Opinion
Civil Action No. 98-1539 (NHP).
August 28, 2000.
John J. Murray, Jr., Esq., LAW OFFICES OF LAWRENCE S. COVEN, Green Brook, N.J., Attorneys for Plaintiff.
Sharon O. Gans, Esq., ATT CORP., Basking Ridge, N.J., Frederick L. Whitmer, Esq., Richard H. Brown, Esq., PITNEY, HARDIN, KIPP SZUCH, Morristown, N.J., Attorneys for Defendant.
THE ORIGINAL OF THIS LETTER OPINION IS ON FILE WITH THE CLERK OF THE COURT
Dear Counsel:
This matter comes before the Court on the motion by defendant ATT Corporation for summary judgment with respect to the remaining counts of plaintiff 800 Services's Complaint. The Court heard oral argument on February 29, 2000 and April 17, 2000. For the reasons stated herein, the motion by defendant ATT Corporation for summary judgment is GRANTED and the remaining counts of plaintiff's Complaint are hereby DISMISSED WITH PREJUDICE. Furthermore, ATT Corporation is entitled to judgment on its counterclaim in the amount of $1,782,649.60 plus pre-judgment interest. Accordingly, this case is CLOSED.
Counts 1, 2, 3, and 10 of 800 Services's Complaint have previously been dismissed. See Stipulation of Dismissal and Order dated February 5, 1999; Order dated August 12, 1999.
Counts 1, 2, 3, and 10 of 800 Services's Complaint have previously been dismissed. See Stipulation of Dismissal and Order dated February 5, 1999; Order dated August 12, 1999.
BACKGROUND
Plaintiff 800 Services (hereinafter "800 Services"), a corporation organized under the laws of the State of New Jersey, was engaged in the telecommunications business as an "aggregator" of defendant ATT Corporation's "800" telecommunications services. See Complaint, ¶¶ 1, 5-9. As an aggregator, 800 Services subscribed to certain ATT high-volume discount plans and pooled the usage of its customers to satisfy the minimum volume commitments of the ATT service plan. See id. 800 Services owned no telecommunications facilities of its own and was ATT's customer of record for the services to which it subscribed. See id. In turn, the customers whose usage 800 Services aggregated were direct customers of 800 Services, not of ATT. See id., ¶ 10.Defendant ATT Corporation (hereinafter "ATT") provides interstate long-distance telecommunications service in competition with MCI, Sprint, and many other long-distance carriers and is a "common carrier" within the meaning of the federal Communications Act of 1934.
Interstate telecommunications carriers are regulated by the ("FCC") pursuant to Title II of the Communications Act of 1934, as amended. See 47 U.S.C. § 201, et seq. (West 2000). Because ATT provides long distance telecommunications services as a "common carrier" it falls within the purview of the Communications Act. See 47 U.S.C. § 153(10) ; 47 U.S.C. § 201, et seq. (West 2000). As such, it is required to provide its services to any person upon reasonable request on terms that are just, reasonable, and nondiscriminatory. See 47 U.S.C. § 201; 47 U.S.C. § 202(a) (West 2000).
According to the Act,
The term "common carrier" or "carrier" means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter, but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.47 U.S.C. § 153(10) (West 2000).
The duties owed by common carriers are regulated through tariffs. Pursuant to § 203, a common carrier such as ATT, is required to file "schedules" with the FCC, commonly referred to as "tariffs," "showing all charges" for its services and "the classifications, practices, and regulations affecting such charges." 47 U.S.C. § 203(a) (West 2000).See also MCI Telecommunications Corp. v. Graphnet, Inc., 881 F. Supp. 126, 132 (D.N.J. 1995). Once the tariffs have been filed and permitted by the FCC to become effective, the common carrier is precluded by statute from deviating from the terms of its filed tariffs. According to the statute: "[no] carrier shall . . . extend to any person any privileges or facilities in such communication, or employ or enforce any classifications, regulations, or practices affecting such charges, except as specified in such schedule." 47 U.S.C. § 203(c) (West 2000). Thus, pursuant to the "filed rate doctrine/filed tariff doctrine," the filed rates are binding on both the carrier and the public. See Marco Supply Co. v. ATT, 875 F.2d 434, 436 (4th Cir. 1989) (citations omitted). See also See Fax Telecommunicaciones, Inc. v. ATT, 138 F.3d 479, 488 (2d Cir. 1998); MCI Telecommunications Corp. v. Graphnet, Inc., 881 F. Supp. 126, 132 (D.N.J. 1995). Despite the fact that strict adherence to the filed rate/filed tariff doctrine oftentimes produces harsh results, it is the operative doctrine to be applied by the courts.See Fax Telecommunicaciones, Inc. v. ATT, 952 F. Supp. 946 (E.D.N Y 1996), aff'd, 138 F.3d 479 (2d Cir. 1998).
