The opinion of the court was delivered by: GLASSER
GLASSER, United States District Judge:
Defendant has moved to dismiss plaintiff's federal statutory cause of action under Sections 201(b) and 207 of the Communications Act of 1934, 47 U.S.C. §§ 201(b), 207, on grounds of primary jurisdiction. In addition, defendant has moved to dismiss plaintiff's common law
and state statutory claims on the ground that they are pre-empted by the Communications Act or, in the alternative, on grounds of primary jurisdiction. For the reasons given, defendant's motion is granted as to the federal and state statutory claims, but is denied as to the common law claims.
Defendant is one of a number of communications carriers, known in the industry as "other common carriers" ("OCCs"), that seek to compete with the American Telephone and Telegraph Company ("AT&T") to provide long distance telephone service to the public. One of the shortcomings of the access arrangements that the OCCs have with the Bell System is that, unlike AT&T, they do not enjoy a feature known as "answer supervision," which is necessary for determining whether a call placed by an OCC subscriber has been completed. As a result of this shortcoming, the OCCs have adopted the practice of billing a subscriber when the unanswered call has not been terminated before a specified period of time after the call was initiated, based on the assumption that such calls were actually completed. Defendant concedes that sometimes this assumption fails, and subscribers are billed for unanswered calls.
Plaintiff is a subscriber of defendant's long distance telephone service. As explained by his memorandum in opposition to the motion to dismiss, plaintiff does not challenge defendant's practice of charging for some unanswered long-distance telephone calls or the reasonableness of the amount of those charges. Rather, plaintiff complains of defendant's allegedly "deliberate and calculated failure to disclose the fact of its imposition of those charges to its subscribers," or the availability of refunds for these charges. Plaintiff's Memorandum in Opposition to the Motion to Dismiss, at p. 2 (emphasis in original). Plaintiff aragues that these nondisclosures are particularly misleading in light of the prior industry practice of not charging customers for unanswered calls. Furthermore, plaintiff argues that these practices cast doubt upon defendant's representation of providing long-distance calling services at less expensive rates than some of its competitors, including AT&T.
Plaintiff's complaint states five causes of action: the first cause of action alleges a violation of § 201(b) of the Communications Act, which prohibits any "unjust or unreasonable" rate or practice in connection with interstate communications. Specifically, the complaint alleges that defendant billed plaintiff for unanswered calls "without providing (i) prior notice of those charges, (ii) notice of the availability of refunds for those charges, and (iii) an adequate and simplified procedure for obtaining refunds for those charges." Count 1 of plaintiff's complaint. Jurisdiction for this claim is based on 47 U.S.C. § 207, which provides as follows:
Any person claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the [Federal Communications] Commission as hereinafter provided for, or may bring suit for the recovery of 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.
Plaintiff's second and third causes of action allege violations of New York's Deceptive Acts and Practices Statute, General Business Law § 349 (McKinney's). Specifically, plaintiff claims that defendant misrepresented to its customers that they would save money by using defendant's services and that it failed to inform its customers of the possibility that they would be charged for unanswered calls. Plaintiff's fourth and fifth causes of action contain similar allegations, but are grounded in federal common law. See supra n. 1. The fourth cause of action alleges fraud and misrepresentation, while the fifth alleges breach of the agreements embodied in defendant's advertisements.
A. Defendant's Motion to Dismiss the Statutory Claims On Primary Jurisdiction Grounds
The doctrine of primary jurisdiction "is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties." United States v. Western Pacific R. Co., 352 U.S. 59, 63, 1 L. Ed. 2d 126, 77 S. Ct. 161 (1956). Even where a federal court has jurisdiction to hear the issue brought before it,
it may be appropriate to refer specific issues to an agency for initial determination where that procedure would secure "[u]niformity and consistency in the regulation of business entrusted to a particular agency" or where "the limited functions of review by the judiciary [would be] more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure."
Nader v. Allegheny Airlines, 426 U.S. 290, 303-04 91975, 48 L. Ed. 2d 643, 96 S. Ct. 1978 ) (quoting Far East Conference v. United States, 342 U.S. 570, ...