Ameritech Corp. v. McCann

Decision Date16 March 2004
Docket NumberNo. 99-C-0675.,99-C-0675.
Citation308 F.Supp.2d 911
PartiesAMERITECH CORPORATION, Plaintiff, v. E. Michael McCANN, in his official capacity as District Attorney of Milwaukee County, Wisconsin, Defendant.
CourtU.S. District Court — Eastern District of Wisconsin

Anthony S. Baish & David T. Flaherty, Godfrey & Kahn, Milwaukee, WI, Craig A. Knott, SBC Ameritech, Chicago, IL, for Plaintiff.

Donald V. Latorraca & Paul L. Barnett, Wisconsin Depart of Justice, Office of the Attorney General, Madison, WI, for Defendant.


RANDA, Chief Judge.

The case is before the Court following the court of appeals' reversal of a prior decision of this Court which had granted McCann's motion to dismiss on the ground that the action violated the Eleventh Amendment. This procedural history is implicated by the parties' pending motions for summary judgment and therefore will be summarized.


Ameritech Corporation ("Ameritech") filed this action against defendant, E. Michael McCann ("McCann"), seeking a declaration that McCann, the District Attorney of Milwaukee County, was required to comply with certain provisions of the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2701-2711 ("ECPA" or "the Act"). Specifically, it sought a declaration that it is entitled to reimbursement for costs incurred in searching for assembling, reproducing and providing information subpoenaed by McCann's office pursuant to 18 U.S.C. § 2706.1

On July 20, 2000, the Court issued a decision and order denying McCann's motion to dismiss for lack of subject matter jurisdiction, holding that a federal question is presented by McCann's complaint and an actual controversy exists. (Court's July 20, 2000, Decision and Order at 2, 7). The Court also rejected McCann's contention that abstention is proper. Id. at 8-10. However, the Court noted that the parties had raised, but not fully briefed, the issues of whether application of § 2706 to a state agency would violate the Tenth Amendment and whether § 2706 preempts state law and set a schedule for supplemental briefing on those issues. Id. at 10-11.

Thereafter, on December 17, 2001, this Court issued a decision and order granting McCann's motion to dismiss, holding that Ameritech's claim brought under the Declaratory Judgment Act was barred by state sovereign immunity and did not fall within the exception to sovereign immunity for suits seeking prospective equitable relief against state officials. See Ameritech Corp. v. McCann, 176 F.Supp.2d 870, 877-80 (E.D.Wis.2001). In the alternative, the Court held that § 2706(b), the ECPA subsection authorizing a suit against a state in the state's own court, violated the principle of state sovereign immunity. Id. at 881.

Upon appeal by Ameritech, the court of appeals issued a decision on July 22, 2000, ruling that the action sought only prospective relief and thus was not barred by the Eleventh Amendment. See Ameritech Corp. v. McCann, 297 F.3d 582, 585-88 (7th Cir.2002). The court emphasized "[i]n this case, no past breach of Section 2706 is at issue because Ameritech seeks only a declaration of rights that will force McCann to conform his future conduct to federal law." Id. at 587. Further,"Ameritech's suit seeks no reimbursement for McCann's previous noncompliance, but rather a declaration that he must comply with Section 2706 in the future." Id. at 588.

The court declined McCann's request to determine whether automated message accounting studies ("AMA's") really fall within the preview of § 2706, because it was irrelevant to the Eleventh Amendment issue, and questions of fact remained which could not be decided on a motion to dismiss. Id. at 588-89. Specifically, the appellate court held that the "parties dispute whether an AMA is an existing record or whether the production of an AMA requires additional compilation beyond the information stored by Ameritech, noting that the precise nature of an AMA is important because reimbursement under the Act is unnecessary for `records or other information maintained by a communications common carrier that relate to telephone toll records and telephone listings obtained under Section 2703.'" Id. at 588 (quoting 18 U.S.C. § 2706[c]). The matter was remanded for further proceedings consistent with the appellate opinion.