In 1991, the FCC adopted rules and regulations authorizing carriers to establish "contract tariffs" with their customers. See Fax Telecommunicaciones, Inc. v. ATT, 138 F.3d 479, 482 (2d Cir. 1998) (citing In the Matter of Competition in the Interstate Interexchange Marketplace, 6 F.C.C.R. 5880 (1991) (hereinafter "Interstate Interexchange Marketplace"); on reconsideration, 6 F.C.C.R. 7569 (1991); on further reconsideration, 7 F.C.C.R. 2677 (1992), on further reconsideration, 10 F.C.C.R. 4562 (1995)). A contract tariff contains individually negotiated and tailored services arrangements reached between a common carrier and its customer. See Telecom International America, Ltd. v. ATT Corp., 67 F. Supp.2d 189, 196 n. 4 (S.D.N Y 1999);National Communications Association, Inc. v. American Telephone Telegraph Co., No. 92 Civ. 1735, 1998 WL 118174 *27 n. 31 (S.D.N.Y. March 16, 1998). The rules and regulations surrounding contract tariffs were designed to "increase flexibility for customers and promote competition among carriers." Fax Telecommunicaciones, 138 F.3d at 482.
In Fax Telecommunicaciones, the United States Court of Appeals for the Second Circuit explained the process whereby contract tariffs become effective. First, "[a]t least one customer must enter into a contract with the carrier pursuant to the new tariff in order for the carrier to file the contract tariff." Id. (citing 47 C.F.R. § 61.3(m)). Furthermore, the contract tariff must be filed at least fourteen days prior to the effective date of the contract and must include "the terms of the contract, a description of the services to be provided, the price for these services, the minimum volume commitments for each service, any volume discounts, as well as other classifications, practices, and regulations affecting the contract rate thereby complying with the filing requirements of 47 U.S.C. § 203(a)." Id. (citing Interstate Interexchange Marketplace at ¶¶ 91, 121, 122). Upon expiration of the fourteen days, the contract tariff is effective so long as neither the FCC nor any member of the public objects. Id. (citing 47 C.F.R. § 61.58(c)(6), 61.42(c)(8)). Finally, in order not to violate the Act's prohibition against discrimination, the carrier must then make the contract tariff generally available to other similarly situated customers. See id. (citing Interstate Interexchange Marketplace at ¶¶ 91, 129).
In this matter, pursuant to Tariff No. 2, ATT offered "inbound" or "800" long-distance telecommunications services and certain discount plans for such services, including "Customer Specific Term Plan II" (hereinafter "CSTP II"). ATT's CSTP II Plan, as set forth in Tariff No. 2, provided for discounted rates and associated promotional discounts and credits in return for a commitment by the customer to satisfy an annual Minimum Revenue Commitment for the term of the subscription. See Certification of Daniel H. Solomon, Exhibit C. A customer subscribes to ATT's CSTP II Plan by executing a Network Services Commitment Form. Under the tariff, ATT bills the aggregator's individual locations for their portion of the usage under the plan. However, Tariff No. 2 provides that ATT's customer of record (the aggregator in this case) assumes all financial responsibility for all of the designated accounts aggregated under the customer's CSTP II Plan and that, in the event any of these accounts is in default of payment, ATT will reduce the plan discount payable to the ATT customer in the amount of that default. See id., Tariff No. 2, § 3.3.1.Q.
