EDWARD J. CONBOY, EILEEN M. CONBOY, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. AT&T CORP. and AT&T UNIVERSAL CARD SERVICES CORP., Defendants-Appellees, THE ELECTRONIC PRIVACY INFORMATION CENTER, Amicus Curiae.
No. 00-7284
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
January 11, 2001, Argued; February 26, 2001, Decided
241 F.3d 242
Before: KEARSE, JACOBS, and CABRANES, Circuit Judges.
HENRY H. ROSSBACHER (James S. Cahill, Clara I. Duran Reed, of counsel), Rossbacher & Associates, Los Angeles, CA; Daniel T. Hughes, Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, New York, NY; Jonathan W. Cuneo, Michael G. Lenett, The Cuneo Law Group, P.C., Washington, DC, for Plaintiffs-Appellants Edward J. Conboy and Eileen M. Conboy.
PETER D. KEISLER (Virginia A. Steitz, Stephen B. Kinnaird, of counsel), Sidley & Austin, Washington, DC; Laura A. Kaster, Edward A. Harris, AT&T Corp., Basking Ridge, NJ, for Defendant-Appellee AT&T Corp.
GEORGE A. ZIMMERMAN (Lauren E. Aguiar, Andrew Wisch, of counsel), Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, for Defendant-Appellee AT&T Universal Card Services Corp.
David L. Sobel, Marc Rotenberg, Electronic Privacy Information Center, Washington, DC (Harry C. Batchelder, Jr., New York, NY, of counsel), filed a brief for Amicus Curiae Electronic Privacy Information Center.
JOSE A. CABRANES, Circuit Judge:
We are asked to decide whether plaintiffs have stated a cause of action against their long-distance service provider and its once-affiliated credit card company for allegedly transmitting and using certain information contained in plaintiffs’ long-distance bill for purposes of collecting credit card debt. Plaintiffs Edward and Eileen Conboy allege that defendant AT&T Corp. (“AT&T“) improperly disseminated proprietary information about them to defendant AT&T Universal Card Services Corp. (“UCS“) to help UCS collect credit card debt. Plaintiffs claim that, in disseminating this information, AT&T violated: (1) Section 222 of the Telecommunications Act of 1996 (“Telecommunications Act” or “Act“), Pub. L. No. 104-104, 110 Stat. 56; (2) two regulations--
In a thoughtful and comprehensive opinion, the United States District Court for the Southern District of New York (Robert J. Ward, Judge) dismissed plaintiffs’ entire amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See Conboy v. AT&T Corp., 84 F. Supp. 2d 492 (S.D.N.Y. 2000). It held that plaintiffs: (1) failed to allege recoverable damages under the Telecommunications Act; (2) had no private right of action to seek monetary relief for alleged violations of
Because this is an appeal from a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we review the District Court‘s decision de novo, taking all factual allegations in the amended complaint as true and construing all reasonable inferences in favor of plaintiffs. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Lee v. Bankers Trust Co., 166 F.3d 540, 543 (2d Cir. 1999).
This case arises out of a claim that AT&T disseminated, and continues to disseminate, proprietary information about its customers to UCS and other unidentified companies in order to help them collect credit card debt. Prior to this suit, AT&T served as plaintiffs’ long-distance telephone carrier. During this time, AT&T had access to information contained in plaintiffs’ long-distance telephone bill, such as their names, unlisted phone number, billing address, and the details of their long-distance calls. Plaintiffs never authorized the release of this information to UCS or to anyone else, and even paid a monthly fee for “non-published service,” the purpose of which was to prevent the release of their names, address, and telephone number to any directory or anyone who directed inquiries to directory assistance.
Plaintiffs’ adult daughter-in-law, Maria Conboy, held a MasterCard issued by UCS when UCS was a subsidiary of AT&T.1 Plaintiffs were neither the guarantors of their daughter-in-law‘s credit card, nor otherwise obligated to pay her debt to UCS. Plaintiffs also did not agree to be contacted by UCS regarding their daughter-in-law‘s account, and Maria Conboy never provided UCS with their names, address, or telephone number.
