizens,
    dated Jan. 8, 1998); Payphone Systems v. PacBell Complaint at I-4, ¶
    1; Exh. 1 (Informal Complaint filed by Payphone Systems against
    PacBell, dated Jan. 8, 1998).

[^139]: As noted earlier, this time frame encompasses the years 1986
    through 1997. *See* *supra* ¶ 3.

[^140]: We note that many of the complainants who chose to file
    complaints earlier were represented by the same Washington D.C.
    communications counsel representing the Complainants in this matter.

[^141]: *See* Complainants' Legal Analysis at II-44 -- II-52, ¶¶ 74 --
    88.

[^142]: 47 U.S.C. § 415(b).

[^143]: *Bunker Ramo Corp*., 31 FCC 2d 449, 453, ¶ 12 (1971) ("*Bunker
    Ramo*"). *See* *American Pipe & Construction Co. v. Utah*, 414 U.S.
    538, 554 (1974) (stating that "statutory limitation periods are
    designed to promote justice by preventing surprises through the
    revival of claims that have been allowed to slumber until evidence
    has been lost, memories have faded, and witnesses have
    disappeared."). *See* also *Aetna Life Ins. Co. v. AT&T Co*., 3 FCC
    Rcd 2126, 2129, ¶ 13 (CCB 1988) ("*Aetna*"), *aff'd sub nom. US
    Sprint Communications Co. v. AT&T Co.*, 9 FCC Rcd 4801 (1994) ("*US
    Sprint*"), *aff'd,* *Sprint Communications Co. v. FCC*, 76 F.3d
    1221, 1226 (D.C. Cir. 1996*) ("Sprint"); Carter v. Washington
    Metropolitan Area Transit Authority*, 764 F.2d 854, 858 (D.C. Cir.
    1985) ("*Carter*").

[^144]: *Irwin v. Department of Veterans Affairs*, 498 U.S. 89, 96
    (1991*). See Baldwin County Welcome Center v. Brown*, 466 U.S. 147,
    151 (1984) (stating "one who fails to act diligently cannot invoke
    equitable principles to excuse that lack of diligence."); *I.M.
    Frazer v. United States*, 288 F.3d 1347, 1352 (Fed. Cir. 2002)
    (stating that the court has "generally been much less forgiving in
    receiving late filings where the claimant failed to exercise due
    diligence in preserving his legal rights."); *see also* *Aetna*, 3
    FCC Rcd at 2129, ¶ 14; *Armstrong Utils., Inc. v. General Tel. Co.*,
    Memorandum Opinion and Order, 25 FCC 2d 385, 389, ¶ 12 (1970)
    ("*Armstrong*").

[^145]: *Armstrong*, 25 FCC 2d at 389, ¶ 11 (stating that the
    "construction of Section 415, both by the Commission and the federal
    courts, has been 'strict'"; *Carter*, 764 F.2d at 858 (noting that
    the general rule is that courts should apply the statute of
    limitations strictly); *Bunker Ramo,* 31 FCC 2d at 453, ¶ 12
    (stating that "although mere ignorance will generally not toll the
    statute, active fraudulent concealment by a defendant will generally
    do so."). *See also US Sprint*, 9 FCC Rcd at 4802, ¶ 10;
    *Teleprompter Cable Sys., Inc*., Decision, 52 FCC 2d 1263, 1271, ¶
    19 n.13 (1975*), rev'd and remanded on other grounds, Teleprompter
    Cable Sys., Inc. v. FCC*, 543 F.2d 1379 (D.C. Cir. 1976*)*;
    *Municipality of Anchorage d/b/a Anchorage Telephone Utility v.
    Alascom, Inc.*, 4 FCC Rcd 2472, 2473, ¶23 (CCB 1989)
    ("*Anchorage*"). Complainants, however, make no allegations of
    fraudulent conduct by the Defendants in their complaints.

