American Telephone & Telegraph Company v. Central Office Telephone, Inc.

PETITIONER:American Telephone & Telegraph Company
RESPONDENT:Central Office Telephone, Inc.
LOCATION:United States Court of Appeals for the Ninth Circuit

DOCKET NO.: 97-679
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 524 US 214 (1998)
ARGUED: Mar 23, 1998
DECIDED: Jun 15, 1998

ADVOCATES:
Bruce M. Hall – Argued the cause for the respondent
David W. Carpenter – Argued the cause for the petitioner

Facts of the case

Under the Communications Act of 1934, AT&T must file “tariffs” containing all its charges for interstate services and all “classifications, practices and regulations affecting such charges” with the Federal Communications Commission (FCC). Under section 203(c) of the Act, a common carrier, such as AT&T, may not “extend to any person any privileges or facilities in such communication, or employ or enforce any classifications, regulations, or practices affecting such charges, except as specified in such [tariff].”In 1989, AT&T sold Central Office Telephone, Inc. its Software Defined Network, a long-distance service. Subsequently, Central Office experienced problems with the service and withdrew from the contract. Central Office sued AT&T in Federal District Court, asserting state-law claims for breach of contract and for tortious interference with contractual relations for failure to deliver various service, provisioning, and billing options in addition to those set forth in the tariff. Ultimately, the Court of Appeals affirmed a jury’s damages award.

Question

Do the federally filed tariff requirements of section 203 of the Communications Act of 1934 pre-empt state-law claims?

William H. Rehnquist:

We’ll hear argument now in Number 97-679, American Telephone and Telegraph Company v. Central Office Telephone, Incorporated.

Mr. Carpenter.

David W. Carpenter:

Mr. Chief Justice, and may it please the Court:

The question in this case is whether the Ninth Circuit correctly held that the statutory filed tariff requirements, here codified in section 203 of the Communications Act, apply only to rates and not to the services provided in exchange for those rates.

The answer to this question is that the holding is simply wrong.

The statutory terms are not limited to rates, but they also prohibit, among other things, any untariffed privilege or facility in communication and any form of rebate, and this Court has held many times that it’s an unlawful rebate and preference in violation of these prohibitions for a carrier to provide a service or to enforce a service guarantee that is not covered by the carrier’s tariff.

And this case also lacks the element that made the recent Maislin and MCI v. ATT cases close questions in this Court, for no Federal agency responsible for the administration of these requirements has ever suggested the Ninth Circuit’s interpretation, much less endorsed it as advancing some other legitimate statutory goal.

The reality is, is that in situations where tariffing requirements have applied and should continue to apply, and the Federal agencies have found that there are many, the Ninth Circuit’s holding would create the very discrimination in rates that everyone, even our opponent, concedes to be the purpose of this requirement.

Under the holding, carriers could evade the prohibitions not by misquoting the rates, but by misquoting the service, making service guarantees that aren’t in the tariff, and when they’re breached excusing the carrier from paying tariff charges and paying an amount of money that would represent the damages for the breach.

Anthony M. Kennedy:

Do we take the case as if there had been no violation of the Federal statute 201 through 207?

David W. Carpenter:

Yes, Your Honor.

There was no claim litigated there is any violation of those provisions.

The only claims that were litigated is that it was a State law breach of contract, an intentional interference with tortious relationships, with business relationships for ATT to fail to provide COT with the quality of regulated long distance service that COT claimed it had been promised.

Anthony M. Kennedy:

Are there cases which tell us that a State law, the State law of torts, say, inform the construction of reasonableness under the Federal statute?

That is to say, if there were an interference with an advantageous business relation, that this would carry over to show that this is an unreasonable implementation of the tariffs under the Federal statute?

David W. Carpenter:

There’s no limitation on the things that the FCC can consider in deciding whether a difference in treatment is unjust and unreasonable, for example, for purposes of the prohibition of section 202(a) of the Communications Act.

Similarly, I don’t think there would be any limitation on the factors that it could consider in deciding whether something’s unjust and unreasonable–

William H. Rehnquist:

You’re saying that AT&T, then, is immune from any sort of intentional interference with business relationship action brought against it by anyone who it had a contractual relationship with.

That seems extreme.

David W. Carpenter:

–No, that’s not… that is not our position.

First, there are a whole range of intentional and nonintentional torts that don’t arise out of the carrier-customer relationship and the fortuity that someone happens to be our customer wouldn’t immunize us from a tort action if that… if a customer were a victim of such a tort.

Second, with respect to things that arise out of the customer-carrier relationship, we are under a series of duties under the Communications Act.

William H. Rehnquist:

I realize that, but you would be immune in many respects from an ordinary suit, say in State court based on State court tort law.

David W. Carpenter:

Absolutely, if it involved the rates that we charge for our communications service or the obligations that we incur in exchange for the receipt of those payments.

Anthony M. Kennedy:

Well, I was asking because I–

David W. Carpenter:

Yes.

Anthony M. Kennedy:

–I have some of the concerns indicated by the Chief Justice’s question, whether or not in interpreting what is reasonable under the Federal statute, lower courts or the agency has said, well, this is an interference with an advantageous business relationship under State tort law, and that informs our judgment as to what is unreasonable.

David W. Carpenter:

That’s… that would be entirely legitimate, but, of course, the Federal statute has to be interpreted uniformly.

Let me maybe put some of these questions to rest right now.

If AT&T had deliberately provided COT, other resellers with service that was inferior in quality to that that the commercial customers had received, we would have violated 202 of the Communications Act and we would have been liable to it for the damages we caused.

David W. Carpenter:

Now, those damages would have been determined under the Federal standards of the act.

William H. Rehnquist:

In a Federal court, or by the FCC?

David W. Carpenter:

Either place.

Obviously, the suits can be brought either place.

If they’re a question of the dispute over the scope of the duty it could be referred to the FCC under primary jurisdiction, but those suits can be brought in either the Federal district court or at the FCC.

William H. Rehnquist:

What if the… what if AT&T decides that Central Telephone is not simply a customer but a competitor?

David W. Carpenter:

Central Telephone is a competitor.

William H. Rehnquist:

And then decides simply to drive it out of business?

David W. Carpenter:

If we had done that and did it by providing it with worse service than it was entitled to under the tariff, under 201 of the Communications Act, or 202, it has a Federal damages remedy, but that… that–

William H. Rehnquist:

But it has no State law–

David W. Carpenter:

–It has no State law remedy.

It might have a Federal antitrust remedy in some circumstance, but it has no State law remedy because the effect of that is to give them a preference over other customers.

William H. Rehnquist:

–Well, that really is pushing one principle to the very limit of its logic.

David W. Carpenter:

Let me suggest something for your consideration.

In the Abilene case, in 1907, landmark–

William H. Rehnquist:

I’ve read that, yes.

David W. Carpenter:

–Abilene case, the question there was whether a State law that had the identical substantive prohibitions as the Federal statute could be… could be applied to define the regulated carrier’s obligation to its customer.

The Court said, even if the substantive standards are the same it’s inevitable that different States will apply those substantive standards in different ways, and that would defeat the uniformity that is the purpose of the statute.

