Powers Law Offices, Pc v. Cable & Wireless Usa

326 F.Supp.2d 190

POWERS LAW OFFICES, PC, individually and on behalf of all others similarly situated, Plaintiff v. CABLE & WIRELESS USA, INC., Defendant.

No. CIV.A. 99-12007-EFH.

United States District Court, D. Massachusetts.

July 15, 2004.

A.J. De Bartolomeo, Girard Gibbs & DeBartolomeo LLP, Daniel C. Girard, Girard Gibbs & DeBartolomeo LLP, San Francisco, CA, Edward K. O'Brien, O'Brien Law Firm, P.C., Manchester, NH, Patrick J. Stueve, Steve Helder Siegel, Kansas City, MO, Theodore M. Hess-Mahan, Shapiro Haber & Urmy LLP, Thomas G. Shapiro, Shapiro Haber & Urmy LLP, Boston, MA, for Powers Law Offices, P.C., Plaintiff.

George A. Berman, Peabody & Arnold LLP, Nicholas J. Nesgos, Posternak, Blankstein & Lund, Boston, MA, for Cable & Wireless USA, Inc., Defendant.

MEMORANDUM AND ORDER

HARRINGTON, Senior District Judge.

This case comes before the Court on a Motion for Summary Judgment by Defendant Cable & Wireless USA, Inc. ("C & W") on the claims of the Plaintiff Powers Law Office ("Powers") and the claims of the class which Powers represents. For the reasons set forth below, the Court grants C & W's motion as to claims which stem from invoices dated prior to August 13, 1999 and denies C & W's motion as to claims which stem from invoices dated on or after August 13, 1999.

I. BACKGROUND

C & W, a District of Columbia corporation and the American subsidiary of Cable & Wireless PLC, provides various intrastate and interstate telecommunications telephone services, including long distance service. The Federal Communications Act of 1934 ("the Communications Act"), 47 U.S.C. § 151 et seq., regulates the long distance operations of C & W. Section 203(a) of the Act requires that C & W file a schedule with the Federal Communications Commission setting forth all rates and charges for its service. This schedule is commonly referred to as C & W's "tariff."

C & W is a facilities-based interexchange carrier ("IXC"); consequently, customers access its services by placing phone calls using the lines of their local exchange carrier ("LEC"). The LEC routes customers' calls to C & W, the IXC, which then connects them to their intended recipients via its long distance service. During the period at issue, federal regulations under the Communications Act permitted the LEC to collect a fee from the IXC for routing calls to the IXC; this fee is called a Pre-Subscribed Interexchange Carrier Charge ("PICC"). 47 C.F.R. § 69.153. IXCs are permitted to pass this fee along to customers, id., and C & W chose to do so during the periods relevant to this dispute. Thus the tariffs C & W filed with the FCC during this period include PICCs.

In sum, Powers alleges that C & W collected PICCs in amounts greater than authorized by its tariffs. On behalf of itself and other similarly situated C & W customers, Powers brought suit in this Court on September 28, 1999. Over three years later, on October 29, 2002, Powers filed an amended complaint comprising one count related to PICC improprieties. On May 29, 2003, this Court granted Powers' Motion for Class Certification, but limited the plaintiff class to:

all former and current Cable & Wireless USA customers who, during the period beginning March 31, 1998 and ending July 31, 2001 (the "Class Period"), were assessed a Presubscribed Interexchange Carrier Charge by C & W for a telephone line which was not presubscribed to C & W during the period for which the charge was assessed.¹

The matter is now before the Court on C & W's motion for summary judgment. C & W argues that its tariffs contain a notice provision which required customers to bring billing disputes to its attention within 45 days of the date on the bill ("the 45-day notice provision"). Because the plaintiff allegedly did not comply with this provision, C & W argues that the plaintiff's opportunity to challenge its bills is foreclosed and hence summary judgment should issue.

II. DISCUSSION

A. Summary Judgment Standard

The familiar standard for summary judgement applies to this case. Judgment as a matter of law should be granted where the evidence, taken in the light most favorable to the non-moving party, shows that there is "no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Rocafort v. IBM Corp., 334 F.3d 115, 119 (1st Cir.2003); Fed.R.Civ.P. 56(c); Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). As is typical, the moving party, here C & W, must show that no reasonable juror could return a verdict for the nonmoving party, here Powers. See Newbanks v. Central Gulf Lines, 64 F.Supp.2d 1, 4 (D.Mass.1999).