[^146]: *See Sprint*, 76 F.3d at 1225 (stating that a cause of action
    accrues and the limitations period begins to run only when the
    plaintiff discovers, or with due diligence should have discovered,
    the injury that is the basis of the action.); *AirTouch Cellular v.
    Pacific Bell*, Memorandum Opinion and Order, 16 FCC Rcd 13502,
    13504, ¶ 6 (2001) ("*AirTouch*") (stating that, under Section
    415(b), a cause of action accrues "when the carrier does the
    unlawful act or fails to do what the law requires."). *See also*
    *Liability Order*, 15 FCC Rcd at 8772, ¶ 36; *C.F. Communications
    Corp. v. Century Tel. of Wisconsin, Inc.*, Hearing Designation
    Order, 16 FCC Rcd 8801, 8807, ¶ 17 (2001) ("*HDO*"); *MCI
    Telecommunications Corp. v. Teleconcepts*, 71 F.3d 1086, 1100 (3rd
    Cir. 1995) ("*Teleconcepts*").

[^147]: *See Sprint*, 76 F.3d at 1226 (stating that "where the defendant
    fraudulently concealed material facts related to its wrongdoing,"
    the cause of action does not accrue until the plaintiff has
    "something approaching actual notice."). *Aetna*, 3 FCC Rcd at 2129,
    ¶ 16 (noting that the "running of a limitations period may be tolled
    by active concealment of the facts giving rise to a cause of action
    by defendant."). *See also Valenti v. AT&T Co*., Memorandum Opinion
    and Order, 12 FCC Rcd 2611, 2621, ¶ 24 (1997) ("*Valenti*").

[^148]: *See* Complainants' Legal Analysis at II-30, ¶ 54. *See e.g.*
    CVCA v. Citizens Complaint; Exh. 8 (Affidavit of James Patrick
    Kerivan, Jr. On the Recovery Period \["Kerivan Recovery Period
    Aff."\] at 2-4, ¶¶ 6, 9, 13; IMR v. Verizon New England Complaint;
    Exh. 8 (Affidavit of Thomas J. Biggins On the Recovery Period
    \["Biggins Recovery Period Aff."\]) at 2, ¶¶ 5-8; ITC v. ALLTEL
    Complaint; Exh. 8 (Affidavit of William J. Nelson On the Recovery
    Period \["Nelson Recovery Period Aff."\] at 2-3, ¶¶ 6, 8-9; NTC v.
    Verizon Delaware Complaint; Exh. 8 (Affidavit of Michael Bright On
    the Recovery Period \["Bright Recovery Period Aff."\] at 2-3, ¶¶
    5-7; NSC v. PacBell Complaint; Exh. D (Affidavit of M. Sean Venezia
    \["Venezia Aff."\] at 25, ¶¶ 67-69; Payphone Systems v. Citizens
    Complaint; Exh. 8 (Affidavit of Ronald McPherson On the Recovery
    Period \["McPherson Recovery Period Aff."\] at 2, ¶¶ 4, 6-8.

[^149]: *MCI Telecommunications Corp. v. U S West Communications, Inc.*,
    Memorandum Opinion and Order, 15 FCC Rcd 9328, 9330, ¶ 5 (2000)
    (noting that "the general rule is that the two-year limitations
    period begins to run when the customer receives a bill from the
    carrier assessing the disputed rate"). *See also* *Teleconcepts*, 71
    F.3d at 1100; *Tele-Valuation, Inc. v. AT&T Co.*, 73 FCC 2d 450,
    452, ¶ 4 (1979).

[^150]: *See* CVCA v. Citizens Complaint at I-35, ¶¶ 6-7. *See also*
    Kerivan Recovery Period Aff. at 4, ¶ 17; Biggins Recovery Period
    Aff. at 4, ¶ 19; Nelson Recovery Period Aff. at 4, ¶ 17; Bright
    Recovery Period Aff. at 4, ¶ 17; Venezia Aff. at 27, ¶ 76; McPherson
    Recovery Period Aff. at 3, ¶ 15.

[^151]: *See* CVCA v. Citizens Complaint at I-35, ¶¶ 1-5; *See also*
    Kerivan Recovery Period Aff. at 3-4, ¶¶ 13-14; Biggins Recovery
    Period Aff. at 3, ¶ 11; 4, ¶¶ 16-18; Nelson Recovery Period Aff. at
    2, ¶ 7; Bright Recovery Period Aff. 2, ¶ 6; 4, ¶¶ 12-14; Venezia
    Aff. at 26, ¶¶ 73-74; McPherson Recovery Period Aff. at 2, ¶ 5; 3, ¶
    12.