A later case said that this was one of the rare cases of field preemption, where–

William H. Rehnquist:

What was the kind of action that was sought to be brought in the–

David W. Carpenter:

–It was a case involving whether the rates were just and reasonable.

William H. Rehnquist:

–So–

David W. Carpenter:

There was a common law right to be charged only a reasonable rate.

William H. Rehnquist:

–But that was certainly a much less of an expansive preemption than you’re arguing for here.

David W. Carpenter:

Well–

William H. Rehnquist:

You say an intentional tort is preempted.

David W. Carpenter:

–Your Honor, an intentional tort is preempted only if the predicate for it is, is that the customer didn’t receive the quality of service that it was entitled to in exchange for the payment of the tariffed rate.

Anthony M. Kennedy:

Well, why couldn’t it… can it be brought, then… could the claims of intentional interference and the claims of wilful breach have been brought under the tariff as in effect claims that the… that AT&T had not used what I think the tariff called its best efforts to provide the services they had contracted for by the time they contracted to provide it, so that at least with respect to these two State causes of action there would have been a Federal remedy?

David W. Carpenter:

Absolutely, Your Honor.

They could have sued us for violation of the tariff.

David W. Carpenter:

I think if they had sued us on that basis we would have gotten summary judgment.

If there had been a close question–

Anthony M. Kennedy:

Of the claims… I take it you’re conceding that they would have stated claims under the tariff–

David W. Carpenter:

–Absolutely.

Anthony M. Kennedy:

–if they had been brought under the tariff.

David W. Carpenter:

Absolutely.

I don’t think it’s the case that the tariff could have been invoked, because our only duty is to make reasonable effort at the due date we meet and not to… and to allow them to cancel if we miss it by more than 45 days, but they certainly can sue us whenever we make a service guarantee in a tariff and breach it.

That–

John Paul Stevens:

Mr. Carpenter, is it possible that you can make a service guarantee that was not covered by a tariff?

David W. Carpenter:

–If you make a guarantee involving the tariffed service it’s not covered by the tariff.

It’s invalid.

John Paul Stevens:

Well, you… in your briefs you describe network billing and multilocation billing–

David W. Carpenter:

Yes.

John Paul Stevens:

–as not covered by the tariffs.

David W. Carpenter:

There’s a terminological issue there.

Multilocation billing and network billing are two different options that we give customers.

They are different ways–

John Paul Stevens:

And the tariff doesn’t require them to select either one.

David W. Carpenter:

–The tariff… the tariff doesn’t even discuss… what the tariff does–

John Paul Stevens:

Well, does that mean the tariff doesn’t require them to select either one?

David W. Carpenter:

–The tariff obviously requires us to bill them, and it defines our obligations in billing them.

John Paul Stevens:

What if you made a contract to give them one option rather than the other?

Would you have to obey that contract?

David W. Carpenter:

Our position… it’s our position that we have to give them a choice of one of those two.

Our order forms gives them a choice, and we think–

John Paul Stevens:

Well, that’s not my question.

My question is, you give them a choice and they say, we’ll take network billing, and you say, we will agree to give it to you–

David W. Carpenter:

–Yes.

John Paul Stevens:

–but we’re not putting it… we’re not modifying any tariff.

David W. Carpenter:

Right.

John Paul Stevens:

Would you have to honor that contract?

David W. Carpenter:

Under that set of facts I would read the obligation to provide multilocation billing or network billing into the tariff, and if we violated the obligation–

John Paul Stevens:

In other words, the tariff silently–

David W. Carpenter:

–as defined by the tariff we’d be libel to them in damages.

In this instance–

David H. Souter:

–Well, if you failed to use your best efforts to provide that billing service as you contracted to do, that would be a violation of the tariff, the best effort provision of the tariff, wouldn’t it?

David W. Carpenter:

–If we fail to provide it, it is our best efforts, that could be a… that could be a violation–

David H. Souter:

That would state a violation, would it?

David W. Carpenter:

–It would state a violation of the tariff, and then the question, you know, would be under the limitation liability clause, whether it was wilful.

This… it so happens in this case our tariff disclaims any responsibility for the billing obligation that they want to read into the tariff, so it’s… it’s answering a hypothetical question.

In this case, our tariff says we won’t do what they said we should have done.

Anthony M. Kennedy:

But in the hypothetical question–

David W. Carpenter:

Yes.

Anthony M. Kennedy:

–I take it you… under Justice Stevens’ hypothetical you would have had the option to file that as a tariff, if you’d made that arrangement?

David W. Carpenter:

Just let me clarify one thing about multilocation billing.

Our tariff doesn’t describe any of the details about how we bill service or provision service.

It defines our obligations in doing it and says what they aren’t.

Our obligations aren’t to allocate charges among locations, which is what they wanted us to do.

Our… and we have… there’s not an obligation that we actually render accurate bills.

Obviously, they only pay us what’s due, but if we render an inaccurate bill it doesn’t excuse anybody from paying the rates, and it doesn’t give anybody a right to damages, and it’s our… we have implemented this obligation by giving customers a choice between two different ways of billing the service, and it’s our view that we have to… we honor the choice.

Anthony M. Kennedy:

But in the hypothetical case–

David W. Carpenter:

Yes.

Anthony M. Kennedy:

–suppose that you had agreed to provide the MOL billing.

Would that have been subject to filing as a… could you have filed that as a tariff if you had chosen to do so?

David W. Carpenter:

We could have certainly put in the tariff that the customer has two billing options, multilocation billing and network billing, and we think actually our tariff should be construed, given that we have these order forms that give people that choice, as imposing that obligation anyway.

Ruth Bader Ginsburg:

But didn’t you just say your tariff prevents… I’m really confused about your billing position, because I thought you had just said that your tariff says you will not allocate.

David W. Carpenter:

That’s right.

Ruth Bader Ginsburg:

So–

David W. Carpenter:

So whatever multilocation billing is or isn’t, it is not a case where we are assuming the obligation to allocate charges among locations.

Ruth Bader Ginsburg:

–But yet you did agree… you had a box to check off, and you agreed to provide this service for which the tariff didn’t provide, is that correct?

David W. Carpenter:

I suppose there would be two ways to look at this, and I’m… the first, which I’m not going to advocate, is that the service wasn’t authorized by the tariff.

It was therefore invalid.

That’s not our position.

Our position is that it was permitted under the tariff so long as it didn’t constitute an allocation of charges that gave them a right not to pay us, or to sue us for damages if we didn’t do it accurately, and that’s their claim here.

One thing to remember–

Ruth Bader Ginsburg:

Well, wasn’t… their claim is that… oh, that you–

David W. Carpenter:

–Their claim is that we didn’t accurately bill their customers on their behalf.

The tariff said we won’t accurately bill your customers on your behalf, and the FCC regulations say that that is a service that we can’t provide in exchange for payment of the tariffed rate.

The FCC has defined that as outside the scope of the regulated common carrier service that we offer.

That’s something that’s been deregulated.

