*4 submittеd its a charges third-party bill- DeMOSS, Before STEWART and ing aggregator with whom Brittan had a DENNIS, Judges. Circuit contract, namely Billing Concepts' or its (collectively “Billing subsidiaries Con- STEWART, Judge: CARL E. Circuit cepts”). Billing Concepts performed bill- Brittan Communications International ing aggregation multiple services for long- (“Brittan”) Corporation against filed suit providers, including distance Brittan. Bill- Telephone Company Southwestern Bell ing Concepts aggregated charges Brittan’s (“SWBT”) in alleging, Texas state court with long-distance providers those of оther alia, inter violations of the Communica- and submitted them to SWBT.1 SWBT (“the Act”), tions Act of 1933 common law place would then charges Brittan’s on the fraud, and violations of the Decep- Texas telephone bills of its local service custom- (“DTPA”). tive Trade Practices Act ers, due, payments collect the and forward SWBT removed the case to federal court the monies Billing Concepts. received to and filed for motions on the Billing Concepts would then transfer the pleadings summary judgment. On funds to Brittаn. 9, 2001, November the district grant- court ed, alia, inter motion judg- for 9, 1998, On November SWBT no pleadings ment on the with respect to Brit- Billing Concepts tified it would no tan’s claim under the Communications Act longer Brittan, accept billing records from and motion summary judgment with following day. effective the Brittan al respect to Brittan’s fraud claim and its lowed its customers to continue to make claims under the DTPA. The district calls, long-distance for which Brittan had court issued a final judgment and Brittan Lessors, pay but Brittan was unable appealed. reasons, following For the to bill those customers through SWBT. affirm. SWBT, According to suspended response services for Brittan in large to a
FACTUAL AND PROCEDURAL of “slamming” number “cramming” BACKGROUND complaints by SWBT’s customers.2 began operating September 1998, as a switchless approxi SWBT received long-distance telephone reseller of mately complaints 2400 customer associat- 1. Brittan and SWBT did not "Cramming” have a contractu- charging refers to a customer however, ordered, relationship. Billing Concepts, al for sеrvices that were not autho- rized, "Slamming” or received. had a refers to and collection contract with switching long-distance provider customer’s SWBT. without the customer's consent. provid- imposed long-distance new fees Concepts had Billing charges that with ed In late the Federal Communica- billing. ers to SWBT tendered (“FCC”). al- a random The FCC conducted tions Commission SWBT October customer providers pass long-distance 100 of these lowed sampling of results September. from Brittan si- complaints on to these fees customers.3 that more com- survey complaints indicated multaneously contends than against filed had plaints survey been to errors in elec- in the were due provider long-distance any other allegedly codes caused tronic transmission Concepts. Billing through by SWBT. wrote to On November 16, 1998, representatives November On it intend- Concepts explaining Billing SWBT, Concepts, and Brittan Billing charges generated billing of suspend toed During call. in a conference participated Concepts could Billing Brittan unless call, Concepts this 7, 1998, of SWBT, by November inform Billing Concepts would decide agreed that not do so. Un- why it should any reasons billing would be or not Brittan’s contract terms of der the Brittan claims that SWBT’s reinstated. obligated Concepts, SWBT *5 that representative stated which, in “[cjharges for services process to as soon as promptly be restored would in nui- may result opinion, sole SWBT’s for- Concepts the decision to Billing made 6, On November to SWBT.” calls sance records to ward Brittan’s SWBT. Conсepts plac- 1998, Billing Brittan wrote 1998, 24, Billing or November On about sample in the complaints for the blame that Brittan informed Concepts SWBT 9, On November Brittan’s Lessors. on on SWBT’s should be reinstated 1998, Billing Concepts notified SWBT 1998, IS, SWBT tables. On December billing rec- longer accept would no SWBT charges billing Brittan-generated resumed 10, Brittan, effective November from ords money collected Concepts. Billing for adequate 1998, received it had not because Billing Con- paid to from those bills was that the Concepts from assurаnces of business. normal course cepts in the in be reduced complaints of would number Billing Con- In its letter to future. 