Astro Tel, Inc. v. Verizon Fla., LLC

• Decision Date: 25 October 2013
• Docket Number: Case No. 8:11–cv–2224–T–33TBM.
• Parties: ASTRO TEL, INC., Plaintiff, v. VERIZON FLORIDA, LLC and Verizon Communications, Inc., Defendants.
• Court: U.S. District Court — Middle District of Florida

979 F.Supp.2d 1284

ASTRO TEL, INC., Plaintiff,

v.VERIZON FLORIDA, LLC and Verizon Communications, Inc., Defendants.

Case No. 8:11–cv–2224–T–33TBM.

United States District Court,

M.D. Florida,

Tampa Division.

Oct. 25, 2013.

Herbert Roy Donica, Donica Law Firm, PA, Tampa, FL, John C. Dent, Jr., Dent & Johnson, Chartered, Sarasota, FL, for Plaintiff.

Aaron M. Panner, Alexander S. Edelson, Kenneth M. Fetterman, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, Washington, DC, Darryl S. Laddin, Arnall Golden Gregory LLP, Atlanta, GA, Hardy L. Roberts, III, Carlton Fields, PA, Tampa, FL, for Defendants.

ORDER

VIRGINIA M. HERNANDEZ COVINGTON, District Judge.

Defendants Verizon Florida, LLC and Verizon Communications, Inc. (collectively “Verizon”) filed their Sealed Motion for Final Summary Judgment (Doc. # 94) on August 8, 2013. Plaintiff Astro Tel, Inc., filed its Sealed Response in Opposition to the Motion for Summary Judgment (Doc. # 100) on August 29, 2013. Verizon filed a Sealed Reply on September 20, 2013. (Doc. # 107).¹ For the reasons that follow, the Court grants Verizon's Motion for Summary Judgment.

I. BackgroundA. Astro Tel's Services

Founded in 2001, Astro Tel formerly provided telephone and internet services to customers in Florida until it filed for bankruptcy and ultimately sold its assets to a third party, Birch Communications, for $750,000 in April of 2012. (Ray Aff. Doc. # 101 at ¶ 19). According to its founder and president, Mike Ray, “Astro Tel was smaller than most” local carriers. (Ray Dep. Vol. 2 Doc. # 94–1 at 263:4–5). Astro Tel serviced between 24 to 600 customers in any given year. (Ray Dep. Vol. 1 Doc. # 94–3 at 21:3–5, 74:8). Astro Tel also acted as a wholesaler, providing services to businesses that would, in turn, resell such services in the retail market. ( Id. at 26:4–25).

In his affidavit, Mr. Ray described some of Astro Tel's offerings as follows:

local telephone service, long distance telephone service, internet access service, domain name service, DNS service, virus and spam filtering service for email, email boxes with customer's domain, our SmartMail FAX service which accepts faxes and then converts them to email, our SmartMail voice service which accepts voicemail messages and converts them to email, Hosted PBX service which provides telephone system equipment along with the carrier telephone service, and Failure Recovery Service which limited damage to a business during any telecommunications outage.

(Ray Aff. Doc. # 101 at ¶ 3).

Mr. Ray testified that, in providing these services, Astro Tel competed with Daystar, Bright House, Comcast, and Verizon. (Ray Dep. Vol. 1 Doc. # 94–3 at 246:13–14).

B. Astro Tel's Relationship with Verizon

In addition to competing with Verizon, Astro Tel also purchased services and network facilities on a wholesale basis from Verizon. (Ray Aff. Doc. # 101 at ¶¶ 1–4). Even though Astro Tel resold Verizon's services, Verizon remained responsible for installing services and maintaining its network. ( Id. at ¶¶ 7, 11). Mr. Ray indicates in his affidavit that “the elements obtained from Verizon were an integral part” of Astro Tel's business model. ( Id. at ¶ 3). Mr. Ray provides the following example of how Astro Tel worked with Verizon to provide telecommunications services to Astro Tel clients:

Plain Old Telephone Service or POTS, is an industry-standard service upon which many devices and applications rely.... Astro Tel had two ways that it could offer POTS service of the same character and quality of Verizon's POTS service. It could resell Verizon's service and rebill that service to its subscriber. It could also lease the copper wire Unbundled Network Element (“UNE”) from Verizon ....

( Id. at ¶ 4).

Mr. Ray further explains that “[w]hen ordering a new telephone line for an AstroTel subscriber, AstroTel was first required to validate the subscriber's address in a Verizon ordering system.... Once validated, AstroTel would reserve a telephone number for the new service. Then, AstroTel would place an order for the line in the Verizon ... [ordering] system.” ( Id. at ¶ 7).

