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NATIONAL COMMUNS. ASSN., INC. v. AT&T

February 19, 1993

NATIONAL COMMUNICATIONS ASSOCIATION, INC., Plaintiff,
v.
AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Defendant.



The opinion of the court was delivered by: LORETTA A. PRESKA

OPINION and ORDER

 Loretta A. Preska, U.S.D.J.

 Plaintiff, National Communications Association, Inc. ("NCA"), has moved pursuant to Fed. R. Civ. P. 65 for a preliminary injunction modifying the recently implemented billing practice of defendant, American Telephone and Telegraph Company ("AT&T"), in connection with AT&T's provision of long distance voice telecommunications service to NCA and NCA's customers. For the reasons set forth below, a preliminary injunction will be issued enjoining AT&T from maintaining with respect to NCA the changes made to its billing practice in November 1992. In issuing the preliminary injunction, the Court seeks to maintain the status quo as it existed between the parties prior to November 1992 and, under the doctrine of primary jurisdiction, directs NCA to seek a determination from the Federal Communications Commission (the "FCC") as to the merits of its claims regarding AT&T's billing practice.

 As reviewed at greater length in the Court's recent decision granting in part and denying in part AT&T's motion to dismiss the complaint, F. Supp. , this lawsuit arises out of NCA's allegations that AT&T discriminates against NCA and other reseller customers in its sale of long distance voice telecommunications service through "Software Defined Networks" ("SDN"). *fn1" SDN is a class of telecommunications service which, pursuant to tariffs filed by AT&T with the FCC, provides a discount to companies which commit to a minimum monthly usage of telecommunications service.

 AT&T sells telecommunications service under the SDN tariffs both (1) to end-user customers directly and (2) to reseller customers, such as NCA, which resell the telecommunications service to their own customers -- companies which cannot individually commit to the minimum monthly usage necessary to receive telecommunications service under the SDN tariffs directly from AT&T. In other words, the resellers allow small companies to pool their demand for telecommunications service in order to access the SDN program.

 NCA alleges in its complaint that AT&T discriminates against NCA and the other resellers in its provision of services under the SDN tariffs in order to cause the resellers' customers to switch to Pro-WATS, Multi-Location WATS, or some other long distance voice telecommunications service which AT&T can provide directly to the resellers' customers. Specifically, NCA claims that AT&T provides the resellers with fewer and inferior services than those provided by AT&T to its non-reseller customers. NCA alleges that this disparate treatment can be found in several areas including: assignment of personnel, account initiation, addition of customer locations, order processing, provision of inter-exchange trunks, and billing.

 As stated above, the instant motion concerns AT&T's billing practice. Both parties have submitted affidavits which substantially concur regarding the manner in which AT&T has billed NCA and NCA's customers. For purposes of deciding NCA's application for a preliminary injunction, I find the following relevant facts regarding AT&T's billing practice.

 When NCA began purchasing telecommunications service under SDN tariffs from AT&T in 1990, AT&T began billing NCA's customers directly every month. NCA's customers then paid AT&T. From these collections, AT&T remitted to NCA a portion of the funds reflecting the SDN customer discount. *fn2" To the extent that an NCA customer did not pay the full amount of its bill, AT&T showed a past due balance on the next bill sent to the customer; from the portion of the collections which would normally be transferred to NCA, i.e., that portion representing the SDN discount, AT&T deducted the sum of all of NCA's customers' past due balances aged over 60 days. In this manner, AT&T was assured of receiving all monies due it within 60 days, and NCA was rightfully held responsible for the total usage of telecommunications service by its customers. Past due amounts appeared as such on the bills of NCA's individual customers even after AT&T deducted those amounts aged over 60 days from the collections normally transferred to NCA.

 In November 1992, AT&T changed its billing practice. AT&T began withholding from NCA all amounts due from an NCA customer over 60 days if any amount was due from the customer over 120 days (the "120-day rule"); notably, this withholding would also have occurred under AT&T's prior billing practice which withheld from NCA its customers' past due balances aged over 60 days. Rather, the dramatic aspect of the November 1992 change in billing practice was AT&T's crediting to the NCA customer the amount withheld from NCA, thereby reducing the total amount due on the NCA customer's bill. Thus, an NCA customer with an outstanding amount due more than 120 days never appears to be past due beyond 60 days regardless of the actual status of the account. To repeat, AT&T's new billing practice credits an NCA customer's bill for amounts past due over 60 days if the NCA customer has outstanding amounts due over 120 days. The "credit" is at the expense of NCA; AT&T withholds the sum of all "credits" given to NCA's customers from the total payments AT&T receives from all of NCA's customers. *fn3"

 NCA foresaw significant problems with this new billing system. NCA's primary concern was that its customers with balances due over 120 days would believe that they did not ever need to pay their balances due over 60 days because that amount would be shown as a credit on their bills, not a past due amount. Thus, NCA would be paying for telecommunications service used by these customers with limited hope of recovery. *fn4" The severity of this potential problem was magnified by the fact that a substantial number of NCA's customers had a balance due beyond 120 days because they had arranged with NCA to pay their balance over the course of several months; this arrangement became necessary after AT&T failed to bill the customers for several months and then issued disproportionately large bills to them.

 Instead of accepting AT&T's modified billing system, NCA undertook to issue its own bills to its customers. Since November 1992 when NCA began processing October 1992 bills for its customers, AT&T has provided NCA with various billing materials in a purported attempt to help NCA bill its customers. These materials include statements identifying the accounts of NCA customers with a past due balance beyond 120 days to which AT&T has applied credits pursuant to the 120-day rule. However, NCA cannot from these materials distinguish between that portion of the credit ascribed by AT&T to the customer which is due to the 120-day rule and that portion which is due to payments actually made by the customer to AT&T. Thus, it is impossible for NCA to bill its customers accurately.

 II. Primary Jurisdiction

 A. In General

 Upon reviewing the parties' submissions regarding the preliminary injunction, the Court sua sponte requested the parties to brief the issue of primary jurisdiction and whether the Court should refer NCA's motion for a preliminary injunction to the FCC. In response, the parties submitted short letters which urged the Court to retain jurisdiction on NCA's motion and decide in favor of their respective positions. The Court considered these submissions in arriving at its decision.

 The well established doctrine of primary jurisdiction permits the judiciary to refer a matter extending beyond "the conventional experience of judges" or falling within the realm of administrative discretion to the administrative agency possessing expertise in the matter at issue. Far East Conference v. United States, 342 U.S. 570, 574, 96 L. Ed. 576, 72 S. Ct. 492 (1952); Goya Foods, Inc. v. Tropicana Prods., Inc., 846 F.2d 848, 851 (2d Cir. 1988). The doctrine

 
ensures "'uniformity and consistency in the regulation of business entrusted to a particular agency [and]'" . . . recognize[s] that, with respect to certain matters, "the expert and specialized knowledge of the agencies" should be ...

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