2000, brought suit In June must that Brittan indicated cepts, SWBT dam- seeking court against SWBT state plan specific action provide suspension of ages stemming from in order to complaints to reduce designed re- services. SWBT and collection plans action regain privileges. “These court filed case to federal moved the fu- to address specific, and need be must pleadings on the judgment for motions actions, past failures.” not reasons for ture On November summary judgment. for Brittan, survey of According to granted SWBT’s the district court in favor of complaints was skewed Brit- judgment. final and entered motions WorldCom, customer, Concept’s largest appeals., tan Brittan contends Brittan. cramming and engaged in it never DISCUSSION cramming com- of the so-called all following issues on presents merely calls survey in the were plaints (1) court the district appeal: whether unfamiliar with who customers were from extensive it, have taken slamming, but every long- claims like 3. Brittan concedes that problem. steps to address problems with had provider, has distance granting judg- erred in SWBT’s motion for It any shall be unlawful for common pleadings any unjust ment on the on Brittan’s claim carrier to make or unreason- charges, practices, under Title II of the Communications Act able discrimination in 202(a); classifications, regulations, facilities, § 47 U.S.C. whether or services for or in connection with granting the district court erred in sum- like service, directly communication mary judgment for or indi- SWBT on Brittan’s device, rectly, by any claim; means or or to common law fraud give any or make undue or the district court unreasonable granting erred sum- preference or advantage any particu- mary judgment Brittan’s person, lar class of persons, locality, DTPA, claims under the TEX. BUS. & or to any particular person, 17.45(5) class §§ COM. CODE ANN. 17.46(b)(5) (7). persons, locality to any undue or prejudice
unreasonable or disadvantage. 202(a) (2001). 47 U.S.C. 202(a) I. Section the Communications Act aptly Thе district court looked guidance from the agency FCC —the We review the charged with administration of the Com pleadings pursuant on the to Federal Rule munications Act—in determining whether 12(c) of Civil Procedure de novo. St. Paul Brittan’s claim fell within scope Fire & Marine Ins. Co. v. Convalescent 202(a). reviewing After pertinent Serv., Inc., (5th 193 F.3d Cir. decisions, FCC the district court deter 1999). so, In doing we must look mined that “the relevant principle that can pleadings accept allegations all be extracted from these FCC dеcisions is *6 contained therein as true. Id. Pleadings and collection services that do should liberally, be construed judg not utilize communications over the com pleadings ment on the appropriate only is mon carrier’s wire or radio facilities are if there disputed are no issues of material not regulated ‘communications services’ by fact questions of law remain. Thus, Title II of the Communications Act.” Voesh-Alpine Trading Corp. USA v. Bank the district court concluded that Brittan China, 887, (5th Cir.1998). 142 F.3d 891 of 202(a) alleged had not cognizable a whether, “[T]he central issue is in light the agree claim. We that the FCC has stated most plaintiff, favorable to the the com a position clear light this issue. In of plaint states a valid claim for relief.” the position, FCC’s agree we with the Inst., Hughes Inc., v. The Tobacco 278 district court’s conclusion. generally See (5th 417, Cir.2001) F.3d 420 (quoting St. FCC, Verizon Communications Inc. v. 535 Williamson, Paul Mercury Ins. Co. v. 224 467, 1646, 1687, U.S. 122 S.Ct. 152 L.Ed.2d (5th Cir.2000)). F.3d 440 n. 8 701 (reinstating pricing FCC unbundling they rules because effectuated II Title of the Communications Act Act). a reasonable interpretation of the outlines the duties of common carriers in provision the of foreign interstate or com To position, discern the FCC’s we look munication services and proce establishes history to the purpose of agency’s the dures for enforcement of those duties. 