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April 10, 1996


The opinion of the court was delivered by: SCULLIN

 This case concerns the question of liability for long distance telephone calls. The plaintiff, MCI Telecommunications Corporation ("MCI"), a Delaware corporation with its principal place of business in Washington, D.C., is a provider of interstate telecommunications services. Defendant, John Mezzalingua Associates, Inc. d/b/a Production Products Company ("Production"), is a New York corporation with its principal place of business in Manlius, New York. *fn1" Third-party defendant Alltel New York, Inc. ("Alltel New York"), a New York corporation with places of business in Jamestown and Fulton, New York, is a provider of local telephone services in New York state. Third-party defendant Alltel Corporation ("Alltel"), a Delaware corporation with its principal place of business in Little Rock, Arkansas, is a holding company and the parent company of Alltel New York. Smith Aff. P 2; Production Ex. R, P 16.

 On December 19, 1990, Production subscribed to a central switching service ("Centrex") offered by Alltel New York. The Centrex service was intended to provide telephone features such as intercom, call forwarding, call waiting, and paging -- features usually provided by a private branch exchange ("PBX") at the PBX owner's place of business -- without the customer having to purchase expensive PBX equipment. The Centrex system was to be operated and maintained by Alltel New York from Alltel New York's central office in Fulton, New York. Production Ex. J.

 Also on December 19, 1990, Production purchased from Alltel New York a Viking ACA-2 Automated Attendant, which the parties refer to as a "call transferring unit" or "CTU." *fn2" It is not clear from the record what functions the CTU performed, but it was installed on Production's premises in Manlius, New York, on January 24, 1991. At that time, the CTU was certified by Alltel New York to be "in good working condition." Third-Party Answer Ex. A.

 Thereafter, in October 1991, plaintiff MCI Telecommunications Corp. ("MCI") began providing outgoing long distance telephone service to Production. *fn3" In an invoice dated December 25, 1991, MCI charged Production $ 160,572.48 for 12,000 calls to the Dominican Republic. Gatto Aff. P 6. Production refused to pay the December 25, 1991 invoice, claiming that the calls were fraudulently made by unidentified third parties. *fn4"

 To recover the charges for the fraudulent calls, MCI filed the complaint in this action on October 21, 1993. *fn5" On January 4, 1994, Production filed a third-party complaint against Alltel and Alltel New York asserting contract and negligence claims, and seeking indemnification and/or contribution of any amounts found to be owed by Production for the calls. *fn6"

 Presently, plaintiff MCI and third-party defendants Alltel and Alltel New York seek summary judgment as to the defendant Production. Defendant Production requests leave to file an amended answer to MCI's complaint and further requests that the Court stay this action and refer the matter to the Federal Communications Commission ("FCC"). For the reasons set forth below, Production's motions to refer this matter to the FCC and to amend its answer are denied; Alltel's motion for summary judgment is granted; MCI's motion for summary judgment is denied; and Alltel New York's motion for summary judgment is denied.



 Under the Communications Act of 1934 ("the Act"), a carrier such as MCI must file with the FCC a schedule of charges, also referred to as a "tariff schedule" or "tariff." 47 U.S.C. ยง 203. "The conclusive and exclusive rights and liabilities of carriers are enumerated in their tariffs," including provisions regarding payment of charges for services furnished to customers. American Tel. & Tel. Co. v. New York City Human Resources Admin., 833 F. Supp. 962, 977 (S.D.N.Y. 1993).

 Because this action involves responsibility for payment of long distance telephone charges covered by MCI's tariff, Production argues that the doctrine of primary jurisdiction requires that this case be stayed and referred to the FCC for application of its "specialized expert knowledge." Production Mem. 30. MCI responds that the doctrine of primary jurisdiction should not be invoked where "the agency's position is sufficiently clear." Mississippi Power & Light Co. v. United Gas Pipe Line Co., 532 F.2d 412, 419 (5th Cir. 1976), cert. denied, 429 U.S. 1049 (1977). Alltel and Alltel New York make no argument.

 "The doctrine of primary jurisdiction allows a federal court to refer a matter extending beyond the 'conventional experiences of judges' or 'falling within the realm of administrative discretion' to an administrative agency with more specialized experience, expertise, and insight." National Communications Ass'n v. American Tel. & Tel. Co., 46 F.3d 220, 222-23 (2d Cir. 1995) (quoting Far East Conference v. United States, 342 U.S. 570, 574, 96 L. Ed. 576, 72 S. Ct. 492 (1952)). Courts apply primary jurisdiction to cases involving technical and intricate questions of fact and policy that Congress has assigned to a specific agency. Goya Foods, Inc. v. Tropicana Products, Inc., 846 F.2d 848, 851 (2d Cir. 1988).

 There is no fixed formula for determining whether an agency has primary jurisdiction. However, there are four factors that have generally been the focus of analysis. National Communications, 46 F.3d at 223. Those four factors are: (1) whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency's particular field of expertise; (2) whether the question at issue is particularly within the agency's discretion; (3) whether there exists a substantial danger of inconsistent rulings; and (4) whether a prior application to the agency has been made. Id. at 222.

 The record before the Court in this case presents no issues involving intricate interpretations or applications of MCI's tariff that would require the FCC's technical or policy expertise. As in National Communications, this case "does not involve the statutory reasonableness of the tariff or other abstract concepts." 46 F.3d at 223. This case also presents no issues that are "particularly within the agency's discretion" and no prior application been made to the FCC regarding this matter. There is no danger of inconsistent rulings. See, e.g. Human Resources, 833 F. Supp. at 972-78. Thus, the Court finds that the FCC does not have primary jurisdiction over this matter and referral is not necessary. *fn7"


 In its original answer, defendant/third-party plaintiff Production admits the portion of paragraph seven of the Complaint which alleges that MCI provided service to Production between November 1991 and April 1992. *fn8" Answer P 4. In its proposed amended answer, Production denies "each and all allegations" of the same paragraph.

 Production and MCI disagree as to the significance of the first answer and the proposed change. However, Production's position is clear, and has been throughout. Production does not deny that MCI provided some service during the alleged time period; it only denies that MCI "furnished services" (within the meaning of MCI's tariff) for the allegedly fraudulent calls. Production's initial answer to the complaint more accurately represented this position, and permission to amend paragraph four is denied.

 Production also seeks to add an affirmative defense alleging that the Tariff provisions are "unreasonable and unenforceable," *fn9" and four "affirmative defenses and counterclaims," seeking: declaratory judgment as to MCI's misconduct; to enjoin MCI from suing Production for the alleged debt; rescission of the "contract" between MCI and Production; and punitive/exemplary damages "of at least $ 10 million." Proposed Amended Answer PP 11, 14-28. In support of adding these affirmative defenses and counterclaims to its ...

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