So that… this is a situation where our tariff didn’t assume the obligation that they’re claiming, and in which the FCC’s regulations would have prevented us from trying to put the service that they’re claiming into the tariff.

Anthony M. Kennedy:

–But would it have prevented you from making a contract to do that?

David W. Carpenter:

No.

It would not have prevented that, but it would have had to be a separate contract for a separate consideration.

It’s… Judge Posner had a wonderful phrase–

Anthony M. Kennedy:

And would… and that would have been enforceable in State court or in Federal court on a diversity–

David W. Carpenter:

–Yes, that would have been enforceable in State court, because that would have been a contract for an unregulated service declared by the FCC to be outside the scope of common carrier communications services.

That would be a like a… if we had a separate contract, to quote Judge Posner, to sell them ugli fruit at a market price, that’s outside the common carrier relationship, just as it would be outside the common carrier relationship if we committed an intentional tort like libel, and the fact that someone happened to be our customer wouldn’t immunize us from a libel suit.

William H. Rehnquist:

–But the same doesn’t obtain for intentional interference with business relationships?

David W. Carpenter:

It does obtain if the intentional interference doesn’t arise out of a relationship with them as our long distance customer, so if we… they mention something here called slamming, which is when you change a long distance customer from someone else’s service to yours without authorization.

William H. Rehnquist:

Yes.

David W. Carpenter:

That’s a classic example of something that is quite independent of the customer-carrier relationship, but that wasn’t the basis for this judgment here.

William H. Rehnquist:

But would slamming be… would an intentional interference with business relationships manifested by slamming, would that be actionable in the State court?

David W. Carpenter:

Yes.

That would be actionable in the State court.

That would be actionable, but what’s not actionable in the State court are claims involving the rates or the obligations the carrier incurs in exchange for the rates.

That’s what’s not actionable, and the proposition–

Anthony M. Kennedy:

I don’t know why slamming… we don’t have time to go into all the economics.

I don’t know why slamming doesn’t have anything to do with that, just as I’m not quite sure I understand Nader, why overbooking doesn’t have to do with the rates the carrier–

David W. Carpenter:

–All right.

David W. Carpenter:

Well, let me respond to both.

When slamming occurs, generally the carrier that’s the victim isn’t your customer.

MCI occasionally changes our customers to it when they’re not authorized, so that’s something that has nothing to do with the fact, whether two carriers happen to be customers of one another.

It’s entirely independent.

It’s just fortuitous in this situation that in the two incidents of slamming that occurred, but they weren’t the basis for this judgment, that COT happened to also be our customer.

Now, with respect to Nader, that was a case, there was no filed tariff claim, and that was a case where the practice of disclosing overbooking or not… overbooking or not was outside the CAB’s definition of the tariff transportation service.

They had a regulation that specifically authorized common law actions in the event that there was nondisclosure of overbooking.

So the key thing is what’s within the scope of the agency’s definition and the statute’s definition of the regulated service, and if a claim involves the rates or the services to be provided in exchange for the rates, then it’s going to be governed exclusively by Federal law and Federal standards, and State law can’t be applied.

Antonin Scalia:

–How can you tell whether something is being given in exchange for the rates?

I mean, even the contract for ugli fruit, you know, you could get a sweetheart deal on ugli fruit because of the fact that you’re paying more for the rates.

It’s very hard to know what’s… you know, what is getting the benefit of the rates and what isn’t.

David W. Carpenter:

Well, that’s true, but there’s always going to be questions of law application in a case like that.

Posner suggested he’d have to prove that the ugli fruit was provided at a market rate.

In this case it’s easy, because the only relationship we had with COT is that they were our long distance customer.

The only thing we provided them was regulated long distance service, and the only thing they paid us was the tariffed rate, and this is a situation where the guarantees that they’re seeking, the provision in billing guarantees, weren’t in the tariff, so–

Antonin Scalia:

So if you did this for them, the only reason you would have done it was because of the rates that you got.

David W. Carpenter:

–That was our… yes, that’s right.

Stephen G. Breyer:

I thought there was a whole doctrine of law designed to answer that question, which I didn’t see here.

I mean, if in fact you have a generalized statutory framework like tort law or something, and Congress may have created an exception for certain activities that fall within the jurisdiction of an agency, and you have a tariff that may or may not cover those activities, and the court is uncertain about the extent to which this particular kind of activity does or does not fall within the tariff, or fall within the statutorily implied exemption, I thought there was a doctrine of law designed to cover that.

David W. Carpenter:

Primary jurisdiction.

Stephen G. Breyer:

Yes, exactly.

David W. Carpenter:

Yes, absolutely.

Absolutely.

Stephen G. Breyer:

Primary jurisdiction.

David W. Carpenter:

And if this case–

Stephen G. Breyer:

But nobody asked for primary… I mean, what are we supposed to do about that?

David W. Carpenter:

–Well, in this case there was no occasion to ask for a primary jurisdiction referral because the–

Stephen G. Breyer:

Because it’s obvious that it’s within the statutory exemption, implied.

David W. Carpenter:

–Your Honor, if they had brought this case under the–

Stephen G. Breyer:

I didn’t mean to cut you off.

Stephen G. Breyer:

You were just giving an answer.

Say what you said.

Say what you–

David W. Carpenter:

–Well, let me answer–

Stephen G. Breyer:

–Yes.

David W. Carpenter:

–what I was trying to say.

They brought this case under the tariff.

They didn’t bring this case under the tariff.

They brought it under State law, the State law standards.

If they’d brought it under the tariff we would have sought summary judgment on the ground that what we did didn’t violate the tariff.

If there’d been a close question there, it would have been referred to the FCC under primary jurisdiction.

We raised a Federal defense to their State law claims here, and it was rejected on the ground that the doctrine only applies to rates, so we didn’t… there wasn’t any occasion for a primary jurisdiction referral on the validity of the defense we asserted.

The… this is a situation where the Court could simply say the Ninth Circuit is wrong, that the doctrine applies only to rates, and send it back to the Ninth Circuit to let it review the trial court’s judgment again.

Ruth Bader Ginsburg:

Mr. Carpenter, before you leave the billing aspect of this claim, maybe you can clarify my confusion.

As I understand that claim, it is that you billed the customers directly, as was requested, the multilocation, but you gave the customers the full discount, which meant that the resellers lost the only thing that they were in the business for, that is–

David W. Carpenter:

That’s right.

Ruth Bader Ginsburg:

–And you then said here that you could have an agreement outside the tariff with regard to the billing options, so if you can have an agreement outside the tariff for the billing options, then why wouldn’t the breach of that agreement be a proper lawsuit for State court?

David W. Carpenter:

It would be an unlawful preference under the Wabash Rail and other decisions of this Court if we had given them a service outside the scope of the tariff at no extra charge.

The only way we could–

Ruth Bader Ginsburg:

Oh, I see.

You say you could do it outside–

David W. Carpenter:

–Right, yes.

Ruth Bader Ginsburg:

–but it has to be for an extra charge.

I understand.

David W. Carpenter:

And just… everyone’s very interested in multilocation billing.

It’s really only the basis for the decision that we weren’t entitled to recover the unpaid charges.

