Freedom Ring v. AT&T Corp.

2002 DNH 189

• Court: District Court, D. New Hampshire
• Decided: October 18, 2002
• Docket: CV-02-247-B
• Status: Published

Opinion

Freedom Ring v . AT&T Corp. CV-02-247-B 10/18/02

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Freedom Ring Communications, LLC d/b/a BayRing Communications

v. Civil N o . 02-247 Opinion N o . 2002 DNH 189 AT & T Corporation

MEMORANDUM AND ORDER

The plaintiff, Freedom Ring Communications LLC, d/b/a

BayRing Communications (“BayRing”), filed suit against the

defendant, AT&T Corporation (“AT&T”). BayRing seeks to collect

fees (Count I ) for telecommunications services allegedly provided

to AT&T pursuant to tariffs filed with the Federal Communications

Commission (“FCC”) and the New Hampshire Public Utilities

Commission (“PUC”). BayRing also seeks relief under state common

law for unjust enrichment (Count I I ) .

AT&T moves to dismiss Count I I , arguing that it is barred by

the filed rate doctrine. For the following reasons, I grant

AT&T’s motion to dismiss. I. BACKGROUND1

BayRing operates a local exchange network, which provides

switch access telecommunications services to long distance

carriers, such as AT&T. See Advamtel, LLC v . AT & T Corp., 118

F. Supp.2d 6 8 0 , 681-82 (E.D. V a . 2000) (describing switch access

services). BayRing imposes fees upon long distance carriers in

exchange for its switch access services. The rates, terms, and

conditions of these services are governed by the tariffs BayRing

filed with the FCC and the PUC.2 See Compl. ¶¶ 8 , 9, 1 5 , 2 4 .

In October 1998, BayRing began to provide switch access

services to AT&T. BayRing routinely billed AT&T for services

rendered, however, AT&T only tendered partial payment. Further,

as of the billing period ending March 3 1 , 2002, AT&T ceased

payment of all bills submitted by BayRing. BayRing also contends

1 I accept as true the well-pleaded factual allegations of BayRing’s complaint and draw all reasonable inferences therefrom in its favor. See Martin v . Applied Cellular Technology, Inc., 284 F.3d 1 , 6 (1st Cir. 2002). 2 Telephone communications carriers, such as BayRing, are generally required to file tariffs, which govern the rates, terms, and conditions of the services offered by the carrier. Tariffs are “essentially offers to sell on specified terms, filed with the FCC and subject to modification or disapproval by it.” Cahnmann v . Spring Corp., 133 F.3d 4 8 4 , 487 (7th Cir. 1998).

-2- that the cost of switch access services is “built into AT&T’s

rates.” Compl. ¶ 2 5 . Thus, AT&T receives payment for the

services from its customers, but refuses to pay BayRing for

actually providing the services.

BayRing brings this suit to collect payment for services

rendered under the rates, terms, and conditions of its filed

tariffs. Alternatively, BayRing asserts that AT&T has been

unjustly enriched by billing its customers for services provided

by BayRing, while refusing to compensate BayRing for such

services. Because it contends that it never ordered or

authorized BayRing to provide switch access services, AT&T

counters that it has no obligation to pay BayRing’s fees.

II. STANDARD OF REVIEW

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must “accept as true the well-pleaded factual

allegations of the complaint, draw all reasonable inferences

therefrom in the plaintiff’s favor and determine whether the

complaint, so read, sets forth facts sufficient to justify

recovery on any cognizable theory.” Martin, 284 F.3d at 6.

Dismissal is appropriate only if “it clearly appears, according

-3- to the facts alleged, that the plaintiff cannot recover on any

viable theory.” Langadinos v . American Airlines, Inc., 199 F.3d

6 8 , 69 (1st Cir. 2000) (quotation omitted).

III. DISCUSSION

Both parties are well aware of my decision in A.S.I.

