CORRECTED OPINION
Aрpellant, Carlin Communication, Inc. (“Carlin”), appeals the grant of a motion for summary judgment in favor of appellees Southern Bell Telephone and Telegraph Company (“Southern Bell”) and Florida Public Service Commission (“PSC”). We affirm.
I. BACKGROUND
Southern Bell filed an amendment to its Florida General Subscriber Service Tariff with the PSC on November 14, 1983, proposing to offer a new service in its North Dade County and Jacksonville exchanges known as Local Dial-It Service. Dial-It is an announcement service provided by local telephone companies that allows telephone customers to call a specified number and receive a prerecorded message supplied by a subscriber to the service. The telephone company bills the customer for the call at a rate set by the subscriber. The telephone company deducts flat rate and usage charges, and then forwards the rest of the collected billings to the subscriber. The FCC has classified Dial-It as an enhanced service that is not required to be made available on an equal access basis.
Computer & Communications Industry Ass’n v. FCC,
Carlin is a New York corporation еngaged in providing Dial-It messages throughout the United States. Among the types of messages provided by Carlin are sexually suggestive messages, which are commonly referred to as “Dial-a-Pom.” Carlin recently has been involved in a number of lawsuits in various states in connection with attempts by telephone companies to discontinue Carlin’s Dial-It service because of the content of Carlin’s messages. One of these lawsuits involves appellee Southern Bell. Carlin Communication, Inc. v. Southern Bell Telephone and Telegraph Company, Civil No. C84-510 (N.D.Ga. March 21, 1984).
As originally filed, Southern Bell’s proposed Dial-It tariff сontained no restriction on message content, other than the requirement that the subscriber exclude “any matter, the dissemination of which is prohibited by law.” At the beginning of the public hearing held with regard to the Dial-It pro *1355 posal, Mr. Varner, Southern Bell’s District Manager for Rates and Tariffs, read a proposed amendment into the record that changed the message content provision from one excluding only illegal messages to one also excluding any message that “implicitly or explicitly invites, describes, simulates, excites, arouses, or otherwise refers to sexual conduct, or whiсh contains sexual innuendo which arouses or attempts to arouse sexual desire.” The purpose of this amendment was to divorce the standard for refusal to accept messages from the standard of legal obscenity. The Dial-It tariff, including the proposed amendment, was finally approved at a Commission agenda conference on July 3, 1984.
Carlin initially advised Southern Bell of its interest in obtaining Florida Dial-It service in January 1984. Carlin made formal application for Dial-It service on August 10, 1984. After review of the three transcripts Carlin proposed using on its Dial-It lines, Southern Bell notified Carlin that it would not be able to provide service for two of the transcripts because they did not conform to its tariff provision.
On October 5,1984, Carlin filed a Section 1983 action, 42 U.S.C.A. § 1983, against Southern Bell and the PSC alleging violation of the First and Fourteenth Amendments through prior restraint of free speech without constitutionally required procedural safeguards. Carlin sought (1) a declaratory judgment that the failure to activate Carlin’s numbers was unconstitutional prior restraint of free speech and that Southern Bell’s tariff was unconstitutional to the extent it permitted termination of service based solely on message content;
(2) an injunction requiring Southern Bell to activate Carlin’s Dial-It numbers and enjoining Southern Bell and the PSC from interfering with Carlin’s Dial-It service because of message content without first complying with the procedural requirements for prior censorship; and (3) damages in excess of $1,000,000 from Southern Bell for failure to activate Carlin’s Dial-It numbers.
Carlin was denied a preliminary injunction, and that decision was upheld on appeal by this Court. Carlin Communication, Inc. v. Southern Bell Telephone and Telegraph Company, 755 F.2d 174 (11th Cir.1985). The district court bifurcated the proceedings to consider the issue of statе action first. Southern Bell and the PSC filed motions for summary judgment on this issue July 8 and 9, 1985. Sapphire Communications of Florida, Inc., a Carlin affiliate, was added by stipulation as a necessary party on July 10, 1985. The district court granted appellees’ motions for summary judgment on October 5, 1985, and this appeal followed.