    In this regard, given the uncertain outcome of their petition and
    the agency's discretion whether to rule on a petition for
    declaratory ruling, Complainants should not have relied solely on
    this petition to address their legal claims against Defendants.
    *See* 47 C.F.R. § 1.2; 5 U.S.C. § 554.

[^152]: *See* Complainants' Legal Analysis at II-30, ¶ 53; II-37, ¶ 64;
    II-41, ¶ 69; II-49, ¶ 82; II-50, ¶ 84.

[^153]: *Id.* at II-28, ¶ 52; II-29, ¶ 53; II-34, P 59; II-37, ¶ 64;
    II-41, ¶ 70; II-43, ¶ 73.

[^154]: Sep. 14, 1988 Anita J. Thomas Letter. *See also* Apr. 4, 1989
    Anita J. Thomas Letter; *Bureau CFC Order*, 8 FCC Rcd at 7336, ¶¶
    12-13.

[^155]: *See* 47 C.F.R. § 0.445(e); Section 0.445(e) of the Commission's
    rule provides that an unpublished order may not be used as precedent
    against a third party. *See* *also* *Malkan*, 935 F.2d at 1319
    (stating that staff level letters do not necessarily speak for or
    bind the Commission); *Liability Order*, 15 FCC Rcd at 8768-8769, ¶
    28.

[^156]: *CFC I Order*, 10 FCC Rcd at 9778-79, ¶ 16; 9780, ¶ 21,

[^157]: *C.F. Communications*, 128 F.3d at 739-40.

[^158]: *See Verizon*, 269 F.3d at 1111.

[^159]: *See* Complainants' Legal Analysis at II-20, ¶ 36.

[^160]: *Id.* at II-29, ¶ 51; II-35, ¶ 61.

[^161]: We note that there is no evidence that any of these IPPs tried
    to pursue their claims in district court.

[^162]: We note that the majority of these 30 prevailing IPPs were
    represented by the same Washington D.C. communications counsel that
    represent the current complainants.

[^163]: *See Sprint*, 76 F.3d at 1226*. See also* Kerivan Recovery
    Period Aff. at 2-4, ¶¶ 6, 9, 13; Biggins Recovery Period Aff. at 2,
    ¶¶ 5-7; Nelson Recovery Period Aff. at 2-3, ¶¶ 6, 8-9; Bright
    Recovery Period Aff. at 2-3, ¶¶ 5-7; Venezia Aff. at 25, ¶¶ 67-69;
    McPherson Recovery Period Aff."\] at 2, ¶¶ 4, 6-8.

[^164]: *McConnell v. Critchlow*, 661 F.2d 116, 118 (9^th^ Cir. 1981)
    ("A decision recognizing a cause of action after the period has run
    does not retroactively interrupt the running of the limitations
    period.") ("*McConnell*"). *See also Fiesel v. Board of Ed. of City
    of New York*, 675 F.2d 522, 524 (2^nd^ Cir. 1982) ("*Fiesel*");
    *Duchesne v. Sugarman*, 459 F.Supp. 313 (S.D.N.Y. 1978).

[^165]: *Fiesel*, 675 F.2d at 524.

[^166]: *McConnell*, 661 F.2d at 118.

[^167]: *Container Corp. of America v. Admiral Merchants Motor Freight,
    Inc.,* 489 F.2d 825, 828 (7^th^ Cir. 1973) (Interpreting a provision
    of the Interstate Commerce Act ("ICC"), wherein the limitations
    period begins to run from the *issuance of an ICC order*, to find
    that a cause of action to enforce an ICC order accrues when a final
    order is issued.)

[^168]: *Hartford Life Insurance Co. v. Title Guarantee Co.,* 52 F.2d
    1170, 1174 (D.C. Cir. 1975) (finding that plaintiff's cause of
    action for failure of consideration depended upon a prior
    adjudication finding that the loan held by plaintiff was invalid).

[^169]: *United States v. One 1961 Red Chevrolet Impala Sedan*, 457 F.2d
    1353, 1358 (5^th^ Cir. 1972) (finding that plaintiff had been
    "without a right" until Supreme Court issued its opinion).

[^170]: *Neely v. United States*, 546 F.2d 1059, 1068 (3^rd^ Cir. 1976)
    (finding that the existence of a cause of action was "inherently
    unknowable" until Supreme Court issued its opinion).

