ASAP Paging Inc. v. Centurytel of San Marcos Inc. , 137 F. App'x 694 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 24, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50838
ASAP PAGING INC,
Plaintiff-Appellant,
versus
CENTURYTEL OF SAN MARCOS INC;
CENTURYTEL SERVICE GROUP LLC;
CENTURYTEL SECURITY SYSTEMS OF
TEXAS LP; CENTURYTEL INC,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
1:04-CV-181-SS
Before GARWOOD, GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
ASAP Paging, Inc. (ASAP) appeals the dismissal without
prejudice of its antitrust, Communications Act, and tortious
interference claims against CenturyTel of San Marcos, Inc.,
CenturyTel Service Group, L.L.C., CenturyTel Security Systems of
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Texas, L.P., and CenturyTel, Inc. (collectively, CenturyTel). We
affirm the district court’s dismissal of the antitrust claims. We
vacate the dismissal of the remaining claims and remand to the
district court with instructions to stay these claims pending the
outcome of related proceedings in state court and with the Federal
Communications Commission (FCC).
Facts and Proceedings Below
ASAP provides paging services and access to Internet service
providers (ISPs) for customers in San Marcos, Texas and the
surrounding communities of Fentress, Kyle, and Lockhart.
CenturyTel is the incumbent local telephone company for San Marcos.
There is an extended local calling service (ELCS) arrangement
between the San Marcos exchange and several surrounding exchanges,
including those of Kyle, Fentress and Lockhart, such that calls
between these exchanges are charged at a local call rate. ASAP
obtained telephone numbers from the FCC pursuant to its license as
a commercial mobile radio service (CMRS) provider, and chose
numbers that are normally associated with the Fentress, Lockhart,
and Kyle exchanges. Calls to these phone numbers are routed by the
relevant local telephone carriers to ASAP’s switch, which was
located in Austin, outside of the San Marcos ELCS area, during 2001
and 2002.
From October 2001 through March 2002, CenturyTel customers in
San Marcos could dial ASAP’s numbers assigned to Lockhart, Fentress
2
or Kyle as local calls. Starting on April 1, 2002, however,
CenturyTel began charging these calls as long-distance calls. This
resulted in a greatly reduced call volume to ASAP’s customers
having these phone numbers. According to CenturyTel, it started
charging calls to the ASAP numbers as toll calls once it determined
that the calls were going to ASAP’s switch in Austin.
ASAP immediately filed a complaint with the Texas Public
Utility Commission (PUC), asking the commission to order CenturyTel
to stop assessing toll charges on the calls. In an order issued
October 9, 2003, the PUC ruled against ASAP, finding that the
geographic location being called, rather than the exchange
associated with the number being called, should determine whether
a call is rated local or long distance. The commission also found
that CenturyTel was following the tariff it filed with the PUC in
assessing the toll charges. ASAP’s appeal of the PUC order is
currently working its way through the Texas court system.
In October or November of 2003, ASAP installed a switch in
Kyle, which is in the San Marcos ELCS area. CenturyTel refused to
rate calls from San Marcos to this Kyle switch as local, however.
CenturyTel indicated to ASAP that ASAP would have to establish a
direct interconnection with CenturyTel through an interconnection
agreement, rather than the existing indirect connection through
3
another telephone company, in order for the calls to be rated as
other than toll calls, regardless of the location of the switch.1
In December of 2003, ASAP filed a Petition for Preemption with
the FCC, requesting that the FCC preempt the PUC order in
accordance with the FCC’s authority to preempt state regulation
that has the effect of prohibiting the provision of
telecommunications service. See 47 U.S.C. §§ 253(d), 332(c)(3).
The FCC has not acted on this petition, which remains pending
before it.
ASAP subsequently filed a complaint in the Western District of
Texas including federal and state antitrust claims, state tortious
interference claims, and claims for damages under sections 206 and
207 of the Communications Act (47 U.S.C. §§ 206, 207), alleging
violations of 47 U.S.C. §§ 201, 202, 251(a) and 251(b)(3). Id. at
38–42. ASAP points out in the complaint that some of its claims
may be nearing the end of statute-of-limitations periods, and
suggests that abatement of the action pending disposition of the
petition for preemption to the FCC could be helpful to the court.
CenturyTel filed a motion to dismiss under Rule 12(b)(6) of
the Federal Rules of Civil Procedure, arguing that (1) all of the
claims are barred by the filed rate doctrine, (2) the antitrust
claims are defective and barred as a matter of law by the Supreme
1
The Telecommunications Act of 1996 provides for interconnection agreements
between telecommunications carriers establishing compensation between the
carriers for various services. See 47 U.S.C. §§ 251(c)(1), 252. There is no
interconnection agreement between ASAP and CenturyTel.
4
Court’s decision in Verizon Communications Inc. v. Law Offices of
Curtis V. Trinko, LLP, 124 S. Ct. 872 (2004), and (3) that the
claims under the Communications Act should be dismissed because of
the “primary jurisdiction” of the FCC. After a response to the
motion, reply to the response, and a hearing, the district court
issued an order dismissing ASAP’s claims without prejudice. The
court found that all of ASAP’s claims are barred by the filed rate
doctrine, and that, alternatively, the antitrust claims are barred
by the Trinko decision and the Communications Act claims are barred
by the doctrine of primary jurisdiction. ASAP appeals.