Mr. Ray was not satisfied with Verizon's customer service practices and theorizes that Astro Tel's business suffered when Verizon failed to promptly address certain network issues or failed to install services for Astro Tel customers on a timely basis. ( Id. at ¶ 11). Astro Tel documented its business activities, including Verizon's network maintenance issues, with service “tickets.” ( Id. at ¶ 6). The parties agree that Astro Tel generated approximately 40,000 service tickets during its years of operation. ( Id.; Doc. # 94 at 2). Astro Tel has come forward with several service tickets documenting situations where Verizon allegedly failed to install or maintain telecommunications services for Astro Tel's customers. See, e.g., (Doc. # 101 at FC–23) (indicating that Verizon failed to install telecommunications equipment in February of 2003); ( Id. at FC–28) (indicating that Verizon failed to promptly install telecommunications equipment in February of 2010). ² Notably, Astro Tel has not provided any tickets documenting instances when Astro Tel “put an order with Verizon and it went through smoothly.” (Ray Dep. Vol. 2 Doc. # 94–1 at 287:8–11).

Although Astro Tel theorizes that some of its customers cancelled services due to Verizon's failure to install and maintain network components, Mr. Ray testified that, “generally, once a customer decided to leave, we wouldn't know why they decided to leave, only that they decided to leave.” ( Id. at 256:18–20). Mr. Ray also indicated that some Astro Tel customers left because they moved, because competitors offered different services or better prices, or because they failed to pay their bills. ( Id. at 247:20–249:5).

Verizon concedes that “approximately 15 customers between 2005 and 2011, an average of two customers per year, canceled service [with Astro Tel] after [making] complaints about service issues for which Verizon was allegedly responsible.” (Doc. # 94 at 11).

Mr. Ray also suspected that Verizon, privy to Astro Tel's customer information based on its relationship with Astro Tel, inappropriately utilized Astro Tel's private customer information to solicit Astro Tel's customers. (Ray Aff. Doc. # 101 at ¶ 12). On at least one occasion, Verizon, using a telemarketing agency known as Americom, called Mr. Ray (presumably unaware that he was the owner of Astro Tel) and attempted to sway him to switch to Verizon. ( Id. at ¶ 13; Doc. # 101 at AP–80). Mr. Ray recorded the call, and during such call, the Americom representative noted to Mr. Ray that “Astro Tel is a Verizon reseller.” (Doc. # 101 at AP–80 at 6:18). Mr. Ray searched Astro Tel's records and determined that the “Americom office had placed 197 calls to Astro Tel numbers.” (Ray Aff. Doc. # 101 at ¶ 15). Mr. Ray also utilized “fictitious customer names of ‘Dorian Gray’ and ‘Tel Astro’ ” and ordered Astro Tel services to be installed by Verizon. ( Id. at ¶ 12). Thereafter, both fictitious customers received marketing materials from Verizon. ( Id.; Doc. 101 at Ex. 55).

In addition to marketing to Astro Tel's customers, Mr. Ray asserts that Verizon inaccurately invoiced Astro Tel, leading to service disruptions. Astro Tel and Verizon submitted their billing disputes to arbitration, and the arbitrator found in favor of Verizon. (Doc. # 94–14). The arbitrator ordered Astro Tel to pay Verizon $500, 000 in unpaid invoices, sending Astro Tel into bankruptcy.

On March 29, 2011, Astro Tel filed an adversary proceeding, 8:11–ap–00342–MGW, in Bankruptcy Court against Verizon alleging violation of federal antitrust law, violation of the federal RICO statute, and asserting a broad array of state claims, such as business defamation. Verizon petitioned this Court for an Order withdrawing the reference from the bankruptcy court, and this Court withdrew the reference pursuant 28 U.S.C. § 157(d) on September 30, 2011. (Doc. 1, 5). Among other determinations, this Court found that the “resolution of Astro Tel's Complaint will require substantial and material consideration of the Sherman Act [and] the RICO Act.” (Doc. # 5 at 4).

Verizon sought the dismissal of Astro Tel's Complaint, and in an Order dated May 4, 2012, the Court granted the motion to dismiss in part and denied the motion to dismiss in part. (Doc. # 49). In the same Order, the Court granted Astro Tel leave to amend. ( Id.). On May 15, 2012, Astro Tel filed its Second Amended Complaint, which is the operative Complaint, containing the following counts against Verizon: (1) Sherman Act, Section 2, 15 U.S.C. § 2 Monopolization; (2) Sherman Act, Section 2, 15 U.S.C. § 2 Attempted Monopolization; (3) Sherman Act, Section 2, 15 U.S.C. § 2 Monopoly Leveraging; (4) Civil RICO in violation of 18 U.S.C. § 1962; (5) Tortious Interference with Contract; (6) Unfair Competition; (7) Business Defamation and Disparagement; and (8) Civil Conspiracy.³ (Doc. # 52).

At this juncture, Verizon seeks summary judgment as to each count of Astro Tel's Second Amended Complaint.

II. Legal Standard

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual dispute alone is not enough to defeat a properly pled motion for summary judgment; only the existence of a genuine issue of material fact will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.1996) (citing Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir.1993)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th...