Lotto, Stolowitz and Farr v. New York Tel. Co.

• Decision Date: 23 August 1973
• Citation: 347 N.Y.S.2d 530,75 Misc.2d 494
• Court: New York Supreme Court
• Parties: LOTTO, STOLOWITZ & FARR, Plaintiff, v. NEW YORK TELEPHONE COMPANY, Defendant.

Page 530

347 N.Y.S.2d 530

75 Misc.2d 494

LOTTO, STOLOWITZ & FARR, Plaintiff, v. NEW YORK TELEPHONE COMPANY, Defendant.

Supreme Court, Special Term, Suffolk County, Part I.

Aug. 23, 1973.

Lotto, Stolowitz & Farr, Smithtown, plaintiffs, pro se.

Dewey, Ballantine, Bushby, Palmer & Wood, New York City, for defendant by Leonard Joseph, and Harvey Kurzweil, New York City, of counsel.

WILLIAM L. UNDERWOOD, Justice.

This is an action in equity by plaintiff, a law firm, to enjoin the defendant, New York Telephone Company (hereinafter called Telephone Company), from terminating, limiting, or otherwise interfering with plaintiff's telephone service, on account of a certain conference call device installed by plaintiff, without defendant's consent or approval.

Plaintiff has moved for a preliminary injunction founded upon the nature of the action, alleging that because of plaintiff's use of the conference call device, the Telephone Company has threatened cancellation of all of plaintiff's telephone service, which if accomplished, would cause a complete shutdown of plaintiff's law practice, and produce irreparable injury to plaintiff. (CPLR 6301)

Defendant, in addition to opposing the motion for a preliminary injunction, has cross-moved to dismiss the action upon the statutory grounds that this court lacks jurisdiction of the subject matter of the cause of action, and that the complaint fails to state a cause of action. (CPLR 3211(a), pars. 2 & 7). In its papers, and by way of oral argument held before the Court, the Telephone Company contends that primary or exclusive jurisdiction of plaintiff's claims rests in the Public Service Commission, which, according to 'tarrifs', or regulations, promulgated by that agency, forbids the installation of any device which interconnects with telephone equipment, unless a connecting arrangement is furnished, installed and maintained by the Telephone Company.

The conference call device was purchased by plaintiff upon the open market for $69.00 and is used in conjunction with defendant's telephonic equipment, to interconnect two or more persons to a single telephone conversation, or to forward a telephone call to another location without operator assistance.

In a letter dated April 11, 1973, (plaintiff's 'Exhibit A') defendant's manager informed plaintiff that the conference call arrangement connected to telephone company equipment was violative of 'the tariff', and referred plaintiff to P.S.C. No. 800 Telephone Tariff, Section 1, page 3b, entitled, 'Violation of Regulations', which authorizes the Telephone Company to disconnect a subscriber's telephone service upon a violation of the regulations, or 'Telephone Tariff' provisions, enacted by the Public Service Commission. Defendant's manager suggested that plaintiff contact the company from whom the conference call equipment was obtained, to determine the 'Telephone Company Connecting Arrangement required to attach your equipment to the Telephone Network', and that defendant will then have the appropriate 'Connecting Arrangement' installed.

The 'Connecting Arrangement' sought to be installed by the Telephone Company consists of a protective connection at $3.35 per month, with an installation charge of $20.00. Plaintiff argues that it has five lines, and that the total cost would be $100.00 for installation and $17.00 per month, for connecting a $69.00 device which already comes equipped with the necessary connecting attachment.

While it is conceded by the Telephone Company that Plaintiff's conference call device, or 'Tel-Com' as it is known, does not generate power, it is stated in the affidavit of defendant's General Marketing Engineer that the plaintiff's 'Tel-Com' was installed by someone who tampered with the Amphenol connectors, which are items of equipment installed by the Telephone Company, on plaintiff's premises, formulating a direct electrical connection from plaintiff's device to the telephone network of lines, and creating the potential hazard of interference with telephonic functioning. The affidavit of defendant's engineer further sets forth the provisions of Public Service Commission Tariff No. 800--B. 1. 2. d., which, in effect, does permit the use of 'subscriber-provided terminal equipment or subscriber-provided communications systems' involving 'direct electrical connection to the facilities furnished by the Telephone Company' upon the condition that such subscriber-provided equipment is connected through a 'connecting arrangement furnished, installed and maintained by the Telephone Company.'

Defendant, in further support of its contentions, has provided the Court with an abstract of New York Telephone Company, Case No. 25040, 9 NYPSC 157 (1969) which involves the initial proceedings conducted by the Public Service Commission, and consideration by it, as to the propriety of tariff filings made by the New York Telephone Company providing for access to the telephone network of customer-owned equipment. A study of these proceedings reveals that during the course of hearings on the issue, over 1100 pages of testimony were taken. In support of its filings, the New York Telephone Company produced its General Rate Engineer and the Engineering Director of American Telephone and Telegraph Company, as witnesses. In opposition to the tariff there appeared a number of individuals representing telephone and computer equipment manufacturing firms and consumer organizations. In its deliberations, the commission considered the findings of a special task force appointed by the Bell System to examine into regulations relating to the connection of 'customer-provided facilities,' with the telephone network. The conclusions of that task force were, that customers or subscribers should be permitted to connect their own facilities to the telephone system, 'conditioned upon appropriate safeguards in the tariffs to protect the service to all customers and to assure protection to employees of the telephone companies and telephone facilities from hazardous, or harmful, conditions. (emphasis added).'

Essentially, three safeguards were proposed by the Telephone Company to protect the network from 'foreign' interference by customer owned equipment, and included in these safeguards, was the requirement that there be a Telephone Company-furnished 'interface' device, or coupler, to be interposed between the Telephone Company equipment and the subscriber facilities. The proposed rates for installation and maintenance of a voice coupler were $20.00 for installation, and 50 cents per month for maintenance.

In reaching its own conclusions and recommendations, the Commission discussed the landmark determination of the Federal Communications Commission, the so-called 'Carterfone' decisions (13 F.C.C.2d 420; 14 F.C.C.2d 571; 15 F.C.C.2d 605), which is apparently referred to and relied upon by...