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IVY BROADCASTING CO. v. AT&T

September 28, 1964

IVY BROADCASTING COMPANY, Inc., Plaintiff,
v.
AMERICAN TELEPHONE AND TELEGRAPH COMPANY and New York Telephone Company, Defendants



The opinion of the court was delivered by: PORT

The plaintiff seeks an order 'staying the threatened discontinuance of service, as outlined by the New York Telephone Company in said letter *fn1" until a decision and order have been made on the motions now pending before this court, or until final determination of the issues involved in the above entitled action'.

The letter of September 10, 1964 is attached to the affidavit upon which the court granted an order to show cause, dated September 15, 1964, bringing on this motion returnable September 21, 1964.

The letter from the New York Telephone Company (telephone company) to the president of the plaintiff demands payment of the sum of $ 12,915.35 on certain accounts claimed to be due from the plaintiff by September 17, 1964. The plaintiff is advised in the letter that the alternative to payment will be a suspension of the service provided under the account for which payment is demanded, pursuant to the provisions of the applicable tariff.

 The stay or temporary injunction is sought until the decision of the following motions:

 1. A motion on the part of the telephone company for summary judgment dismissing the plaintiff's complaint and granting judgment on the defendant's counterclaim and for other incidental relief.

 2. A motion on behalf of defendant A.T. & T. for summary judgment dismissing the complaint, in whole or in part, and granting affirmative judgment to said defendant on its counterclaim and other incidental relief.

 3. Cross-motion on the part of the plaintiff for permission to amend its complaint in various respects; for an order striking a number of defenses from the answer of the defendant A.T. & T. and further striking a number of defenses from the amended answer of the defendant telephone company.

 The motion designated (1) above was brought on by an order to show cause signed by the undersigned on August 25, 1964. The application for the order to show cause was supported by an affidavit of defendants counsel, which stated that the taking of depositions by the parties scheduled to commence on the following day 'would require effort and expense on the part of the litigants, all or a substantial part of which may be avoided by the motion for summary judgment.'

 The court in an effort to eliminate unnecessary time and expense to the litigants, incorporated in the order to show cause a provision that 'all proceedings by all parties be stayed, including the taking of the depositions of the plaintiff by defendant, New York Telephone Company * * * and the taking of the depositions of defendant, New York Telephone Company by plaintiff * * *.'

 It was the court's intention to avoid the taking of all depositions if the determination of the motion for summary judgment concluded the litigation.

 Upon the argument of these motions on September 14, 1964, no question was raised by any of the parties as to the interpretation to be placed on the stay contained in the show cause order granted August 25, 1964. Decision was reserved on all motions, and time was allowed for the submission of briefs.

 The order to show cause bringing on the present motion, contained a temporary restraining order staying the telephone company from suspending service as threatened in its letter of September 10, 1964, until the hearing and determination of this motion.

 On the oral argument of the motions, the court extended the temporary restraining order to and including September 28, 1964, in order to preserve the status quo for sufficient time to allow the plaintiff to seek relief from the Federal Communications Commission.

 On July 2, 1964, the telephone company notified the plaintiff that service would be suspended unless payment of certain accounts was received by July 10, 1964. On July 6, 1964, the plaintiff faced with the threatened discontinuance of service by the telephone company on July 10, 1964, made an informal complaint to the Commission requesting that the telephone company be ordered to cease and desist from such threatened suspension of service. Acting on the informal complaint, the Commission by letter dated July 7, 1964, requested the telephone company to continue to furnish present communication service to the plaintiff and to submit a reply to the complaint filed by the plaintiff. On August 17, 1964, the telephone company made answer to the informal complaint of the plaintiff in a lengthy letter memorandum, concluding ...


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