I don’t… couldn’t possibly support the lost profits award.

But with respect to that, remember, this is a service that we designed for large corporate customers that have locations in multiple cities Any reseller, any customer is entitled to get the service on the same terms as everybody else.

All the terms of the service reflect the needs of those customers.

These are customers that like multilocation billing because it allows them to do internal… some of them like it because it allows internal cost allocations.

David W. Carpenter:

If we make mistakes when we’re sending a bill to the customers for whom it’s designed, it doesn’t have any big consequences.

It’s just an internal cost allocation.

Now, it’s certainly true… I mean, I accept their claims that it does have consequences for resellers, but their right is to get the service on… you know, the service on the terms set forth in the tariff, containing only the service guarantees set forth in the tariff.

This service doesn’t have a guarantee they’re going to accurately bill locations every month because the large customers didn’t… you know, we didn’t think they cared enough about it to want to pay extra for it.

It’s important to these people.

I accept that.

Their way of getting it under this tariff and under the FCC’s regulations would have been to contract separately with us to provide that billing service at an extra market rate, and we do that all the time for resellers and other customers.

John Paul Stevens:

Mr. Carpenter, I lost part of your explanation.

You said that the choice between network billing and multilocation billing was available to them at no extra charge, as I under–

David W. Carpenter:

Yes, that’s right.

John Paul Stevens:

–So why should they have to pay extra for it to have a binding agreement to take one rather than the other.

They only have to pay extra to get it done right.

David W. Carpenter:

No–

[Laughter]

John Paul Stevens:

Yes.

David W. Carpenter:

That’s a very–

Stephen G. Breyer:

Well, it’s a tendentious way to put it, but–

David W. Carpenter:

–It’s a very… I think it actually… it does boil down to that.

If we were going to guarantee that we were going to accurately do that every month, we would be charging more.

There’s no such guarantee in our tariff, and we don’t ever guarantee… well, we guarantee some tariffs accurate billing, but it’s something that people pay extra for.

In this service, the customers for whom it’s designed didn’t care enough about this to want to pay extra.

Stephen G. Breyer:

–Isn’t it… this… I thought the answer to Justice Stevens’ question… correct me if I’m wrong, because I think it’s important… is that there are certain services that AT&T in our odd, sort of half-slave, half-free world that we have at the moment, provides on the free side and the FCC has a tariff, or has a rule, rather, that says certain kinds of areas don’t fall within the tariffs.

David W. Carpenter:

That’s right.

Stephen G. Breyer:

And it’s because of that rule, not because of any fairness or anything else in the situation, it’s because of that rule that you operate now in the nonregulated world, and once you’re in the nonregulated world, of course, contract law, tort law and every other law governs.

David W. Carpenter:

Right.

Stephen G. Breyer:

And that’s why, not because of the fairness of the situation or anything else, that had they paid for it they would have taken themselves within the scope of that rule–

David W. Carpenter:

That’s right.

Stephen G. Breyer:

–and thereby removed themselves from the tariff-regulated world.

David W. Carpenter:

Right.

Stephen G. Breyer:

Is that right?

David W. Carpenter:

Right.

Stephen G. Breyer:

All right.

David W. Carpenter:

And it would have been an unlawful rebate–

Stephen G. Breyer:

Yes.

David W. Carpenter:

–if we’d given them that unregulated billing service–

Stephen G. Breyer:

If you’re in the regulated world.

David W. Carpenter:

–for nothing.

Stephen G. Breyer:

If… as long… if they don’t pay for it, they’re in the regulated world defined by the FCC tariff… the FCC rule.

Am I right?

David W. Carpenter:

If all they–

Stephen G. Breyer:

Am I right?

David W. Carpenter:

–pay for is… if all they pay us is the tariff rate–

Stephen G. Breyer:

Yes.

David W. Carpenter:

–all they’re entitled to are services that are authorized by the tariff, and under the FCC’s rule the particular kind of billing service they want has to be provided outside the tariff in the deregulated world.

Stephen G. Breyer:

And the reason you said what you just said… I want you… I want to be sure I’m thinking about this right… is because when they don’t pay for it under a particular FCC interpretation of a statute or something, they fall within the regulated world.

David W. Carpenter:

I wouldn’t put it quite that way.

Stephen G. Breyer:

Well, how would you put it?

David W. Carpenter:

The way I would put it is that they’re entitled, in exchange for payment of the tariffed rate, to get services that are within the scope of the tariff.

If we give them something extra, that’s outside the scope of the tariff, whether it’s a regulated something extra, or an unregulated something extra, that’s a rebate and a preference.

This case is easy, because the something extra is unregulated and can only be provided in contracts and can’t be provided as part of the tariff service.

John Paul Stevens:

Well, is the option regulated or unregulated?

David W. Carpenter:

The–

John Paul Stevens:

When you give them an option, is that regulated or un–

David W. Carpenter:

–The option is regulated, because the option doesn’t encompass the things that would make it an unregulated service.

Unregulated is when we provide a… what’s unregulated is if we basically provide a service in which we were going to bill not our customer, but the customers of our customers.

Now, they say they’re a carrier.

John Paul Stevens:

–But as I understand it, you’ve told them that for no extra charge you will do that.

David W. Carpenter:

No.

For no extra charge, we have told them that we will send bills to whatever locations that they designate that will show on the bill a portion of the volume discount.

David H. Souter:

Bills to them, as distinct from bills to their customer?

David H. Souter:

Who are you billing when you–

David W. Carpenter:

This is the way in which we bill our customer.

David H. Souter:

–Right, so the bill is going to read, you, customer, pay so much for service at this location, as opposed to your… you, customer’s customer, pay this?

David W. Carpenter:

Right.

David H. Souter:

Okay.

David W. Carpenter:

That’s right.

That’s all we can do under the… the tariff governs the billing relationship between us and our customers.

If somebody wants a service in which we’re going to help our customers recover money for long distance service from their customer–

John Paul Stevens:

But as I understand it, the tariff doesn’t require you to do either of those options.

David W. Carpenter:

–What the tariff does is, it prohibits us from providing the service that they want.

John Paul Stevens:

It prohibits you from giving that option to the customer, because I thought you did give that option to the customer.

David W. Carpenter:

No, Your Honor.

We give the customer a choice between two ways of getting bills, neither of which can, under the tariff, constitute the allocation of charges.

The reason these services can be lawfully offered under the tariff and the customers can be lawfully given this option is that the billing service we offer doesn’t–

John Paul Stevens:

What you’re saying, as I understand it, is you can give the option pursuant to the tariff, but if you guarantee the option, they have to pay extra.

David W. Carpenter:

–If… they would have to pay extra if we guarantee we do it right, but the other additional factor is, is if we’re assuming an obligation for billing their customers, which is what they’re claiming, then it’s in the deregulated world that Justice Breyer referred to, and we can only do it by contract.

David H. Souter:

All right.

The part that I don’t understand is… I understand your last statement that if you’re going to bill the customer’s customer, that’s in the deregulated world.

You can only do it by separate contract, separate consideration.

What about the situation in which you bill your customer?

