**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | )  | CCB/CPD No. 00-04            |
|                                  |    |                              |
| Flying J, Inc., and TON          | )  |                              |
| Services, Inc.,                  |    |                              |
|                                  | )  |                              |
| Petition for Expedited           |    |                              |
| Declaratory Ruling               | )  |                              |
|                                  |    |                              |
| Regarding a Primary Jurisdiction | )  |                              |
| Referral                         |    |                              |
|                                  | )  |                              |
| From the United States District  |    |                              |
| Court for the District of Utah,  |    |                              |
| Northern Division                |    |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: May 5, 2003 Released: May 9, 2003**

By the Commission:

# Introduction

1.  In this Memorandum and Order (Order), we grant the petition for
    declaratory ruling filed by Flying J, Inc., and TON Services, Inc.
    (collectively, Flying J) in connection with a primary jurisdiction
    referral from the United States District Court for the District of
    Utah, Northern Division, in *Flying J, Inc. v. Sprint Communications
    Co*.[^1] The referral concerns four payphone compensation issues
    that have arisen in the *Flying J* litigation. Stated briefly, the
    four issues are: (1) the payphone compensation obligations of
    facilities-based resellers (FBRs); (2) retroactive adjustments for
    payphone compensation in connection with payphones that did not
    provide payphone-specific coding digits during the period covered by
    the *Bureau Waiver Order* and *Bureau Coding Digit Waiver
    Order*;[^2] and (3) payphone compensation, together with related (4)
    overpayment set-offs, for the "Interim Period" of payphone
    compensation.[^3]

2.  Although listed separately, the four issues referred to us may be
    understood as raising two distinct questions concerning payphone
    compensation. In addressing these issues, we first reiterate the
    Commission's conclusions in the *Third Reconsideration* *Order*,
    *Fourth Reconsideration* *Order*, and *Fifth Reconsideration Order*
    that FBRs are under a direct payment obligation for payphone
    compensation.[^4] Second, we find that the controlling Commission
    precedent is the *Fifth Reconsideration Order,* which set a per-call
    rate of \$0.238 and a default per-payphone rate of \$35.224 per
    month for payphone compensation and associated retroactive
    adjustments for both the Interim Period (November 7, 1996 to October
    6, 1997) and the Intermediate Period (October 7, 1997 to April 20,
    1999).[^5]

# Factual BACKGROUND

3.  Flying J, which provides motorist services at approximately 140
    travel plazas located in many of the 48 contiguous states, owns and
    operates over 3500 payphones.[^6] Flying J has both coin-operated
    and coinless payphones, and its payphones are generally high-traffic
    phones generating, on average, hundreds of "dial-around" calls per
    payphone per month.[^7] Flying J's "smart" payphones provide some
    call detail information.[^8] At some of Flying J's travel plazas,
    all payphones, both smart and "dumb," route calls through an
    on-premises switch, which can also record some call detail
    information.[^9]

4.  Beginning in 1998, Flying J noticed that it was receiving far less
    in payphone compensation than it expected based on traffic volumes
    at its payphones.[^10] Indeed, Flying J estimated that the shortfall
    is as high as 80 percent and that some long distance carriers (IXCs)
    have paid nothing at all.[^11] In October 1999, Flying J filed suit
    against Sprint in federal district court in Utah, seeking in excess
    of \$1.5 million in overdue payphone compensation.[^12] Although
    Sprint acknowledged that it owes Flying J payphone compensation, it
    contended that the amount could not be determined without additional
    rulemaking or guidance from the Commission.[^13] Sprint moved to
    stay the action pending referral to the Commission under the
    doctrine of primary jurisdiction.[^14] Flying J opposed the motion,
    arguing that the Commission had already addressed all disputed
    payphone compensation issues.[^15] The court agreed with Sprint and,
    by order dated January 10, 2000, referred four specific issues to
    the Commission for resolution.[^16] The court concluded that the
    following issues, as phrased by the court, are within the primary
    jurisdiction of the Commission: (1) "the FBR issues;" (2) "the
    retroactive adjustment or true up;" (3) "the overpayment for calls
    set-off;" and (4) "interim payments issues."[^17] In this Order, we
    more fully explain and analyze each of these issues consistent with
    the court's referral.