Worldwide Communications Corp. v . Worldcom, 115 F.Supp.2d 201

(D.N.H 2000) (“A.S.I.”). Thus, no purpose would be served in

rehashing my analysis and application of the filed rate doctrine

in that case. It is sufficient to state that because a filed

tariff is “‘the exclusive source of the terms and conditions by

which the common carrier provides to its customers the services

covered by the tariff,’ it necessarily displaces any state law

basis for adjudicating those terms and conditions.” A.S.I., 115

F.Supp.2d at 210-11 (quoting American Telephone and Telegraph C o .

v . Central Office Telephone, Inc., 524 U.S. 2 1 4 , 230 (1998)

(Rehnquist, C.J., concurring; internal citations omitted). To

determine whether Count II of BayRing’s complaint is preempted

under the filed rate doctrine, I must decide whether it seeks to

enforce rights and/or duties that are inconsistent with or depend

-4- upon BayRing’s tariffs. See A.S.I., 115 F.Supp.2d at 211. Any

such claims are preempted under the filed rate doctrine. See id.

In Count I I , BayRing alleges that “AT&T has already been

compensated . . . without paying the corresponding charges to

BayRing for the originating and terminating access services

rendered.” Compl. ¶ 2 5 . It cannot be disputed that BayRing’s

“corresponding charges” and “access services” are wholly governed

by the rates, terms, and conditions of its filed tariffs.3 See

Compl. ¶ 8 , 9, 2 4 . Therefore, in order to determine whether AT&T

has been unjustly enriched, it is necessary to determine the

rights and/or duties created by the filed tariffs.

BayRing argues that, because AT&T disputes the existence of

a contractual relationship based upon the filed tariffs, this

case falls outside the scope of the filed rate doctrine. I

disagree. The filed rate doctrine turns upon an examination of

the claim, not the asserted defenses to the claim. Regardless of

AT&T’s allegations, BayRing’s theory of unjust enrichment is

3 BayRing alleges that “[a]t all times relevant hereto,” its rates, terms, and conditions for switch access services are contained in its filed tariffs. See Compl. ¶¶ 8 , 9 Therefore, for the purposes of this order, I accept these allegations as true. See Martin, 284 F.3d at 6; Fed. R. Civ. P. 12(b)(6).

-5- primarily founded upon the contention that AT&T failed to pay

BayRing for services rendered under its filed tariffs. C f .

A.S.I., 115 F. Supp.2d at 212. Such a claim is barred under the

filed rate doctrine.

BayRing also argues that the filed rate doctrine has been

“fundamentally changed” by recent FCC rulings, which apparently

allow certain communications carriers to enter negotiated

agreements with other carriers in lieu of filing tariffs.

Regardless of whether the application of the filed rate doctrine

is altered in such circumstances, an issue which I need not

discuss here, BayRing simply does not allege that a non-tariff

based, negotiated agreement exists in this case. To the

contrary, BayRing expressly states that the rates, terms, and

conditions of its filed tariffs govern the contractual

relationship between BayRing and AT&T.

Finally, BayRing discusses the interplay between the

“constructive ordering” doctrine and the filed rate doctrine.

While such a discussion may be pertinent in interpreting the

terms of a tariff and whether a party has fulfilled its duties

under those terms, see e.g., Advamtel, 118 F.Supp.2d at 684-85,

-6- it is of no relevance in determining whether a state law claim -

based upon a filed tariff - is barred by the filed rate doctrine.

IV. CONCLUSION

For the foregoing reasons, I reject the arguments offered by

BayRing and find no principled basis upon which to distinguish

this case from my analysis and application of the filed rate

doctrine in A.S.I. I grant AT&T’s motion to dismiss Count II of

BayRing’s complaint (Doc. N o . 9 ) .

SO ORDERED

Paul Barbadoro Chief Judge

October 1 8 , 2002

cc: Stephen H . Roberts, Esq. Garry R. Lane, Esq. Michael J. Hunseder, Esq.

-7-