I thought you could not make a separate contract to bill your customer accurately for separate consideration because that would be at variance with the tariff.

David W. Carpenter:

That’s correct.

David H. Souter:

That is correct, okay.

David W. Carpenter:

That’s correct.

That’s correct, Now, you know, people could argue that the tariff should be construed as requiring us to do that, but basically the only service guarantees that are enforced against us are those that are expressed in the tariff.

That was what this Court held in the Kirby and the Davis and Robertson cases.

David H. Souter:

Well, I think in… perhaps in kidding around with one of the questions earlier you may have conceded too much, because I thought you were conceding that if the customer wanted the tariff service of multilocation billing done accurately, and wanted to be able to enforce it as an obligation to do it accurately, the customer would have to pay extra for it, separate consideration, and I think your answer is no, the customer… we simply cannot do that and the customer cannot do it.

The only thing we can do which adds or is different from what is in the tariff is to provide the entirely separate service of billing the customer’s customer.

That’s unregulated.

That, we can do it, that they can enforce by contract.

David W. Carpenter:

That’s correct, Your Honor.

William H. Rehnquist:

Thank you, Mr. Carpenter.

Mr. Hall, we’ll hear from you.

Would you tell us what was the basis for Federal jurisdiction in the district court here, Mr. Hall?

Bruce M. Hall:

Yes, Your Honor.

We sued under diversity.

May it please the Court… Mr. Chief Justice, may it please the Court:

We say that the Ninth Circuit should be affirmed on three separate grounds, one of which is the competitive relationships between the two companies under which the inter… pardon me, the intentional interference claim was filed, and the second one is that the Savings Clause in the Federal Communications Act saves the interference claim and saves our claim for wilful misconduct.

And our third reason, argument is that the tariff itself expressly provides for the action that we brought.

That particular section has not been mentioned so far in the discussions.

The competitor claims–

Anthony M. Kennedy:

Just on the last point, because I think it follows from what we’ve just been discussing with petitioner’s counsel, if the service is provided by the tariff then you should have sued under the Federal law sections 201 through 207 for violation of the terms of the tariff, or unreasonable provision of services in violation of the tariff, and you didn’t do that.

Bruce M. Hall:

–That is not raised here as an issue, Your Honor, but–

Anthony M. Kennedy:

Well, but it’s important because we’re trying to ask if there is a cause of action and, if so, what it is.

Bruce M. Hall:

–Well, there are two causes of action here, Your Honor.

One of them, the intentional interference, is simply totally outside of the tariff and is preserved by the savings clause and then separately from that it’s simply not within the cognizance of the Communications Act, the relationships between these two competitors.

Anthony M. Kennedy:

Well, if you’re right–

–But your case is… it seems to me it’s very important for us to understand whether or not you would have had a cause of action under this third argument that you mentioned that the tariffs did, in fact, provide this and it wasn’t being given.

It seems to me the answer to that is to sue under the Federal law.

Bruce M. Hall:

Your Honor, we have made the assumption, and I believe that AT&T has made the statement to the FCC to the same effect, that wilful misconduct is fully… can be sued under, and it is 2.3.1 of the tariff.

It is the section… it is the lead section of the tariff.

Stephen G. Breyer:

But surely a person cannot, by tariff, change the meaning of the Federal statute.

Bruce M. Hall:

Well, this has been–

Stephen G. Breyer:

So your argument is that… in fact, your claim… your claim, this kind of a claim, when we read the communications statute, the communications statute does not mean to preempt this kind of claim.

Bruce M. Hall:

–That is true, Your Honor.

Stephen G. Breyer:

All right.

Fine.

Either your argument arises under the tariff, or it doesn’t.

Bruce M. Hall:

Yes.

Stephen G. Breyer:

If it does, Justice Kennedy says go to the commission.

Bruce M. Hall:

Our third–

Stephen G. Breyer:

If it doesn’t, I say don’t the courts continuously… hasn’t this Court continuously, where it’s a close question, in the antitrust area, for example, said where the claim is, Judge, the communications statute, the regulatory statute isn’t meant to preempt this kind of claim.

Where that’s a close question, hasn’t this Court always said go first to the commission and see what they think?

Go first, get the interpretation of the tariff, get the interpretation of the statute, get their views on whether that’s so or not, and then come to court.

Bruce M. Hall:

–Well, on this instance, as counsel mentioned to Your Honor, they did not ask for a referral.

Stephen G. Breyer:

Maybe they didn’t, but what’s the judge supposed to do if he wants to follow the law?

Bruce M. Hall:

Well, I think the judge felt that the common law claims were well within his cognizance and the wilfulness conduct claim which we say is under the filed tariff itself, it is authorized by 203 (a), which as the filing of the tariff becomes the law, 201… pardon me, 2.3.1, which is the wilful misconduct cause of action, if you will–

Antonin Scalia:

Now, wait, do you read that as saying any State cause of action for wilful misconduct will lie?

I read it as saying that the limitations which the tariff has on liability, those limitations contained in the tariff do not apply in the case of wilful misconduct.

For example, (b) says… all of this is on page 10a of your brief, the blue brief.

I’m sorry, the petitioner’s brief.

(b) says the company is not liable for damages associated with service channels or equipment which it does not furnish.

Well, I suppose that if they intentionally somehow got you assigned somebody else’s equipment that was inferior, this wilful misconduct provision would eliminate that, that exemption.

Bruce M. Hall:

–Well, wilful–

Antonin Scalia:

But I don’t read it as saying that so long as it’s wilful you can bring suit for over… I mean, for charging you too much.

You think–

Bruce M. Hall:

–Definitely not that, Your Honor.

That would be rate, or rate-affecting, and we… our lawsuit–

Antonin Scalia:

–Okay.

Bruce M. Hall:

–is not rate or rate-affecting.

Antonin Scalia:

Okay.

So you ultimately have to get down to that argument.

Wilful doesn’t take you out of the box if you have to prove–

Bruce M. Hall:

No.

We read into that–

Antonin Scalia:

–Okay.

Bruce M. Hall:

–that it must not be rate-affecting as well, because we know the cases like Marco, where you had a collision between wilful misconduct and misrepresentation of rates.

This is not a misrepresentation of rates case, or rate-related, in our view, and counsel has mentioned, I believe, that the FCC might perhaps give guidance on these nontariffed items.

It hasn’t done so.

Stephen G. Breyer:

But don’t you have the obligation to ask them?

Stephen G. Breyer:

That is, why isn’t our problem, or is it… we say, of course, if it’s a tariff violation or the tariff was unreasonable under the statute, which you could also argue, you should have gone to the commission.

Bruce M. Hall:

Well, Your Honor–

Stephen G. Breyer:

Now, on your argument, which is, all that’s irrelevant because the statute doesn’t mean to preempt State unfair competition law, you still should have gone to the commission to get some determination about that.

Now, if you ran into a statute of limitations problem, maybe you file your case in the court and then ask them under primary jurisdiction to hold it while you go to the commission, but that would be your responsibility.

So why don’t we end up saying, at least it’s a close question, therefore you didn’t go to the right place?

