Ficker v. Chesapeake & Potomac Telephone Co.

• Decision Date: 29 October 1984
• Docket Number: Civ. No. Y-83-4432.
• Citation: 596 F. Supp. 900
• Parties: Robin K.A. FICKER v. CHESAPEAKE & POTOMAC TELEPHONE CO., et al.
• Court: U.S. District Court — District of Maryland

596 F. Supp. 900

Robin K.A. FICKER v. CHESAPEAKE & POTOMAC TELEPHONE CO., et al.

Civ. No. Y-83-4432.

United States District Court, D. Maryland.

October 29, 1984.

Robin K.A. Ficker, Bethesda, Md., pro se.

J. William Sarver, Baltimore, Md., John M. Goodman, and Julie M. Saulnier, Washington, D.C., for defendants.

MEMORANDUM

JOSEPH H. YOUNG, District Judge.

Robin K.A. Ficker, a Maryland attorney, filed this suit against Chesapeake and Potomac Telephone Company ("C & P") and the Reuben Donnelley Corporation ("Donnelley") pursuant to Section 4 of the Clayton Act seeking tremble damages, 15 U.S.C. § 15, and injunctive relief, 15 U.S.C. § 26, for alleged violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. § 1, 2.¹ Defendants now seek dismissal of the plaintiff's complaint for failure to state a claim upon which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has failed to respond to the defendants' motion despite having been specifically invited to do so by this Court.

According to the facts alleged by the plaintiff, defendant C & P is a Maryland corporation engaged in the telecommunications business in Maryland and elsewhere. Defendant Donnelley is a Delaware corporation under contract with C & P to publish and distribute directories containing the names, addresses, and telephone numbers of C & P subscribers ("white pages"); these directories also contain classified advertisements for business subscribers of C & P ("yellow pages").

The complaint specifically alleges that both defendants have performed acts in Maryland in furtherance of an "unlawful attempt and conspiracy to monopolize, and an unlawful contract, combination, or conspiracy to restrain interstate commerce of the United States." Complaint ¶ 4. These claims are based upon the defendants' refusal to print the plaintiff's advertisement containing price information for certain legal services offered by the plaintiff. The plaintiff contends that consumers of legal services are deprived of meaningful price comparisons for these services and are unable to locate legal services according to price because of the defendant's refusal to publish this information in the classified advertisements. Plaintiff thus concludes that this and other such omissions deny consumers the "benefit of full, free, and open competition in the provision of legal services, and that prices for such services will remain at artificial and non-competitive levels as a result." Complaint ¶ 15.

Finally, the plaintiff asserts that his law practice has been injured to the extent that he has lost fees from potential clients who would have used his services (because of their cost) were it not for defendants' actions which allegedly prevented them from doing so.

I.

For the purpose of this motion to dismiss, the plaintiff's complaint will be construed in a light most favorable to the plaintiff, and its allegations are, therefore, taken as true. See Wright and Miller, 5 Federal Practice and Procedure: Civil § 1357 at 594 (1969) (citations omitted). This Court may dismiss the complaint only if it "appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 44-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). However, the Court is not bound to accept conclusory allegations concerning the legal effect of the events the plaintiff has set out if these allegations do not reasonably follow from his description of what happened. Wright and Miller, supra, at 597. A pleader is not able to rely solely on "averments that on their face comprehend activity clearly exempt from liability." City of Gainsville v. Florida Power and Light Co., 488 F.Supp. 1258, 1264 (D.Fla. 1980). It is apparent from the pleadings that the plaintiff has failed to allege any facts which, if true, would establish a violation under the Sherman Act and thereby entitle him to relief. Accordingly, defendants' motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P., will be granted as to both Counts I and II of the complaint.

II.

In considering antitrust claims, both the Supreme Court, see Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951); United States v. Colgate and Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), and the Fourth Circuit, see Virginia Academy of Clinical Psychologists v. Blue Shield, 624 F.2d 476, 483 (4th Cir.1980), have recognized that absent any anticompetitive purpose or design to create a monopoly, "a business may unilaterally choose those with whom it will conduct business," as well as the terms and conditions of those business dealings. Hester v. Martindale-Hubbell, Inc., 659 F.2d 433, 436 (4th Cir. 1981). Federal antitrust laws were enacted to prevent anticompetitive conduct, P. Areeda and D. Turner, III Antitrust Law, ¶ 736(e) at 274 (1978); see Cong.Rec. 2457, 3151-53 (1890), rather than to enforce popular public utility notions of fair dealing. Areeda, supra, at 274. Even a recognized monopolist is not required to "deal non-discriminately² with would-be purchasers, whether they are in competition or not." Id. at 271. Only refusals to deal as a part of a conspiracy to restrain trade or to maintain a monopoly violate the antitrust laws. J. Von Kolinowski, Antitrust Laws and Trade Regulations, 2 § 6C.022 (1983).