II. DISCUSSION
A. Subject Matter Jurisdiction
As a threshold consideration, we must determine if the district court lacked subject matter jurisdiction over this dispute under the Johnson Act, 28 U.S.C.A. § 1342. The Johnson Act provides that:
The district courts shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargеable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where:
(1) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution; and,
(2) The order does not interfere with interstate commerce; and,
(3) The order has been made after reasonable notice and hearing; and,
(4) A plain, speedy and efficient remedy may be had in the courts of such State.
Although the Johnson Act explicitly applies only to injunctive relief, it has been judicially extended to bar declaratory judgment and damage actions as well.
Tennyson v. Gas Service Co.,
We find that the Johnson Act did not prevent the district court’s exercise of
*1356
jurisdiction in this case. Although the Johnson Act has been broadly construed to prohibit federal court actions that indirectly as well as directly affect rate orders,
e.g., Tennyson,
Carlin is not challenging the Dial-It rate structure approved by the PSC: its challenge is directed exclusively toward the tariff provision allowing termination of service based solely on message content. The relief Carlin seeks, if granted, would not in any way affect the rates established by the PSC for Southern Bell’s services. Therefore, Carlin’s challenge is outside the scope of the Johnson Act, which has as its purpose prevention of federal court interference with the states’ control over their public utility rates.
See Tennyson,
B. Grant of Summary Judgment
1. Standard of Review
The appellate court's review of the grant of a summary judgment motion is plenary, and is conducted utilizing the same legal standards as those used in the district court.
Mercantile Bank & Trust v. Fidelity & Deposit Co.,
In determining whether the moving party has met his burden, the evidence and inferences drawn from the evidence are viewed in the light most favorable to the nonmoving party, and all reasonable doubts are resolved in his favor.
Mercantile Bank,
In the present case, the district court’s grant of summary judgment was based on its determination that there was no genuine issue of material fact with regard to the existence of state action. Carlin urges that the record supports the reasonable inference that Southern Bell’s decision to modify the language of the tariff proposal to exclude sexually suggestive material was motivated by the PSC, and that, therefore, *1357 the district court’s grant of summary judgment in this case represents an impermissible weighing of the conflicting inferences to be drawn from the evidence. We have reviewed the record and cannot agree.
2. Requirements to Establish State Action 1
It is axiomatic that the Fourteenth Amendment only protects against deprivations of Constitutional rights by the state, not through private conduct, however discriminatory or wrongful.
Jackson v. Metropolitan Edison Co.,
The United States Supreme Court has utilized a number of different “tests” for state аction in its cases, all of which the Court recently suggested may be “simply different ways of characterizing the necessarily fact-bound inquiry that confronts the Court in such a situation.”
Id.
at 939,
The Supreme Court’s decisions also have made it clear that in order to establish state action the plaintiff must show that the state is responsible for the specific conduct of which he complains.
Id.
“Faithful adherence to the state action requirement of the Fourteenth Amendment requires careful attention to the gravamen of the plaintiff’s complaint.”
Id.
at 1003,
Carlin has failed to point to anything in the record that would indicate the PSC was responsible for Southern Bell’s decision to deny access to two of Carlin’s transcripts and our review of the record indicates that no evidence of PSC involvement in this decision exists. Although there are references to “High Society”
2
type messages in discussions between Southern Bell and the PSC, there is nothing to indicate that the PSC was involved in Southern Bell’s determination that the individual messages that it reviewed and turned down were messages of the type that its tariff sought to prohibit. The only reasonable inference that can be drawn from the record is that the decision to deny Carlin access for these transcripts was a judgment made by Southern Bell on the basis of its own private corporate standards.
Cf. Blum,
With regard to the tariff provision itself, our analysis must start with the special nature of Southern Bell as a privately-owned public utility. In
Jackson,
the Supreme Court held that when the private actor is a public utility the plaintiff must show that there is “a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.”