Discussion
I. Standard of Review
This court reviews a dismissal for failure to state a claim de
novo. United States ex rel. Riley v. St. Luke’s Episcopal Hosp.,
355 F.3d 370, 375 (5th Cir. 2004). The claim should be dismissed
“only if ‘it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief.’” Id. (quoting Conley v. Gibson, 78 S. Ct. 99, 102 (1957)).
II. Filed Rate Doctrine and Doctrine of Primary Jurisdiction
Under the “filed rate doctrine” (also sometimes called the
“filed tariff doctrine”), when a carrier is required to file a
tariff of its charges with a regulatory body, the charges filed are
the only charges that the carrier may lawfully assess. Am. Tel. &
Tel. Co. v. Cent. Office Tel., Inc., 118 S. Ct. 1956, 1962–63
5
(1998). The carrier cannot deviate from the tariff, and the terms
of the tariff can be initially challenged only before the agency
that approved the tariff, not in a court. Arsberry v. Illinois,
244 F.3d 558, 562 (7th Cir. 2001); Southwestern Elec. Power Co. v.
Grant, 73 S.W.3d 211, 216–17 (Tex. 2002). ASAP argues that the
filed rate doctrine does not apply to its dispute with CenturyTel
because ASAP is not challenging the terms of the tariff, but rather
CenturyTel’s (and the PUC’s) interpretation of the tariff:
specifically, whether calls to ASAP’s numbers should be classified
as local or toll for application of the tariff.
There is no indication in the record that CenturyTel’s filed
tariff directly addresses which rate should be applied to calls to
numbers such as ASAP’s. Whether CenturyTel is following its tariff
such that the filed rate doctrine would apply therefore depends on
whether the PUC’s interpretation of CenturyTel’s tariff survives
review by the state appellate courts and the FCC. In the event
that either a Texas court or the FCC overturns the PUC’s
interpretation of the tariff, ASAP may have rights against
CenturyTel that will be lost through the running of statutes of
limitations. Staying the action in the district court to avoid
this potential prejudice to ASAP is therefore the appropriate
course, particularly since the district court seems to have
intended that ASAP be able to present its claims again depending on
6
the outcome of the other proceedings.2 In addition, this approach
would allow time for ASAP to obtain a ruling from the PUC on
whether CenturyTel was following its tariff in refusing to rate
calls to ASAP’s Kyle switch as local calls.3
The district court also dismissed ASAP’s Communications Act
claims based on the doctrine of primary jurisdiction. The doctrine
of primary jurisdiction applies either when a government agency has
exclusive original jurisdiction over an issue within a case or when
a court having jurisdiction wishes to defer to an agency’s superior
expertise. Arsberry, 244 F.3d at 563. These circumstances do not
appear to apply to ASAP’s Communications Act claims. Although the
district court indicated that ASAP had requested that “the FCC
exercise jurisdiction over each of its [Telecommunications Act]
claims,” ASAP’s Petition for Preemption does not appear to be an
assertion of Communications Act or Telecommunications Act claims
against CenturyTel. Under 47 U.S.C. § 207, ASAP may complain of
being damaged by CenturyTel either to the FCC or in federal
district court, and ASAP has chosen to do so in district court.4
2
In addition to dismissing the claims without prejudice, the court asked
CenturyTel about its willingness to waive statute-of-limitations defenses.
3
The PUC appears to have exclusive primary jurisdiction on this question,
which it has not yet considered with respect to the Kyle switch. TEX. UTIL. CODE
§ 52.002(a) (stating that the PUC “has exclusive original jurisdiction over the
business and property of a telecommunications utility,” subject to certain
limitations).
4
Section 207 provides:
“Any person claiming to be damaged by any common carrier subject to
the provisions of this chapter may either make complaint to the Commission
as hereinafter provided for, or may bring suit for the recovery of the
7
ASAP’s petition for preemption is not a submission of its claims
against CenturyTel to the FCC, but instead it is essentially a
claim against the PUC, specifically an assertion that the PUC’s
interpretation is preempted by federal law.
Even to the extent that the doctrine of primary jurisdiction
could be applied to any of ASAP’s claims, a court “must weigh the
benefits of obtaining the agency’s aid against the need to resolve
the litigation expeditiously and may defer only if the benefits of
agency review exceed the costs imposed on the parties.” Wagner &
Brown v. ANR Pipeline Co., 837 F.2d 199, 201 (5th Cir. 1988). When
dismissal may cause a plaintiff to lose rights, claims should be
stayed pending deferral to an agency rather than dismissed. Id. at
206. Staying of the case pending the outcome of the state court
and FCC proceedings is therefore appropriate for any dismissals
based on the primary jurisdiction doctrine as well as for those
based on the filed rate doctrine.
