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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Informal Complaints Filed By )
Independent Payphone Service ) File Nos. IC-98-42853, et
Providers Against Various ) al.
Local Exchange Carriers )
Seeking Refunds Of End User )
Common Line Charges )
ORDER
Adopted: March 15, 2005 Released: March 25,
2005
By the Deputy Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Order, we require each informal
complainant covered by this Order to submit notice of
intent to proceed on or before April 22, 2005, if it
wishes to pursue its claims, and set a final deadline
of September 9, 2005 for converting End User Common
Line (``EUCL'') informal complaints1 into formal
complaints.2 Further, in order to facilitate a more
efficient conversion process, we set forth
requirements for filing such formal complaints.
II. BACKGROUND
2. In these informal complaints, independent payphone
providers (``IPPs'') allege that the defendant local
exchange carriers (``LECs'') improperly assessed EUCL
charges, in violation of the Commission's rules and
sections 201(b) and 202(a) of the Communications Act,
as amended (the ``Act'').3 In a series of orders
issued since the filing of these informal complaints,
the Bureau has continued to extend the six-month
period for converting the informal complaints into
formal complaints.4 Pursuant to the most recent
Enforcement Bureau order, informal complaints were
required to be converted by April 22, 2005, to
benefit from the relation back rule outlined in
section 1.718.5
3. On April 26, 2002, thirteen IPPs converted their
pending informal complaints and filed formal
complaints challenging the LECs' imposition of the
EUCL charge. On November 19, 2002, the Commission
issued an order concluding the liability phase of the
proceeding, finding that the defendant LECs violated
Section 201(b) of the Act and Part 69 of the
Commission's rules by improperly assessing EUCL
charges on IPP payphones and that the Complainants
are entitled to recover damages.6 In addition, the
Commission declined to toll the Section 415(b) two-
year statute of limitations.7 Accordingly, the
Commission determined that each Complainant is
entitled to recover EUCL charges paid on its
payphones beginning two years prior to the date on
which the Complainant filed an informal complaint
with the Commission. On April 30, 2004, the D.C.
Circuit affirmed the Commission's Liability Order in
all respects.8 Since the D.C. Circuit's ruling,
several of the formal complainants have settled and
the rest are in settlement discussions.
4. In addition to the thirteen formal complaints,
thousands of virtually identical informal complaints
are pending, similarly challenging the imposition of
EUCL charges on IPPs. It is these informal
complaints that are the subject of this Order.
Although many informal complaints have settled, we
estimate that around 1500 such informal complaints
remain pending. We further understand that
settlement discussions are underway among a number of
informal complainants and defendants.
III. DISCUSSION
A. Informal Complainants Must Provide Notice of Intent to
Convert.
5. Discussions with a number of parties to these
informal complaints reveal that settlement is
hampered by the fact that some defendants are unable
to ascertain the magnitude of the active claims
pending against them. Although many complainants,
particularly those represented by counsel, have
initiated settlement discussions, we understand that
literally hundreds of informal complainants have
never contacted defendants in an effort to obtain
payment (despite the fact that the legal issues have
largely been decided). For some of these
complainants, it may be that there is no reason to
pursue their complaints. For example, the November
2002 Liability Order decision with regard to statute
of limitations may have effectively nullified any
potential damages recovery for many informal
complainants. 9 We agree that ascertaining the
number and scope of complaints that will be pursued
against each defendant will facilitate the informal
resolution of these claims.
6. Therefore, we require every informal complainant
that intends to pursue its informal complaint(s) to
submit a notice to that effect, as described below.
In letters submitted to the Commission, the parties
differ as to the timing of the notice requirement.
