American Telephone & Telegraph Company v. Central Office Telephone, Inc. Page 2

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.

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.