5.  According to the court, "\[t\]hese issues are pending before the
    FCC, resolution of these issues requires the FCC's expertise and
    familiarity with the industry, these issues are unique to the
    regulated communications industry, \[and\] these are issues for
    which uniformity is important for the regulation of the business
    entrusted to the FCC and for which a decision by the FCC would be
    helpful to this litigation."[^18] While the court stayed the action
    insofar as it concerned the four disputed payphone compensation
    issues, it also directed the parties to proceed with discovery and
    other aspects of the litigation.[^19]

6.  Flying J filed this petition for declaratory ruling with the
    Commission on February 18, 2000. Several parties, including Sprint,
    the RBOC/GTE Payphone Coalition, Joint Commenters,[^20] and the
    American Public Communications Council (APCC), filed extensive
    comments on May 1, 2000. Reply comments were filed on May 22, 2000.

# DISCUSSION

## Facilities-Based Resellers

7.  The first issue referred to us under the doctrine of primary
    jurisdiction concerns the general responsibility of FBRs for
    payphone compensation to PSPs.[^21] We explain the issue this way:
    Are FBRs responsible to compensate PSPs when FBRs' customers use
    PSPs' payphones to make "dial-around" phone calls? As discussed, we
    answer this question in the affirmative.

8.  The Commission stated in the *First Payphone Order* that, as a
    general matter, all IXCs that carry calls from payphones are
    required to pay per-call compensation.[^22] The Commission also
    stated that both incumbent and non-incumbent local exchange carriers
    (LECs) must pay per-call compensation to the extent that LECs
    receive compensable payphone calls as "the primary economic
    beneficiary" of such payphone calls.[^23] In the *First
    Reconsideration Order*, we clarified that "a carrier is required to
    pay compensation and provide per-call tracking for the calls
    originated by payphones if the carrier maintains its own switching
    capability, regardless if the switching equipment is owned or leased
    by the carrier."[^24] The Commission decided in the *Second
    Reconsideration Order* and affirmed in the *Third Reconsideration
    Order* to omit non-facilities-based resellers from a direct payment
    obligation for Interim Period payphone compensation.[^25] The
    Commission concluded in the *Second Reconsideration Order* that the
    first underlying facilities-based carrier "is reasonably certain to
    have access to the information necessary for per-call tracking or to
    be able to arrange for per-call tracking in its arrangements with
    switch-based resellers that complete the calls."[^26] We stated that
    the "elimination of \[non-FBRs\] from a direct payment obligation
    should eliminate some of the non-payment problems described in the
    *Second Reconsideration Order*."[^27]

9.  In addressing the specific FBR issue referred to the Commission, we
    reiterate the Commission's conclusion that the first
    facilities-based IXC to which a LEC routes a coinless payphone call
    must (1) compensate the PSP for the completed call, (2) track or
    arrange for tracking of all compensable calls, and (3) send to the
    PSP call completion data to enable the PSP to verify the accuracy of
    compensation it receives for coinless, compensable calls and/or bill
    the underlying FBR.[^28] The Commission reiterated in the *Third
    Reconsideration Order* that these rules were appropriate because
    "the first IXC is reasonably certain to have access to the
    information necessary for per-call tracking or to be able to arrange
    for per-call tracking in its arrangements with \[F\]BRs that
    complete the calls."[^29] We also stated, however, that if FBRs
    "come forward as the responsible party and deal directly with PSPs
    for tracking and payment of compensation," the first underlying IXC
    "would no longer be responsible for payment of compensation on
    behalf of \[F\]BRs that assume direct liability for compensable
    calls through private contractual agreements with PSPs."[^30] Thus,
    under the Commission's existing rules, the first facilities-based
    IXC remains responsible to the PSP for all completed, compensable
    payphone calls, including calls completed by FBRs, unless the FBR
    has assumed direct contractual responsibility for such
    compensation.[^31] We hasten to add, however, that where a PSP is
    owed per-phone, as opposed to per-call, compensation for the Interim
    and Intermediate Periods, the compensation obligation is allocated
    among IXCs as set forth in the *Fifth Reconsideration Order* without
    regard to whether a given carrier is facilities-based or an
    FBR.[^32]