Tariff No. 2 further provides that the customer will incur "shortfall" charges in the event that it does not satisfy its Minimum Revenue Commitment and "termination" charges if it discontinues service before the completion of the term. See id. Tariff No. 2 also provides that, in the event any shortfall or termination charges are incurred under a CSTP II Plan, such charges shall be apportioned among the accounts aggregated under the plan according to usage and billed to the individual aggregated locations designated by the customer. See id.
STATEMENT OF FACTS
800 Services subscribed to inbound service offered by ATT pursuant to Tariff No. 2 from 1990 through 1994. However, the allegations of the Complaint concern service to which 800 Services subscribed after August 1, 1994.
On or about July 22, 1994, Phillip Okin (hereinafter "Okin"), President of 800 Services, executed a Network Services Commitment Form for ATT's CSTP II Plan. See Certification of Daniel H. Solomon, Exhibit D. This form expressly provides:
[t]he service(s) and pricing plan(s) you have selected will be governed by the rates and terms and conditions in the appropriate ATT tariffs as may be modified from time to time. Your signature acknowledges that you understand the terms and conditions under which the service(s) selected will be provided and that you are duly authorized to make the commitment(s) and to order service for each of these locations.See id.
On August 2, 1994, Scott Landon, on behalf of ATT, executed the Network Services Commitment Form. See id. Pursuant to this subscription, 800 Services agreed to an annual Minimum Revenue Commitment of $3 million in services per year for three years. The effective date of this subscription was August 1, 1994. See id.
During his deposition, Okin testified that, in or about Fall 1994, his business began declining. See Deposition of Phillip Okin at page 50, lines 11-13. In or about November to December 1994, 800 Services discontinued adding new customers to its CSTP Plan. See Okin Dep. at page 144, lines 5-11.
At some point shortly thereafter, 800 Services was unable to meet its minimum revenue commitment under its CSTP Plan for the first year of the third-year term. See Okin Dep. at page 139, lines 1-11. The record reveals that Okin then embarked upon a series of "strategies" seemingly aimed at avoiding the shortfall charges which, incidentally, Okin believed he did not have to pay. See Okin Dep. at page 166, lines 3-10. The first strategy was to request that ATT extend the term of its commitment under its August 1, 1994 plan pursuant to Section 2.5.7 of Tariff No. 2. See Solomon Cert., Exhibit F. 800 Services asserted that it qualified for an extension under the terms of the tariff because ATT's implementation of an FCC order (which placed a quota on the number of new "800" numbers available to each carrier on a weekly basis) prevented 800 Services from satisfying its minimum revenue commitment.See id.
Section 2.5.7 of Tariff No. 2 permits a customer to extend the original term commitment of its tariffed volume discount plan for up to one year if the customer fails or is unable to meet its usage or revenue commitment because of a strike, government order or other such circumstances. See Solomon Cert., Exhibit C.
In responding to Okin's request in a letter dated July 14, 1995, ATT noted that 800 Services did not show a "cause and affect [sic] relationship between the governmental order that constrains the supply of 800 numbers and 800 Services, Inc.'s failure to meet its tariff commitments." See Solomon Cert., Exhibit G. ATT then requested 800 Services to demonstrate that it already has activated or had firm end-user customer orders to activate all of its currently reserved numbers and that it had firm orders for 800 services from end-user customers under its CSTP II Plan that could not be satisfied due to the unavailability of new numbers. See id. 800 Services submitted no proof to ATT that it already had activated all of its currently reserved numbers and had firm orders for additional service that could not be met due to the implementation of the FCC quota. See Okin Dep. at 93, line 25; page 94, lines 1-10. In fact, Okin testified that no 800 Services order went unfulfilled because of the FCC "800 number" quota. See Okin Dep. at page 93, lines 17-24.