From May to June 1998, representatives of UCS telephoned plaintiffs at their unlisted home telephone number between thirty and fifty times seeking information about Maria Conboy‘s whereabouts. The telephone calls were made repeatedly, and some were made at unusual hours. Plaintiffs informed the UCS representatives that Maria Conboy did not reside with them and requested that the telephone calls cease. Nonetheless, the phone calls continued. During one call, a representative revealed that he knew plaintiffs’ unlisted personal information and the details of their long-distance telephone bill. Plaintiffs surmised that AT&T had provided UCS with this information to help UCS collect credit card debt.
In May 1999, plaintiffs filed an amended class-action complaint against AT&T and UCS. They claimed that, by disseminating information contained in their long-distance bill, AT&T violated: (1) Section 222(c) of the Telecommunications Act; (2) two FCC regulations--
The District Court dismissed the entire amended complaint for failure to state a claim upon which relief can be granted. See Conboy, 84 F. Supp. 2d at 492. With respect to the claims against AT&T, the District Court held that plaintiffs: (1) failed to allege recoverable monetary damages under Sections 206 and 207 of the Communications Act of 1934 (“Communications Act“),
On appeal, plaintiffs challenge each of these holdings. We discuss each issue in turn.
A. Damages Under Sections 206 and 207 of the Communications Act for Violations of Section 222(c) of the Telecommunications Act
Plaintiffs’ first argument is that AT&T disseminated their customer proprietary network information (“CPNI“)2 in violation of Section 222(c) of the Telecommunications Act,3 and that they can recover damages as a result under Sections 2064 and 2075 of the Communications Act. As an initial matter, we need not decide which types of information allegedly disseminated by AT&T constitutes CPNI because, even if we assume arguendo that AT&T disseminated plaintiffs’ CPNI in violation of Section 222(c), we agree with the District Court that plaintiffs failed to allege recoverable damages under Sections 206 and 207.
The District Court provided three reasons for why plaintiffs failed to allege recoverable damages. See Conboy, 84 F. Supp. 2d at 499-500. First, plaintiffs’ monthly telephone bill clearly indicated that their payments for “non-published service” had gone to their local-exchange carrier Bell Atlantic, not defendant AT&T. See id. at 499. The telephone bill attached to plaintiffs’ amended complaint was divided into two sections--one for Bell Atlantic charges and the other for AT&T charges. Plaintiffs’ monthly payment of $ 1.95 for “non-published service” fell on the Bell Atlantic section of the bill. Accordingly, plaintiffs could not seek to recover these payments from AT&T.
Second, plaintiffs’ monthly payments to AT&T for long-distance service did not include an explicit or implicit payment for the privacy protections of the Telecommunications Act. See id. As the District Court explained, “there is no monetary value attached to AT&T‘s compliance with the Telecommunications Act.” Id. By paying their AT&T bill monthly, “plaintiffs got what they paid for, namely, long distance service.” Id. These payments therefore could not serve as a basis for damages.
Third and finally, damages are not presumed to arise from violations of Section 222. See id. at 498 n.3. The District Court explained that Sections 206 and 207 of the Communications Act are based on provisions of the Interstate Commerce Act (“ICA“), and that courts have consistently held that the ICA does not permit recovery of “presumed damages.”6 Accordingly, in the District Court‘s view, such damages are not available in the analogous provisions of the Communications Act. See id.
Moreover, plaintiffs argue that their monthly payments to AT&T for long-distance service contained an implicit payment for AT&T‘s compliance with the Telecommunications Act, and that disclosure of plaintiffs’ private information deprived them of the full value of these payments.
Finally, plaintiffs contend that, even if they failed to allege specific economic damages, Sections 206 and 207 permit recovery of “presumed damages” for emotional distress and mental anguish arising from violations of Section 222. According to plaintiffs, Congress passed Section 222(c) of the Telecommunications Act in 1996 to protect consumer privacy, and presumed “dignitary damages” are traditional remedies for privacy violations. Plaintiffs argue that Congress therefore implicitly expanded the scope of Sections 206 and 207 to include such damages when it passed Section 222(c).