[^171]: *Slaaten v. United States*, 990 F.2d 1038, 1042 (8^th^ Cir.
    1993) (finding that plaintiff could not have had the requisite
    knowledge of injury to file a claim under the Federal Tort Claims
    Act until the Interior Board of Land Appeals issued a final decision
    regarding a related issue).

[^172]: *See Aetna*, 3 FCC Rcd at 2129, ¶ 15 (rejecting complainants'
    reliance on *Red Chevrolet* (457 F.2d 1353) and *Neely* (546 F.2d
    1059) because the challenged order at issue did not create their
    cause of action).

[^173]: *Interconnection Arrangements Between and Among the Domestic and
    International Record Carriers*, Memorandum Opinion and Order, CC
    Docket Nos. 78-122 & 78-97, FCC 86-190, (rel. May 2, 1986) at ¶ 16.

[^174]: *Id*.

[^175]: *ITT World Communications, Inc. v. Western Union Telegraph Co*.,
    598 F. Supp. 1439, 1440-1 (S.D.N.Y. 1984) (holding that request made
    to District Court for attorney's fees as damages under Section 207
    of the Act was not barred by Section 415(b) because this was
    plaintiff's "first and only opportunity" to recover attorney's fees
    in the proceeding).

[^176]: Had such complaint been rejected by the Commission, Complainants
    would have been free to appeal the Commission's rulings. Also, if
    the Commission improperly failed to act on such complaints,
    Complainants could have sought mandamus.

[^177]: *AirTouch*, 16 FCC Rcd at 13504, ¶ 6 n.21 (stating that a cause
    of action accrues when a rule imposing a new regulatory obligation
    is promulgated).

[^178]: *See supra* n.146*.*

[^179]: *See* Complainants' Legal Analysis at II-52 -- II-55, ¶¶ 90 -
    99.

[^180]: *Id.* at II-52, ¶ 90, *citing* *Ervin v. County of Los Angeles,*
    848 F.2d 1018 (9^th^ Cir. 1988) ("*Ervin*").

[^181]: *Ervin,* 848 F.2d at 1019. *See also Hernandez v. City of El
    Monte*, 138 F.3d 393, 401-402 (9^th^ Cir. 1998); *Cervantes v. City
    of San Diego*, 5 F.3d 1273, 1275 (9^th^ Cir. 1993); *Daviton v.
    Columbia/HCA Healthcare Corp*., 241 F.3d 1131, 1137, 1140 (9^th^
    Cir. 2001) (all applying the California test for equitable tolling).

[^182]: *See* *supra* n.145.

[^183]: *Irwin v. Department of Veterans Affairs*, 498 U.S. 89, 96
    (1991) (Limits tolling to instances "where the claimant has actively
    pursued his judicial remedies by filing a defective pleading during
    the statutory period, or where the complainant has been induced or
    tricked by his adversary's misconduct into allowing the filing
    deadline to pass.").

[^184]: *See* Complainants' Legal Analysis at II-53 -- II-54, ¶¶ 91
    --93.

[^185]: *Id.* at II-55, ¶ 94.

[^186]: *Id.* at II*-*55*,* ¶ 95 relying on *Valenti* (12 FCC Rcd at
    2211, ¶ 26) and *Teleprompter* (52 FCC 2d 1263, 1271, ¶ 19 n.13) for
    the proposition that the Commission has previously applied the
    *Ervin* test. We note, however, that in *Valenti*, the Commission
    relied on prior Commission decisions (*Armstrong,* 25 FCC 2d at 389,
    and *Anchorage*, 4 FCC Rcd at 2476), to reject the equitable tolling
    request. It was only to address complainant's reliance on *Ervin*
    that the Commission noted that the complainant failed the third
    prong of the *Ervin* test because complainant should have been aware
    that the Commission had primary or exclusive jurisdiction. Contrary
    to Complainants' assertions, the Commission's *Teleprompter*
    decision does not apply the California *Ervin* test to consider
    whether the statute of limitations should be equitably tolled.
    *Teleprompter*, 52 FCC 2d 1263, 1271, ¶ 19 n.13.

[^187]: *See* Complainants' Legal Analysis at II*-*39 *citing* *First*
    *Waiver Order*; *Bay Communications v. New England Tel. Co*., Order,
    7 FCC Rcd 254 (CCB 1992) (unopposed waiver requests granted because
    of pending related complaint); *TTX Co. v. AT&T Communications*,
    Order, 7 FCC Rcd 2084 (CCB 1992) (unopposed waiver request granted
    for 60 days because deadline for filing formal complaint expired
    during Commission's consideration of waiver request).