III. Antitrust Claims
The district court dismissed ASAP’s antitrust claims as barred
by the Supreme Court’s Trinko decision, in addition to dismissing
them under the filed rate doctrine. Although we do not agree with
the district court’s apparent rationale, that the antitrust claims
damages for which such common carrier may be liable under the provisions
of this chapter, in any district court of the United States of competent
jurisdiction; but such person shall not have the right to pursue both such
remedies.”
47 U.S.C. § 207.
8
should be dismissed by virtue of being premised on the
Telecommunications Act, dismissal of the antitrust claims was
nonetheless proper.
The Supreme Court noted in Trinko that the Telecommunications
Act specifically provided that it would not impair or supersede
antitrust law. Trinko, 124 S. Ct. at 878. The Court held that the
Telecommunications Act did not expand the coverage of the antitrust
laws, however, so that the complained-of behavior would need to
constitute an antitrust violation in its own right for an antitrust
action to lie. Id. The Court characterized the claim in Trinko as
a refusal-to-deal claim and noted that the Sherman Act generally
does not restrict a private entity’s refusal to deal, except in
certain egregious circumstances such as those in Aspen Skiing Co.
v. Aspen Highlands Skiing Corp., 105 S. Ct. 2847 (1985). Trinko,
124 S. Ct. at 879. The Court proceeded to compare the complained-of
actions to those in Aspen Skiing, stating that Aspen Skiing was “at
or near the outer boundary of § 2 liability.”5 Id. at 879–80. The
Court determined that the refusal to deal alleged in Trinko did
5
In Aspen Skiing, the defendant, who operated three ski resorts in the
area, decided to stop participating with the plaintiff, who operated the fourth
resort, in a joint all-resort ski ticket. Trinko, 124 S. Ct. at 879; Aspen
Skiing, 105 S. Ct. at 2851–52. The defendant refused all efforts by the plaintiff
to reinstate the ticket, even an offer to essentially buy the defendant’s tickets
at retail price. Trinko, 124 S. Ct. at 879; Aspen Skiing, 105 S. Ct. at 2853. In
upholding a verdict for the plaintiff, the Court in Aspen Skiing found
significant that the defendant ended a previous voluntary practice that was
presumably profitable, and would not accept retail price. This indicated a
“willingness to forsake short-term profits to achieve an anticompetitive end.”
Trinko, 124 S. Ct. at 880; Aspen Skiing, 105 S. Ct. at 2861.
9
“not fit within the limited exception recognized in Aspen Skiing,”
since factors indicating a willingness to forgo short-term profit
for anticompetitive purposes were absent.6 Id.
ASAP’s complaint alleges that CenturyTel’s decision to rate
its customers’ calls to ASAP’s numbers as long distance was part of
a scheme to harm ASAP as a competitor in the one-way inbound call
capability market. This is essentially a milder form of the
refusal-to-deal claim in Trinko. In Trinko, the defendant
allegedly refused to connect competitors, while in this case,
CenturyTel allegedly refused to connect ASAP on favorable enough
terms. CenturyTel’s conduct should therefore be compared to that
of the defendant in Aspen Skiing to see whether an antitrust action
can be recognized.
Although ASAP claims that CenturyTel “voluntarily” rated calls
to their numbers as local from October 2001 through March 2002, the
complaint does not allege that CenturyTel understood where ASAP’s
switch was located at that time. So there is no indication that
the prior arrangement was agreed to, and therefore presumably
profitable, in the manner of the ski ticket arrangement in Aspen
Skiing. And there is otherwise nothing that would suggest that
6
In Trinko, a customer of a competing local exchange carrier sued Verizon,
the incumbent local exchange carrier, when Verizon fell behind on filling orders
by competing carriers for access to its network. Trinko, 124 S. Ct. at 876–77.
The plaintiff did not claim that Verizon had previously engaged in a voluntary
course of dealing with its competitors, and Verizon did not refuse an offer at
retail price, but rather refused (according to the plaintiff) to provide services
at a statutory wholesale rate. Id.
10
CenturyTel is giving up short-term profits in hopes of running ASAP
out of business. CenturyTel gets more short-term profit, not less,
by charging the calls to ASAP’s numbers as toll calls. Even if no
one calls ASAP anymore when the calls are rated as toll, CenturyTel
is not giving up profits as compared to rating calls to ASAP as
local, because CenturyTel’s customers pay a flat fee for local
service. ASAP’s allegations do not fit into the Aspen Skiing
exception for refusal-to-deal claims, and therefore do not state a
cognizable antitrust claim. The antitrust claims were therefore
properly dismissed.7
Conclusion
Because ASAP’s antitrust claims are barred by the Supreme
Court’s Trinko decision, we AFFIRM the district court’s dismissal
of the antitrust claims. We VACATE the dismissal of the
Communications Act and tortious interference claims and REMAND to
the district court with instructions to stay these claims pending
the outcome of the state court appeals of the PUC order and the
Petition for Preemption with the FCC.
7
Texas law instructs that Texas antitrust provisions “be construed in
harmony with federal judicial interpretations of comparable federal antitrust
statutes.” TEX. BUS. COMM. CODE § 15.04. Dismissal of both the state and federal
antitrust claims was therefore proper.
11