The opinion of the court was delivered by: PETER K. LEISURE
47 U.S.C. § 206 (1988). AT&T argues that § 206 does not provide a basis for recovering attorney's fees in this action. AT&T argues, inter alia, that under § 206 a party may not recover for attorney's fees incurred in proceedings before the FCC and that a party may not recover attorney's fees if it has not been awarded damages.
In determining whether § 206 permits an award of attorney's fees in this case, the Court finds relevant decisions construing analogous provisions of the Interstate Commerce Act. Since the Communications Act was modelled on the Interstate Commerce Act, decisions construing the latter are persuasive in establishing the meaning of the former. See MCI Telecommunications Corp. v. FCC, 286 U.S. App. D.C. 316, 917 F.2d 30, 38 (D.C. Cir. 1990). Moreover, the provisions of the Communications Act that are relevant to the instant case were taken practically verbatim from the provisions of the Interstate Commerce Act then in force.
See Curran v. Mackay Radio & Telephone Co., 123 F. Supp. 83, 89 (S.D.N.Y. 1954). Similar to former § 9 of the Interstate Commerce Act,
§ 207 of the Communications Act provides that a party may bring either an administrative proceeding or a suit in federal court. See 47 U.S.C. § 207 (1988). Similar to former § 16 of the Interstate Commerce Act,
§ 407 of the Communications Act provides that if a party is awarded damages in the administrative proceeding, such party may enforce the award in federal court. See 47 U.S.C. § 407 (1988). Finally, similar to former § 8 of the Interstate Commerce Act,
§ 206 of the Communications Act authorizes the award of damages and attorney's fees. See 47 U.S.C. § 206 (1988).
The circumstances under which attorney's fees could be awarded pursuant to §§ 8 and 16 of the Interstate Commerce Act were addressed by the Supreme Court in Meeker v. Lehigh Valley R.R. Co., 236 U.S. 412, 59 L. Ed. 644, 35 S. Ct. 328 (1915). In that case, the plaintiff had brought an enforcement action pursuant to § 16 of the Interstate Commerce Act when the defendant failed to make payment of damages awarded by the Interstate Commerce Commission. The district court had awarded damages in accordance with the findings of the Interstate Commerce Commission. In addition, the district court had awarded attorney's fees for services incident to proceedings before both the Commission and the district court. However, the Supreme Court found that the district court had erred in allowing attorney's fees for services before the Commission, writing as follows:
Id. at 432-33. These same themes were also reflected in a later opinion by Justice Brandeis suggesting that attorney's fees were made available under § 16 to "discourage harassing resistance by a carrier to a reparation order." St. Louis & San Francisco R.R. Company v. Spiller, 275 U.S. 156, 159, 72 L. Ed. 214, 48 S. Ct. 96 (1927).
Turning to the instant case, the parties have suggested no reason why the provisions of the Communications Act at issue here should be interpreted differently from the analogous provisions of the Interstate Commerce Act, nor does the Court perceive any such reason. Indeed, Meeker has been cited as authority for the proposition that the FCC cannot award attorney's fees to a party appearing before it. See Illinois Bell Telephone Co., F.C.C. 80- M-181, 46 R.R.2d 1449, 1451 (Jan. 30, 1980); see also Turner v. Federal Communications Comm'n, 169 U.S. App. D.C. 113, 514 F.2d 1354, 1356 (D.C. Cir. 1975) (not citing Meeker but finding that the FCC could not award attorney's fees). United Artists contends that, though the FCC cannot itself award attorney's fees, this Court may do so because § 206 only requires that the attorney's fees be "fixed by the court." However, the holding of Meeker was that a party could not recover attorney's fees for services rendered before the Interstate Commerce Commission, regardless of whether the party made its application for fees to the Commission itself or to a court. Thus, Meeker clearly suggests that in the instant case United Artists cannot recover for attorney's fees incurred in proceedings before the FCC.