[^188]: *Id.* at II-56 -- II-57, ¶¶ 97-99.

[^189]: *Fiesel*, 675 F.2d at 524 (stating that it is incumbent upon a
    plaintiff to test his "right and remedy in the available forums.
    These suits were not commenced until through the labor of others the
    way was made clear.")

[^190]: *See supra* n.144 and n.145. *See also Armstrong*, 25 FCC 2d at
    389, ¶ 12 (stating that permitting "a potential complainant to sit
    idly by and remain silent for years" and "then claim that a cause of
    action has accrued to him because of a determination made by the
    Commission in an adjudicatory proceeding involving a different
    entity asserting an independent grievance" would be "contrary to the
    policies underlying the statute of limitations").

[^191]: *See* Citizens Supplemental Answer at 33-53; Qwest Supplemental
    Answer at III-32 -- III-55; Verizon New England Supplemental Answer
    at B-28 -- B-52; ALLTEL Supplemental Answer at IV-7 -- IV-9; SBC
    Supplemental Answer at III-33 -- III-52; BellSouth Supplemental
    Answer at II-30 -- II-55; Century Supplemental Answer at IV-7 --
    IV-9; TDS Supplemental Answer at 30 - 53; Verizon North Supplemental
    Answer at B-28 -- B-52; Verizon Delaware Supplemental Answer at B-30
    -- B-53.

[^192]: SBC Supplemental Answer at 56, 59-61; BellSouth Supplemental
    Answer at II-57, 59-60; Qwest Supplemental Answer at III-56-57; TDS
    Supplemental Answer at III-55, 58. Although TDS acknowledges that
    the informal complaint filed against it by ITS appears to be timely
    filed, TDS also argues that the Commission should dismiss any formal
    complaints for which a complainant has failed to show that it
    properly filed an informal complaint. *See* TDS Supplemental Answer
    at n.38.

[^193]: BellSouth Answer at I-30, ¶ G12; SBC Answer, I-H at 27, 30, 32.
    Relying on the same theory, SBC also appears to be contesting the
    dates on which the informal complaints at issue were filed.

[^194]: Qwest Answer at I-31, ¶ 14; Qwest Supplemental Answer at III-54
    -- III-57 (Qwest does not dispute that CVC filed an informal
    complaint, but maintains that the correct filing date for CVC's
    informal complaint is April 15, 1998, instead of October 3, 1997).

[^195]: BellSouth Supplemental Answer at II-60, n.39.

[^196]: BellSouth Answer at I-30, ¶ G12; SBC Answer at I-H at 27, 30,
    32.

[^197]: *See* ITC v. BellSouth Complaint, Exh. 24 *(*Letter from Chief,
    Consumer Protection Branch, Federal Communications Commission, dated
    June 30, 1999, to ITC Corporation (stating that, during
    implementation of new complaint processing system, "unexpected
    technical issues arose and as a result, we have been unable to
    further process your complaint and have closed the file.") ("June
    30, 1999 Consumer Protection Branch Letter").

[^198]: *TeleSTAR, Inc*., Decision, 2 FCC Rcd 5, 13, ¶ 23 (Rev. Bd.
    1987) (stating that credibility involves the manner in which
    testimony "hangs together with other evidence," *citing* to *Carbo
    v. U.S*., 314 F.2d 718, 749 (9^th^ Cir. 1963)); *American
    International Development, Inc*., Memorandum Opinion and Order, 86
    FCC 2d 808, 815, ¶ 17 (1981) (noting that the existence of
    corroborative evidence is a factor to be considered in weighing the
    evidence presented). *See also* *Contemporary Media, Inc.*,
    Decision, 13 FCC Rcd 14,437, 14,457, ¶ 39 (1998).

[^199]: *See* 47 C.F.R. §§ 1.716, 1.717, and 1.718.