In or about July 21, 1995, 800 Services then attempted to "restructure" its CSTP II Plan. By letter dated July 25, 1995, ATT responded to 800 Services's request to restructure its CSTP II Plan and outlined the terms and conditions specified under Tariff No. 2 that were applicable to this request. See Solomon Cert., Exhibit I. Specifically, ATT advised 800 Services that under the tariff, if 800 Services restructured its existing CSTP II Plan, 800 Services would remain liable under the tariff for any shortfall charges accrued in the first year of its plan and, in the event that 800 Services failed to satisfy its Minimum Annual Commitment for the first year of the existing plan, it would also be required to repay the promotional credits paid to 800 Services under the plan. See id. ATT advised 800 Services to notify it if 800 Services wished to proceed with this request. See id. 800 Services never attempted to proceed with this request. See Okin Dep. at page 94, lines 7-10. In fact, Okin testified that 800 Services did not qualify for a restructuring of its plan under the terms of the governing tariff. See Okin Dep. at page 134, lines 7-11.
800 Services next contemplated moving certain business traffic from its Tariff No. 2 service to CT 516. Notwithstanding 800 Services's allegations in its Complaint, 800 Services has admitted in discovery that it did not qualify to subscribe directly to CT 516 and that 800 Services never actually submitted an order to ATT for service to CT 516 or under any other contract tariff or to transfer service from Tariff No. 2 to CT 516. See Okin Dep. at pages 101-105.
Finally, in or around July 28, 1995, 800 Services submitted orders to ATT to delete all its end-user locations from its CSTP II Plan. See Okin Dep. at page 104. At the time that 800 Services asked to delete all its customers from its plan, 800 Services had no arrangements to transition those customers to any other 800 Services's plan or to any other telecommunications service for inbound 800 service. See Okin Dep., at page 157, lines 14-22; page 158, lines 22-25; page 159, line 1.
On or about April 1, 1996, ATT rendered a bill to 800 Services in the amount of $382,651.05 allegedly due and owing for usage charges for inbound telecommunications services provided to 800 Services by ATT pursuant to Tariff No. 2. See Certification of Naris Sotillo-Sayers, ¶ 6. In or about May 1, 1996, ATT rendered a bill to 800 Services in the amount of $1,399,998.68 reflecting the amount allegedly due and owing for shortfall and termination charges because of 800 Services's alleged failure to fulfill the Minimum Revenue Commitment under its CSTP II plan. See id., ¶ 17. ATT contends that 800 Services never paid any money to ATT in satisfaction of the aforementioned bills and that said amounts remain due and owing.
On April 6, 1998, 800 Services filed a Complaint in the United States District Court for the District of New Jersey containing twelve counts.
On June 30, 1998, ATT filed an Answer and Counterclaim.
DISCUSSION
I. Standard of Review
The standard governing a summary judgment motion is set forth in Fed.R.Civ.P. 56(c), which provides, in pertinent part, that:
[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c) (West 2000). A fact is material if it might affect the outcome of the suit under the governing substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Procedurally, the movant has the initial burden of identifying evidence that it believes shows an absence of genuine issues of material fact.See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When the movant will bear the burden of proof at trial, the movant's burden can be discharged by showing that there is an absence of evidence to support the non-movant's case. See id. at 325. If the movant establishes the absence of a genuine issue of material fact, the burden shifts to the non-movant to do more than "simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In this matter, there are no genuine issues of material fact and therefore, summary judgment is appropriate.
II. Communications Act
Counts Eleven and Twelve of 800 Services's Complaint purport to allege claims arising under §§ 201, 202, and 203 of the Communications Act.
The limitations period governing such claims is found in Section 415(b) of the Act which provides, in pertinent part: "[a]ll complaints against carriers for the recovery of damages not based on overcharges shall be filed with the Commission within two years from the time the cause of action accrues, and not after, subject to subsection (d) of this section." 47 U.S.C. § 415(b) (West 2000). This section applies equally to complaints brought in a court of law in addition to those claims filed with the FCC. See Pavlak v. Church, 727 F.2d 1425, 1426-27 (9th Cir. 1984); Ward v. Northern Ohio Tel. Co., 381 F.2d 16 (6th Cir. 1967).
Section 415(d), which provides:
If on or before expiration of the period of limitation in subsection (b) or (c) of this section a carrier begins action under subsection (a) of this section for recovery of lawful charges in respect of the same service, or, without beginning action, collects charges in respect of that service, said period of limitation shall be extended to include ninety days from the time such action is begun or such charges are collected by the carrier.47 U.S.C. § 415(d) (West 2000). Incidentally, there is no dispute that, based on the facts of this case, this provision does not apply.