Bruce M. Hall:

–Well, there’s quite a body of, I guess you’d call it negotiation in this area already, Your Honor.

I’m doing my arguments in reverse now, but in any event, the amici for us have come in, the large users, and put into their index a great number… they can’t, because of confidentiality, go into the details of those contracts, but they have put in a large number of subject areas which are exactly the subject areas that we’re talking about in our particular case.

AT&T at page 35 of its opening brief went into the same kind of listings of things that are associated with tariff items, or a part of… they called them the details a minute ago, that are all part and parcel of it, and as a matter of fact, we have in our own case where we went back after the amicus brief and… these are ER.

These are in the record, but they were not in my briefing, and simply looked at what AT&T gave us when we signed up for a software-defined network.

This is all part of what the court instructed was going to be part of the contract for these people to… the jury to work on.

Stephen G. Breyer:

But it’s a classic case, isn’t it, if you’re saying this is all too complicated, it’s absurd to think that people have to read all this, where you would go to the commission and say, commission, the statute requires reasonable rate services.

Their rate and services under a thing like that, nobody can understand that, and therefore it’s totally unreasonable, and therefore it’s outside the statute, and moreover, we get reparations.

Reparations, I take it, is something the FCC can award, or not.

Bruce M. Hall:

Well, Your Honor, maybe if we had the FCC guidelines type of situation with the Robinson-Patman Act, but here we have… the FCC doesn’t even want the filed tariff doctrine any more, and I don’t think as a practical matter we’d have much luck.

William H. Rehnquist:

Well, your complaint, Mr. Hall, was not of a violation of any provisions of the act, was it, or was it?

Bruce M. Hall:

Yes, Your Honor.

Under our… under 2.3.1, that takes its direct authority from 202(a) as the filing requirement, and 20… 2.3.1, which says the liability, if any, of AT&T for its wilfulness conduct is not limited by this tariff, and to us, that was extremely clear language.

William H. Rehnquist:

Well, then it seems to me your response to Justice Breyer’s question is not adequate, because section 208 seems to say that if you’re complaining about a carrier’s violation of the act you can file a complaint with the commission and the commission will adjudicate it.

Bruce M. Hall:

Yes, Your Honor, but this would render obligatory the 2.3.1.

It is a separate cause.

William H. Rehnquist:

What is… is that a regulation?

Bruce M. Hall:

That is part of the tariff, Your Honor, which has the authority of 2.

–203 (a).

William H. Rehnquist:

But how could a tariff repeal a part of the statute?

Bruce M. Hall:

It didn’t repeal it, Your Honor.

It simply gave, under the right of 203(a), wilful misconduct to the customer as a way of seeking redress.

Anthony M. Kennedy:

But why couldn’t he… why shouldn’t he, why mustn’t he do it under the Federal statute?

Bruce M. Hall:

Well, again, Your Honor, we are saying, and we have said–

Anthony M. Kennedy:

It says the company’s liability is not limited by the tariff, as I assume the company has to pay an amount that’s not set forth in the tariff in the event of wilful misconduct, but that is far different from saying that it must look to State law and that the customer can go to State law.

Your intentional tort, misconduct, interference, now is that brought under the… is that a violation of the act, or is that a State law claim?

Bruce M. Hall:

–That is a State law claim, Your Honor, which was brought under the savings clause and–

William H. Rehnquist:

Well then, then that you wouldn’t… even if we assume that you would have to go to the commission to get adjudicated a claim that what AT&T did was in violation of the act, if you’re not claiming a violation of the act, then presumably that would not apply and you wouldn’t have to go the commission.

Bruce M. Hall:

–Well, Your Honor, we are saying two things about our intentional claim.

First of all, we’re saying intentional claim is separate from the Communications Act.

It’s simply not within its purview.

It’s not the kind of a thing, the customer relationship, that the Communications Act addresses.

This is between competitors.

This… the… I believe the Court has probably seen in our opening brief where we had to state our position of facts quite differently from AT&T, is that we had a very classic intentional interference claim where they wished to put us out of business, and where–

Antonin Scalia:

Well, suppose they try to put you out of business by charging too much, charging more than their filed tariff allows for this service.

Bruce M. Hall:

–Well–

Antonin Scalia:

Would you have a separate State cause of action?

Bruce M. Hall:

–Your Honor, that one, we cited to you some antitrust cases, and two of those antitrust cases that we cited… these are in the circuits… City of Kirkwood and City of Groton, were ones where there were price squeezes, where the municipality had its price squeezed by the–

Antonin Scalia:

The prices charged were the tariff prices.

They were complaining that the tariff prices were set at such a level that there was a squeeze between what it cost them to provide the service and what they had to pay to the carrier.

Bruce M. Hall:

–I was trying to answer your question, Your Honor, only to say that the… that those issues have been considered.

That is not in our case, however.

Antonin Scalia:

Just answer my question.

Suppose you claimed that the way they were trying to harm you as a competitor was by charging you more than the tariff allowed, would you have a private cause of action for that either under 2.3.1 or anywhere else?

Bruce M. Hall:

I don’t think we would win, Your Honor, but we would certainly cite those two cases I just mentioned to you, because they do tend to support our position.

Antonin Scalia:

You see, I thought you had conceded that point.

In answer to my question earlier, when we were talking about wilful misconduct, I thought the position you took was that all that wilful misconduct applies to is wilful misconduct with regard to matters other than the tariffed items, but you’re now saying that it includes wilful misconduct even regarding the matters covered in the tariff.

Bruce M. Hall:

Both.

Yes, Your Honor.

Stephen G. Breyer:

Okay.

They can I… I’m trying to be helpful to you on this first part of the question.

I’m going back to the Chief Justice’s question, which was the question of let’s focus, forgetting all the tariff stuff, forgetting everything but your State claim, which you say was saved from the statute by the savings clause.

Bruce M. Hall:

Yes.

Stephen G. Breyer:

That’s, I take it, another way of saying that this statute, the Communications Act, does not mean to displace State law here.

Bruce M. Hall:

That is right, Your Honor.

Stephen G. Breyer:

All right.

Stephen G. Breyer:

Now, the case that’s most in your favor I think is Nader, isn’t it?

Bruce M. Hall:

It… I think it is also supported by Morales–

Stephen G. Breyer:

All right.

Bruce M. Hall:

–v. TWA.

Stephen G. Breyer:

All right.

If I think of Nader, I think of a case where this Court thought that the law, the State law was clear enough, given a decision by the agency that we want nothing to do with overbooking.

That’s a matter of State tort law.

In light of that, it’s clear enough that you can proceed in court without ever going to the FCC or the agency.

Bruce M. Hall:

Under–

Stephen G. Breyer:

All the antitrust cases say, it’s not at all clear.

We don’t know what this means, or whether Congress did or did not want to displace the Federal system of antitrust law, so go to the agency first.

We want their advice.

Now, why does your case fall within the first and not the second?

Bruce M. Hall:

–Well, Your Honor–

Stephen G. Breyer:

Why… in other words, my first take on it would be, of course Congress wanted to displace State unfair competition law.

At least it’s unclear.

