*Pages 1--36 from  Microsoft Word - 23101.doc*
 Federal  Communications  Commission  FCC  02-  314 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 Communications  Vending  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 

 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 

 File  Nos.  EB-  02-  MD-  018    030 

 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  November  15,  2002  Released:  November  19,  2002 
 By  the  Commission: 

 I.  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  Commissions  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 

 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  Commissions  rules  refer  to  the  rules  in  effect  prior  to  April  15,  1997. 
1
 Federal  Communications  Commission  FCC  02-  314 
 2 
 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 

 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  Commissions  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.  Assn  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). 
2
 Federal  Communications  Commission  FCC  02-  314 
 3 
 II.  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 

 A.  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 
 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  Corporations  Answer  to  CVCAs  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  Corporations  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  Corporations  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  Corporations  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). 
3
 Federal  Communications  Commission  FCC  02-  314 
 4 
 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  Commissions  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 

 (...  continued  from  previous  page)  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. 
4
 Federal  Communications  Commission  FCC  02-  314 
 5 
 that  the  Commissions  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  courts  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  CFCs  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  Commissions  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  Courts  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  CFCs 
 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 

 29  The  American  Public  Communications  Council  Petition  for  Declaratory  Ruling  (filed  April  21,  1989)  (  APCC 
 Petition).  Although  the  Commission  has  not  yet  ruled  on  APCCs  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  see  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. 
5
 Federal  Communications  Commission  FCC  02-  314 
 6 
 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  Commissions  authority  to  impose  damages  on  the  LECs  for  charges  that  they  may  have  collected  in  reliance  on  the  agencys 
 initial  (and  mistaken)  interpretations  of  the  Access  Charge  Reconsideration  rules.  43 
 B.  The  Current  Cases 
 11.  As  a  result  of  the  D.  C.  Circuits  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  Commissions  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  Commissions  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  Commissions  rules,  48  as  well  as  Sections  201(  b)  and  203(  c)  of  the  Act  49  by  imposing 

 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  Commissions  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: 
 (continued....) 
6
 Federal  Communications  Commission  FCC  02-  314 
 7 
 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  Commissions  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 

 (...  continued  from  previous  page)  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  carriers  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  Corporations  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  Corporations 
 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;  SBCs  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  Telecoms  Supplemental  Answer  to  ITCs  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  Corporations  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  Corporations  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  (continued....) 
7
 Federal  Communications  Commission  FCC  02-  314 
 8 
 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 

 C.  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  Commissions  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. 
 III.  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, 

 (...  continued  from  previous  page)  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);  SBCs  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. 
8
 Federal  Communications  Commission  FCC  02-  314 
 9 
 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. 
 A.  Defendants  Violated  Section  201(  b)  of  the  Act  and  Part  69  of  the  Commissions  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  Commissions  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 

 59  Id.  at  8768,    24. 
 60  Id.  at  8767,    21. 
 61  See  id.  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. 
9
 Federal  Communications  Commission  FCC  02-  314 
 10 
 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  [CFCs]  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  courts  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 
 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  Courts  conclusion  that  calls  did  not  originate  on  CFCs  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. 
10
 Federal  Communications  Commission  FCC  02-  314 
 11 
 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  Commissions  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 
 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. 
11
 Federal  Communications  Commission  FCC  02-  314 
 12 
 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  owners  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 
 owners  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 
 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. 
12
 Federal  Communications  Commission  FCC  02-  314 
 13 
 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. 

 B.  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 
 IV.  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 
 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. 
13
 Federal  Communications  Commission  FCC  02-  314 
 14 
 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 
 A.  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  Commissions  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  Commissions  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 
 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  Commissions  authority  to 
 impose  damages  on  the  LECs  for  charges  that  they  may  have  collected  in  reliance  on  the  agencys  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.  Assn  of  Am.  v.  Shalala,  23  F.  3d  412,  424  (D.  C.  Cir.  1994)  (emphasis  added). 
 101  Id.  (citations  omitted). 
14
 Federal  Communications  Commission  FCC  02-  314 
 15 
 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  Commissions  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  Commissions  policy.  107  The  Commission  order,  however,  was  reversed  on  appeal  by  the  D.  C.  Circuit  on  grounds  that  the  Commissions  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  Commissions  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 
 Commissions  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 
 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). 
15
 Federal  Communications  Commission  FCC  02-  314 
 16 
 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  FCCs  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  Commissions  error  had  not  been  made. 
 37.  We  do  not  believe  that  any  purported  reliance  on  the  Commissions  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 

 110  Id. 
 111  Verizon,  269  F.  3d  at  1111  (citations  omitted);  see  also  Pub.  Utilities  Comn  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. 
16
 Federal  Communications  Commission  FCC  02-  314 
 17 
 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. 
 B.  Complainants  Are  Not  Limited  To  Recovery  in  Restitution 
 40.  Defendants  contend  that,  [  w]  here  a  party  pays  amounts  pursuant  to  an  agencys  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  carriers  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 

 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,  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. 
17
 Federal  Communications  Commission  FCC  02-  314 
 18 
 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  defendants  gain  and  seeks  to  force  disgorgement  of  that  gain.  It  differs  in  its  goal  or  principle 

 from  damages,  which  measures  the  remedy  by  the  plaintiffs  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 

 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. 
18
 Federal  Communications  Commission  FCC  02-  314 
 19 
 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. 

