Bell Atlantic of Maryland, Inc. v. Intercom Systems Corporation

• Decision Date: 10 October 2001
• Docket Number: No. 13,13
• Citation: 366 Md. 1,782 A.2d 791
• Parties: BELL ATLANTIC OF MARYLAND, INC. v. INTERCOM SYSTEMS CORPORATION.
• Court: Maryland Court of Appeals

782 A.2d 791

366 Md. 1

BELL ATLANTIC OF MARYLAND, INC. v. INTERCOM SYSTEMS CORPORATION.

No. 13, Sept. Term, 2001.

Court of Appeals of Maryland.

October 10, 2001.

Ralph S. Tyler (Karen M. Hardwick, Rose Marie L. Audette of Hogan & Hartson, L.L.P., on brief), Baltimore, for petitioner.

William Ray Ford, Camp Springs, for respondent.

Tara Andrews, Deborah Thompson Eisenberg, Baltimore, brief of Amici Curiae the Public Justice Center and All Peoples Congress, filed on behalf of respondent.

Argued before BELL, C.J., WILNER, CATHELL, HARRELL, BATTAGLIA, and LAWRENCE F. RODOWSKY (retired, specially assigned), and ROBERT L. KARWACKI (retired, specially assigned), JJ.

BATTAGLIA, Judge.

We issued a writ of certiorari in this case to determine whether the administrative remedy before the Maryland Public Service Commission ("PSC" or "Commission") as set forth in Maryland Code, Section 3-101 et seq. of the Public Utility Companies Article (1998) is of an exclusive, primary, or concurrent nature with respect to alleged acts of tortious interference with contractual relations, negligence, and breach of contract in connection with the provision of telephone services by petitioner Bell Atlantic of Maryland, Inc. ("Bell Atlantic") to respondent Intercom Micro Systems, Inc. ("Intercom"). The Court of Special Appeals held that the statutory remedy provided by the Public Utility Companies Article was primary for consumer complaints against public service companies. We now affirm.

I. Facts

Respondent Intercom is an internet service provider in the Washington, D.C. metropolitan area. The company was started in 1993 by its owner, Mark S. Ballard, who currently runs the business from his home in Clinton, Maryland. Petitioner Bell Atlantic of Maryland, Inc. ("Bell Atlantic") serves as the local exchange carrier providing telephone service to Clinton, Maryland, which includes the business telecommunications services for Intercom. In 1995, Intercom filed seven complaints against Bell Atlantic with the PSC's Office of Consumer Assistance and Public Affairs ("CAPA"), alleging that Bell Atlantic provided inadequate telecommunications services, engaged in improper billing, and discriminatory treatment.¹

In one complaint, Intercom alleged that Bell Atlantic service outages affecting the dedicated service line being provided to one of Intercom's clients resulted in the loss of Intercom's business with that client. In a separate complaint, Intercom detailed how its incoming phone calls were being routed to one of its competitors located in Laurel, Maryland. The remaining five complaints recounted the numerous losses Intercom sustained which were allegedly attributable to instances of Bell Atlantic's inadequate service and substandard customer service responses to complaints lodged by Intercom.²

During January and February of 1997, Intercom filed an additional sixteen complaints with the PSC's CAPA Office. Intercom asserted that Bell Atlantic had failed again to provide Intercom with adequate service, billed Intercom incorrectly for the services, and engaged in discriminatory practices. Bell Atlantic conducted an investigation of these complaints, and filed reports with the PSC. On April 11, 1997, the CAPA Office issued a "final response," in which it found that Bell Atlantic had not violated any of the PSC's approved tariffs (fee schedules) and had not acted in bad faith with respect to the provision of telecommunication services to Intercom. The PSC informed Intercom that pursuant to COMAR 20.32.01.04A and 20.07.03.04, it had a ten day period in which it could appeal the findings of the CAPA Office by filing a formal complaint with the full Commission.³

On April 21, 1997, Intercom filed a formal complaint with the PSC, in which it incorporated the sixteen original complaints it had filed previously with the CAPA Office in 1997. Intercom also filed a seventeenth complaint seeking damages for harm suffered by Intercom as a result of Bell Atlantic's allegedly willful and intentional conduct. Intercom's damages claimed before the PSC were of a compensatory and punitive nature. Bell Atlantic interjected jurisdictional defenses to Intercom's claims by asserting that Intercom's request for compensatory and punitive damages went beyond the statutory authority of the PSC.

