Tort – Business Tort – Phone Number Release – ‘Adult’ Hotline

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Although plaintiff business has filed a complaint with the FCC in regard to defendant’s alleged release of a toll-free number the business used to market its products to an “adult” phone hotline, plaintiff nevertheless can pursue its state law claims, which are not preempted by federal law, a Chesapeake Circuit Court says.

Defendant asks the court to dismiss this case because the Federal Communications Commission has exclusive jurisdiction over administration of toll-free numbers under 47 U.S.C. § 251. The FCC has enacted regulations dealing with the assignment/transfer of toll-free numbers. Defendant argues that federal law preempts pursuing a claim in state court and that plaintiff has complained to the FCC so as to elect its remedy.

The complaint alleges breaches of contract and fiduciary duty, a number of fraud counts and negligence with a bailment. None of these causes of action arise out of the U.S. Code provisions dealing with common carriers. Although telecommunications is regulated by Congress in the Federal Communications Act contained in Chapter 47 of the U.S. Code, there is nothing in this case that alleges a right or a cause of action conferred by Congress. Rather, the causes of action are common law claims typical of a state court suit. The language of 47 U.S.C. § 207 deals solely with an election of remedies for claims that are conferred under the U.S. Code and not with common law claims under state law.

Therefore, while the claims for violation of the U.S. Code are within the jurisdiction of the FCC, since that is where plaintiff made the complaint, the state law claims are properly before this court.

Also, although the complaint under 47 U.S.C. § 207 could have been made in federal district court along with the state law claims, it was plaintiff’s prerogative to complaint to the FCC and file the state claims in this court.

Defendant also has argued that because plaintiff made an informal complaint with the FCC, that it is precluded from filing in state court. There was dispute during argument as to whether the document attached to defendant’s motion – a facsimile showing the status of the FCC claim – should be considered by the court as plaintiff could not verify the authenticity. Even if the court did consider that exhibit, there is no reason why an informal complaint with the FCC bars a state law claim in state court. Certainly, plaintiff could not recover damages twice. However, at this time, there is no claim before the court that plaintiff has received monetary damages from the FCC.

Plaintiff has asserted a cause of action for breach of an oral contract. However, the alleged breach could not have occurred without the written agreement that first created a relationship and gave Paetec dominion over the 1-86-MELADINE phone number. The court therefore grants defendant’s motion craving oyer asking for the contract between IBMD or its agent/affiliate and defendant Paetec and its agent/affiliate (US LEC).

Creative Technologies v. Paetec Communications of Virginia Inc. (Arrington, J.) No. CL 08-3209, Jan. 13, 2010; Chesapeake Cir.Ct.; Christopher D. Davis, Stephen T. Perkins for the parties. VLW 010-8-035, 5 pp.