Carter v. American Telephone and Telegraph Company, Civ. A. No. 3-1294.
Citation | 250 F. Supp. 188 |
Decision Date | 08 February 1966 |
Docket Number | Civ. A. No. 3-1294. |
Parties | Thomas F. CARTER and Carter Electronics Corporation, Plaintiffs, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY et al., Defendants. |
Court | United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas |
Geary, Brice & Lewis, by Ray Besing, and William VanDercreek, Dallas, Tex., for plaintiffs.
Charles Ryan, New York City, Wayne Babler and Melvin R. Quinlan, James M. Shatto, St. Louis, Mo., Edgar Mayfield, James Hand and H. W. Strasburger, Dallas, Tex., Vinson, Elkins, Weems & Searls, by Leroy Jeffers, Harry M. Reasoner, and Richard P. Keeton, Houston, Tex., for American Telephone and Telegraph Co. and Southwestern Bell Telephone Co.
Burford, Ryburn & Ford, by Frank M. Ryburn, Jr., Dallas, Tex., for the General Telephone Co. of the Southwest.
Plaintiffs, Thomas F. Carter and Carter Electronics Corporation, claim that they manufacture and sell a device called the "Carterfone," which permits a person receiving an incoming telephone call to transmit such call from the location received to another location by the use of two-way radio communication. The party receiving the incoming telephone call places the telephone receiver handset on a cradle which forms part of the Carterfone; and by process of induction, "without any electrical connection," the two-way radio communication system is activated, and the telephone caller can communicate with another person who may be located several miles away from the telephone receiver. Plaintiffs assert that defendants, American Telephone and Telegraph Company, Southwestern Bell Telephone Company and The General Telephone Company of the Southwest, using their monopoly powers over telephone communications, have conspired to and did prevent plaintiffs from selling their device by threats to prospective customers that their telephone service would be discontinued if they used plaintiffs' device, thereby substantially lessening competition between the Carterfone and defendants' mobile radio-telephone units and tending to create and further maintain defendants' monopoly over such products, all in violation of the antitrust laws, 15 U.S.C. §§ 1, 2, and 14, for which plaintiffs seek treble damages and injunctive relief.
Portions of AT&T Tariff FCC No. 132, "Message Toll Telephone Service," are attached as Exhibit "A" to plaintiffs' Complaint. Section 7 of the Tariff gives the Telephone Company the right to suspend or terminate service if an unauthorized device is "attached to or connected with the facilities furnished by the Telephone Company, whether physically, by induction or otherwise, except as provided in this Tariff."
Section 24 authorizes miscellaneous devices provided by the telephone customer "provided any such device so used would not endanger the safety of Telephone Company employees or the public; damage, require change in or alteration of, or involve direct electrical connection to, the equipment or other facilities of the Telephone Company; or interfere with the proper functioning of such equipment or facilities; or impair the operation of the telephone system or otherwise injure the public in its use of the Telephone Company's services."
In their complaint plaintiffs state that:
"* * * Although the Plaintiffs deny that such tariff is a valid tariff and that such tariff is applicable to the Carterfone, regardless of its validity and its application, the Defendants and the aforementioned non-party telephone companies have, as part of a common design and scheme, in uniformly publishing and enforcing such tariff, wrongfully used such tariff to accomplish a violation of the antitrust laws of the United States * * *."
The defendants have filed motions to dismiss on the grounds that primary jurisdiction lies with the Federal Communications Commission and that the complaint fails to state a claim upon which relief can be granted.
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