David v. New York Telephone Company, 72 Civ. 19.
| Decision Date | 04 April 1972 |
| Docket Number | No. 72 Civ. 19.,72 Civ. 19. |
| Parties | Richard DAVID, individually, as well as on behalf of others similarly situated, Plaintiff, v. NEW YORK TELEPHONE COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Dewey, Ballantine, Bushby, Palmer & Wood, New York City, for defendant; Leonard Joseph, Harvey Kurzweil, New York City, of counsel.
Bradley B. Davis, New York City, for plaintiff.
The defendant moves for dismissal of this action for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b) (6), Fed.R.Civ.P., and for lack of jurisdiction over the subject matter, pursuant to Rule 12(b) (1), Fed.R.Civ.P. The parties concede that no genuine issues of fact are present and that the controversy can be disposed of by way of summary judgment.
Alleging jurisdiction under the Civil Rights Act, 28 U.S.C. § 1343, the plaintiff brings this action on behalf of himself and purportedly on behalf of all other "unemployed persons without financial resources who require telephones installed in their residences in New York State." He alleges that when he requested residential telephone service on or about August 1, 1971, defendant New York Telephone Company (Company) asked him to post a $100 deposit and that he was told that the "ordinary" deposit was $25. Allegedly the $100 deposit was requested because he was unemployed and without financial resources. This requirement as a condition to obtaining telephone service, plaintiff urges, "solely because he is unemployed and without financial resources, while other persons may obtain a telephone with a deposit of only $25 denies plaintiff the equal protection of the law under the Fourteenth Amendment of the United States Constitution." His complaint further insists that this alleged denial of equal protection is "pursuant to State action, to wit: approval of tarrifs sic allowing these discriminatory deposits by the Public Service Commission." Plaintiff thus seeks injunctive and declaratory relief, specifically praying for (1) an "order restraining and enjoining defendant from demanding discriminary sic deposits for telephone service from plaintiff and others similarly situate sic based upon employment status or other economic condition," (2) an "order directing defendant to install telephone service for plaintiff provided he post a deposit the same as that which would be required under the tariffs were he employed and with financial resources," and (3) an "order declaring any tariffs which discriminate between telephone deposits on the basis of economic wealth or employment in violation of the equal protection clause."
In substance, plaintiff claims he has been deprived of the freedom of speech secured by the First Amendment because he has been frustrated in his attempt to procure the use of a telephone facility; that the defendant Company discriminates unconstitutionally by making a distinction "between persons who must make a deposit and those who need not"; and finally, he suggests, "the basic tariff rule itself ... discriminates against poor people." In essence, plaintiff's allegations rest upon a $100 deposit requirement imposed, he says, because he was unemployed and without financial resources, despite the existence of an alleged "ordinary" deposit of only $25.
These contentions have no basis in fact. There is no ordinary deposit of $25; and the deposit of $100 was not required because plaintiff was unemployed and without financial resources. An affidavit by Mr. Robert Manner, Assistant Vice President of defendant Company, demonstrates the Company's deposit policies. The Company requires a subscriber to post a deposit equivalent to two months' estimated charges if he cannot establish his credit to the satisfaction of the Company. Deposits are not favored and are dispensed with whenever possible. When a deposit is required the amount is determined on the basis of uniform rules, and does not depend on a subscriber's employment or economic status. If a subscriber has had prior telephone service and a deposit is required because, for example, he has been delinquent, the deposit will be the equivalent of the subscriber's average bill for two months' service. It does not matter whether that subscriber is or is not employed at that time nor what his economic status might then be. If a subscriber has not had prior telephone service, the deposit amount is based upon the average two months' bill of all residential subscribers in the Company's central business office district in which the applicant resides. Not having had previous telephone service since 1967, plaintiff was treated as a new applicant to whom these latter provisions applied.
If plaintiff were a residential subscriber, the minimum and average deposit requested in the...
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