Now, why is my initial take on that wrong?

Bruce M. Hall:

–Well, if I understood your correction… your question correctly, Your Honor, the antitrust claims that we cited did survive the Communications Act and filed rate doctrine objections.

These were Communications Act cases in one instance.

The other kinds of claims that are… that involve us also go under 414.

They go under the general competition viewpoint that let those antitrust cases go because they were not within the purview of the Communications Act, and we believe that’s a strong separate basis.

In the Ninth Circuit there was a cooperative communications case mentioned by both the dissent and the majority.

That one was one in which the minority praised the case, or the result, which was under the… 414 and also because it was an independent competitor claim.

Under both instances it was free from the filed rate doctrine and the problems that we had in the court below.

But what had happened was, it didn’t… the dissent did not recognize that we, too, are a competitor just as counsel advised the Court just a moment ago.

We’re a competitor just as much as the cooperative communication case that the dissent approved.

We have under 414… you were mentioning Nader.

In the later case of TWA v. Morales, in that particular case there was an amendment, the Airline Deregulation Act, to the FAA, and under that one the Court found a very strong preemption and strong related-to language.

Under both of those approaches, the State AG’s efforts to regulate went out the window, and the Court said in that particular case in citing Nader that the pre-1978 FAA, Nader… pardon me, the State AG’s would have been able to do exactly what they did do, or tried to do, I should have said.

And also, they added on that the States could have regulated intrastate rates of these carriers, and even the rates of interstate carriers that were intrastate, so that was a very strong case, and they relied upon the savings clause of the prior act, of the FAA act.

Bruce M. Hall:

That savings clause is word-for-word the same clause that we have in the Federal Communications Act.

Antonin Scalia:

Well, the response that AT&T makes to that, of course, is that how… you can’t possibly interpret a savings clause, unless you’re going to gut the Federal legislation, to save State law that positively contradicts the Federal law.

I mean, that’s interpreting it so much so that there’s nothing left of the Federal law.

Bruce M. Hall:

Well, there, Your Honor, I guess our answer to that has been that we can’t understand how attempting to put somebody out of business and wilful misconduct which included a mess of dirty tricks relates to the purposes of the Communications Act.

Antonin Scalia:

It depends.

If you try to… if your claim is that they tried to put you out of business by committing a violation of the Federal Communications Act, then you’re simply contradicting the Communications Act if you’re asserting that they should have provided you off-tariff services which the tariff… which the act does not permit them to provide.

Bruce M. Hall:

Well, again, Your Honor–

Antonin Scalia:

If that’s your business claim you’re contradicting the act.

Bruce M. Hall:

–We go back to the really quite a large body of work we have in this particular case where we have the… our amici, AT&T itself at various parts of its brief, in the materials I indicated to the Court that we received, we have a large body of, if not law, of business practice occurring now where a huge amount is not under the direct tariff language.

Nobody can tell a carrier what it puts into the tariff.

They may put in nonrate-affecting materials in there, so you have to look at everything to see whether they are or are not rate-affecting, and–

John Paul Stevens:

May I just–

Bruce M. Hall:

–Pardon me.

John Paul Stevens:

–I’m sorry, I didn’t want to… I thought you’d finished your answer.

Bruce M. Hall:

Excuse me, Justice Stevens.

John Paul Stevens:

I just want to get two things straight on the record for my own information.

Until Justice Breyer raised this question about primary jurisdiction, had the AT&T ever, or the district court or anybody else suggested that there was a primary jurisdiction issue in the case?

Bruce M. Hall:

No.

John Paul Stevens:

And the second question I have is, has the FCC… have they filed an amicus brief at any stage of these proceedings?

Bruce M. Hall:

No, Your Honor.

John Paul Stevens:

It seems unusual.

Bruce M. Hall:

We suggested they do, but they didn’t respond.

John Paul Stevens:

I see.

And the third… I guess my third question is, is it your claim that the matters of which you complain are outside the tariff or within the tariff?

Bruce M. Hall:

Your Honor, they are… it’s a strange mix, and I will tell you one of the reasons why, is that at the trial the AT&T tariff expert said that provisioning and billing, which are a large part of what we’re talking about here, are not in the tariff, and that has not helped us make a… this fine distinction here.

We have… in our pretrial order we listed the kinds of acts, and that’s in the J.A. We listed the kinds of acts that we’re complaining about, many of which would square off against tariff provisions and many of which would not.

A suppressed billing would not.

Deliberately trying to keep us from getting any cash would not.

Slamming, counsel just agreed, would not.

Misappropriation of our customers would not.

Bruce M. Hall:

So we felt that the wilfulness misconduct meant a lot more than going down the line of individual numbers below that to see what the breaches were.

We felt that wilful misconduct, under State law, which is the usual referral, meant a lot more than that just as intentional interference does.

Stephen G. Breyer:

What’s wilful–

Bruce M. Hall:

Some of these were much more, what would be commonly called intentional interference type actions.

Stephen G. Breyer:

–What is the difference between… let’s imagine in Maislin we have a trucking firm, and the trucking firm charges lower than tariff rates to a whole lot of shippers, a lot of them, and then later on they all go out of business when the trucking firm comes along and has to raise the rates.

Well, I mean, is that a matter not for the ICC?

Bruce M. Hall:

My–

Stephen G. Breyer:

Is that a matter… I mean, what’s the… there’s a filed rate.

The filed rate says you have to charge $1.

They charge 50 cents.

It was all in very good faith and so forth, and nonetheless the tariff said $1, so lo and behold they had to pay $1.

They all went out of business.

I mean, who knows what happened to them.

Bruce M. Hall:

–Well, we know that we’re all presumed to know the tariff, even though we don’t, and that was another–

Stephen G. Breyer:

How does your case differ from that, because what they’re saying as well, at worst, you know… at worst, accepting everything you say–

Bruce M. Hall:

–We–

Stephen G. Breyer:

–This is an instance where they filed tariffs as to services.

They say what it is.

Perhaps wrongly, AT&T goes and gives some different services, or it doesn’t do what it said in the tariff, or whatever, just like those trucks in Maislin, and now you’re hurt, but we said in Maislin, follow the rate–

Bruce M. Hall:

–Well, Your Honor–

Stephen G. Breyer:

–follow the tariff.

Follow the file.

What’s the difference?

Bruce M. Hall:

–We… we’re paying the rate.

There’s no question about that.

Stephen G. Breyer:

The rates and services are treated alike, aren’t they?

It’s rates, service–

Bruce M. Hall:

Rates affecting… I mean, services affecting rates under the Federal Communications Act, which makes a big difference, and there were a lot that AT&T says in this courtroom and has said in its briefing, and the amici have said, do not affect rates, and most of what we are talking about here, that we are certain does not affect rates and it’s been mentioned before about this MLB LABO network comment in the AT&T brief, where they said that while these may have value there’s no charge for them.

Antonin Scalia:

–Well, I… you know, I think it’s easy to say that selecting between, what is it, multiple location billing and the other billing, selecting between one or the other doesn’t affect rates.

They’re willing to give you the option.

Antonin Scalia:

It apparently cost them no more to do the one than the other.

