The opinion of the court was delivered by: BLOCK
Plaintiff Esther Katz ("Katz") alleges that a telemarketer employed by defendant MCI Telecommunications Corporation ("MCI") misrepresented certain features of its residential telephone account program to her, inducing her to switch her service from another company, and ultimately causing her to develop "a phobia by which she mistrusts all telemarketers, whom she now believes are all fraudulent and not bona fide offerors of the services or products they purport to offer." Complaint at P 20. She seeks $ 10 million in compensatory and $ 40 million in punitive damages. MCI moves to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Despite the Court's concern that the everyday residential consumer is easy prey for telecommunications carriers soliciting new customers, it is constrained by applicable authority to conclude that Katz does not have a judicial remedy against MCI on the facts as pled here. Accordingly, the motion is granted and the complaint dismissed.
The facts are relatively straightforward. According to the allegations of the complaint, which the Court must take as true for purposes of this motion to dismiss, see Albright v. Oliver, 510 U.S. 266, 268, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994), on or about March 3, 1997, Katz, a resident of Forest Hills, Queens, was contacted by Brian Soncrant ("Soncrant"), a sales associate employed by MCI. Soncrant represented to Katz that MCI had recently instituted a new residential telephone account program and that the terms of the program would not be changed during the lifetime of the customer. Soncrant also advised Katz that she would receive reduced fares on Continental and Delta Airlines if she enrolled in the program. Katz enrolled in the program on or about March 4, 1997. Katz alleges that these representations were false, and that they exacerbated her precarious physical condition, including her spastic colitis, and caused her mental suffering and anguish. She also alleges that she sustained $ 70 in damages because she purchased airline tickets at an amount higher than that represented to her by Soncrant. Her complaint, which was originally filed in Supreme Court, Queens County, was subsequently removed to this Court by MCI based upon diversity of citizenship and federal question jurisdiction. 28 U.S.C. §§ 1331, 1332, 1337.
The complaint contains four state law claims: (1) fraudulent misrepresentation, which allegedly led Katz to develop telemarketer phobia; (2) tortious interference with contract; (3) intentional infliction of emotional distress; and (4) violation of New York General Business Law § 349.
In regard to its Rule 12(b)(6) motion to dismiss, MCI contends: (1) Katz's claims are barred by the filed rate doctrine; (2) any claim not barred by the filed rate doctrine is subject to the primary jurisdiction of the Federal Communications Commission ("FCC"); and (3) Katz's claim for intentional infliction of emotional distress is insufficient as a matter of New York law.
I. Standard on a Motion to Dismiss
The Court's function in reviewing a motion to dismiss pursuant to Rule 12(b)(6) "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 124 (2d Cir. 1991). A complaint will be dismissed "only if it appears that [the plaintiff] can prove no set of facts, consistent with [her] complaint, that would entitle [her] to relief." Electronics Communications Corp. v. Toshiba America Consumer Prods., Inc., 129 F.3d 240, 242-43 (2d Cir. 1997). "In ruling on defendant's motion, the court must accept as true all the factual allegations in the complaint and must draw all reasonable inferences in favor of the plaintiff." Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59, 63 (2d Cir. 1997). In reviewing the pleadings, the Court "'must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.'" Newman & Schwartz v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir. 1996) (quoting Kramer v. time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991)); see also Kopec v. Coughlin, 922 F.2d 152, 155-56 (2d Cir. 1991). Tariffs filed by telecommunications corporations are public records and may properly be considered in connection with a Rule 12(b)(6) motion to dismiss. See Marcus v. American Tel. & Tel. Corp., 938 F. Supp. 1158, 1164-65 (S.D.N.Y. 1996), aff'd, 138 F.3d 46.
II. The Filed Rate Doctrine
MCI primarily bases its motion to dismiss upon the purported applicability of the "filed rate doctrine," which is also known as the "filed tariff doctrine." This doctrine arises out of the requirement in the Federal Communications Act that telecommunications service providers "file with the [Federal Communications] Commission and print and keep open for public inspection schedules showing all charges for itself and its connecting carriers . . . showing the classifications, practices, and regulations affecting such charges. . . ." 47 U.S.C. § 203(a) (emphasis added). The filed rate doctrine "'forbids a regulated entity to charge rates for its services other than those properly filed with the appropriate federal regulatory authority.'" Fax Telecommunicaciones, 138 F.3d at 488 (quoting Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 577, 69 L. Ed. 2d 856, 101 S. Ct. 2925 (1981)); see also American Tel. & Tel. Corp. v. Central Office Tel., Inc., 469 U.S. 900, 118 S. Ct. 1956, 1962-63, 83 L. Ed. 2d 212 (1998); Marcus, 138 F.3d at 58; American Tel. & Tel. Co. v. City of New York, 83 F.3d 549, 552 (2d Cir. 1996). The doctrine has a two-fold purpose: to preserve the FCC's primary jurisdiction over the reasonableness of rates (the "nonjusticiability strand"); and to prevent utilities from discriminating among customers with regard to the rates they charge for their services (the "nondiscrimination strand"). See Fax Telecommunicaciones, 138 F.3d at 489; Marcus, 138 F.3d at 58.
The practical effect of the filed rate doctrine is to preclude customers from commencing a judicial action challenging a utility's failure to provide services at a rate other than that set forth in the published tariff. As the Second Circuit made clear in Marcus :
Application of the filed rate doctrine in any particular case is not determined by the culpability of the defendant's conduct or the possibility of inequitable results. . . . Rather, the doctrine is applied strictly to prevent a plaintiff from bringing a cause of action even in the face of apparent inequities whenever either the nondiscrimination strand or the nonjusticiability strand of the doctrine is implicated by the cause of action the plaintiff seeks to pursue.
Marcus, 138 F.3d at 58-59; see also Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 18-19 (2d Cir. 1994). Thus, the Second Circuit has specifically held that the filed rate doctrine bars an action for damages that is premised upon the utility's fraudulent misrepresentation regarding its rates. Marcus, 138 F.3d at 60-61. As the court noted in Marcus, an award of damages under such circumstances ...