[^200]: The informal complaint letters are dated September 15, 1997, are
    printed on ITC's stationery, and include the name of ITC's
    president, William J. Nelson. We find credible the affidavit of
    Pamela S. Wickham, ITC's office manager during the time period at
    issue, that it was the company's customary practice to send letters
    out on the date they were generated, without Mr. Nelson's signature
    when he was not available to sign them, and that this is what
    occurred with the informal complaints at issue here. Complainants'
    Consolidated Reply at III-154, ¶ 104; Exh. 30 (Declaration of Pamela
    S. Wickham) ("Wickham Decl."), at 2-3, ¶¶ 2-8.

[^201]: *See* *Hughes-Moore Assocs*., Memorandum Opinion and Order, 7
    FCC Rcd 1454, 1455, ¶¶ 10-11 (1992) (finding that, in the absence of
    a document with an actual FCC date stamp, and where neither the
    Commission nor the parties have a record of initially receiving the
    pleading in question, the submitted copy was not entitled to be
    accepted at face value; in addition, verified statement of counsel
    regarding proper mailing, without additional corroborating evidence,
    was insufficient); *Westchester Council for Public Broadcasting,
    Inc. to Share Time with Noncommercial Educational Station WNYE(FM),
    Brooklyn, New York*, Memorandum Opinion and Order, 8 FCC Rcd 2213,
    2214, ¶ 7 n.4 (1993) (finding that applicant's copy of its response
    without a Commission date stamp constituted insufficient evidence of
    filing a response.); *Federal Express Corp*., Memorandum Opinion and
    Order, 15 FCC Rcd 4289, 4292, ¶ 13 (WTB 2000) (finding that
    complainant did not diligently prosecute its renewal application
    because, among other things, it did not avail itself of the option
    to receive a date stamped copy of the application to indicate the
    FCC's receipt of it).

[^202]: Except for the informal complaint that ITC says it filed against
    BellSouth, the Commission has a record of all the informal
    complaints at issue in this proceeding. *See* June 29, 2001 FCC Open
    and Pending List of EUCL Informal Complaints.

[^203]: *See supra* n.200 regarding Wickham Decl. We note that evidence
    regarding mailing is an acceptable form of proof. *See Schikore v.
    BankAmerica Supplemental Retirement Plan*, 269 F.3d 956, 964 (9^th^
    Cir. 2001) (stating that a sworn statement is credible evidence of
    mailing.); *Simpson v. Jefferson Standard Life Ins. Co*., 465 F.2d
    1320, 1324 (6^th^ Cir. 1972) (finding that evidence of compliance
    with business custom will suffice to establish proof of mailing.);
    *Legille v. Dann*, 544 F.2d 1, 4 (D.C. Cir. 1976) (noting that
    "proof that mail matter is properly addressed, stamped deposited in
    an appropriate receptacle has long been accepted as evidence of
    delivery to the adressee.") *See also* *Smith v. City of Chicago,*
    242 F.3d 737, 741 (7^th^ Cir. 2001).

[^204]: Complainants' Legal Analyis at II-83 -- II-84, ¶¶ 143 -- 145;
    II-95, ¶¶ 23-24.

[^205]: *See* June 29, 2001 FCC Open and Pending List of EUCL Informal
    Complaints.

[^206]: In its Jan. 21, 1999 response to ITC's informal complaints,
    Ameritech (SBC) stated that it "has received a copy of your letters"
    to the Federal Communications Commission dated September 12,
    1997.... seeking a refund of end user common line ("EUCL") charges
    assessed prior to April 15, 1997." *See* ITC v. Ameritech Complaint,
    Exh. 2 (Letter from Linda Koraba, Ameritech, dated Jan. 21, 1999, to
    Bill Nelson, ITC). In addition, in its Dec. 31, 1998 response to
    NSC's informal complaint, PacBell (SBC) stated that it had received
    a "copy of your letter dated Dec. 30, 1997, to the FCC." Further,
    PacBell (SBC) noted that it "is waiting for the expected further FCC
    proceedings to determine whether or not we have any obligation to
    refund EUCL charges to independent Payphone Service Providers."
    *See* NSC v. PacBell Complaint, Exh. A (Letter from June A. Burgess,
    Pacific Bell, dated Dec. 30, 1998, to Iain MacLeod, NSC). SBC's Jan.
    4, 1989 response to Payphone Systems's informal complaint is
    identical in substance to its response to NSC's informal complaint.
    Letter from June A. Burgess, Pacific Bell, dated Jan. 4, 1999, to
    Ronald MacPherson, Payphone Systems.