But selecting between multiple location billing in which they make sure that what’s billed to that location is only the stuff that’s been charged to it, and whatever else, that is something that affects rates, because the tariff says you’re not going to get that, and because it does take a lot more expenditure on their part and they’re not willing to provide it without more money.

How can you say that that doesn’t affect rates?

Bruce M. Hall:

Well, that, Your Honor, leads to another conundrum within this language we have here.

AT&T said in its tariff that LABO was available.

That’s another one of these accounts, location account billing, and lo and behold we, when we went into contract with them, were put on LABO, not MLB and not network.

We were put on LABO.

LABO, under their tariff, is impermissible to us.

It’s for franchised operations where there’s common ownership.

They stuck us into LABO and that, I think Justice Ginsburg mentioned, all the funds then went to our end users and left us to fight it out with them, one of the many reasons we lost all of our accounts.

Antonin Scalia:

Now, that was a violation of the tariff, you say, because–

Bruce M. Hall:

That was a violation of the tariff.

At the same time–

Antonin Scalia:

–And you’d have a remedy for that at the Communications Commission, right?

Bruce M. Hall:

–You could, but it’s also a part of wilful misconduct if it’s intentional and if it’s a part of all of these other things I’ve been mentioning.

Antonin Scalia:

So any intentional violation of a tariff you can go under State law.

Bruce M. Hall:

Your Honor, I think that any… you have to prove wilful misconduct, but it’s a separate matter and it has equal dignity.

We’ve mentioned the Primrose case from this Court in 1894, where this Court said you have to… you, utilities, have to provide for liability for–

Antonin Scalia:

Do I have to agree with you on that in order for you to win the case, because I find that an extraordinary proposition, that even for the most clear tariff violations you can sue under State law, so long as they have been wilful.

It just–

Bruce M. Hall:

–And so long as they are not rate-affecting.

I’m ready to–

Antonin Scalia:

–Ah.

Ah.

Bruce M. Hall:

–can certainly concede that.

Antonin Scalia:

I see.

Bruce M. Hall:

That’s… we’ve always said that, Your Honor.

Antonin Scalia:

And so long as they are not rate-affecting.

Bruce M. Hall:

Yes.

We have to make that analysis of it, and I’m sorry if I didn’t say it correctly, Your Honor.

Antonin Scalia:

Well, is there anything in the tariff that is not rate-affecting?

Bruce M. Hall:

Yes.

There are many things that were… that are not rate-affecting in a tariff.

The tariff… they are required to put what is rate-affecting in the tariff, but they go down and file thousands of tariffs.

They can put nonrate-affecting things in there just as easily as rate-affecting if it serves their purposes.

Antonin Scalia:

I see.

I see, and what… okay.

But that… doesn’t that get you right back into the preference that was the whole purpose of the filed rate doctrine?

I thought the filed rate doctrine said you put everything in your tariff and these are the terms.

All takers get the same thing.

But if you then say there are some things that are not rate-affecting, that you put those outside the tariff, it seems to defeat the whole purpose of what the filed rate doctrine… which may be passe, but that’s another matter.

Bruce M. Hall:

Well, Justice Ginsburg, again I have to… the real world that has been shown here in the evidence by both sides, I’ve cited page 35 of their opening brief and 13 and 14 of their closing brief, all the materials that were submitted by the amici, and those of our own, in the actual working world they all accept these as part of… gap-fillers, as they call them, or details, as it was called by counsel, as part of the tariff.

Those are not antithetical with it.

They’re consistent with the tariff.

Antonin Scalia:

No, but Justice Ginsburg was talking about matters set forth in the tariff, not these side agreements.

Bruce M. Hall:

Okay.

Yes, Your Honor.

Antonin Scalia:

Your position is that even some things set forth in the tariff don’t affect the rates, and you can sue for failure to provide those provisions under State law so long as they’re not rate-affecting, and I just find that a difficult problem.

Bruce M. Hall:

Well, Your Honor, AT&T made no effort at trial to make any such distinctions.

I’ll come back to that in just a second, because I also want to say that AT&T at trial made no such arguments as they’re making here today that there were preferences, that there were rebates and so forth.

There’s an absolutely silent record on that.

In the intentional interference claim that we filed, if… the pre-trial order is in the J.A., and in that, Your Honor, you will find that they raise the defense of commercial privilege or comparative privilege alone, no such thing as filed rate doctrine defense.

When they requested instructions for the judge to give, they did not ask for any instruction that the filed rate doctrine opposed the intentional interference claim.

It doesn’t.

William H. Rehnquist:

But the Ninth Circuit passed on that question.

Bruce M. Hall:

The united… the Ninth Circuit said more than it should have there, Your Honor, because it simply overlooked our position.

Stephen G. Breyer:

Your view is they waived it, is that right?

You’re saying they waived it, that they… they came in and brought an ordinary State law tort suit.

You won, they lost.

Nobody says a word about tariffs to the FCC, and now you’re saying nobody raised this till appeal, so it’s waived.

Stephen G. Breyer:

Is that the point?

Bruce M. Hall:

At the trial, Your Honor… I’m merely pointing out that intentional interference–

John Paul Stevens:

Mr. Hall, at page 51 of the Joint Appendix, the pretrial order, (g), first affirmative defense, filed tariff doctrine.

Bruce M. Hall:

–Is that under intentional interference, Your Honor?

John Paul Stevens:

Well, it’s their first affirmative defense.

I don’t know if… so they at least have talked about–

–All right, so–

Bruce M. Hall:

I may have misspoken myself, but I’m awfully certain that under the intentional interference claim they did not raise the filed rate doctrine.

Stephen G. Breyer:

–If we’re speaking practically, is there anything impractical about the following: you file your complaint in court to protect against the statute of limitations.

You then go to the commission and raise all your claims having to do with the tariff.

You might win.

If you lose, at least there’s a good chance there’ll be something that comes out of the commission that clarifies the remaining question, namely the question of whether, if you lose everything within the tariffs, nonetheless, nothing preempts the operation of State law in this area.

Now, as a practical matter, is there anything wrong with that, which is what I thought that… you know, there are quite a few cases that suggest that’s the right route.

Bruce M. Hall:

Well, reserving that, we thoroughly believe we have the right to file an intentional interference claim and if it weren’t linked to this other one we wouldn’t even be here today, in our opinion.

But secondly, Your Honor, as a practical matter, going to the… taking the referral and coming to Washington, D.C. from Portland, Oregon is a big financial matter.

Anthony M. Kennedy:

I take it the argument of AT&T is that if you had been simply a competitor and not a customer, there might have been a cause of action here, but the customer relation trumps your standing as a competitor.

Is that their argument?

Bruce M. Hall:

That seems to be their argument.

Anthony M. Kennedy:

Do you have some cases that refute that?

Bruce M. Hall:

Well, I would simply say, Your Honor, that the ones that we cite at the very beginning of our case, of our answering brief, responding brief, suggest that a number of these have gone forward despite the Communications Act and filed rate doctrine.

William H. Rehnquist:

Thank you, Mr. Hall.

The case is submitted.