800 Services filed the subject Complaint on April 6, 1998 essentially alleging that ATT engaged in various violations of the common law and the Communications Act during a period of time beginning in September 1990 and ending no later than July 1995. The service upon which plaintiff bases its Complaint commenced on August 2, 1994, see Complaint, ¶ 6, and the latest alleged misdeed by ATT occurred no later than July 1995 when 800 Services requested that its accounts be deleted, see Complaint, ¶ 16, and claims that it later requested transfer to CT 516, see Complaint, ¶ 21. Based on plaintiff's allegations, the most recent violation occurred no later than July 1995, which is more than two years prior to the filing of the Complaint.
In response, 800 Services contends that its claims brought pursuant to the Communications Act are not time-barred by the applicable two-year statute of limitations by virtue of the "continuing wrong" doctrine.
The "continuing wrong" doctrine applies in situations where there is evidence of continuing affirmative wrongful conduct. See 287 Corporate Center Associates v. Township of Bridgewater, 101 F.3d 320, 324 (3d Cir. 1996) (citing Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1296 (3d Cir. 1991) (emphasis added)). 800 Services has failed to allege any facts or establish through discovery any evidence that ATT's alleged wrongful conduct giving rise to the Communications Act claims continued beyond the limitations period. 800 Services merely contends that because ATT "continues to be unjustly enriched at plaintiff's expense," the continuing wrong doctrine should apply. As stated above, however, the continuing wrong doctrine applies to an affirmative act by the alleged wrongdoer and continuing to be "unjustly enriched" does not qualify as an affirmative act. Instead, if one becomes "unjustly enriched" it is, most likely, the result of an affirmative wrongful act. Because there is no evidence in the record of an affirmative act of wrongdoing by ATT beyond July 1995, 800 Services's claims in COUNTS ELEVEN AND TWELVE of the Complaint for violation of the Communications Act are DISMISSED WITH PREJUDICE inasmuch as they are time-barred.
III. Slander and Libel
Counts Five and Six of 800 Services's Complaint purport to allege claims of slander and libel.
N.J.S.A. § 2A::14-3 provides:
Every action at law for libel or slander shall be commenced within 1 year next after publication of the alleged libel or slander.
N.J. Stat. Ann. § 2A:14-3 (West 2000).
The latest point in time within which it is alleged that ATT made slanderous or libelous statements is July 1995. As noted above, plaintiff filed the subject Complaint on April 6, 1998, well over one year after the slanderous and libelous statements allegedly were made by representatives of ATT. Therefore, COUNTS FIVE AND SIX of the Complaint are DISMISSED WITH PREJUDICE inasmuch as they are time-barred.
IV. Unjust Enrichment
Count Four of 800 Services's Complaint purports to allege a claim of unjust enrichment. 800 Services contends that ATT became unjustly enriched at its expense when ATT utilized 800 Services's proprietary customer lists to derive profits without apportioning the profits. 800 Services also alleges that ATT wrongfully collected revenue from end-user customers without giving 800 Services its share of the profits.
To state a claim for unjust enrichment, a plaintiff must show "both that defendant received a benefit and that retention of that benefit without repayment would be unjust." VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994) (citing Associates Commercial Corp. v. Wallia, 211 N.J. Super. 231, 243 (N.J.Super.Ct. App. Div. 1986); Russell-Stanley Corp. v. Plant Indus., Inc., 250 N.J. Super. 478, 509-510 (N.J.Super.Ct. Ch. Div. 1991)). A plaintiff must show "that it expected remuneration from the defendant at the time it performed or conferred a benefit on defendant and that the failure of the remuneration enriched defendant beyond its contractual rights." VRG Corp., 135 N.J. at 555.
The deposition testimony submitted by counsel for 800 Services does not support its allegation that ATT used proprietary information belonging to 800 Services. Quite simply, there is no first-party testimony that ATT appropriated 800 Services customers. For example, Okin's testimony reeks with statements amounting to nothing more than mere conjecture. A thorough review of Okin's testimony reveals that he simply made assumptions about ATT's actions when his business traffic began to decline. In fact, Okin admits that none of the customers who left 800 Services ever advised him that they left as a result of being contacted by ATT.