Upon remand, Ameritech filed a motion for leave to file an amended complaint intended to incorporate factual changes which had taken place during the pendency of the prior motion to dismiss and the appeal. The motion was granted by order dated December 4, 2002.

After further discovery, cross-motions for summary judgment were filed which are ready for resolution. The Court declines Ameritech's request to entertain oral argument as an aid in "sifting through the numerous and dubious arguments" made by McCann. (Ameritech's Request for Oral Argument at 1). The parties have adequately set forth their respective positions.


Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Material facts" are those facts that under the applicable substantive law "might affect the outcome of the suit." See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute over "material facts" is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The burden of showing the needlessness of a trial — (1) the absence of a genuine issue of material fact and (2) an entitlement to judgment as a matter of law — is upon the movant. In determining whether a genuine issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).


Ameritech is a Delaware corporation whose principal place of business is in Illinois. Ameritech owns Wisconsin Bell, Inc., which provides telephone services in Wisconsin. Ameritech is a provider of "electronic communications" in Wisconsin as that phrase is defined in 18 U.S.C. § 2510(12).

McCann, who is sued in his official capacity, is the duly elected district attorney in and for Milwaukee County, Wisconsin and has held that position since 1969. McCann and his legal staff are employees of the State of Wisconsin. In his capacity as District Attorney of Milwaukee County, McCann investigates criminal offenses and prosecutes alleged offenders of state and local laws. Jon Reddin ("Reddin"), joined the Office of the Milwaukee County District Attorney in 1973, and has served as a Deputy Milwaukee County District Attorney since 1992. Reddin has been the point person for McCann on the issue of compensation to Ameritech since the mid-1990s and his statements reflect the policy of the Milwaukee County District Attorney's office, subject to being overridden, by McCann.

Ameritech's network uses a series of "central offices." A central office provides "dial tone" to customers making phone calls and contains "switches" that route the calls to their proper destinations. When a customer places a call, the call is captured in the central office and creates a message that documents the call occurring. Thousands of fields are recorded. The recording of this information is a function that is regularly performed in the normal course of Ameritech's business.

The method used by the central office to record information about outgoing ("originating") telephone calls placed on the telephone system is "Automated Message Accounting" ("AMA") whereby "[o]riginating phone calls are electronically recorded in the originating [central] office of the call." The electronically recorded information about an outgoing call includes the originating number, the duration of the call, the date and time and the number called (the "terminating number"), any calling features used, whether the call was operator assisted or international, and if a long distance call, carrier information. The recorded information about originating calls is stored in "data sets" on magnetic computer tapes. In Wisconsin, approximately 25 million calls per day are collected on Ameritech's network from customers originating phone calls and from other telecommunication companies originating calls on the Ameritech network. The information about these Wisconsin telephone calls is stored in approximately 24 data sets.

In the normal course of Ameritech's business, the information about the originating calls is used to create Ameritech's phone bills and message unit detail ("MUD") records and to resolve billing disputes. The Electronic Billing Accuracy Center ("EBAC") ensures the integrity of Ameritech's billing. EBAC addresses billing issues exclusive to Ameritech as well as billing issues with other telephone companies with whom Ameritech companies may have had contact. EBAC typically handles inquiries that involve thousands of calls. A typical referral to EABC includes a situation where a customer is billed long distance for a call the customer believed was local. EBAC addresses issues regarding billings on trunk groups,3 and determines whether a trunk group is set up correctly so that it produces billings. EBAC also investigates calls that are processed but for which no one was billed — such calls are normally in the high 100s or 1,000s.

In addition, EBAC investigates complaints from other carriers. In disputes with other carriers, EBAC provides data or information from the other carrier that is in the form of an AMA, which is similar to...

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1 cases
  • Ameritech Corp. v. McCann
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • April 12, 2005
    ...the District Attorney must comply with § 2706 whenever it governs — but the district judge refused to say when it does govern. 308 F.Supp.2d 911 (E.D.Wis.2004). Ameritech has appealed again. Following oral argument we held matters in abeyance until the district court entered a proper judgme......

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