Counsel for a large group of complainants requests
that we give the informal complainants 90 days to
submit such notice.10 Verizon, SBC, Qwest and
Century Tel, on the other hand, suggest that we
require that complainants submit notice of intent to
proceed by April 22, 2005, or about 30 days from the
release of this order.11 Counsel for complainants
contends that 30 days does not leave sufficient time
to finalize resolution of settlements, given the
number of individual complaints involved.12
7. Although there are a large number of informal
complaints pending, the liability issues common to
all these complaints were conclusively decided in
April 2004. Thus, in our view, counsel has had
adequate time to notify individual complainants of
their rights and undertake settlement efforts on
their behalf. In addition, we note that in our
December 22, 2004 order, we indicated that informal
complainants would be required to provide such notice
of intent to proceed within 30 days of this order (or
by April 22, 2005) if they wished to pursue their
claims.13 Moreover, the notice submission described
below is not burdensome and is designed merely to
apprise defendants of the universe of claims pending
against them. Therefore, we require every informal
complainant to notify the Commission no later than
April 22, 2005 if it intends to pursue its claim for
refund of unlawful EUCL charges. Any informal
complainant that does not submit such notice on or
before April 22, 2005 waives its right to convert its
existing informal complaint into a formal complaint.
Once such notice is provided, all parties may take
the opportunity to resolve the claims before being
required to litigate formal complaints.
8. Notice may be made by logging onto
http://www.fcc.gov/eb/eucl and clicking on
``Complainant Notification Form.'' In order to
satisfy the notice requirement, complainants must
enter basic identifying information about the
complaint, including the date it was filed, the
complaint number, the defendant, and complainant's
contact information.14 If a complainant filed more
than one informal complaint, the complainant need
only enter its contact information once but will be
required to enter the informal complaint number, date
the complaint was filed, and defendant name for each
complaint. Though defendant names may have changed,
given the passage of time, we suggest that
complainants enter the defendant named on their
original complaint.15 The EUCL electronic
notification web address will not allow submissions
after midnight (EST) on that day. An alphabetical
list, by defendant, of all notifications will be
publicly available and updated daily. This list will
be accessible by logging onto the same web address:
http://www.fcc.gov/eb/eucl and clicking on
``Defendant Notification List.''
B. We Establish a Final Deadline for Converting to Formal
Complaints.
9. In its February 17, 2005 letter, Verizon requests
that the Commission require complainants to convert
their informal complaints into formal complaints
within 20 days of filing their notice of intent to
proceed.16 SBC suggests that conversion be required
within three months,17 and Qwest and CenturyTel
recommend that conversion be required within five
months of the date of this order.18 Counsel for a
large group of complainants, on the other hand,
proposes that the Bureau set the conversion date no
earlier than October 22, 2005, or approximately seven
months from the date of this order. 19 Counsel for
these complainants contends that further time is
needed to continue settlement negotiations before
undertaking the process of preparing formal
complaints.20 Preparing the final complaints - even
pursuant to streamlined procedures - will be time-
consuming, according to counsel for these
complainants, and establishing October 22 as the
final deadline will enable these complainants to file
their final complaints on a staggered basis over a
period of time.21
10. We estimate that of the 3000 informal EUCL
complaints originally filed, approximately 1500 have
settled (or are in the process of settling) and
approximately 1500 remain pending. We have no way of
knowing how many of the remaining complainants have
been engaged in settlement discussions or have even
made an effort to pursue their claim(s) after the
Commission issued the Liability Order in related
complaint proceedings.22 Nor do we know at this
point, more significantly, how many of these
complainants will seek to pursue their complaints at
all. Once those informal complainants that intend to
pursue their claims identify themselves by submitting
the notice described above, we expect that any
parties who wish to settle their claims can do so
within a reasonable period of time.
11. Therefore, for those informal complainants that
timely submit the requisite notice by April 22, 2005,
we further extend the deadline for converting
informal complaints to formal complaints until
September 9, 2005. This should provide sufficient
time for parties to engage in informal resolution
and, if such efforts are unsuccessful, to prepare
formal complaints pursuant to the procedures set
forth below. This is the final deadline for
conversion. Any informal complainant (having
submitted the requisite notice) must file a formal
complaint on or before September 9, 2005, or lose its
right to proceed.