The Court also believes this is the more sensible reading of § 206. First, § 206 provides that an attorney's fee "shall be taxed and collected as part of the costs in the case." This language suggests that the services in question must have been incident to court proceedings rather than to FCC proceedings, as the Supreme Court concluded in Meeker.6 See also Parker v. Califano, 182 U.S. App. D.C. 322, 561 F.2d 320, 326 (D.C. Cir. 1977) (finding attorney's fees incident to administrative proceedings may be awarded under Title VII because, unlike the term "suit" in Section 8 of the Interstate Commerce Act, the term "proceedings" includes administrative proceedings). Second, were this Court to accept United Artists' argument that the Court may now award attorney's fees that the FCC could not, it would result in the needless waste of judicial resources since every successful case before the FCC would result in a related judicial action being instituted to recover attorney's fees. Third, the Court discerns no rationale for Congress to have intentionally provided that a party could recover for attorney's fees incurred before the FCC but have denied the FCC the authority to make the award, particularly since Congress has granted the FCC the authority to award damages. Accordingly, the Court rejects United Artists' argument and concludes that § 206 does not permit a party to recover for attorney's fees incurred before the FCC.
The more difficult question presented by this case is whether United Artists may recover for attorney's fees incurred in proceedings before this Court. The Court again concludes, however, that United Artists may not recover. Section 206 provides for the award of an "attorney's fee, to be fixed by the court in every case of recovery." The Court concludes that this is not a "case of recovery" because no damages have been awarded. The language of § 206 may be contrasted with 42 U.S.C. § 1988 (1988), a provision concerning the award of attorney's fees in civil rights cases, which permits the award of such fees to a "prevailing party." United Artists is certainly the "prevailing party" in this action, but it has not "recovered" anything. The requirement that a party have been awarded damages is also suggested both by the title of § 206 ("Carriers' liability for damages") and by its language, which provides for "damages . . . together with a reasonable counsel or attorney's fee." This language links the recovery of attorney's fees to the recovery of damages.
In addition, in construing § 206 the Court again finds guidance in decisions concerning the Interstate Commerce Act. Congress restated the Interstate Commerce Act in 1978. See Act of Oct. 17, 1978, P.L. 95-473, 92 Stat. 1466. The purpose of this restatement "was to substitute simple language for awkward and obsolete terms . . . without substantive change to the existing law." Illinois Cent. Gulf R.R. Co. v. Delta Millwork, Inc., 802 F.2d 156, 157 n.2 (5th Cir. 1986) (citing H.R. Rep. No. 95-1395, 95th Cong., 2nd Sess., reprinted in 1978 U.S. Code Cong. & Ad. News 3009, 3013, 3016-18). The restated Interstate Commerce Act clearly provides that attorney's fees may only be awarded to a party that has been awarded damages. Id. at 158.
Thus, Congress has, in effect, interpreted the analogous provisions of the original Interstate Commerce Act as providing for an award of attorney's fees only when there has been an award of damages.
Requiring an award of damages is also consistent with the Supreme Court's statements regarding the purpose of the provisions of the original Interstate Commerce Act. As discussed above, the Supreme Court stated that the purpose of granting attorney's fees under §§ 8 and 16 of the Interstate Commerce Act was to "discourage harassing resistance by a carrier to a reparation order," St. Louis & San Francisco R.R. Company, 275 U.S. at 159, and "to charge the carrier with the cost and expenses entailed by a failure to pay without suit," Meeker, 236 U.S. at 433. Thus, attorney's fees are provided to compensate parties who must initiate suit in order to access the unique enforcement powers of the court. In the instant case, however, United Artists did not require enforcement because it was merely excused from liability rather than awarded damages.
Thus, the Court concludes that under 47 U.S.C. § 206, attorney's fees may only be awarded to a party that has recovered damages. Since United Artists has not recovered damages, it is not entitled to attorney's fees.
For the reasons stated above, the Court denies United Artists' motion for summary judgment and grants AT&T's motion to dismiss United Artists' counterclaims pursuant to Fed. R. Civ. P. 12(b)(6). This case is hereby dismissed.
Dated: May 12, 1994
New York, New York
Peter K. Leisure