Conboy v. AT & T Corp.

241 F.3d 242, 2001 WL 178498
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 26, 2001
DocketDocket No. 00-7284
StatusPublished
Cited by137 cases

This text of 241 F.3d 242 (Conboy v. AT & T Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conboy v. AT & T Corp., 241 F.3d 242, 2001 WL 178498 (2d Cir. 2001).

Opinion

JOSÉ A. CABRANES, Circuit Judge:

We are asked to decide whether plaintiffs have stated a cause of action against their long-distance service provider and its once-affiliated credit card company for allegedly transmitting and using certain information contained in plaintiffs’ long-distance bill for purposes of collecting credit card debt. Plaintiffs Edward and Eileen Conboy allege that defendant AT & T Corp. (“AT & T”) improperly disseminated proprietary information about them to defendant AT & T Universal Card Services Corp. (“UCS”) to help UCS collect credit card debt. Plaintiffs claim that, in disseminating this information, AT & T violated: (1) Section 222 of the Telecommunications Act of 1996 (“Telecommunications Act” or “Act”), Pub.L. No. 104-104, 110 Stat. 56; (2) two regulations — 47 C.F.R. §§ 51.217 and 64.1201 — promulgated by the Federal Communications Commission ’(“FCC”) under the Act, and (3) the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. Plaintiffs also claim that, in using the disseminated information, UCS violated Section 349 of New York’s General Business Law and New York’s common law prohibiting intentional infliction of emotional distress.

In a thoughtful and comprehensive opinion, the United States District Court for the Southern District of New York (Robert J. Ward, Judge) dismissed plaintiffs’ entire amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See Conboy v.. AT & T Corp., 84 F.Supp.2d 492 (S.D.N.Y.2000). It held that plaintiffs: (1) failed to allege recoverable damages under the Telecommunications Act; (2) had no private right of action to seek monetary relief for alleged violations of 47 C.F.R. §§ 51.217 and 64.1201; (3) were not entitled to injunctive relief under the Telecommunications Act; (4) were not “consumers” for purposes of their claim under the Fair Debt Collection Practices Act; (5) failed to allege “deceptive” conduct to support their claim under New York’s General Business Law; and (6) failed to allege extreme and outrageous conduct to support their common law claim of intentional infliction of emotional distress. The District Court also declined to grant plaintiffs’ request to file a second amended complaint containing a claim of conspiracy to violate the Telecommunications Act. On appeal, plaintiffs challenge each of these holdings. For the reasons stated below, we affirm.

I. BACKGROUND

Because this is an appeal from a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we review the District Court’s decision de novo, taking all factual allegations in the amended complaint as true and construing all reasonable inferences in favor of plaintiffs. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Lee v. Bankers Trust Co., 166 F.3d 540, 543 (2d Cir.1999).

This case arises out of a claim that AT & T disseminated, and continues to disseminate, proprietary information about its customers to UCS and other unidentified companies in order to help them collect credit card debt. Prior to this suit, AT & T served as plaintiffs’ long-distance telephone carrier. During this time, AT & T had access to information contained in plaintiffs’ long-distance telephone bill, such as their names, unlisted phone number, billing address, and the details of their long-distance calls. Plaintiffs never authorized the release of this information to UCS or to anyone else, and even paid a monthly fee for “non-published service,” the purpose of which was to prevent the [247]*247release of their- names, address, and telephone number to any directory or anyone who directed inquiries to directory assistance.

Plaintiffs’ adult daughter-in-law, Maria Conboy, held a MasterCard issued by UCS when UCS was a subsidiary of AT & T.1 Plaintiffs were neither the guarantors of their daughter-in-law’s credit card, nor otherwise obligated to pay her debt to UCS. Plaintiffs also did not agree to be contacted by UCS regarding their daughter-in-law’s account, and Maria Conboy never provided UCS with their names, address, or telephone number.

From May to June 1998, representatives of UCS telephoned plaintiffs at their unlisted home telephone number between thirty and fifty times seeking information about Maria Conboy’s whereabouts. The telephone calls were made repeatedly, and some were made at unusual hours. Plaintiffs informed the UCS representatives that Maria Conboy did not reside with them and requested that the telephone calls cease. Nonetheless, the phone calls continued. During one call, a representative revealed that he knew plaintiffs’ unlisted personal information and the details of their long-distance telephone bill. Plaintiffs surmised that AT & T had provided UCS with this information to help UCS collect credit card debt.

In May 1999, plaintiffs filed an amended class-action complaint against AT & T and UCS. They claimed that, by disseminating information contained in their long-distance bill, AT & T violated: (1) Section 222(c) of the Telecommunications Act; (2) two FCC regulations — 47 C.F.R. §§ 51.217(c)(3)(iii) and 64.1201(c)(2); (3) the Fair Debt Collection Practices Act (“FDCPA”); (4) Section 349 of New York’s General Business Law; and (5) New York’s common law prohibiting intentional infliction of emotional distress. They also contended that UCS committed the fourth and fifth violations concerning New York General Business Law § 349 and intentional infliction of emotional distress, by calling their residence at all hours in an attempt to collect credit card debt.

The District Court dismissed the entire amended complaint for failure to state a claim upon which relief can be granted. See Conboy, 84 F.Supp.2d at 492. With respect to the claims against AT & T, the District Court held that plaintiffs: (1) failed to allege recoverable monetary damages under Sections 206 and 207 of the Communications Act of 1934 (“Communications Act”), 47 U.S.C. § 151 et seq., which govern private rights of action against common carriers under the Telecommunications Act; (2) had no explicit or implied right of action to seek monetary damages for alleged violations of 47 C.F.R. §§ 51.217 and 64.1201; (3) could not seek injunctive relief under the circumstances of this case; and (4) failed to qualify as “consumers” for purposes of their claim under the FDCPA.

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241 F.3d 242, 2001 WL 178498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conboy-v-at-t-corp-ca2-2001.