C. We Establish a Streamlined Process for filing Formal
Complaints and Answers.
12. Because the critical legal issues raised by these
informal complaints have been definitively addressed,
it is not necessary to require parties to file
lengthy formal complaints and answers complete with
legal analyses. Under the unique circumstances here,
we expedite and streamline the process for converting
these informal complaints into formal complaints to
minimize the burden and expense on all parties and
the Commission.23 First, pursuant to section
1.722(c) of the Commission's rules,24 we will
bifurcate complaint proceedings and determine damages
in a separate proceeding.25 Therefore, the issue of
damages should not be addressed in either the
complaint or answer. Second, we waive the
requirements in sections 1.720-1.723 of the
Commission's rules26 setting forth the requirements
for filing formal complaints, except as follows:
13. 1.721(a)(1) A formal complaint shall contain the
name of each complainant and defendant;
14. 1.721(a)(2) The occupation, address and telephone
number of each complainant and, to the extent known,
each defendant.
15. 1.721(a)(3) The name, address and telephone
number of complainant's attorney, if represented by
counsel.
16. 1.721(a)(8) Certification that the complainant
has, in good faith, discussed or attempted to discuss
the possibility of settlement with each defendant
prior to the filing of the formal complaint. Such
certification shall specify the efforts made to
obtain payment from the defendant since April 2004
and briefly summarize all additional steps taken to
resolve the dispute prior to the filing of the formal
complaint.
17. 1.721(a)(12) A completed Formal Complaint Intake
Form. A sample Formal Complaint Intake From is
attached at Appendix A.
18. 1.721(a)(13) A declaration, under penalty of
perjury, by the complainant or complainant's counsel
describing the amount, method, and date of the
complainant's payment of the filing fee required
under § 1.1106 and the complainant's 10-digit FCC
Registration Number. The fee as of the date of this
order is $180.00 per complaint. 47 C.F.R. § 1.1106.
Complainants must check the regulations, however,
before filing, as this fee is updated periodically.
19. 1.721(a)(14) A certificate of service.
20. 1.721(a)(15) An FCC Registration Number as
required under Part 1, Subpart W of the Commission's
rules. 47 C.F. R. §§ 1.8001-1.8004. Submission of a
complaint without the FCC Registration Number as
required by Part 1, Subpart W will result in
dismissal of the complaint.
21. In lieu of strict compliance with section
1.721(a)(4)-(5) of the Commission's rules,27 the
complaint must include a statement that complainant
was assessed EUCL charges by defendant, and paid
those charges, prior to April 15, 1997.28 If a
different entity (or an entity with a different name)
was assessed and paid the EUCL charge, the complaint
should set forth the name and address of the entity
that was assessed and paid the EUCL charge, the
relationship of complainant to that entity and
documents sufficient to prove complainant's right to
sue on behalf of the entity that paid the EUCL
charge. Further, the complaint must state the date
on which the complainant filed an informal complaint
with the Commission, and attach a copy of such
informal complaint.
22. In addition, we waive the requirements of sections
1.724(c), (f), (i), (j), and (k) of the Commission's
rules29 with regard to answers.
23. Finally, we waive the requirements of section
1.735(d) of the Commission's rules30 to the extent it
requires service by hand delivery and permit
complainants to serve defendants by overnight mail.
24. All other rules relating to formal complaints
apply in their entirety, including sections 1.725-
1.736 of the Commission's rules.31
IV. ORDERING CLAUSES
25. ACCORDINGLY, IT IS ORDERED, pursuant to sections
4(i), 4(j), and 208 of the Communications Act, as
amended, 47 U.S.C. §§ 154(i), 154(j), 208, section
1.3 of the Commission's rules, 47 C.F.R. § 1.3, and
the authority delegated by sections 0.111 and 0.311
of the Commission's rules, 47 C.F.R. §§ 0.111 and
0.311, that on or before April 22, 2005, informal
complainants submit notice of intent to proceed as
specified above. Any informal complainant that does
not provide such notice waives its right to convert
its informal complaint into a formal complaint for
damages.