10. Finally, commenters raise several related issues concerning FBRs,
    including whether a credit card-based "platform" qualifies as a
    "switch" with the result that such a provider would be an FBR.[^33]
    As an initial matter, no party submits any evidence that a credit
    card-based platform possesses "switching capability" under any of
    the Commission's existing definitions.[^34] In addition, we found in
    the *First Reconsideration Order* that "it would be significantly
    burdensome for some parties, namely debit card providers, to track
    and pay compensation to PSPs on a per-call basis."[^35] Without the
    requisite technical evidence and in light of the burden the
    Commission previously noted in the context of debit cards,[^36] we
    decline to find that credit card-based platforms constitute switches
    under current technology and Commission rules.

## Retroactive Adjustments for the Waiver Period, and Payments and Associated Overpayments for the Interim Period

11. The other three issues referred to us are closely related, and we
    therefore address them together.[^37] These issues may be re-stated
    as whether IXCs are responsible for payphone compensation during the
    Interim Period of November 7, 1996 to October 6, 1997, and whether
    IXCs deduct from such amounts any overpayments they made to PSPs in
    the past.[^38]

12. As an initial matter, the general question of per-call and per-phone
    payphone compensation during the Interim and Intermediate Periods
    subsumes the issue of retroactive adjustment of payphone
    compensation for the waiver period. Thus, any such retroactive
    adjustment must be resolved in the Flying J litigation according to
    the requirements of the *Fourth* and *Fifth Reconsideration
    Orders*.[^39] In the *Fifth Reconsideration Order,* we determined
    that the monthly per-payphone rate for the Interim and Intermediate
    Periods should be \$35.224, which is based on a per-call rate of
    \$0.238 and 148 calls per month.[^40] A carrier is obligated to
    compensate PSPs on a per-call basis when the carrier receives
    payphone-specific coding digits[^41] A carrier should compensate
    PSPs on a per-payphone basis only when the carrier does not receive
    payphone-specific coding digits for a particular payphone.[^42]
    These conclusions resolve the Interim Period compensation issue
    referred to us.

13. The *Flying J* court also referred to us the related question of
    retroactive adjustments for any IXC overpayments to PSPs.[^43] In
    the *Third Payphone Order*, we stated that IXCs may recover their
    overpayments of per-call compensation paid during the Intermediate
    Period at the same time as the PSPs receive payment from the IXCs
    for the Interim Period" and that, "\[i\]n the event that the amount
    the IXC overpaid is larger than the amount it owes to the PSP for
    the Interim Period, the IXC may deduct the remaining overpayment
    from future payments to PSPs."[^44] In the *Fifth Reconsideration
    Order*, we provided detailed payment and refund guidelines:

    After th\[e\] effective date \[of this Order\], PSPs and IXCs may
    render bills to one another or otherwise arrange for payment of
    outstanding Interim and Intermediate Period compensation obligations
    or refunds. They may use whatever commercially reasonable payment or
    dispute resolution processes to handle this process they may
    currently use in their dealings with one another or to which they
    may otherwise mutually agree, including clearinghouse processes. In
    accordance with the \[statement in the\] *Third* \[*Payphone*\]
    *Order* that "IXCs may recover their overpayments to the PSPs at the
    same time as the PSPs receive payment from the IXCs for the Interim
    Period," we clarify that this means IXCs (or other carriers
    rendering payment) shall initially claim an offset for refunds of
    overpayments only against amounts claimed by the PSP for Interim and
    Intermediate Period compensation. Only after the carrier and the PSP
    have resolved the offset against this amount, "the IXC may deduct
    the remaining overpayment from future payments to PSPs." We further
    clarify, however, that IXCs (or other carriers claiming refunds) may
    only withhold *undisputed* amounts from future payments. Thus, any
    carrier wishing to deduct a refund out of future payments to PSPs
    may only do so after providing that specific PSP notice of the
    refund claimed, and allowing the PSP adequate time to dispute the
    claim. To the extent a PSP disputes any portion of the refund
    claimed, the carrier may not deduct that portion from any future
    payment until it resolves the dispute with the PSP. Again, carriers
    and PSPs may use existing commercially reasonable processes to
    handle these disputes and arrange for payment. The only requirement
    we place on these processes is that if a carrier is able to apply
    undisputed amounts against future payments, the carriers must allow
    PSPs to make payments of refunds over a reasonable number of future
    payments, subject to ongoing accrual of interest, if reasonably
    requested by the PSP. [^45]

14. We therefore find that the *Fifth Reconsideration Order* resolves
    the "retroactive adjustment or true-up" issue for payphone
    compensation during the waiver period as well as the "overpayment
    for calls set-off" and "interim payments" issues for Interim Period
    payphone compensation.[^46]

# CONCLUSION

15. In sum, any payphone compensation payment, refund, or overpayment
    disputes between Flying J and Sprint in the litigation should be
    resolved according to the per-call and per-phone amounts and
    guidelines set forth in the *Fifth Reconsideration Order*. To the
    extent that Sprint is liable for payphone compensation to Flying J
    under the facts of the *Flying J* litigation, which is an issue for
    the court to decide, Sprint should pay Flying J at rates of \$0.238
    per call for payphones that did provide payphone-specific coding
    digits to Sprint and \$35.224 per-phone for payphones that did not
    provide payphone-specific coding digits to Sprint.[^47] To the
    extent that Sprint is entitled to recover overpayments to Flying J,
    Sprint may only recover such overpayments according to the
    guidelines set forth in the *Fifth Reconsideration Order*.[^48]
    Finally, to the extent that FBRs have come forward and identified
    themselves to Flying J as responsible for calls initially routed to
    Sprint as the first facilities-based carrier, Flying J must seek
    restitution from such FBRs. If FBRs have not come forward to
    identify themselves, however, Sprint retains responsibility for
    these calls. For per-phone compensation for the Interim and
    Intermediate Periods, responsibility shall be allocated as between
    Sprint and FBRs as set forth in the *Fifth Reconsideration Order*.
    In any event, Sprint must track or arrange for tracking of all
    compensable calls and send to the PSP call completion data to enable
    the PSP to verify the accuracy of compensation it receives for
    coinless, compensable calls and/or to bill the underlying FBR.[^49]

# ORDERING CLAUSES

16. Accordingly, pursuant to sections 4(i), 205, and 276 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 205,
    and 276, IT IS HEREBY ORDERED that the Petition for Expedited
    Declaratory Ruling filed by Flying J is GRANTED.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch Secretary

[^1]: *See* Order Granting Plaintiffs' Request for Two Depositions\[,\]
    Denying Sprint Communications' Motion To Change Venue\[,\] Granting
    in Part and Denying in Part Sprint Communications\['\] Motion To
    Dismiss or, in the Alternative, To Stay on the Basis of Primary
    Jurisdiction\[,\] and Granting Sprint Communications' Motion To
    Dismiss Plaintiffs' Claim for Punitive Damages, *Flying J, Inc. v.
    Sprint Communications Co.*, Case No. 1:99-CV-111-ST, slip op. at 13
    (D. Utah Jan. 10, 2000) (*Flying J Referral Order*) (attached to
    Flying J Pet. for Expedited Declaratory Ruling, Exh. A).