Additionally, contrary to what 800 Services would have this Court believe, nothing in Chris Mehlenbacher or Susan Rinaldi's (employees of 800 Services) deposition testimony provides a factual basis for 800 Services's conclusion that ATT was utilizing its proprietary information. In fact, when questioned about what he knew about a claim that ATT was misusing plaintiff's proprietary information, Mr. Mehlenbacher testified that: "[i]t was just, let's call it a general buzz in the aggregator industry that they felt that their accounts were being targeted specifically. I don't have a specific conversation that took place." See Deposition of Chris Mehlenbacher at page 89, lines 1-5. Finally, Al Inga's (another aggregator) testimony is based on what information he was given by Okin and other aggregators in the industry.See Deposition of Al Inga at page 32, lines 7-14; page 112-113. See also Okin Dep. at page 244, lines 12-24.
800 Services also alleges that ATT wrongfully collected revenue from end-user customers without giving 800 Services its share of the profits. However, 800 Services offers no evidence to support this allegation. Therefore, COUNT FOUR of the Complaint is DISMISSED WITH PREJUDICE.
V. Intentional Interference with Prospective Economic Advantage and Intentional Interference with Contractual Relations
Counts Seven and Eight of 800 Services's Complaint purport to allege claims of intentional interference with prospective economic advantage and intentional interference with contractual relations.
"An action for tortious interference with prospective business relation protects the right `to pursue one's business, calling or occupation free from undue influence or molestation.'" Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 750 (1989). "What is actionable is '[t]he luring away, by devious, improper, and unrighteous means, of the customer of another.'" Id.
"The separate cause of action for the intentional interference with a prospective contractual or economic relationship has long been recognized as distinct from the tort of interference with the performance of a contract." Id. (citations omitted). Pursuant to New Jersey law, the elements of a claim for tortious interference with contract are: "(1) a plaintiff's existing or reasonable expectation of economic advantage or benefit; (2) a defendant's knowledge of the plaintiff's expectancy by the defendant; (3) wrongful and intentional interference with that expectancy by the defendant; (4) a reasonable probability that the plaintiff would have received the anticipated economic advantage absent such interference; and (5) damages resulting from the defendant's interference." Pitak v. Bell Atlantic Network SVCS, Inc., et al., 928 F. Supp. 1354, 1369 (D.N.J. 1996) (citations omitted). Clearly, the linchpin of the analysis is the "wrongfulness" of the actions.
800 Services contends that ATT wrongfully solicited 800 Services's customers, thereby causing 800 Services's business to decline. Specifically, 800 Services contends that ATT called 800 Services's customers, offered lower rates than those offered by 800 Services, and told these customers that it would remove any shortfall charges assessed to them if they would switch to ATT. 800 Services also contends that ATT tortiously interfered with its business when ATT refused to allow 800 Services to restructure its plan.
800 Services proffers many allegations to support its tortious interference claims. However, many of these allegations should have been asserted pursuant to the Communications Act. Since the Court has already determined that any claims brought pursuant to the Communications Act are time-barred, the Court will not address these allegations.
As aforementioned, there is no reliable, first-party testimony in the record that ATT wrongfully solicited 800 Services's customers. Even assuming that ATT contacted 800 Services's customers and advised those customers that ATT disconnected 800 Services, that a customer could complete calls on the ATT network at ATT's standard rates, that a customer may also choose any long-distance carrier, and that a customer may want to consider direct service with ATT as an alternative to no service at all (since Okin testified that there was no alternative plan in place post-deletion), such conduct does not strike this Court as "wrongful" conduct on the part of ATT. This is because these statements allegedly occurred after 800 Services began defaulting on its payment obligations and, ultimately, placed these customers in the position of having no 800 service plan at all.