Carlin essentially makes four arguments to support its position that a genuine issue of material fact exists as to whether the requisite nexus is present with regard to placing the language prohibiting sexually suggestive messages into the Dial-It tariff. First, Carlin attempts to distinguish Jackson from the present case by arguing that the PSC’s action in scheduling the tariff for further study and public hearing, and in issuing an order strongly approving of the tariff language, placed the “imprimatur” of the State upon that language.
In support of this argument, Carlin relies on the Supreme Court case of
Public Utilities Commission v. Pollak,
Carlin’s reliance on
Poliak
is misplaced. In
Poliak,
the practice at issue, radio programs aboard city buses, already had been implemented. The regulatory agency in that case affirmatively undertook to study the practice after custоmers had complained and thereby took the initiative in determining the suitability of the practice.
Poliak,
Second, Carlin argues that the tariff amendment as originally proposed at the beginning of the public hearing was intended to apply only to messages that were both sexually explicit and illegal and that pressure from the PSC during the public hearing led Southern Bell to alter the language during the course of that hearing to allow exclusion of sexually suggestive material without regard to its legality. Carlin points to an “and” scratched out in the draft of the amendment from which Varner read at the hearing and a statement during the hearing by Mr. Carbonnel, Southern Bell’s attorney, that this language was intended to be in the conjunctive. This version of events, however, is not reasonably inferable from the facts. The official public hearing transcript shows that the “and” was omitted when Varner initially read the proposed language and the context in which Carbonnel made his statement shows that what he meant to say was “disjunctive.” Further, we note that Carlin’s version of events would mean that Southern Bell had proposed language that would leave it without any provision in its tariff that would prohibit other types of illegal messages, such as those violating gambling statutes.
Third, Carlin points to certain statements made by members of the PSC, and, in particular, by Commissioner Cresse, in support of its position that a genuine issue of material fact exists as to whether the PSC coerced Southern Bell into amending its tariff language. These statements show that Commissioner Cresse, who was assigned as pre-hearing officer with regard to the Dial-It tariff, was concerned about the issue of content control over Dial-It messages. They show that he expressed this concern at the original agenda conference in the context of asking whether “High Society magazine” could sell “pornographic phone calls” and at the prehearing conference by indicating that the message content issue was one that should be considered at the public hearing, despite advice of the PSC’s attorney that the issue was one that he believed should be avoided and Southern Bell’s concern about being placed “in the position of determining what is unlawful in terms of pornography.”
Commissioner Cresse’s comments, however, when read in the context of the agenda conference and prehearing conference transcripts as a whole, do not support an inference that the PSC required Southern Bell to add a prohibition on message content such as that subsequently proposed. Viewing these comments in the light most favorable to Carlin, they show that the PSC, and particularly Commissioner Cresse, felt that message content was one of many issues that should be studied before a decision was made on the Dial-It tariff and one that should be considered at the public hearing. This falls far short оf coercive activity designed to pressure Southern Bell into amending its tariff to contain the broad language regarding message content that ultimately was proposed.
Carlin also points to certain comments made by Commissioner Cresse and Chairman Gunter during the public hearing after the amendment was proposed and at the final agenda conference during which the tariff was approved as creating an inference that Southern Bell was coerced into placing this language in the tariff. The transcript of the public hearing shows that the PSC understood the amendment offеred at the beginning of the hearing to be aimed at “High Society” type messages and that it was aware of the problems that Southern Bell and other telephone compa *1360 nies had experienced in trying to discontinue Carlin's service because of message content. The Commission also expressed strong approval of the proposed amendment, although Chairman Gunter questioned whether such a provision would be enforceable. Both Commissioner Cresse and Chairman Gunter expressed the opinion that if the tariff language was not enforceable then the PSC should rеconsider allowing Dial-It service in Florida. The PSC, and, in particular, Commissioner Cresse, also probed the method by which Southern Bell would review messages presented for the Dial-It service and indicated that, while review was voluntary, they expected that review would take place. Similar sentiments are incorporated in the order approving the tariff. Carlin argues these comments, when viewed in light of the considerable revenues that would be generated by the Dial-It service, create a reasonable inference of coercion.