[^2]: *Implementation of the Pay Telephone Reclassification and
    Compensation Provisions of the Telecommunications Act of 1996*, CC
    Docket No. 96-128, Order, 12 FCC Rcd 16387 (Oct. 7, 1997) (*Bureau
    Waiver Order*); *Implementation of the Pay Telephone
    Reclassification and Compensation Provisions of the
    Telecommunications Act of 1996, TDS Telecommunications Corporation
    Petition for Waiver of Coding Digit Requirement*, CC Docket No.
    96-128, Memorandum Opinion and Order, 13 FCC Rcd 4998 (March 9,
    1998) (*Bureau Coding Digit Waiver Order*).

[^3]: *Flying J Referral Order* at 13. We define this period in the next
    paragraph.

[^4]: *Implementation of the Pay Telephone Reclassification and
    Compensation Provisions of the Telecommunications Act of 1996*, CC
    Docket No. 96-128, Third Order on Reconsideration, 16 FCC Rcd 20922,
    20923-24, para. 4 & n.6 (Nov. 21, 2001) (*Third Reconsideration
    Order*); *Implementation of the Pay Telephone Reclassification and
    Compensation Provisions of the Telecommunications Act of 1996*, CC
    Docket No. 96-128, Fourth Order on Reconsideration and Order on
    Remand, 17 FCC Rcd 2020, 2027, para. 18 n.51 (Jan. 31, 2002)
    (stating that "the first underlying facilities-based carrier should
    pay compensation to a PSP") (*Fourth Reconsideration Order*); *In
    the Matter of Implementation of the Pay Telephone Reclassification
    and Compensation provisions of the Telecommunications Act of 1996*,
    CC Docket 96-128, Fifth Order on Reconsideration and Order on
    Remand, FCC 02-292, 17 FCC Rcd 21274, 21294, para. 60 (rel. Oct. 23,
    2002) (*Fifth Reconsideration Order*).

[^5]: *Fifth Reconsideration Order*, 17 FCC Rcd at 21277-78, para. 8,
    21285, para. 33.

[^6]: Reply Comments of Flying J at 4 (May 19, 2000) (Flying J Reply).

[^7]: *Id*. & n.4.

[^8]: *Id*. at n.4.

[^9]: *Id*.

[^10]: *Id*. at 4-5.

[^11]: *Id*. at 5.

[^12]: Complaint at para. 22 (attached to Flying J Pet. for Expedited
    Declaratory Ruling, Exh. B).

[^13]: Mem. in Support of Defendant Sprint Communications Company L.P.'s
    Motion To Dismiss, or in the Alternative, To Stay at iii-v (attached
    to Flying J Pet. for Expedited Declaratory Ruling, Exh. D).

[^14]: *Id*. at 16.

[^15]: Plaintiffs' Mem. in Opposition to Motion To Dismiss or in the
    Alternative To Stay at 6 (attached to Flying J Petition for
    Expedited Declaratory Ruling, Exh. E).

[^16]: *Flying J Referral Order* at 13.

[^17]: *Id*.

[^18]: *Id*. at 10.

[^19]: *Id*.

[^20]: *See* Joint Comments on Petition for Expedited Declaratory Ruling
    (filed by Cable & Wireless USA, Inc., Global Crossing
    Telecommunications, Inc., LDS Services, Inc., Qwest Communications
    International, Inc.)

[^21]: *See Flying J Referral Order* at 13. We confine our analysis to
    the four discrete issues referred to us by the federal district
    court in Utah. We therefore do not address commenters' arguments
    concerning matters outside the scope of the referral, including
    federal preemption of state law, *see* Joint Comments at 11-12, a
    proposed quarterly accounting system, *see* APCC Comments at 8, the
    use of surrogate call count methodologies, *see* Excel Comments at
    8, prospective changes to the entire payphone compensation scheme,
    *see* Flying J Reply at 12-13, or the availability of punitive
    damages, *see* APCC Reply at 10. We also disagree with the
    commenters who claim that Flying J's petition is too vague or
    unspecific for us to resolve. *See* Joint Comments at 2-6; WorldCom
    Comments at 2-3; Excel Comments at 5. Our task is not, as WorldCom
    claims, to "help\[\] the \[court\] *evaluate* Flying J's claims."
    WorldCom Reply at 2 (emphasis added). Evaluating causes of action is
    the task of the trier of fact, not this Commission. Our task is
    simply to state the Commission's rules with regard to four narrow
    issues referred to us. *See* RBOC/GTE Payphone Coalition Reply at 2.

