American Telephone & Telegraph Company v. Central Office Telephone, Inc. Page 16

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

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

Audio Transcription for Oral Argument - March 23, 1998 in American Telephone & Telegraph Company v. Central Office Telephone, Inc.

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.