47 decisions. In the FCC a issued deci- §§ U.S.C. 201-224. Brittan claims that sion which resulted in the detariffing of temporary suspension billing billing of and collection services under Title 202(a) and collection services violates of II of the Act. In thе Matter Detariffing of 202(a) the Act. Section states Services, as follows: & Collection of its the FCC reexamined both (1986). analyzed The FCC F.C.C.2d the jurisdiction regulate post-breakup Title II under jurisdiction scope of its and collection provision of LECs’ following: stated desirability of continued services and asked must be questions Two distinct acknowledged regulation. The FCC particular a to determine order jurisdiction longer exercise that it could no regu- Title II subject to activity is such services billing and collection o ver activity an interstate Is the lation. II the Act be of Title of on the basis service? Is communication foreign apparent cause it was now —after the service as entity offering person were not breakup these services carrier bill- —that Although carrier? common Instead, carrier services.” “common for a communication collection ing and jurisdiction this area on rested its individually or as a that it offers service (or regulate Title I to authority under an carriers is offering other joint “incidental” to the services deregulate) ser- a communication part of incidental wire. transmission communication billing or vice, that carrier believe Moreover, that the LECs were seeing un- offering another col in the facing competition not a communica- carrier is affiliated area, and therefore that a market lection II Title purposes service tion developing, it de services was for these , Act. the Communications all, regulation of rate cided to eliminate added). Rather, ¶ (emphasis Id. provid services billing and .collection billing and collection explained FCC interexchange carri ed the LECs ser and administrative were “financial ers. ¶ Thus, according to the Id. 32. vice[s].” FCC, 909 F.2d Pub. Comm. Serv. pro FCC, “billing and collection of Md. (citations (D.C.Cir.1990) omit 1510, 1512 exchange carriers are by local vided ted). II Title regulation under ¶ 34; Int’l Audiotext see also Act.” Id. re that the FCC has Brittan contends Network, Telegraph and Inc. v. American years from earlier in recent treated Co., F.Supp. 1223-24 Telephone and collection services position *7 (S.D.N.Y.1994) col billing (noting that and services, administrative financial and are exchange provided by local services lection it Although II. scope Title outside the of un subject regulation to are not carriers has the FCC moved may true that be includes 47 Act which II of the der Title billing and that position the away from 202(a)); the Matter Policies In U.S.C. financial of and admin services are Exchange Concerning Local and Rules services, рersuade does not this istrative and Validation Carrier billing Informa and collec the to conclude that us Cards, 7 Calling F.C.C. Use tion Joint fall in this case with at issue tion services ' (1992) (affirming that n.50 Rcd. 3533 cited no FCC has II. Brittan in Title course, collection, remains of “Milling its has altered FCC decision which the II it is scope of Title because outside and collection services billing that view service”). carrier common not a long- to unaffiliated by LECs provided of scope fall outside providers in re- distance analysis conducted its FCC The Federal- the Matter II. In Title See landscape of the changed sponse to the of Service, on Universal State Joint Board industry due to the telecommunications (1998) ¶70 24,744, n.87& Rcd. 13 F.C.C. As the D.C. System. breakup of the Bell collection services (finding that explained: Circuit II, only are to Title but to a at as stances or before the time of alleged collections). billing and extremely unlikely carrier’s own fraud —it is that there ” Likewise, plaintiffs Brittan has cited to no case is actual rebanee on part.’ Quest holding Exploration collection services Dev. Co. v. Transco (5th Co., Cir.1994) Energy scope fall 24 F.3d within the of Title II. Alterna- (quoting tively, Group, Brittan contends that Haralson E.F. Hutton the FCC’s Inc., (5th Cir.1990)). position arbitrary, is it F.2d thus should not be by afforded deference this Court. dis-We appeal, On Brittan argues that it agree. Accordingly, type because the by was misrepresentation harmed SWBT’s asserted Brittan fall does not regarding the resuming time frame for II, scope within the of Title affirm for Brittan. According services to grant district court’s motion for Brittan, during the November 1998 confer judgment pleadings regard on the call, ence SWBT assured Brittan that it 202(a) Brittan’s claim. would