[^22]: *Implementation of the Pay Telephone Reclassification and
    Compensation Provisions of the Telecommunications Act of 1996*, CC
    Docket No. 96-128, Report and Order, 11 FCC Rcd 20541, 20584, para.
    83 (Sept. 20, 1996) (*First Payphone Order*).

[^23]: *Id*. & n.293.

[^24]: *Implementation of the Pay Telephone Reclassification and
    Compensation Provisions of the Telecommunications Act of 1996*, CC
    Docket No. 96-128, Order on Reconsideration, 11 FCC Rcd 21233,
    21277, para. 92 (Nov. 8, 1996) (*First Reconsideration Order*).

[^25]: *Fourth Reconsideration Order*, 17 FCC Rcd at 2027, para. 18.
    *See also* *Implementation of the Pay Telephone Reclassification and
    Compensation Provisions of the Telecommunications Act of 1996*, CC
    Docket No. 96-128, Second Order on Reconsideration, 16 FCC Rcd 8098,
    8100, para. 4 (April 5, 2001) (*Second Reconsideration Order*);
    *Third Reconsideration Order,* 16 FCC Rcd at 20923-24, para. 4 &
    n.6.

[^26]: *Second Reconsideration Order*, 16 FCC Rcd at 8106, para. 16. In
    *Sprint v. FCC*, the D.C. Circuit vacated the Commission's
    directives but stayed its action vacating the rule until September
    30, 2003. *Sprint v. FCC*, No. 01-1266 (D.C. Cir. April 1, 2003).
    *See also* *Sprint v. FCC*, 315 F.3d 369 (D.C. Cir. 2003).

[^27]: *Fourth Reconsideration Order*, 17 FCC Rcd at 2027, para. 18.

[^28]: *First Reconsideration Order*, 11 FCC Rcd at 21277, para. 92;
    *Third Reconsideration Order*, 16 FCC Rcd at 20922, para. 1.

[^29]: *Third Reconsideration Order*, 16 FCC Rcd at 20925, para. 10.

[^30]: *Third Reconsideration Order*, 16 FCC Rcd at 20926, para. 12.
    *But see id*. at para. 10 n.17 (noting that FBRs that do not provide
    compensation for each and every compensable call, whether through a
    clearinghouse or by contract, cannot be considered to have "come
    forward" to pay compensation as required by the Commission's *Second
    Reconsideration Order*).

[^31]: We note that a prior order resolving a payphone compensation
    dispute between two carriers expressly stated that it was applying
    the Commission's prior rules concerning payphone compensation. *See*
    *In the Matter of Bell Atlantic-Delaware, Inc. v. MCI
    Telecommunications Corp.*, File No. E-98-49, Memorandum Opinion and
    Order, 17 FCC Rcd 15918, 15919, para. 1 (rel. Aug. 14, 2002).

[^32]: *Fifth Reconsideration Order,* 17 FCC Rcd at 21291, para. 54.

[^33]: *See, e.g.,* Sprint Comments at 2-3; Excel Comments at 3.

[^34]: *See*, *e.g.,* 47 C.F.R. § 51.319(c) (defining "switching
    capability" in the context of specific LEC unbundling requirements).

[^35]: *First Reconsideration Order*, 11 FCC Rcd at 21277, para. 92.

[^36]: *See* RBOC/GTE Payphone Coalition Reply at 3 (arguing that debit
    cards and credit cards use similar platforms).

[^37]: *Flying J Referral Order* at 13.

[^38]: *See id*.