We disagree with all three of plaintiffs’ arguments. First, plaintiffs cannot use their payment to Bell Atlantic for “non-published service” as the basis for their claim for damages against AT&T, because these payments represent the value of Bell Atlantic‘s compliance--not AT&T‘s compliance--with the terms of the “non-published service” agreement. Plaintiffs have not alleged that AT&T had an obligation to provide plaintiffs with “non-published service,” nor have they alleged that AT&T somehow had led Bell Atlantic to disclose plaintiffs’ information in violation of the “non-published service” agreement. Accordingly, plaintiffs cannot seek recovery of their payments for “non-published service” in the case at hand.
Second, as the District Court correctly noted, plaintiffs did not make monthly payments to AT&T for compliance with the Telecommunications Act; rather, they paid AT&T for long-distance telephone service, which they received. AT&T‘s alleged failure to comply with the Telecommunications Act did not deprive them of the value of this service.
Moreover, we agree with the District Court that AT&T must comply with the Telecommunications Act not because it receives monthly payments from its customers, but because it is a common carrier governed by that statute. See Conboy, 84 F. Supp. 2d at 499. Indeed, even if plaintiffs had failed to pay their regular monthly telephone bills, AT&T would still have had an obligation to comply with the provisions of the Act. Accordingly, it cannot be argued that plaintiffs’ monthly payments were, in part, consideration paid to AT&T for compliance with Section 222.
Third and finally, we agree with the District Court that plaintiffs cannot recover “presumed damages” for emotional distress and mental anguish arising from violations of the Act. As a preliminary matter, it is clear to us that plaintiffs explicitly abandoned any claim for emotional distress damages. After AT&T filed its reply brief in support of its motion to dismiss, plaintiffs filed a surreply letter stating that they “have not alleged emotional distress nor similar damages for violation of the [Telecommunications] Act.” See Letter to Hon. Robert J. Ward from Daniel T. Hughes at 2 (Sept. 22, 1999) (emphasis in original). This statement constitutes an express and binding abandonment of plaintiffs’ claim for such damages. Cf. Bellmore v. Mobil Oil Corp., 783 F.2d 300, 307 (2d Cir. 1986) (holding that a plaintiff waived his right to a jury trial where he disclaimed this right in a memorandum of law provided to the trial court).
Even if we assume arguendo that plaintiffs did not abandon their claim for presumed damages, we hold that such damages are nonetheless unrecoverable. As noted by the District Court, Sections 206 and 207 of the Communications Act were expressly modeled on the enforcement provisions of the ICA. See H.R. Rep. No. 73-1850, at 6 (1934) (“Sections 206 [and] 207 [of the Communications Act] . . . are the present law in sections 8 [and] 9 . . . of the Interstate Commerce Act . . . .“). Not surprisingly, therefore, we have held that decisions construing the ICA are persuasive in establishing the meaning of the Communications Act, see American Tel. & Tel. Co. v. United Artists Payphone Corp., 852 F. Supp. 221, 222 (S.D.N.Y.), aff‘d, 39 F.3d 411 (2d Cir. 1994), and the Supreme Court has held that the ICA does not authorize the recovery of presumed damages, see, e.g., ICC v. United States ex rel. Campbell, 289 U.S. 385, 390, 53 S. Ct. 607, 77 L. Ed. 1273 (1933); Keogh v. Chicago & N.W. Ry. Co., 260 U.S. 156, 164-65, 67 L. Ed. 183, 43 S. Ct. 47 (1922); see also Overbrook Farmers Union Coop. Ass‘n v. Missouri Pac. R.R. Co., 21 F.3d 360, 364 (10th Cir. 1994) (explaining that a number of Supreme Court decisions limit carrier liability under section 8 of the ICA to “actual damages“); Ajayem Lumber Corp. v. Penn Cent. Transp. Co., 487 F.2d 179, 183 (2d Cir. 1973) (explaining that recovery under the ICA is limited to damages “actually suffered“). Based on these authoritative interpretations of the ICA, the FCC has concluded that the Communications Act also does not permit the recovery of presumed damages. See In re Communications Satellite Corp., 97 F.C.C.2d 82, P 24, at 90 (1984) (“It is beyond doubt that under both Title II of the Communications Act and its predecessor, the Interstate Commerce Act (ICA), damages are not presumed to flow from violations of the Acts.“). Accordingly, a private party seeking relief under Sections 206 and 207 of the Communications Act must “allege and prove specific damages flowing from violations of the Act,” and cannot recover presumed damages. Id. P 25, at 90.7
