International Tel. and Tel. Corp. v. United Telephone Co. of Florida, 75-3780
| Decision Date | 08 April 1977 |
| Docket Number | No. 75-3780,75-3780 |
| Parties | 1977-1 Trade Cases 61,366 INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION, Plaintiff-Appellant Cross-Appellee, v. UNITED TELEPHONE COMPANY OF FLORIDA, Defendant-Appellee Cross-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Peter J. Winders, Tampa, Fla., Grant S. Lewis, New York City, Maxwell M. Blecher, Los Angeles, Daniel R. Solin, New York City, Cromwell A. Anderson, Miami, Fla., for defendant-appellee-cross-appellant.
Warren E. Baker, Shawnee Mission, Kan., Edwin L. Mason, Tallahassee, Fla., Lawrence Kill, Jerold Oshinsky, New York City, John F. Germany, Tampa, Fla., for plaintiff-appellant-cross-appellee.
Appeals from the United States District Court for the Middle District of Florida.
Before MORGAN and FAY, Circuit Judges, and HUNTER, * District Judge.
Plaintiff, International Telephone and Telegraph Corporation (ITT), and defendant, United Telephone Company of Florida (United), appeal the dismissal of all claims and counterclaims by the district court after a trial to the judge on the merits. Both parties assign a myriad of errors but we find them to be without merit and affirm in toto the judgment of the district court.
ITT, is, among other things, a manufacturer and distributor of telephone equipment. United is an operating telephone company enfranchised by the State of Florida to furnish exclusive telephone service to subscribers within an area comprising thirteen counties including the cities of Fort Myers and Tampa.
ITT claims United unlawfully used its monopoly power by stifling competition in the sale and distribution of telephone equipment in violation of Section 2 of the Sherman Act. 1 ITT asserts United caused the cancellation of a sales contract of ITT for telephone equipment as a result of anticompetitive motivations; in particular, the filing of a "sham" complaint with the Florida Public Service Commission.
This controversy involves a proposed telephone system for an extensive real estate development in Fort Myers called Shell Point Village (the Village). This 75-acre development was established as a retirement community which also has lodging, shopping and other facilities open to the general public including a 200-room motel, a restaurant and a marina. A communications system was needed which would permit internal telephone calls between the many component units of the Village and between them and points outside the Village. ITT offered a solution through the use of central office equipment it would supply. This equipment was intended to permit intra-state and interstate communications by telephone through an interconnection with the licensed system of United. 2
The Village was not a telephone company and had no required certificate from the State of Florida, therefore, it could not sell telephone services to its residents (except for internal communications). 3 This would constitute the use of customer owned equipment to resell telephone services to others. The proposed installation at the Village could only be made operative by interconnecting with United's trunk lines and general facilities, therefore, United in its best interest attempted to determine whether Florida law was being followed.
United filed a complaint with the Florida Public Service Commission on July 24, 1970 alleging its belief that the Village's proposed telephone system would involve resale of services without a certificate in contravention of statute and in violation of United's tariff. United also notified the Commission by letter that because some of the contemplated uses of the telephone system were lawful it believed it was obliged to interconnect and was ready to do so, seeking an order from the Commission only as to the unlawful conduct.
On August 7, 1970, the Commission issued a show cause order against the Village and the Village did not respond. However, on September 9, 1970, the Village filed an answer wherein it denied its telephone services would be "for hire" and moved to dismiss the complaint. This motion was denied. On November 20, 1970, the Commission granted intervention to ITT in support of the Village and also to General Telephone Company of Florida, Florida Telephone Corporation and Southern Bell Telephone and Telegraph Company in support of United. A week later ITT filed its answer denying that the telephone system which it proposed to sell the Village would be used for resale of services and moving to dismiss United's complaint. This motion was also denied....
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