Powers argues that this standard varies based upon which party bears the burden of proof at trial. Powers contends that C & W raises the 45-day notice provision as an affirmative defense and consequently bears the burden to establish "beyond peradventure all of the essential elements of the ... defense." Pl. Opp. at 9 (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1193 (5th Cir.1986)). Indeed, when the party moving for summary judgment bears the burden of proof on an issue, that party must come forward with "conclusive" evidence as to that issue. E.E.O.C. v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 55 (1st Cir.2002) (citations omitted). However, as the citations in the Union case make clear, "conclusive" evidence simply means evidence "sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Id. (Citing Calderone v. United States, 799 F.2d 254, 258 (6th Cir.1986)). Thus, the legal standard on summary judgment does not vary based upon which party bears the burden of proof.²

B. Filed Rate Doctrine

C & W was required to file with the FCC a tariff "showing all charges ... and the classifications, practices, and regulations affecting such charges." 47 U.S.C. § 203(a). Because of this statutory requirement, the Filed Rate Doctrine applies to disputes under the tariff. Am. Tel. & Tel. Co. v. Cent. Office Tel., Inc., 524 U.S. 214, 222, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998). The tariff, filed with the F.C.C. "exclusively control[s] the rights and liabilities between" the service provider and customer. MCI Telecomm. Corp. v. Graham, 7 F.3d 477, 478 (6th Cir.1993); see also 524 U.S. at 222-23, 118 S.Ct. 1956, Brown v. M.C.I. WorldCom Network Services, Inc., 277 F.3d 1166, 1170 (9th Cir.2002) More specifically, the tariff governs "not only the nature and extent of [the provider's] liability, but also the nature and extent of the [customer's] right of recovery." N. Am. Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229, 233 (2d Cir.1978). The Filed Rate Doctrine sets forth a "strict" rule that is enforced even when the results "may seem harsh." 524 U.S. at 222-23, 118 S.Ct. 1956.

In the present case, the Filed Rate Doctrine presumptively requires this Court to enforce strictly the 45-day notice provision by dismissing claims of members of the plaintiff class who have not complied with it. To avoid this result, Powers argues that the 45-day notice provision is ambiguous when read in the context of surrounding provisions. Unambiguous provisions are, of course, binding, while ambiguous provisions must be construed by the court. W. Transp. Co. v. Wilson &amp Co., 682 F.2d 1227, 1231 (7th Cir.1982) (Posner, J).³ Powers observes that the 45-day notice provision follows two other provisions relating to billing inquiries and billing disputes:

.07 In the case of a billing dispute between the Customer and the Carrier for Service furnished to the Customer which cannot be settled to mutual satisfaction, the Customer can take the following action:

.071 The Customer may request, and the Carrier will comply with the request, an in-depth review of the disputed amount. The undisputed portion and subsequent bills must be paid on a timely basis or the Service may be disconnected.

.072 Customer must bring billing inquiries and disputes to the Carriers [sic] attention within 45 days of the invoice date. Failure to do so within this period shall be deemed an admission of the accuracy of the entire contents of the bill, and shall foreclose any opportunity to challenge the accuracy of any portion of that bill at a later date.

While Powers makes several interesting linguistic arguments attempting to inject ambiguity into the 45-day notice provision, this Court refuses to interpret the provision against its plain language. Read most naturally, the permissive language in .07 ("the Customer can take the following action") governs the process set forth in .071. The 45-day notice provision found at . 072 sets forth a limitation on when bills may be disputed that is generally applicable.⁴ Thus, unless they have complied with the notice provision, Powers and members of the plaintiff class are deemed to admit the accuracy of the entire contents of the bills at issue and are foreclosed from any opportunity to challenge the accuracy of those bills.

Courts have enforced notice provisions such as that in C & W's tariff. The majority of cases arise in situations where telecommunications companies seek to use the provision offensively to collect the full amount due under bills later discovered to be possibly erroneous. In this context, courts have enforced similar notice provisions strictly. See MCI Telecomm. Corp. v. Best Tel. Co., 898 F.Supp. 868, 874-75 (S.D.Fla.1994), MCI Telecomm. Corp. v. Ameri-Tel, Inc., 852 F.Supp. 659, 666 n. 5 (N.D.Ill.1994), MCI Telecomm. Corp. v. Premium Mktg. Sys., No. 91 C 4048, 1992 WL 6693, *2 (N.D.Ill.1992), MCI Worldcom Inc. v. Tele Tower Inc., No. 01 Civ 0255(LAK) 2002 WL 378424, * 1 (S.D.N.Y.2002), MFS Int'l, Inc. v. Int'l Telcom, Ltd., 50 F.Supp.2d 517, 523 n. 14 (E.D.Va.1999).⁵

C. Compliance with the 45-day Notice Provision

C & W argues that summary judgment in this action must be granted because there is no evidence that any member...