promptly “resume for Brittan as Bilhng Concepts soon as willing was II. Fraud Claim billing.” forward the Brittan contends summary We review the that it representations relied on these judgment de novo. Mowbray v. Cameron decisions, making business impor most Tex., (5th County, 274 F.3d Cir. tantly allowing its customers to continue to 2001). Summary judgment appropriate is long use distance at expense. genuine when the record “nо indicates The district court concluded that Brit- any issue toas material fact tan’s theory fatally was fraud be- flawed moving party is entitled to aas cause Brittan faded to claim that it matter of law.” FED. R. P. 56. CIV. justifiably alleged relied on the misrep- “Questions of fact are reviewed in light SWBT, resentation an element of the most favorable to the ques nonmovant and claim. parties agree that at tions law are reviewed de novo.” Mow- call, end of the conference the decision bray, at 274 F.3d 278-79. when, if, Billing Concepts would prove order to fraud under submitting resume Brittan-generated law, (1) Texas Brittan must that: charges show entirely to SWBT was up left SWBT made a material representation; to Biding Concepts, not SWBT. As the (2) (3) false; that was SWBT knew that situation, district court summarized the recklessly false made it without “[b]ecause Brittan was aware Bill- truth; knowledge of its intend Concepts may agreed have ever ed to induce Brittan upon repre to act resume submission of Brittan’s sentation; actually justifi SWBT, charges to prоve cannot *8 ably upon representation; relied the and that justifiably it upon acted the alleged (6) injured Brittan was as a Ernst by result. (emphasis misstatement SWBT.” Young Co., & L.L.P. v. Pac. original). Mut. Ins. agree. Examining We the Life (Tex.2001). S.W.3d The dis- “facts and circumstances at or before positive element here is whether Brittan fraud,” the time of alleged the it is justifiably upon representation. relied the clear that neither Brittan nor SWBT “[djetermination A justifiable of reliance knew if Brittan’s billing services were turns on given plain going the fraud by rеstored be Con- ‘whether — tiffs characteristics, abilities, individual reliance, cepts. Any actual, if even was and appreciation of facts justifiable. and circum- not Any alleged misrepre- (Tex.1998). “consum DTPA defines the regarding by SWBT sentation individual, cor partnership, [or] restore as “an take to er” time it would of length meaning- acquires essentially ... who seeks or poration billing services when, lease, any goods of or services.” the decision or purchase given that less rested with ANN. if, & COM. to resume TEX. BUS. CODE 2002). 17.45(4) (Vernon as a qualify Concepts. To § standing to consumer, to have and thus reasons, the affirm foregoing For the DTPA, satisfy Brittan must the sue under judg- summary of court’s district (1) sought it have requirements: must two claim. fraud Brittan’s on for SWBT ment by purchase or services acquired goods or Claims DTPA (2) III. lease; goods or services the or of must form the basis or leased purchased al that claims v. Terrell & Gar Cameron complaint. the November during the leged misstatement (Tex.1981). Inc., rett, its 618 S.W.2d basis for forms the call conference per “false, lаcking, is mis requirement “If either committed that SWBT claims prac of act or deceptive acts” in violation a deceptive aggrieved or son leading, 17.46(b)(5) (7), unconsciona and acted law or some to the common tice look § must 17.45(5).4 The district §of Id. bly statutory provision in violation redress.” other summary judgment granted SWBT under imposed liability court to be For As we ex claims. DTPA Brittan’s DTPA, deceptive conduct the defendant’s district above, we review plained with” a “in connection have must occurred de summary judgment of grant. court’s v. U.S. Amstadt transaction. consumer (Tex. novo. 644, 649 Corp., 919 S.W.2d Brass 1996). action a of maintain cause To DTPA, es Brittan must the Texas