26. IT IS FURTHER ORDERED, pursuant to sections 4(i),
4(j), and 208 of the Communications Act, as amended,
47 U.S.C. §§ 154(i), 154(j), 208, section 1.3 of the
Commission's rules, 47 C.F.R. § 1.3, and the
authority delegated by sections 0.111 and 0.311 of
the Commission's rules, 47 C.F.R. §§ 0.111 and 0.311,
that section 1.718(a) of the Commission's rules, 47
C.F.R. § 1.718(a), IS HEREBY WAIVED, with regard to
those IPP EUCL informal complaints about which notice
described herein has been timely filed, and the
deadline for the conversion and filing of these
informal complaints into formal complaints is hereby
extended to September 9, 2005. This waiver is
effective as of the release of this Order.
27. IT IS FURTHER ORDERED, pursuant to sections 4(i),
4(j), and 208 of the Communications Act, as amended,
47 U.S.C. §§ 154(i), 154(j), 208, section 1.3 of the
Commission's rules, 47 C.F.R. § 1.3, and the
authority delegated by sections 0.111 and 0.311 of
the Commission's rules, 47 C.F.R. §§ 0.111 and 0.311,
that the provisions of sections 1.720-1.724 and 1.735
of the Commission's rules, 47 C.F.R. §§ 1.720-1.724
and 1.735 ARE HEREBY WAIVED EXCEPT AS EXPLICITLY SET
FORTH ABOVE. This waiver is effective as of the
release of this Order.
FEDERAL COMMUNICATIONS
COMMISSION
Christopher N. Olsen
Deputy Chief, Enforcement
Bureau
Appendix A
- Unhandled Picture - - Unhandled Picture - - Unhandled Picture -
_________________________
1 The informal complaints covered by this Order are those
that are subject to the Common Carrier Bureau's Order of
September 10, 1999. 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 (CCB 1999) (``First
Waiver Order'').
2 Ordinarily, section 1.718 requires that a formal
complaint must be filed within six months of the carrier's
response to the informal complaint if the formal complaint
is to relate back for statute of limitations purposes to
the filing of the informal complaint. See 47 C.F.R. §
1.718(a).
3 47 U.S.C. §§ 201(b) and 202(a); 47 C.F.R. §§ 69.1 et
seq.
4 See First Waiver Order, 16 FCC Rcd at 3672, ¶ 8;
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 (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, 17 FCC Rcd 14759 (EB
2002) (``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, 18 FCC Rcd 12047 (EB 2003) (``Fourth
Waiver Order''); Informal Complaints Filed By Independent
Payphone Service Providers Against Various Local Exchange
Carriers Seeking Refunds of End User Common Line Charges,
Order, 19 FCC Rcd 9066 (EB 2004) (``Fifth Waiver Order'');
Informal Complaints Filed By Independent Payphone Service
Providers Against Various Local Exchange Carriers Seeking
Refunds of End User Common Line Charges, Order, 19 FCC Rcd
19480 (EB 2004) (``Sixth Waiver Order''); Informal
Complaints Filed By Independent Payphone Service Providers
Against Various Local Exchange Carriers Seeking Refunds of
End User Common Line Charges, Order, 2004 WL 2973797, File
Nos. IC-98-42853, et al., DA No. 04-4022 (EB Rel. Dec. 22,
2004) (``Seventh Waiver Order'').
5 Seventh Waiver Order, 2004 WL 2973797 (EB 2004).
6 Communications Vending Corporation of Arizona, Inc., et
al. v. Citizens Communications Company f/k/a Citizens
Utility Company and Citizens Telecommunications Company
d/b/a Citizens Telecom, et al., Memorandum Opinion and
Order, 17 FCC Rcd 24201, 24208 (2002) (``Liability Order'')
at ¶ 15.