[^207]: *See* Complainants' Consolidated Reply at III-153, ¶ 102; 154, ¶
    104. *See also* Wickham Decl. Ms. Wickham's declaration indicates
    that the package included informal complaints that underlie the
    following six formal complaints in this proceeding: ITC v. ALLTEL;
    ITC v. Ameritech; ITC v. BellSouth; ITC v. Century; ITC v. TDS; and
    ITC v. Verizon North.

[^208]: *See* ITC v. BellSouth Complaint, Exh. 24 (June 30, 1989
    Consumer Protection Branch Letter). *See also* n.196 *supra*. We
    find that ITC's receipt of this letter supports ITC's assertion that
    the informal complaint ITC states it filed against BellSouth was
    prematurely closed. As with all the letters the bureau sent
    regarding the files that were prematurely closed during the database
    conversion, this letter did not state the name of the defendant or
    informal complaint number of the improperly closed complaint.
    However, this was the only informal complaint out of the six
    informal complaints ITC filed together that is not currently in the
    Commission's database.

[^209]: The database lists the following filing dates for ITC's informal
    complaints against the defendants in this proceeding: ITC v. ALLTEL:
    Sep. 23, 1997; ITC v. Ameritech: Oct. 1, 1997; ITC v. Century; Sep.
    15, 1997; ITC v. TDS: Sep. 15, 1997; ITC v. Verizon North: Oct. 1,
    1997.

[^210]: *See* 47 C.F.R. § 1.5.

[^211]: The database shows: 1) ITC's complaints against Ameritech were
    filed on Oct. 1, 1997; 2) Payphone Systems' complaint against
    PacBell was filed on Jan. 12, 1998.

[^212]: Complainants' Consolidated Reply, III-153; Exh. 27 (Declaration
    of James P. Kerrivan, Jr.), at 2, ¶¶ 3-4.

[^213]: Citizens Supplemental Answer at III-53 -- III-54; Qwest
    Supplemental Answer at III-55 -- III-56; Verizon New England
    Supplemental Answer at B-52 - B-53; ALLTEL Supplemental Answer at
    IV-9- IV-10; SBC Supplemental Answer at III-86; BellSouth
    Supplemntal Answer at II-55 to II-56; Century Supplemental Answer at
    IV-9 -- IV-10; Verizon North Supplemental Answer at B-51 - B-52;
    Verizon Delaware Supplemental Answer at B-52 - B-53; TDS
    Supplemental Answer at 53-54.

[^214]: *See, e.g.*, Citizens Supplemental Answer at III-54; SBC
    Supplemental Answer at III- 86. As we have concluded above that we
    need not reach the section 203 and filed rate doctrine claims for
    purposes of this Order, we will not address whether Complainants
    provided sufficient notice about these particular claims.

[^215]: Complainants' Consolidated Reply at III-129 - III-131.

[^216]: *Formal Complaints Order*, 12 FCC Rcd at 22507-08, ¶ 21.

[^217]: *Id.* at 22507, ¶ 21.

[^218]: *Id.* at 22517, ¶ 42.

[^219]: *See, e.g.*, *Sprint Communications Company, L.P., v. Time
    Warner Telecom, Inc.*, File No. EB-01-MD-020, Notice of Formal
    Complaint, Sept. 7, 2001, at 3.

[^220]: The informal complaints against each Defendant were attached to
    the certified settlement letters, thereby providing Defendants with
    a contemporaneous reference to the claims at issue.

[^221]: *HDO*, 16 FCC Rcd 8801.

[^222]: Although Qwest was not party to the *HDO* proceeding, it was a
    defendant in the informal complaints and therefore had notice of
    Complainants' arguments. CVCA v. Qwest Complaint, Exh. 1.

[^223]: *See HDO*, 16 FCC Rcd at 8805, ¶ 8.

[^224]: *Id.*

[^225]: *Id.*

[^226]: *Id.* at 8805, n.28.

[^227]: *See* Letter Ruling, File Nos. EB-02-MD-018-030 (June 26, 2002),
    at n.9 (*citing* *Summary of Enforcement Bureau's Multi-party
    Initial Meeting Regarding Procedures for Resolving End User Common
    Line Informal Complaints*, Public Notice, DA 01-1344 (June 4, 2001))
    (listing dates for Bureau-facilitated settlement discussions
    scheduled in 2001).