under is not that Brittan argues (1) under the a consumer it is that tablish meaning of the within a “consumer” respect claim with DTPA DTPA Brittan bases DTPA because false, mis a SWBT; committed wrong that SWBT on its claims contention 17.46(b) § under deceptive act or leading, billing and suspended its fully or im DTPA, express an breached of promptly not SWBT did and that uncon engaged in an warranty, or plied does not serviсes. reinstate these action; and course of action or scionable problems encountered of cause producing acts these were and collection quality of Bank Brown v. damages. actual Brittan’s themselves. N.A., 513 services Galveston, 963 S.W.2d prac- act or an DTPA "means 17.46(b)(5), tion” under the "representing Under detriment, which, takes a consumer's tice approval, sponsorship, have goods or services ability, knowledge, uses, benefits, advantage the lack or characteristics, ingredients, to a consumer experience, capacity or that a they or do have quantities which & COM. status, degree.” BUS. TEX. grossly unfair approval, sponsorship, person has a 2002). 17.45(5) (Vernon "To affiliation, CODE ANN. he does not” which or connection course or action prove an false, Un- unconscionable misleading, act. deceptive is a action, the defen- show that plaintiff must goods 17.46(b)(7), "representing §der *9 knowledge standard, advantage of his lack quality, dant took particular a are of services glaring- resulting unfairness that the particular a goods are of grade, or noticeable, complete and unmiti- flagrant, ly model, they is a are of another” style if 749, Vento, 48 S.W.3d gated.” v. Finally, false, deceptive act. misleading, or Bradford omitted). (internal (Tex.2001) quotations ac- 760 course of action or an "unconscionable claim, In Distributing Corp. American I respectfully ACS dissent on the Com- Communications, Inc., this Court held munications Act and common law fraud that a former exclusive distributor’s claim claims for following reasons. supplier unilaterally a who termi nated the agreement distribution did not 202(a) I. Section Claim state claima under the Texas DTPA be cause, although the purchased distributor Because the posi- FCC has reversed its goods from supplier, the claim was tion on may regulate whether it billing and based suspension on the of the distributor collection services under Title II of the ship, any than goods. rather fault in the Act, Communications al- should be (5th 223, Cir.1993); 990 F.2d see also lowed to an maintain action based on Sec- Footloose, Inc. v. Stride Rite Children’s 202(a) tion of the Communications Act.1 Inc., Group, F.Supp. 116 Therefore, the district court should not (N.D.Tex.1995) (holding that dealer in granted have judgment pleadings. on the shoes did not state a cause of action against a manufacturer In for violation of determining whether may DTPA, alleged only as the dealer that the 202(a) maintain action an under Section wrongfully manufacturer terminated the Act, the Communications we must examine relatiоnship, sales any had made not the FCC considers defective). claims that the shoes were We collection services to be common carrier poses conclude that this case a similar services, subject communication which are light previous situation. In of our decision regulation under II Title and Section Distributing American we Corp., hold 202(a). However, in conducting inqui- this that Brittan not qualify does as a “consum ry, question is not whether the FCC is DTPA, er” under the and thus does not actually regulating billing and colleсtion Thus, have standing. affirm we the dis II, services under Title but rather whether trict grant of judgment court’s summary regulate FCC can billing and collection on each of Brittan’s un claims services under this Title. der the DTPA. In the FCC held that billing and
CONCLUSION were not to Title reasons, For foregoing AFFIRM II regulation they because: were finan the district grant court’s on cial services, and administrative not com the pleadings for on under services, munication they were Communications Act and its common carrier services. In re Detariff summary judgment for SWBT Brittan’s оn ing Billing Services, and Collection common law fraud claim and its claims (1986). F.C.C.2d the FCC under the Texas DTPA. changed position and declared that bill
AFFIRM. and collection services were communi services, cation but not common carrier DENNIS, Circuit Judge, concurring in services. In re Policies and Rules Con part and dissenting in part: cerning Local Exchange Carrier Vali join I majority’s opinion While dation Joint Information Deceptive Texas Cards, Trade Practices Act Use Calling 1 F.C.C.Rcd. regulates II Title common prоhibits carrier communi- involving discrimination common general. cation specifically, services in More carrier communication services. 202(a) provision Section is a of Title II