Moreover, as a general matter, federal law permits the recovery of presumed damages only in limited circumstances. As the Supreme Court has explained, presumed damages are generally available only where the offense, by its very nature, is “virtually certain” to cause mental and emotional distress, so “there arguably is little reason to require proof of this kind of injury.” Carey v. Piphus, 435 U.S. 247, 262, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978).8
In the case at bar, it is “not reasonable to assume that every” violation of Section 222, “No matter what the circumstances or how minor, inherently is . . . likely” to cause mental and emotional distress. Id. at 263. Many customers will not notice when their personal information is disseminated in violation of Section 222. Moreover, those who learn of a violation may not even care. violations of Section 222, Therefore, are not “virtually certain” to cause some type of serious injury, Id. at 262, making presumed damages an inappropriate remedy for such violations. Accordingly, the district court properly denied plaintiffs’ claim for such damages.
B. Private Right Of Action for Damages Under 47 C.F.R. 51.217 and 64.1201
Plaintiffs assert next that AT&T violated two FCC regulations issued under the Telecommunications Act--
We agree. “The question of the existence of a statutory cause of action is, of course, one of statutory construction.” Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979). In this case, the text of the Telecommunications Act contains no language that explicitly provides a private right of action for damages for violations of the two FCC regulations at issue here.
Plaintiffs failed to meet their burden here. As the District Court correctly noted,
the FCC is primarily responsible for the interpretation and implementation of the Telecommunications Act and FCC regulations. These broad powers granted to the FCC to enforce the Act would be inconsistent with a private right of action because “private litigation tends to transfer regulatory interpretation and discretion from the agency to the courts.”
Conboy, 84 F. Supp. 2d at 501 (alteration in original) (citations omitted) (quoting Caceres Agency, Inc. v. Trans World Airways, Inc., 594 F.2d 932, 934 (2d Cir. 1979)).
Indeed, a private right of action would place the FCC‘s “interpretative function squarely in the hands of private parties and some 700 federal district judges, instead of in the hands of the Commission. . . . The result would be to deprive the FCC of necessary flexibility and authority in creating, interpreting, and modifying communications policy.” New England Tel. & Tel. Co. v. Public Utils. Comm‘n, 742 F.2d 1, 6 (1st Cir. 1984) (Breyer, J.). It is highly unlikely, therefore, that Congress intended to create a private right of action for violations of FCC regulations. Such a right would “threaten[ ] the sound development of a coherent nationwide communications policy--a central objective of the [Communications] Act.” Id. at 5.
The text of the Telecommunications Act also suggests that Congress did not intend to provide a private right of action. It is a principle of statutory construction that “when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies.” National R.R. Passenger Corp. v. National Ass‘n of R.R. Passengers, 414 U.S. 453, 458, 38 L. Ed. 2d 646, 94 S. Ct. 690 (1974). Here, Sections 206 and 207 of the Communications Act grant private parties, in circumstances other than the one presented here, an express right of action against common carriers that improperly disseminate their CPNI. It is unlikely, therefore, that Congress intended to provide parties with another, merely implied right of action against common carriers that violate the two FCC regulations at issue here, which seek to prevent similar conduct. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 20, 62 L. Ed. 2d 146, 100 S. Ct. 242 (1979) (“In view of these express provisions for enforcing the duties imposed . . ., it is highly improbable that Congress absentmindedly forgot to mention an intended private action.” (quotation marks omitted)).