Initially it must be noted that the commеnts to which Carlin refers were made after the language about which it complains already had been proposed. Carlin argues that the timing of these statements is not significant because the tariff was not finally approved until the final agenda conference, and attempts to create an inference that Southern Bell was reluctant to change the tariff language from the fact the amended tariff was not sent to the PSC until after final approval. The mere fact that Southern Bell waited until it was sure the tariff would be approved as proposed before sending it, however, cannot of itself create an inference of reluctance on Southern Bell’s part, and Carlin points to nothing else that would support a reasonable inference that Southern Bell had any desire to withdraw the proposed language or to further modify it between the time of the public hearing and the final agenda conference. Therefore, while we do not view the commissioner’s comments as totally irrelevant, their timing makes them significantly less probative on the issue of coercion.
Further, in order to create a genuine issue of material fact, an infеrence must be reasonable viewing the record as a whole, and the record in this case contains uncontroverted evidence that the proposed amendment came about as the result of a directive from Walter H. Alford, Southern Bell’s chief executive officer for Florida operations, who wanted tariff language inserted that would divorce the message content requirement from the legal definition of obscenity as an attempt to avoid problems similar to those encountered by Southern Bell in attempting to discontinue Carlin’s Dial-It service in Georgia. This evidеnce shows that Southern Bell was motivated by a desire to protect its own corporate image through language that would give it the freedom to deny access to messages with which it did not wish to be associated on an across the board basis, rather than being tied to the community standard of each community that it serviced. Although a court should be wary of placing too much reliance on the testimony of the movant regarding facts in its exclusive knowledge in granting a motion for summary judgment, the evidence of motive offered by the PSC and Southern Bell is entirely consistent with the other evidencе in the record, including the statements made by members of the PSC, and Carlin has pointed to nothing in the record that creates a genuine issue as to its credibility.
Cf. Wilmington Trust Co. v. Manufacturers Life Ins. Co.,
Finally, Carlin argues that state action is present because the PSC has delegated the public function of censorship to Southern Bell. The required nexus between the state and a private actor may be present if the private entity has exercised powers that are “traditionally the exclusive prerogative of the State.”
Blum,
First, Carlin has pointed to nothing in the record to indicate that the purpose of the restriction was “public” censorship. The evidence in the record indicates that Southern Bell was motivated by a desire to protect its own corporate image and avoid problems similar to those it encountered with Carlin in Georgia.
Second, the operative word in the public function test is “exclusivity.” As the Supreme Court noted in
Flagg Brothers, Inc. v. Brooks,
III. CONCLUSION
Summary judgment was properly granted. The only reasonable inference that can be drawn from the record in this case is that the operative decisions, both as to inclusion of the language in the tariff and as to the refusal to activate Carlin’s Dial-It service, were made by Southern Bell and not the PSC and, therefore, the actions of *1362 which Carlin complains are not fairly attributable to the state. AFFIRMED.
Notes
. If challenged conduct constitutes state action for purposes of the Fourteenth Amendment, then that conduct also satisfies the 42 U.S.C.A. § 1983 requirement of action under color of state law.
Lugar v. Edmondson Oil Co.,
. High Society magazine is an adult magazine to which reference sometimes is made in Carlin’s sexually suggestive messages.
. The PSC order approving the tariff clearly indicates that there was no intention on the part of the PSC to be involved in Southern Bell’s decisions regarding message content: "we will expect the Company to make a determination as ' to [the] acceptability [of Dial-It messages] under its tariff provisions and the corporatе standards of Southern Bell embodied therein." (emphasis added). This language clearly leaves Southern Bell free to determine for itself what violates its tariff provisions.
. We note that one court has found state action in connection with termination of Carlin’s service based on message content under the public function test.
Carlin Communications, Inc. v. South Central Bell Telephone Co.,
. We would stress in this context that Dial-It service is not part of Southern Bell's function as a common carrier and therefore is not subject to the requirements regarding equal access that apply to telecommunications services offered by Southern Bell as a common carrier. See 47 U.S.C.A. § 201 (1962).