909 II. Law Fraud Claim (1992). Therefore, Common these ser- 3533 n.50 II subject to Title not still vices were disagree that the district court I also 1998, However, in Id. regulation. summary judgment on properly granted again and held position changed its FCC proper claim common law fraud was com- are collection services billing that and justifiably Brittаn could not have because II subject to Title mon carrier services promise promptly to on SWBT’s relied Federal- In the Matter regulation. as a matter of law. restore service Service, (1) Board on Universal that reasonably Joint believed State could have (“We ¶ 24,774, billing be- allow Billing Concepts would 13 F.C.C.Rcd. after and collection services to resume billing a carrier’s collection lieve that came, would restore approval that SWBT as com- regulation to are sеrvices Therefore, II.”). two.” “day within or service under Title carrier services mon justifiably on Brittan could have .relied to has chosen Although the FCC service, to restore believ- promise SWBT’s in- services billing and collection regulate service with- that would restore ing its lo- exchange carriers and volving local Billing Concepts ordered days in two after customers, not this does telephone cal resume, it not the three weeks service to 202(a) do II and Section that Title mean actually took. and collection encompass all not Billing Concepts, that It is true 1999, that explained FCC services. SWBT, billing and col- controlled whether billing and collection particular However, resume. lection services would or not de- actually regulated services are Bill- relationship Brittan and between to is needed regulation on whether pends Billing Concepts’ Concepts, as well as ing Party Calling In re protect competition. allowing to incentive financial Pays Offering in the Commercial Services service, Brittan to rea- could allow resume Services, 10,- Radio F.C.C.Rcd. Mobile Concepts’ ap- Billing sonably believe ¶ (1999) (“In 861, considering regu- fact, on And proval forthcoming. billing and collection latory treatment of 24, days of SWBT’s eight within November services, general- that we have we observe service, Billing Con- promise to restore provision ly regulate declined to reinstate cepts did order SWBT regu- unless billing and collection services Brittan. services to and collection comрetition.”). protect lation is needed that SWBT Brittan could have believed currently although the FCC Consequently, “day or within a restore service would aspects of bill- certain regulate declines to Concepts’ permitted ser- two” after II, under Title and collection services Edwards, CEO of Jim vice to restart. capacity regulate still has FCC at Brittan, deposition that in his testified services, collec- including billing and these on November teleconference pro- involving long-distance tion services Oxler, Director Dick as Brittan. viders such Collection, that he could re- stated within considers and-collection services the FCC sume Because if Brittan by Title II Even day to be covered or two.” “the next 202(a), reasonably believed be al- not have Brittan should could and Section restored November Act would be maintain its Communications service lowed to justifiably relied SWBT, have the district could service to believe statement pleadings should that judgment on the court’s on November would be restorеd be REVERSED. *11 day or two” after Con- “the next cepts ordered to restart service.
Instead, did not restore service un-
til 15. December justifiably Brittan could have
Because promise
relied to restore ser- on SWBT’s “day or
vice within a two” after resume,
Concepts ordered service to sum-
mary judgment should have been Therefore,
granted. the district court’s summary
decision to
the common law fraud should be
REVERSED. THOMAS; Thomas,
Heather Mark
Plaintiffs-Appellants,
CHOCTAW MANAGEMENT/SER- ENTERPRISE;
VICES Roxanne Magallan, Defendants-Appellees. Tonkin, Houston, TX, Ronald H. Plaintiffs-Appellants.
No. 02-20793 Sommer, Shulman, Fred S. Rogers, Summary Calendar. Gandal, Ecker, Rockville, MD, Pordy Appeals, United States Court Defendants-Appellees. Fifth Circuit. Dec. DAVIS, WIENER,
Before and EMILIO GARZA, M. Judges. Circuit PER CURIAM: Plaintiffs-Appellants Heather and Mark Thomas, wife, husband appeal from the district court’s dismissal of their em- ployment discrimination action De- fendants-Appellees Manage- Choctaw (“CM/SE”), Enterprise ment/Services employer which was their at all relevant