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CONBOY v. AT & T CORP.
February 4, 2000
EDWARD J. CONBOY, EILEEN M. CONBOY INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
AT & T CORP., AND AT & T UNIVERSAL CARD SERVICES CORP., DEFENDANTS.
The opinion of the court was delivered by: Ward, District Judge.
Defendants each move pursuant to Rule 12(b)(6), Fed.R.Civ.P.,
to dismiss plaintiffs' Class Action First Amended Complaint
(hereinafter "complaint") for failure to state a claim upon which
relief can be granted. For the following reasons, defendants'
motions are granted and the complaint is dismissed.
Plaintiffs Edward and Eileen Conboy bring this class action
against defendant AT & T Corp. (hereinafter "AT & T") alleging
violations of the Federal Telecommunications Act (hereinafter
"Telecommunications Act" or "Act"), 47 U.S.C. § 151 et seq.,
and regulations promulgated under the Act by the Federal
Communications Commission (hereinafter "FCC"),
47 C.F.R. § 51.217 and 64.1201. They also assert claims against AT & T under
the Fair Debt Collection Practices Act (hereinafter "FDCPA"),
15 U.S.C. § 1692 et seq., and New York General Business Law
(hereinafter "N.Y. Gen. Bus. Law") § 349. Finally, plaintiffs
assert a claim against AT & T for common law intentional
infliction of emotional distress. Plaintiffs bring this class
action against defendant AT & T Universal Card Services Corp.
(hereinafter "UCS") alleging a violation of N.Y. Gen. Bus. Law §
349, and asserting a claim for common law intentional infliction
of emotional distress.
Plaintiffs are individuals residing in New York State. They are
customers of AT & T. AT & T is a New York corporation with its
principal executive offices located in New Jersey. Plaintiffs
allege that AT & T is subject to the mandates of the
Telecommunications Act and FCC regulations.
UCS is a Delaware corporation with its principal place of
business in Florida. According to the complaint, UCS was AT & T's
credit card unit and consumers could receive AT & T Universal
Visa or MasterCard credit cards through UCS. UCS was a subsidiary
or affiliate of AT & T until April 2, 1998, when AT & T
transferred UCS to Citicorp, an entity unaffiliated with AT & T.
The facts are taken from plaintiffs' complaint and are assumed
to be true for purposes of this motion. AT & T provides
plaintiffs' long-distance telephone service. It charges
plaintiffs for long distance telephone calls through an itemized
billing statement. The statement contains information concerning
the number and type of calls made, the telephone number from
which the calls originated, the date the calls were made, the
destination and telephone numbers called, as well as the time,
rate and cost of each call.
Plaintiffs pay a monthly fee for non-published service, which
is designed to prevent the release of customers' unlisted names,
addresses, and telephone numbers. Accordingly, plaintiffs'
personal information was neither available in any directory nor
accessible through directory assistance. Moreover, plaintiffs
never authorized the release of any of this information to UCS,
Citicorp, or any other entity.
Plaintiffs allege that AT & T has disseminated their customer
proprietary network information (hereinafter "CPNI"),*fn1
telephone bill information, unlisted telephone numbers, and
billing names and addresses to UCS, Citicorp, and other entities
without plaintiffs' consent. According to plaintiffs, AT & T
continues to disclose this information.
From May to June 1998, representatives of UCS telephoned
plaintiffs at their unlisted home telephone number between thirty
and fifty times seeking information regarding Maria Conboy's
whereabouts. The telephone calls were made repeatedly and at
unusual hours. Plaintiffs informed representatives of UCS that
their daughter-in-law did not reside with them and requested that
the telephone calls cease.
On or about June 28, 1998, Andrew Coleman, a representative of
UCS, telephoned plaintiffs at their home requesting information
about Maria Conboy. During the conversation, Coleman revealed
that he knew plaintiffs' unlisted personal information. He also
suggested that he knew the details of plaintiffs' telephone bill,
including the cost and destination of telephone calls made by
Plaintiffs allege that AT & T is using customers' billing
statements not only to provide customers with details of their
service charges, but also to help UCS and other entities collect
credit card debts. They also claim that the statements do not
provide a clear warning that AT & T is assisting third parties in
collecting a debt, and that customers' information may be used
for that purpose.
I. Standard for Motion to Dismiss
Defendants move to dismiss plaintiffs' complaint for failure to
state a claim upon which relief can be granted pursuant to Rule
12(b)(6), Fed.R.Civ.P. In deciding such a motion, the Court must
accept as true the factual allegations set forth in the complaint
and must draw all reasonable inferences in plaintiffs' favor.
See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229,
81 L.Ed.2d 59 (1984); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct.
1683, 40 L.Ed.2d 90 (1974); Bernheim v. Litt, 79 F.3d 318, 321
(2d Cir. 1996). The Court, therefore, "may dismiss a complaint
only if it is clear that no relief could be granted under any set
of facts that could be proved consistent with the allegations."
Hishon, 467 U.S. at 73, 104 S.Ct. 2229; Conley v. Gibson,
355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
II. Count I Alleging Violations of 47 U.S.C. § 222(c), and
47 C.F.R. § 51.217(c)(3)(iii) and 64.1201(c)(2) Against AT & T
A. Private Action For Damages Based on a Violation of Section
Plaintiffs allege that AT & T violated Section 222(c) of the
Telecommunications Act. That section governs the proper use of
CPNI and provides:
Except as required by law or with the approval of the
customer, a telecommunications carrier that receives
or obtains customer proprietary network information
by virtue of its provision of a telecommunications
service shall only use, disclose, or permit access to
individually identifiable customer proprietary
network information in its provision of (A) the
telecommunications service from which such
information is derived, or (B) services ...