The remaining factors do not change this result. As the Third Circuit has explained, the purpose of the Telecommunications Act is not to benefit individual plaintiffs but to “protect the public interest in communications.” Lechtner v. Brownyard, 679 F.2d 322, 327 (3d Cir. 1982) (quoting Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 14, 86 L. Ed. 1229, 62 S. Ct. 875 (1942)); cf. Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91, 97 (2d Cir. 1986) (finding that the Federal Aviation Act was designed to benefit the general public and not any particular class). It cannot be said, therefore, that plaintiffs are members of a class “for whose especial benefit the statute was enacted.” Cort, 422 U.S. at 78. The first Cort factor--whether the statute was enacted to benefit a special class of which plaintiffs are members--therefore weighs against implying a private right of action.
Inasmuch as the first two Cort factors indicate clearly that Congress did not intend to create a private right of action, we need not consider the remaining factors because, alone or together, they cannot constitute sufficient evidence of Congressional intent. See Health Care Plan, Inc. v. Aetna Life Ins. Co., 966 F.2d 738, 742 (2d Cir. 1992); see also Touche Ross, 442 U.S. at 580 (Brennan, J., concurring) (“The [third and fourth] Cort factors cannot by themselves be a basis for implying a right of action.“). Accordingly, no private right of action under
C. Private Injunctive Relief Under the Telecommunications Act
The next issue is whether plaintiffs can seek injunctive relief for the alleged violations of Section 222 and
First, plaintiffs abandoned any claim for injunctive relief under
Congress has “spoken clearly” here. According to the Supreme Court, Congress restricts a court‘s equitable power when a statute limits that power “in so many words, or by a necessary and inescapable inference.” Porter v. Warner Holding Co., 328 U.S. 395, 398, 90 L. Ed. 1332, 66 S. Ct. 1086 (1946); accord Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 291, 4 L. Ed. 2d 323, 80 S. Ct. 332 (1960). The Communications Act creates such an inference with respect to private parties seeking injunctive relief for violations of the Act. Section 401(a) permits injunctive relief for violations of the Telecommunications Act, but it does so only upon application by the Attorney General at the request of the FCC. See
The existence of these remedial provisions, in combination with the absence of any provision mentioning a general right to seek private injunctive relief for violations of the Act, clearly indicates that Congress did not intend to permit private parties to seek such relief for a violation of Section 222. See Transamerica Mortgage Advisors, 444 U.S. at 20 (“When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” (citation omitted)). This conclusion is “necessary and inescapable,” especially because Congress provided for private injunctive relief for violations of other provisions of the Act. See, e.g.,
We pause to note that, although plaintiffs were properly denied monetary and injunctive relief, they could have sought relief through a different avenue--specifically, by filing a complaint with the FCC. See
D. The Fair Debt Collection Practices Act
Plaintiffs’ next claim invokes the Fair Debt Collection Practices Act (“FDCPA“),
A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
. . . .
(11) The failure to disclose in the initial written communication with the consumer . . . that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector . . . .
The District Court dismissed plaintiffs’ claim on the ground that none of the plaintiffs qualified as a “consumer” under
Plaintiffs argue that their FDCPA claim should nonetheless survive because their amended complaint alleged that AT&T violated “the FDCPA in general.” According to plaintiffs, their amended complaint should be read more broadly, to include other possible claims under the FDCPA that may be asserted by a person other than a “consumer.”
E. State-Law Claims Against UCS
The next two issues involve state-law claims against UCS. Although these claims were also raised against AT&T, the District Court declined to exercise supplemental jurisdiction over them after it dismissed the federal claims against AT&T. Accordingly, we address them only as they relate to defendant UCS.