Assuming arguendo that defendant Donnelley has a monopoly on yellow-page publishing in the area served by defendant C & P, the monopoly it enjoys is a natural incident of the monopoly status granted to C & P by Congress and the Federal Communications Commission, see 47 U.S.C. § 151 et seq., because of its public utility character. Best Advertising v. Illinois Bell Telephone Company and Reuben H. Donnelley Corporation, 229 F.Supp. 275 (S.D.Ill., 1964), aff'd, 339 F.2d 1009 (7th Cir.1965). Although the advertising aspect of the business does not partake of this public utility character, the directories (of which the yellow page advertising is a part) are a normal and necessary part of C & P's effective operation as a public utility. Best, 229 F.Supp. at 277.

The plaintiff alleges that both defendants are attempting to monopolize all classified advertising in the area served by C & P; however, he has not alleged that either defendant has done anything other than refuse to publish his advertisement exactly as he tendered it. Moreover, it is apparent from the face of the complaint that none of the parties is in competition with either of the other parties; thus, it is difficult, if not impossible, to envision any plausible scenario in which the defendants' refusal would tend to stiffle competition or maintain any monopoly for the benefit of either defendant.³See id. Conceding the monopoly status of both defendants does not advance the plaintiff's argument that he has stated a claim upon which relief can be granted. Unlike the plaintiff in Lorain Journal, supra,⁴ the plaintiff in the instant case does not allege, nor can he allege, that the defendants' conduct restrained trade in their own market for their own benefit. Absent this anticompetitive animus, plaintiff's claim must fail.

In Official Airline Guides, Inc. v. FTC, 630 F.2d 920, 928 (2d Cir.1980), the Second Circuit concurred with the contention of the FTC that Official Airline Guides had arbitrarily refused to publish commuter airline schedules to the detriment of competition among air carriers. Nonetheless, the court held that Official Airline Guides' refusal did not violate the Federal Trade Commission Act.⁵ It determined that the cases relied upon by the FTC which required monopolists to deal with their competitors were inapplicable because Official Airline Guides did not compete with the airlines. Official Airline Guides, 630 F.2d at 925-26. The court also refused to apply the cases requiring monopolies to deal where their refusals furthered their own monopolies because Airline Guides' refusal did nothing to further its monopoly over the printing of airline schedules. Id. Similarly, the defendants in the instant case are not in competition with the plaintiff nor does the complaint allege any facts that would tend to support the plaintiff's conclusion that the defendants' conduct facillitated or enhanced any monopoly either defendant may enjoy.

Furthermore, the plaintiff has failed to allege any concerted activity on the part of the defendants that would give rise to an actionable claim under the Sherman Act. Plaintiff's reliance on Hester v. Martindale-Hubbell, Inc., 659 F.2d 433 (4th Cir. 1981), in support of his contention that he has a claim cognizable under the Sherman Act is misplaced. In Hester, the defendants' complete refusal to publish any advertisement of the plaintiff was found to "lie well beyond the pale of even the most liberal extension of the concept of concerted activity." Id. at 436.

Like Hester, this "is not a case in which those at a lower level of competition have conspired to force a supplier at a higher level of competition to impose some restraint. Nor is it a case in which a supplier at a higher level of competition has coerced those at a lower level of competition to acquiesce in some anticompetitive endeavor." Id. (citations omitted). As the court observed in Dollar-A-Day Rent a Car Systems, Inc. v. Mountain States Telephone Company, 22 Ariz.App. 270, 526 P.2d 1068 (1974), regulations restricting price advertising in the yellow pages of telephone directories are not anticompetitive and therefore do not run afoul of federal antitrust laws. Instead, they are "in full accord with the public purpose expressed by Congress." Id. 526 P.2d at 1073, citing Federal Trade Commission Act, 15 U.S.C. § 41 et seq. Thus, any restraint imposed by the advertising regulations of the defendants was not an "unreasonable restraint," Best Advertising, 339 F.2d at 1011, citing Standard Oil Company of New Jersey v. United States, 221 U.S. 1, ...