Further, 800 Services's allegation that ATT wrongfully refused its request to restructure is belied by the testimony if its President. The record reveals that ATT responded to 800 Services's request to restructure its CSTP II Plan and outlined the terms and conditions specified under Tariff No. 2 that were applicable to this request. See Solomon Cert., Exhibit I. Specifically, ATT advised 800 Services that under the tariff, if 800 Services restructured its existing CSTP II Plan, 800 Services would remain liable under the tariff for any shortfall charges accrued in the first year of its plan and, in the event that 800 Services failed to satisfy its Minimum Annual Commitment for the first year of the existing plan, it would also be required to repay the promotional credits paid to 800 Services under the plan. See id. ATT advised 800 Services to notify it if 800 Services wished to proceed with this request. See id. 800 Services never attempted to proceed with this request. See Okin Dep. at page 94, lines 7-10. In fact, Okin testified that 800 Services did not qualify for a restructuring of its plan under the terms of the governing tariff. See Okin Dep. at page 134, lines 7-11. Therefore, COUNTS SEVEN and EIGHT of the Complaint are DISMISSED WITH PREJUDICE.
VI. Unfair Competition/Trade Libel
Count Nine of 800 Services's Complaint purports to allege claims of unfair competition/trade libel.
In order to prove the tort of trade libel, a plaintiff must establish "the publication, or communication to a third person, of false statements concerning the plaintiff, his property, or his business." Federal Deposit Ins. Corp. v. Bathgate, 27 F.3d 850, 871 (3d Cir. 1994) (citing Henry v. Vaccaro Const. Co. v. A.J. DePace, Inc., 137 N.J. Super. 512 (Law Div. 1975)).
800 Services argues that ATT told 800 Services's customers that 800 Services was "not responsible in their business matters." See 800 Services's Supplemental Brief at page 11. To support this proposition, 800 Services relies on the testimony of Susan Rinaldi, one of its employees. Contrary to 800 Services's characterization of that testimony, Susan Rinaldi testified that in connection with a discussion of why ATT allocated shortfall charges to end-user locations, an employee of ATT named "Vanessa" said: "we told the customers because 800 Services didn't meet their requirement that they're being charged back a penalty." See Deposition of Susan Rinaldi at page 145, lines 1-12. As pointed out by counsel for ATT, the "requirement" referenced therein is the Minimum Annual Commitment in the tariff which, if not met, gives rise to the imposition of shortfall charges. 800 Services does not dispute that it did not meet the Minimum Annual Commitment and, accordingly, shortfall charges may issue.
In conclusion, 800 Services has not offered any admissible evidence which demonstrates that ATT made false statements concerning 800 Services, its property or business. Therefore, COUNT NINE of the Complaint is DISMISSED WITH PREJUDICE.
VII. ATT's Counterclaim
ATT has filed a Counterclaim seeking judgment for unpaid usage charges in the amount of $382,651.05 and shortfall charges in the amount of $1,399,998.68 plus pre-judgment interest.
As discussed in greater detail above, the filed tariff controls the parties' rights and liabilities as a matter of law. In this matter, Tariff No. 2 provides that the payment of invoices is due upon presentation.See Certification of Daniel H. Solomon, Exhibit C, Tariff No. 2 § 2.5.3. Pursuant to Tariff No. 2, 800 Services, as a subscriber to ATT services pursuant to the tariff, is obligated to pay all usage charges accrued for services rendered. Additionally, 800 Services is responsible for shortfall and termination charges in the event that 800 Services fails to satisfy the minimum usage commitments. 800 Services has not submitted payment for any of these charges. The prevailing law entitles ATT to judgment for these charges.
ATT has submitted a Certification by Noris Sotillo-Sayers dated December 10, 1999 which certifies that these are the amounts due and owing to ATT as a result of services provided to 800 Services under the CSTP II Plan. Although 800 Services has contested that it must pay these charges, it does not challenge the amounts as set forth in the Certification.
CONCLUSION
For the foregoing reasons, the motion by defendant ATT Corporation for summary judgment is GRANTED and the remaining counts of plaintiff's Complaint are hereby DISMISSED WITH PREJUDICE. Furthermore, ATT is entitled to judgment on its counterclaim in the amount of $1,782,649.60 plus pre-judgment interest.
An appropriate Order accompanies this Letter Opinion.