1. New York General Business Law 349
The first issue involves
The District Court properly rejected this argument. The New York Court of Appeals has stated unequivocally that Section 601 does not supply a private cause of action. See Varela v. Investors Ins. Holding Corp., 81 N.Y.2d 958, 961, 598 N.Y.S.2d 761, 762, 615 N.E.2d 218 (1993) (explaining that
Allowing plaintiffs to plead a cause of action under Section 601(6) by alleging that a violation of that statute necessarily constitutes a deceptive act under Section 349 appears contrary to the New York Legislature‘s intent and inconsistent with the statutory scheme. The Legislature, by creating a private right of action to enforce Section 349, clearly did not intend to authorize private enforcement of Section 601, especially where Section 601 contains its own enforcement provision which explicitly dictates who can enforce that section.
Conboy, 84 F. Supp. 2d at 506. In other words, plaintiffs cannot thwart legislative intent by couching a Section 601 claim as a Section 349 claim.
2. Intentional Infliction of Emotional Distress
Plaintiffs’ second and final state-law claim is for intentional infliction of emotional distress. Plaintiffs allege that UCS committed this tort by calling them numerous times at unusual hours in the day “in such a manner as can reasonably be expected to abuse or harass” them. Under New York law, a claim of intentional infliction of emotional distress requires: “(1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the jury; and (4) severe emotional distress.” Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999). The District Court held that plaintiffs failed to allege facts sufficient to satisfy the first requirement--extreme and outrageous conduct.
We agree. As New York‘s highest court has observed, the standard for stating a valid claim of intentional infliction of emotional distress is “rigorous, and difficult to satisfy.” Howell v. New York Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 353, 612 N.E.2d 699 (1993) (citations omitted). The conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Stuto, 164 F.3d at 827 (quoting Howell, 81 N.Y.2d at 122). UCS‘s alleged conduct, even if accepted as true, simply does not rise to this level of outrageousness. Plaintiffs were not physically threatened, verbally abused, or publicly humiliated in any manner. See Stuto, 164 F.3d at 828. They were only harassed with numerous telephone calls from debt collectors. This conduct is not so outrageous as to “go beyond all possible bounds of decency” or to be regarded as “utterly intolerable in a civilized society.” Id. at 827. Accordingly, we conclude that the District Court properly dismissed this claim.
F. Leave to File Amendment
Plaintiffs’ final argument on appeal is that the District Court erred in denying their request to file a second amended complaint to add a claim of conspiracy to violate the Telecommunications Act.
A district court‘s decision to grant or deny a leave to amend a complaint is reviewed for abuse of discretion, see Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993), and there was no such abuse of discretion here. The District Court properly held that plaintiffs failed to allege damages recoverable under the Telecommunications Act. Moreover, unlike the civil RICO statute, for example, which explicitly prohibits individuals from conspiring to violate its provisions, see
We note again that the Communications Act provided a remedy for the conduct which plaintiffs allege here. Specifically, plaintiffs were permitted to file a complaint with the FCC, which, in turn, could have sought and imposed a number of penalties for violations of the Telecommunications Act and regulations promulgated thereunder. Plaintiffs chose not to pursue this administrative remedy, electing instead to seek relief in the federal courts. For the reasons stated above, however, we hold that:
(1) plaintiffs failed to allege recoverable damages under Sections 206 and 207 of the Communications Act and, therefore, could not maintain a cause of action for alleged violations of Section 222 of the Telecommunications Act;
(2) plaintiffs, as private parties, have no right of action for monetary damages for alleged violations of
(3) plaintiffs cannot seek injunctive relief for alleged violations of Section 222 of the Act and
(4) plaintiffs are not “consumers” within the meaning of
(5) plaintiffs failed to allege “deceptive” conduct to support their claim against UCS under
(6) plaintiffs did not allege the extreme and outrageous conduct necessary to assert a claim of intentional infliction of emotional distress against UCS; and
(7) the District Court did not abuse its discretion in denying plaintiffs’ request to amend their complaint for a second time to add a charge of conspiracy to violate the Telecommunications Act.
The judgment of the District Court is hereby affirmed.
Notes
(A) information that relates to the quantity, technical configuration, type destination, location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship; and
(B) information contained in the bills pertaining to telephone exchange service or telephone toll service received by a customer of a carrier . . . .
