Disk 'N' Data, Inc. v. AT&T Communications
Disk 'N' Data, Inc. v. AT&T Communications
Opinion of the Court
After a jury verdict in the Superior Court in favor of the plaintiff against the defendants, AT&T Communications and American Telephone and Telegraph Company (AT&T), a judge limited the plaintiff’s damages pursuant to Federal Communications Commission Tariffs No. 259 and No. 2 (Tariff F.C.C. No. 259). See note 5, infra. The plain
We summarize the relevant facts.
The plaintiff received approximately 21,000 telephone calls intended for AT&T shareholder services between 1983 until July, 1985.
In March, 1984, AT&T offered to change the plaintiff’s 800 number and to “sift”
Tariff F.C.C. No. 259 (tariff)
The plaintiff’s reliance on Lebowitz Jewelers Ltd. v. New England Tel. & Tel. Co., 24 Mass. App. Ct. 268 (1987), is misplaced. There the Appeals Court applied a more narrowly drafted tariff to limit the liability of the defendant where the damages arose from an interruption in service. Lebowitz Jewelers Ltd. does not stand for the proposition that a broader limit on liability in an applicable tariff would be improper.
The plaintiff argues that public policy militates against our applying the tariff to limit liability in these circumstances. The provision of interstate communication service, however, is determined according to Federal law. Ivy Broadcasting Co. v. American Tel. & Tel. Co., 391 F.2d 486, 491 (2d Cir. 1968). Federal courts have upheld similar tariffs on public policy grounds. Travelers Ins. Co. v. SCM Corp., 600 F. Supp. 493, 496 (D.D.C. 1984) (tariff is “binding public regulation — established as a matter of public policy — to limit” liability). Pilot Indus. v. Southern Bell Tel. & Tel. Co., 495 F. Supp. 356, 361 (D.S.C. 1979), quoting Western Union Tel. Co. v. Esteve Bros. & Co., 256 U.S. 566, 571 (1921) (limitation of liability “an inherent part of the rate”).
Judgment affirmed.
The trial and the hearing on damages were tape recorded with no stenographer present, but the recordings were not audible. Therefore, pursuant to Mass. R. A. P. 8 (d), as amended, 378 Mass. 932 (1979), the parties submitted a statement of agreed facts as the record on appeal.
An AT&T operator would intercept a call, ask whom the caller was trying to reach, and provide the caller with the new telephone number.
AT&T investigated the plaintiffs complaints and found no evidence that the AT&T shareholder services toll free number was incorrectly listed in any AT&T directory assistance data bank or incorrectly published in any AT&T directory or other publication. The plaintiff presented deposition testimony which indicated that its 800 number was erroneously distributed by AT&T long distance operators, incorrectly listed in AT&T directory assistance data banks and an AT&T employee handbook, and disseminated by a prerecorded message which answered calls by AT&T shareholders dialing an out-of-service number.
After the January 1, 1984, divestiture, AT&T Wide Area Telecommunications Service (WATS) and AT&T 800 service were managed by AT&T Communications and governed by Tariff F.C.C. No. 259 and Tariff F.C.C. No. 2, which are substantively identical to their predecessor, also identified as Tariff F.C.C. No. 259.
Tariff F.C.C. No. 2, § 2.3.1 A, issued July 30, 1985, provides: “The Company’s liability, if any, for its willful misconduct is not limited by this tariff. With respect to any other claim or suit, by a Customer or by any others, for damages associated with the installation, provision, termination, maintenance, repair or restoration of WATS, and subject to the provisions of B. through G. following, the Company’s liability, if any, shall not exceed an amount equal to the monthly recurring charge provided for under this tariff for the AT&T 800 Service access line, the AT&T WATS access line, or AT&T MEGACOM 800 Service, whichever is appropriate. This liability for damages shall be in addition to any amounts that may otherwise be due the Customer under this tariff as a Credit Allowance for Interruptions . . . .”
Reference
- Full Case Name
- Disk 'N' Data, Inc. v. AT&T Communications & another
- Cited By
- 4 cases
- Status
- Published