the plaintiff did not seek to obtain a different, lower rate, and thus the Court would not be involved in enforcing a discriminatory rate or assessing what rate should be charged.
Finally, in Gelb v. AT&T Co., 813 F. Supp. 1022 (S.D.N.Y. 1993), plaintiff asserted that AT&T deceitfully induced customers to use AT&T's calling card by offering a lower rate and then charging a higher one. Again, the plaintiff in Gelb did not challenge the reasonableness of the rates on file, rather, plaintiff only claimed fraud in advertising. Id. at 1026. The Southern District articulated a possible exception to the filed rate doctrine when there are circumstances of "universal fraud." Id. at 1030-1031. Because the fraud alleged under the circumstances in Gelb did not implicate either the anti-discrimination or the non-justiciability concerns of the filed rate doctrine, the court refused to dismiss the complaint. Id. at 1029. In particular, the court was persuaded by the fact that the suit was a class action, such that individually negotiated rates, from which discrimination concerns arise, were not involved. Id. Furthermore, because the class sought injunctive rather than compensatory relief, the court observed that it would not have to adjudicate a reasonable rate in order to assess damages. See id. at 1032-1033.
The only case that appears to suggest a different result is Florida Municipal Power Agency v. Florida Power & Light Co., 64 F.3d 614 (11th Cir. 1995). In Florida Power, the court found that a genuine issue of fact existed as to whether the filed rate in question covered the service that plaintiff sought to buy. Id. at 615. The plaintiff in Florida Power had agreed to purchase certain "point-to-point" power transmission services from defendant Florida Power & Light. The rates for these services were filed with the Federal Energy Regulatory Commission, which has sole authority to determine power allocations and the reasonableness of wholesale power rates. Id. In addition, plaintiff desired to purchase certain "network" transmission services that would allow It to switch to other power sources throughout the day, saving plaintiff considerable money. Florida Power, however, refused to sell network service to plaintiff. Id. at 615. Florida Power contended that plaintiff's request for a network tariff was nothing more than a request to modify the existing point-to-point tariff, which was unenforceable. Plaintiff, on the other hand, insisted that network service is so distinct from point-to-point service that a separate tariff had to be filed. The plaintiff did not dispute that if there was a filed rate covering the requested "network" service, its damage claim would be precluded by the filed rate doctrine. Id. at 616. The dispute arose, however, as to whether or not there was a rate on file that covered the ordered service. The court concluded that there needed to be a factual determination of whether network transmission is such a different product from point-to-point transmission that reasonable ratemaking would require the filing of separate network transmission rates. Id. Specifically, the court found that it would be acceptable to estimate damages from the refusal to sell the less expensive network service in the context of antitrust damages, where damage estimates are nearly unavoidable. Id. at 616.
Florida Power, however, is inapplicable on its facts and does not address the concerns presented in this case. First, Florida Power involved antitrust claims against a public utility. Second, the plaintiff did not seek to force the defendant to file a different tariff, nor did it seek to enforce a contract for a lower, discriminatory rate. Indeed, antitrust concerns were central to the court's holding and the court expressed concern that the utility would attempt to use the filed rate doctrine to confer immunity from antitrust scrutiny. Id. at 616. As such, Florida Power is not instructive in this instance.
For the reasons set forth above, therefore, the Court is unable to provide the relief Fax seeks. It cannot enforce a contract for an unfiled rate, nor can it assess whether the rates allegedly contracted for are reasonable and whether they can be used to assess damages. Moreover, the Court notes that Fax knowingly used and was billed for CustomNet service. Accordingly, AT&T's motion for summary judgment is granted as to Fax's claims to either enforce the January 14, 1994 ATQ or provide damages based on the proposed Conquest tariff. In addition, summary judgment is granted in favor of AT&T on its counterclaim for $ 2,321,390.71.
As a final note, however, the Court must addresses Fax's request for relief concerning the Installation of the T1 pipe. To the extent that Fax alleges a contract to install the T1 pipe and that Fax delivered to AT&T a down payment for such service, these issues are not barred by the filed rate doctrine. The enforcement or assessment of damages of such a contract, if found to exist, would neither require the Court to assess the reasonableness of a telecommunications rate nor discriminate in pricing among customers. On this limited issue, therefore, AT&T's motion for summary judgment is denied.
For the foregoing reasons, the Court grants in part and denies in part AT&T's motion for summary judgment. Specifically, the Court hereby:
1. GRANTS defendant AT&T's motion for summary judgment as to the enforceability of the January 14, 1994 ATQ.
2. GRANTS defendant AT&T's counterclaim in the amount of $ 2,321,390.71.
3. DENIES defendant AT&T's motion for summary judgment as to the contract to install T1 pipe.
Joanna Seybert, U.S.D.J.
Dated: Uniondale, New York
December 30, 1996