CPNI does not include, however, any information:
(A) identifying the listed names of subscribers of a carrier and such subscribers’ telephone numbers, addresses, or primary advertising classifications (as such classifications are assigned at the time of the establishment of such service), or any combination of such listed names, numbers, addresses, or classifications; and
(B) that the carrier or an affiliate has published, caused to be published, or accepted for publication in any directory format.
The word “location” was added to the definition of CPNI in October 1999, see Wireless Communications and Public Safety Act of 1999, Pub. L. No. 106-81, 5(3), 113 Stat. 1286, 1289 (1999), over a year after plaintiffs were allegedly harassed. The 1999 amendment does not affect this appeal.
Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit, access to individually identifiable customer proprietary network information in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories.
In case any common carrier shall do, or cause or permit to be done, any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter . . . .
Any person claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the [Federal Communications] Commission as hereinafter provided for, or may bring suit for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter, in any district court of the United States of competent jurisdiction; but such person shall not have the right to pursue both remedies.
Unlisted numbers. A [local-exchange carrier] shall not provide access to unlisted telephone numbers, or other information that its customer has asked the [local-exchange carrier] not to make available, with the exception of customer name and address. The [local-exchange carrier] shall ensure that access is permitted to the same directory information, including customer name and address, that is available to its own directory assistance customers.
(Italics indicate amendment). The 1999 amendment does not affect this appeal.
This Section falls within a larger provision requiring local-exchange carriers to provide a competing provider with access to their directory-assistance databases. See
In no case shall any telecommunications service provider or authorized billing and collection agent of a telecommunications service provider disclose the billing name and address information of any subscriber to any third party, except that a telecommunications service provider may disclose billing name and address information to its authorized billing and collection agent.
If any person fails or neglects to obey any order of the [Federal Communications] Commission other than for the payment of money, while the same is in effect, the [Federal Communications] Commission or any party injured thereby . . . may apply to the appropriate district court of the United States for the enforcement of such order. If, after hearing, that court determines that the order was regularly made and duly served, and that the person is in disobedience of the same, the court shall enforce obedience to such order by a writ of injunction . . . .
(Emphasis added).
We do not address the issue of whether an FCC regulation constitutes an FCC “order” for purposes of this statutory provision, compare Hawaiian Tel. Co. v. Public Utils. Comm‘n, 827 F.2d 1264, 1270-72 (9th Cir. 1987) (holding that an FCC regulation is an “order“), with New England Tel. & Tel. Co. v. Public Utils. Comm‘n, 742 F.2d 1, 6 (1st Cir. 1984) (holding that an FCC regulation is not an “order“), because, even if we assume that a regulation is an “order,” plaintiffs in the instant case have no private right of action for money damages.
The district courts of the United States shall have jurisdiction, upon application of the Attorney General of the United States at the request of the [Federal Communications] Commission, alleging a failure to comply with or a violation of any of the provisions of this chapter by any person, to issue a writ or writs of mandamus commanding such person to comply with the provisions of this chapter.
We find plaintiffs’ argument unconvincing. First, the Ninth Circuit case refers to the Telecommunications Act only in passing; it does not purport to stand for the proposition that private injunctive relief is available for a violation of Section 222 of the Telecommunications Act. Second, because the opinion is an unpublished disposition, it is not binding even in the Ninth Circuit, let alone here. See 9th Cir. R. 36-3(a) (“Unpublished dispositions and orders of this Court are not binding precedent, except when relevant under the doctrine of law of the case, res judicata, or collateral estoppel.“). Third, plaintiffs’ very citation of the opinion, even for persuasive support, is a violation of the Ninth Circuit‘s rules. See id. 36-3(b) (“Unpublished dispositions and orders of this Court may not be cited to . . . .“); cf. 2nd Cir. R. 0.23 (“Since [unpublished summary orders] do not constitute formal opinions of the court and are unreported or not uniformly available to all parties, they shall not be cited or otherwise used in unrelated cases before this or any other court.“).