The PSC determined that it had jurisdiction to entertain Intercom's complaints with regard to fee schedules, since these issues were not preempted by the Federal Communications Act, 47 U.S.C. § 151 (1991). Intercom's complaints of Bell Atlantic's allegedly willful and intentional conduct interfering with Intercom's business relations, were addressed by the PSC's hearing examiner as follows:

The business relationship between [Intercom] and [Bell Atlantic] has been one in which [Intercom] has found it necessary to file repeated complaints with this Commission in order to rectify what it considered serious and willful actions taken against it by [Bell Atlantic]. [Intercom] argues that the actions of Bell Atlantic [are] evidence of its intent to destroy the business. Obviously, Bell Atlantic denies such a charge. Nonetheless, it is entirely understandable that [Intercom] would draw such a conclusion. [Bell Atlantic] is a sophisticated company with technological and management systems in place to provide reliable service to its customers. The cummulative [sic] affect[sic] of the actions described in the [Intercom] complaints certainly belie the standard of reliability expected of Bell Atlantic. Therefore, it is, indeed, very troublesome that this succession of problems has occurred. Moreover, it is reasonably foreseeable that the repeated problems could and probably did have serious economic consequences to [Intercom]. However, it is not necessary to decide whether Bell Atlantic's action was taken for the intended purpose to destroy the [Intercom] business. Simply put, the [Intercom] claim for economic damage seeks to obtain a remedy that is beyond the boundary of the tariffs or the Commission's statutory authority. Although [Intercom] argues strongly that the action against it was taken with the intent of destroying the business, that allegation cannot be the basis for providing a remedy that is not authorized by statute. There are "numerous decisions that hold that the Commission cannot award monetary damages or assess fines save those specifically provided by statute." See [In re] Re: The Washington Post Company, 88 Md. PSC 183, 185 (1997).

Proposed Order of Hearing Examiner, In the Matter of the Complaint of IMS Intercom Against Bell Atlantic-Maryland, Inc. (Dec. 23, 1999).⁴ It concluded it lacked the authority to entertain Intercom's request for punitive and consequential damages, the PSC granted Bell Atlantic's Motion for Summary Dismissal.

In addition to the administrative remedies available under Sections 3-101 through 3-209 of the Public Utility Companies Article of the Maryland Code, Intercom sought direct judicial relief in the form of an independent judicial action. On April 16, 1997, Intercom filed a lawsuit against Bell Atlantic in the Circuit Court for Prince George's County, alleging tortious interference with contractual relations, negligence, and breach of contract. Intercom alleged that Bell Atlantic intentionally interfered with Intercom's business because it, either directly or through its subsidiaries, was a direct competitor of Intercom in providing internet access services to the general public. Specifically, Intercom alleged that beginning in May of 1994, Bell Atlantic failed to promptly provide Intercom with new or additional circuits to accommodate its expanding business. Intercom asserted that those circuits that Bell Atlantic had provided repeatedly failed in their performance or were of low quality. The complaint also alleged that Bell Atlantic improperly charged Intercom for the services which it provided, and that Bell Atlantic engaged in conduct which demonstrated billing and service preferences for Intercom's competitors. In support of its allegations of discriminatory treatment, Intercom asserted that Bell Atlantic had rerouted or forwarded Intercom's voice lines to competitor internet service providers, and that Bell Atlantic had refused to list Intercom in the White Pages or in its 411 Information Directory listings, although Intercom had ordered such service. Based on these allegations, Intercom sought judicial relief in the form of compensatory and punitive damages.

In response, Bell Atlantic filed a motion to dismiss Intercom's complaint for failure to state a claim upon which relief could be granted by the court because Intercom's claims fell "squarely within the exclusive jurisdiction of the Maryland Public Service Commission," pursuant to the Public Utility Companies Article of the Maryland Code. Thus, Bell Atlantic argued that the only judicial determination available to Intercom would be judicial review of a final order of the PSC, which had not been issued at that time.

On November 14, 1997, the Circuit Court for Prince George's County heard Bell Atlantic's motion to dismiss, at which time Intercom argued that the claims it raised against Bell Atlantic were of a hybrid nature-some could be addressed by the PSC and others were common law tort claims which could be pursued in an independent judicial action. The trial court gave the following rationale for its dismissal of Intercom's suit:

I believe that the allegations raised in the complaint are within the exclusive jurisdiction of the Public Service Commission. The cases cited in support of the Court retaining jurisdiction or staying [sic] that we somehow have some type of concurrence [sic], successive concurrence [sic] jurisdiction [is not persuasive].

* * *

The allegation that the Public Service Commission cannot make the Plaintiff whole was raised in Bits `N' Bytes, and Judge Motz and the panel did not find that persuasive.

Certainly the matters raised in the

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