 C.  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 

 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  restitutions  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. 
19
 Federal  Communications  Commission  FCC  02-  314 
 20 
 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  Commissions  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 
 V.  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 

 131  Rapaport  v.  United  States  Dept  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 

 (continued....) 
20
 Federal  Communications  Commission  FCC  02-  314 
 21 
 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  Commissions  prior 
 rulings  to  the  contrary,  even  though  other  complainants  with  identical  claims  were  continuously  appealing  the  Commissions  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. 
 A.  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 

 (...  continued  from  previous  page)  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  (continued....) 
21
 Federal  Communications  Commission  FCC  02-  314 
 22 
 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 
 (...  continued  from  previous  page)  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),  affd  sub  nom.  US  Sprint  Communications  Co.  v.  AT&  T  Co.,  9  FCC  Rcd  4801  (1994) 
 (  US  Sprint),  affd,  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),  revd  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 
 (continued....) 
22
 Federal  Communications  Commission  FCC  02-  314 
 23 
 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  EUCLs  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.  Circuits  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  Commissions  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  Courts  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  Commissions  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 

 (...  continued  from  previous  page)  (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  agencys  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  Commissions  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, 
23
 Federal  Communications  Commission  FCC  02-  314 
 24 
 decision  was  remanded  to  the  Commission  after  being  successfully  appealed  by  the  affected  complainants.  157  Thus,  the  Commissions  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 
 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.) 
24
 Federal  Communications  Commission  FCC  02-  314 
 25 
 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  Commissions  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  Commissions  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 

 (...  continued  from  previous  page)  168  Hartford  Life  Insurance  Co.  v.  Title  Guarantee  Co.,  52  F.  2d  1170,  1174  (D.  C.  Cir.  1975)  (finding  that 
 plaintiffs  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  attorneys  fees  as  damages  under  Section  207  of  the  Act  was  not  barred  by  Section  415(  b)  because  this  was  plaintiffs  first  and  only  opportunity  to  recover  attorneys  fees  in  the  proceeding). 

 176  Had  such  complaint  been  rejected  by  the  Commission,  Complainants  would  have  been  free  to  appeal  the 
 Commissions  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. 
25
 Federal  Communications  Commission  FCC  02-  314 
 26 
 B.  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  APCCs  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  Commissions  strict  approach  to  the  application  of  Section  415(  b)  of  the  Act  182  is  more  consistent  with  the  United  States  Supreme  Courts  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 
 APCCs  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 

 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  adversarys  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,  (continued....) 
26
 Federal  Communications  Commission  FCC  02-  314 
 27 
 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  Commissions  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. 

 (...  continued  from  previous  page)  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  complainants  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  Commissions  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  Commissions  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. 
27
 Federal  Communications  Commission  FCC  02-  314 
 28 
 VI.  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  BellSouths  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  Commissions  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  Commissions  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  Commissions  rules,  all  the  circumstances,  and  the  totality  of  the 
 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  CVCs  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). 
28
 Federal  Communications  Commission  FCC  02-  314 
 29 
 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  Commissions  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 

 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  ITCs  stationery,  and  include  the 
 name  of  ITCs  president,  William  J.  Nelson.  We  find  credible  the  affidavit  of  Pamela  S.  Wickham,  ITCs  office  manager  during  the  time  period  at  issue,  that  it  was  the  companys  customary  practice  to  send  letters  out  on  the  date  they 

 were  generated,  without  Mr.  Nelsons  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  applicants  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  FCCs  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 
 (continued....) 
29
 Federal  Communications  Commission  FCC  02-  314 
 30 
 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  Commissions  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  ITCs  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  Commissions  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 

 (...  continued  from  previous  page)  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  ITCs  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 
 NSCs  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). 
 SBCs  Jan.  4,  1989  response  to  Payphone  Systemss  informal  complaint  is  identical  in  substance  to  its  response  to  NSCs  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.  Wickhams  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  ITCs  receipt  of  this  letter  supports  ITCs  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  Commissions  database. 
30
 Federal  Communications  Commission  FCC  02-  314 
 31 
 on  which  each  of  these  informal  complaints  was  filed.  Regarding  the  ITC  complaint  against  BellSouth,  we  note  that  the  Commissions  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  Commissions 
 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  Commissions  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.  Kerivans  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 

 VII.  BASED  ON  THE  UNIQUE  CIRCUMSTANCES  OF  THESE  CASES,  WE  WAIVE  OUR  SETTLEMENT  CERTIFICATION  REQUIREMENT  IN  SECTION 
 1.721(  A)(  8)  OF  THE  COMMISSIONS  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  Commissions  rules.  213  The  specific  claims  that  Defendants  seek  to  have  dismissed  are  based  on  (1)  Section  203  of 

 209  The  database  lists  the  following  filing  dates  for  ITCs  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)  ITCs  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;  (continued....) 
31
 Federal  Communications  Commission  FCC  02-  314 
 32 
 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  Commissions  rules. 

 77.  The  Commissions  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  Commissions  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  Commissions  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  Commissions  rules,  thereby  implicitly  including  the 

 (...  continued  from  previous  page)  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. 
32
 Federal  Communications  Commission  FCC  02-  314 
 33 
 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. 
 VIII.  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 

 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 
 Bureaus  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). 
33
 Federal  Communications  Commission  FCC  02-  314 
 34 
 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  Bureaus  release  of  a  Hearing  Designation  Order  in  this  proceeding. 

 FEDERAL  COMMUNICATIONS  COMMISSION 
 Marlene  H.  Dortch  Secretary 
34
 Federal  Communications  Commission  FCC  02-  314 
 35 
 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) 
35
 Federal  Communications  Commission  FCC  02-  314 
 36 
 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) 
36