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AT&T v. NOS COMMUNS.

March 4, 1993

AMERICAN TELEPHONE & TELEGRAPH COMPANY, Plaintiff,
v.
NOS COMMUNICATIONS, INC. and NOS, INC., Defendants.


BARRY


The opinion of the court was delivered by: MARYANNE TRUMP BARRY

I.

 Currently before the court is the motion of plaintiff AT&T for summary judgment on Counts I and III of the complaint. Count I alleges that NOS Communications, Inc. and NOS, Inc. (together "NOS"), beginning in 1990, subscribed to and used a long distance telephone service called Software Defined Network service ("SDN") offered by AT&T pursuant to F.C.C. Tariff No. 1, that AT&T presented a bill for such service, and that the bill was not paid by NOS. Complaint, Count I. Count III makes similar allegations with regard to a different long distance telephone service offered by AT&T, called Distributed Network Service ("DNS"), to which NOS Communications, Inc. subscribed and used beginning in June, 1991. Complaint, Count III. This service, too, is offered pursuant to a tariff filed with the F.C.C. The thrust of the counts of the complaint on which AT&T now seeks summary judgment is that NOS subscribed to a long distance telephone service governed by a filed tariff, received the service, was billed, and did not pay.

 NOS has filed an answer to the complaint and counterclaims alleging attempted monopolization of the relevant market, violations of the Communications Act of 1934, unfair competition, tortious interference with contract and business advantage, breach of contract, misappropriation of trade secrets, and slander. *fn1" More particularly to the motion sub judice, NOS asserts that summary judgment is not appropriate on Counts I and III of the complaint because AT&T did not provide the services it was obligated to provide under the tariff.

 II.

 Many of the facts underlying the instant motion are undisputed. NOS is a switchless reseller of interstate long distance telephone services. Affidavit of Neal B. Bobys, dated February 5, 1993 (hereinafter "Bobys Aff.") P 2. As such, it does not operate its own switching system but, rather, subscribes to a long distance network established and operated by a facilities-based carrier, such as AT&T. Id. AT&T is required by the Federal Communications Commission ("FCC") to offer for unlimited resale any long distance telecommunication service it provides under tariff. In re Regulatory Policies Concerning Resale and Shared Use of Common Carrier Services and Facilities, 60 F.C.C.2d 261 (1976), recon., 62 F.C.C.2d 588 (1977), aff'd sub nom., AT&T v. F.C.C., 572 F.2d 17 (2d Cir.), cert. denied, 439 U.S. 875 (1978); In the Matter of Regulatory Policies Concerning Resale and Shared Use of Common Carrier Domestic Public Switched Network Services, 83 F.C.C.2d 167 (1980). Included in this are the SDN and DNS services provided under AT&T Tariff No. 1.

 AT&T contends in support of its motion for partial summary judgment that it provided long distance telecommunications services to NOS and billed NOS under a filed tariff and that NOS has failed to pay for those services. This, AT&T urges, is sufficient to warrant partial summary judgment. NOS, not surprisingly, does not share this viewpoint. Rather, NOS claims that there is a genuine issue of material fact as to whether AT&T provided the network services consistent with its obligations under the tariff and that, until this factual dispute is settled, it need not pay the amounts which AT&T claims are due.

 III.

 Prior to discussing the state of the factual record before the court, it is helpful to examine the parties' differing views as to the governing law. NOS does not take issue with the filed tariff doctrine, which provides that "a regulated carrier must charge the tariff rate established with the appropriate regulatory agency, even if it has quoted or charged a lower rate to its customer." Marco Supply Co. v. AT&T Communications, Inc., 875 F.2d 434, 436 (4th Cir. 1989) (emphasis in original); see also Louisville & Nashville Railroad v. Maxwell, 237 U.S. 94, 59 L. Ed. 853, 35 S. Ct. 494 (1915). Rather, it contends that the filed tariff doctrine is inapplicable here and that it need not pay AT&T the money owed for services up front where it disputes whether the services were provided as required by the tariff.

 The parties were unable, after abundant briefing, to locate any case factually on point. In support of its motion, AT&T cites ample authority relating to the filed tariff doctrine. All of these cases, however, relate to challenges made to the rates charged by the carrier. *fn2" As NOS points out, it does not dispute the rates it was charged but, rather, claims that the services provided were not those which AT&T had an obligation to perform under the tariff. The only case dealing with a party's refusal to pay a tariffed rate due to a dispute over the nature and extent of services provided, and cited by both parties, is Mocatta Metals Corp. v. ITT World Communications, Inc., 54 F.C.C.2d 104 (1976).

 Mocatta involved a dispute between Mocatta and ITT over international telecommunications services to be provided by ITT pursuant to a contract governed by a filed tariff. Id. at 106-07. Following delays and problems in installation and service, Mocatta withheld payment for the services. Id. at 107. Eventually, after a temporary court ordered stay was lifted and the FCC refused a stay, ITT terminated service for nonpayment. Id. at 114-15. Mocatta brought an action against ITT alleging breach of contract, negligence, violation of section 201 of the Communications Act of 1934, rendering a bill in excess of the amount owed, and failure to comply with certain portions of the tariff.

 The administrative law judge ("ALJ") began his analysis of the legal issues by noting that "a carrier's filed tariff is controlling on the rights and obligations of the customer and the carrier." Id. at 115. In light of this, he characterized the issues before him:

 
With reference to this proceeding, the basic issue pervading all of the specified issues in this controversy between the complainant, Mocatta, as customer, and the defendant, ITT, as common carrier, involves a determination of whether the services contracted for under a filed tariff were in fact provided. ITT's filed Tariff No. 43 concerns the provision of socalled Private Line Overseas Channel Service encompassing "requisite channel facilities for direct transmission of record communication or of alternate record and voice communication ...

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