United States District Court, N.D. New York
Herzog Law Firm, KEITH J. ROLAND, ESQ., Albany, NY, XChange Telecom Corp., MORDECHAI GROSS, ESQ., Brooklyn, NY, for the Plaintiff.
Steese, Evans Law Firm, CHARLES W. STEESE, ESQ., Denver, CO, Sheehan, Greene Law Firm, LAWRENCE H. SCHAEFER, ESQ., THOMAS D. LATIN, ESQ., Lathrop, Gage Law Firm, WILLIAM R. HANSEN, ESQ., New York, NY, for the defendants.
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief District Judge.
Plaintiff XChange Telecom Corp. commenced this action against defendants Sprint Spectrum L.P., Nextel of New York, Inc., Nextel Partners of Upstate New York, Inc., and Sprint Communications Company L.P., asserting various causes of action pursuant to the Federal Communications Act of 1934 ("the Act") and the New York Public Service Law to recover carrier access charges, as well as related common law contract claims. ( See generally Compl., Dkt. No. 1.) Following joinder of issue, (Dkt. No. 6), defendants filed a motion, pursuant to Fed.R.Civ.P. 12(b)(6) and 12(c), seeking dismissal of some of XChange's causes of action, (Dkt. No. 8). For the reasons that follow, defendants' partial motion to dismiss is granted in its entirety.
XChange, among other things, acts as a Competitive Local Exchange Carrier (CLEC), providing local exchange telephone services in the New York City metropolitan area. (Compl. ¶ 1.) Defendants, all of whom are affiliated with Sprint, provide both cellular/wireless and landline telecommunications services within New York State; Sprint Spectrum, Nextel of New York, and Nextel Partners of Upstate New York (collectively "wireless defendants") provide cellular/wireless services to their customers, while Sprint Communications ("landline defendant") provides landline telecommunications services. ( Id. ) XChange alleges that it has billed both the wireless defendants and landline defendant for interstate and intrastate access charges, as well as reciprocal compensation charges, for terminating particular phone calls, which defendants have refused to pay, and XChange therefore seeks to collect those unpaid charges by way of this action. ( Id. ¶¶ 9-12.) XChange alleges that it is owed roughly $700, 000 in unpaid charges that have accrued since at least as far back as August 2012. ( Id. ¶¶ 9-10, at 20.)
In its complaint, XChange asserts six causes of action, as follows: counts one and two seek reimbursement of access charges pursuant to federal and state tariffs, respectively, as well as pursuant to sections 206 and 207 of the Communications Act, ( id. ¶¶ 33-42, 43-48); count three alleges breach of contract, ( id. ¶¶ 49-51); count four alleges a cause of action for account stated, or an implied-in-fact contract, due to defendants' failure to object to or dispute the bills sent by XChange, ( id. ¶¶ 52-55); count six alleges unjust and unreasonable practice, and undue discrimination, pursuant to sections 201 and 202 of the Communications Act and section 91 of the New York Public Service Law, ( id. ¶¶ 56-62); and count seven alleges unjust enrichment, or an implied-at-law contract, ( id. ¶¶ 63-66).
III. Standard of Review
The standard of review under Fed.R.Civ.P. 12(b)(6) is well settled and will not be repeated here. For a full discussion of the standard, the court refers the parties to its prior decision in Ellis v. Cohen & Slamowitz, LLP, 701 F.Supp.2d 215, 218 (N.D.N.Y. 2010).
For purposes of this motion, a brief discussion of the basic context in which these claims arise, as set forth in XChange's complaint, is helpful. Generally, when telephone calls are made between customers or users, the originating user's local exchange carrier delivers the call to an interexchange carrier (IXC). (Compl. ¶ 25.) The IXC "then transports the call from the originating city to the terminating city, " where the call is again transferred from the IXC to the local exchange carrier of the call recipient. ( Id. )
When these calls are exchanged between carriers along the way, the local exchange carriers that originate and/or terminate the call may charge the IXC with a "carrier access charge." ( Id. ¶¶ 3-8, 25.) In the case of local landline calls, where one local exchange carrier delivers a call to another local exchange carrier, "the originating carrier pays the receiving carrier a fee, known as reciprocal compensation, to terminate the call." ( Id. ¶ 26.) The amount of the charge depends on whether the call is local or toll,  travels via a wireless or a landline network, and is made interstate or intrastate. ( Id. ¶ 2.) While interstate access charges are "set forth in tariffs filed with the [Federal Communications Commission (]FCC[), ]... [i]ntrastate access charges are set forth in tariffs filed with state public service commissions." ( Id. ¶ 6.) Both interstate and intrastate ...