[^39]: In *APCC v. FCC*, the D.C. Circuit ultimately affirmed the
    Commission's payphone dial-around compensation rate, *American Pub.
    Communications Council v. FCC*, 215 F.3d 51 (D.C. Cir. 2000), and in
    the *Fourth* *Reconsideration Order* and *Fifth Reconsideration
    Order*, we set forth a per-phone compensation scheme for the Interim
    and Intermediate Periods. We also note that, in the *Per-Phone
    Compensation Waiver Order,* we stated that "a retroactive adjustment
    of payphone compensation for the period covered by the *Bureau
    Waiver Order* and the *Bureau Coding Digit Waiver Order* is not
    necessary." *Implementation of the Pay Telephone Reclassification
    and Compensation Provisions of the Telecommunications Act of 1996*,
    *AT&T Request for Limited Waiver of the Per-call Compensation
    Obligation*, CC Docket No. 96-128, Memorandum Opinion and Order, 13
    FCC Rcd 10893, 10914, para. 35 (April 3, 1998) (*Per-Payphone
    Compensation Waiver Order*). The Commission reached this conclusion
    because, at that time, the D.C. Circuit had vacated the Commission's
    methodology for setting per-phone compensation in *Illinois Pub.
    Telecoms. Ass'n v. FCC*, 117 F.3d 555 (D.C. Cir. 1997), and because
    the parties in the *Per-Phone Compensation Waiver Order* proceeding
    had not provided information on alternative methods of estimating
    average call volumes. *Per-Payphone Compensation Waiver Order*, 13
    FCC Rcd at 10914, para. 35. Nothing in the *Per-Phone Compensation
    Waiver Order* suggests that the Commission would permanently waive
    the obligations of IXCs, FBRs, LECs, and PSPs to provide payphone
    compensation or make restitution for past overpayments.

[^40]: *Fifth Reconsideration Order*, 17 FCC Rcd at 21285, para. 33.
    *See also* *Fourth Reconsideration Order*, 17 FCC Rcd at 2025-26,
    para. 14. Interest should be paid on Interim Period compensation at
    the rate established under section 6621 of the Internal Revenue
    Code, 26 U.S.C. § 6621*. Fifth Reconsideration Order*, 17 FCC Rcd at
    21285, para. 32, 21307-08, paras. 99-101.

[^41]: *Fourth Reconsideration Order*, 17 FCC Rcd at 2034, para. 36
    n.100.

[^42]: *Id*.

[^43]: *Flying J Referral Order* at 13. Flying J argues that resolution
    of Interim Period payphone compensation and associated retroactive
    adjustments is "irrelevant" because it does not seek any payphone
    compensation for the Interim Period. Flying J Reply Comments at 14.
    Other commenters claim that the issues are not irrelevant because
    IXCs should be able to deduct any overpayments immediately, without
    waiting for the Commission to set the Interim Period payphone
    compensation rate. Sprint Comments at 5; WorldCom Comments at 5;
    Excel Comments at 6; Joint Comments at 9-10. As discussed herein, we
    resolved Interim Period compensation and retroactive adjustments in
    the *Fifth Reconsideration Order* and therefore need not address
    these arguments.

[^44]: *Implementation of the Pay Telephone Reclassification and
    Compensation Provisions of the Telecommunications Act of 1996*, CC
    Docket No. 96-128, Third Report and Order and Order on
    Reconsideration of the Second Report and Order, 14 FCC Rcd 2545,
    2636-37, para. 198 (1999) (*Third Payphone Order*).

[^45]: *Fifth Reconsideration Order*, 17 FCC Rcd at 21307, para. 97
    (citations omitted) (original emphasis).

[^46]: *Flying J Referral Order* at 13.

[^47]: Per-phone compensation for the Interim Period, if relevant in the
    litigation, should be paid according to the guidelines set forth in
    the *Fifth Reconsideration Order*. *See Fifth Reconsideration Order*
    at para. 97.

[^48]: *Id.*

[^49]: *First Reconsideration Order*, 11 FCC Rcd at 21277, para. 92;
    *Third Reconsideration Order*, 16 FCC Rcd at 20922, para. 1.