7 Id. at 24227, ¶ 64.
8 Communications Vending Corporation of Arizona, Inc., et
al., v. FCC, et al., 365 F.3d 1064 (D.C. Cir. 2004).
9 See Liability Order, 17 FCC Rcd at 24227, ¶ 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. Because the charges at
issue ceased on April 15, 1997, we can only award damages
where informal complaints were filed by April 15, 1999'').
10 Letter from Katherine J. Henry, counsel for
complainants, to Radhika V. Karmarkar, Enforcement Bureau,
File Nos. IC-98-42853, et al. (dated Feb. 17, 2005) at 6
(``February 17 Dickstein Letter'').
11 See Letter from Sherry A. Ingram, counsel for Verizon,
to Rosemary McEnery, Enforcement Bureau, File Nos. IC-98-
42853, et al., (dated Feb. 17, 2005) (``February 17 Verizon
Letter) at 1; Letter from Davida Grant, counsel for SBC, to
Radhika V. Karmarkar, Enforcement Bureau, File Nos. IC-98-
42853, et al., (dated Feb. 25, 2005) (``SBC Letter'') at 3;
Letter from Daphne E. Butler, counsel for Qwest, to Radhika
V. Karmarkar, Enforcement Bureau, File Nos. IC-98-42853, et
al., (dated Feb. 25, 2005) (``Qwest Letter'') at 1; Letter
from Benjamin H. Dickens, Jr. to Radhika V. Karmarkar,
Enforcement Bureau, File Nos. IC-98-42853, et al., (dated
Feb. 25, 2005) (``CenturyTel Letter'') at 1.
12 Letter from Albert H. Kramer, counsel for complainants,
to Radhika V. Karmarkar, Enforcement Bureau, File Nos. IC-
98-42853, et al. (dated Feb. 25, 2005) at 3-4 (``February
25 Dickstein Letter'').
13 See Seventh Waiver Order at ¶ 3.
14 Attorneys representing large groups of complainants
(i.e., more than 50) may contact Commission staff at 202-
418-7330 to discuss the possibility of submitting notices
via disk.
15 While electronic notice is strongly preferred, notice of
intent to proceed may be made by sending the information
set forth in Paragraph 8 by certified mail (postmarked no
later than April 22, 2005) to the following address:
EB/MDRD, Federal Communications Commission, 445 12th
Street, S.W., Room 4-C366, Washington, D.C. 20554,
Attention: EUCL Notice.
16 See February 17 Verizon Letter at 2.
17 See SBC Letter at 4.
18 See Qwest Letter at 2; CenturyTel Letter at 2.
19 February 17 Dickstein Letter at 7.
20 Id. at 7.
21 Id.
22 Liability Order, 17 FCC Rcd 24201.
23 The Commission has discretion to waive any provision of
the rules of practice upon its own motion. 47 C.F.R. §
1.3.
24 47 C.F.R. § 1.722(c).
25 At the initiation of the damages proceeding, each
complainant will be directed to provide its respective
defendant(s) a detailed computation of each and every
category of damages for which recovery is sought, and
produce copies of all relevant documents and materials that
support such computation. Thereafter, defendants will be
required to respond specifically to the complainant's
computations in writing and produce copies of all
documents, data compilations and other things in the
defendant's possession, custody, or control that are
relevant to that complainant's claim of damages or are
likely to bear significantly on any claim or defense. For
this reason, this order does not address suggestions in
letters from the parties relating to the damages phase of
this litigation.
26 47 C.F.R. §§ 1.720-1.723.
27 47 C.F.R. §§ 1.721(a)(4)-(5).
28 See supra n.9.
29 47 C.F.R. §§ 1.724(c),(f), (i),(j), and (k).
30 47 C.F.R. § 1.735(d).
31 47 C.F.R. §§1.724-1.736.