Panatronic Usa v. At&T Corp.

• Decision Date: 22 April 2002
• Docket Number: No. 01-15470.,01-15470.
• Citation: 287 F.3d 840
• Parties: PANATRONIC USA, a California general partnership; Lemar Textile Co., Plaintiffs-Appellants, v. AT&T CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

287 F.3d 840 PANATRONIC USA, a California general partnership; Lemar Textile Co., Plaintiffs-Appellants,
v.
AT&T CORPORATION, Defendant-Appellee. No. 01-15470. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 11, 2002. Filed April 22, 2002.

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Irving Bizar, New York, NY, for the appellants.

Christopher B. Hockett, San Francisco, CA, for the appellee.

Appeal from the United States District Court for the Northern District of California; James Ware, District Judge, Presiding. D.C. No. CV-98-20874-JW(PVT).

Before THOMPSON, W. FLETCHER and BERZON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge.

We must determine whether AT&T's temporary failure to assess a Universal Connectivity Charge ("UCC") on certain customers, while assessing it on others, violated the Federal Communications Act. Panatronic USA and Lemar Textile Co. are AT&T long distance subscribers who were assessed the UCC fee. AT&T delayed assessing the fee on some of its larger customers for several months. According to the plaintiffs, this several-month delay constituted unlawful price discrimination under 47 U.S.C. § 202(a). The plaintiffs additionally contend that AT&T's temporary failure to impose the UCC fee on its larger customers contradicted the terms of its published tariffs, in violation of 47 U.S.C. § 203(c).

Panatronic and Lemar sought class certification to pursue the claims on behalf of business subscribers who were assessed the UCC fee during the period January 1, 1998 through December 31, 1998. Without

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ruling on class certification, the district court granted AT&T's motion for summary judgment and denied the plaintiffs' motion to re-open discovery.

The district court had subject-matter jurisdiction under 47 U.S.C. § 207. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

Pursuant to the Communications Act of 1934, 47 U.S.C. §§ 151 et seq., the Federal Communications Commission ("FCC") regulates charges for interstate telephone calls through a tariff system. Under this system, every long distance carrier is required to file a tariff with the FCC listing its schedule of charges and the terms and conditions of each class of service. 47 U.S.C. § 203. Once a tariff is approved by the FCC, it carries the force of law and is binding on both the carrier and the subscriber. Brown v. MCI WorldCom Network Services Inc., 277 F.3d 1166, 1170 (9th Cir.2002).

AT&T has 15 general tariffs (numbered 1, 2, 4, 5, 7-14, 16, 27, and 28) as well as thousands of contract tariffs, which are individually-negotiated service contracts. Panatronic subscribed to AT&T's True Reach Service under Tariff 27, which is a basic long-distance service for residential customers. Lemar subscribed to AT&T's CustomNet Service under Tariff 1, which is a basic long-distance service for business customers.

AT&T also offers a package called the Virtual Telephone Network Services ("VTNS") under Tariff 12, which is a sophisticated voice and data network requiring multi-year, multi-million dollar usage commitments. The networks include incoming toll free services, outbound calling services, and private dedicated lines that directly connect the customer's multiple business locations. Neither Lemar nor Panatronic subscribed to the VTNS service.

In 1996, Congress enacted legislation requiring long distance carriers to contribute to the Universal Service Fund, which subsidizes the cost of telecommunication services for schools, libraries, health care providers and low income consumers. 47 U.S.C. § 254(d), (h). The FCC assesses carriers a quarterly Universal Service Contribution based on the carriers' telecommunications revenue. Carriers are authorized, but not required, to attempt to recoup this assessment from their customers. See In The Matter of Federal-State Joint Board on Universal Service, 12 F.C.C.R. 8776, 1997 WL 236383 § 829 (May 8, 1997); Evanns v. AT & T Corp., 229 F.3d 837, 839 (9th Cir.2000), cert. denied, 533 U.S. 911, 121 S.Ct. 2262, 150 L.Ed.2d 247 (2001). Pursuant to this authority, AT&T assesses its customers a Universal Connectivity Charge ("UCC") in order to recover its costs for the Universal Service Fund.

The plaintiffs' central allegation here is that AT&T assessed the UCC fee in a discriminatory manner. Tariff 1 customers, such as Lemar, were assessed a 4.9% UCC fee. Tariff 27 customers, such as Panatronic, were assessed a flat UCC fee of $0.93 per month. By contrast, Tariff 12 or VTNS customers were not assessed any UCC fee for several months. Significantly, the plaintiffs have not claimed that VTNS customers escaped the fee entirely, nor do they complain about the amount of the assessment. Quite simply, the plaintiffs complain that there was a delay of several months in assessing the fee upon VTNS subscribers and that this delay constituted unlawful price discrimination.

We review de novo the district court's grant of summary judgment. Delta Sav. Bank v. United States, 265 F.3d

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1017, 1021 (9th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 816, 151 L.Ed.2d 700 (2002). We are governed by the same standard used by the district court under Rule 56(c) of the Federal Rules of Civil Procedure. Id. Thus, we must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of...