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ALLNET COMMUNS. SERVS. v. NATIONAL EXCH. CARRIER A

July 31, 1990

ALLNET COMMUNICATIONS SERVICES, INC., Plaintiff,
v.
NATIONAL EXCHANGE CARRIER ASSOCIATION, INC., Defendant



The opinion of the court was delivered by: HARRIS

 This matter is before the Court on defendant's motion to dismiss, plaintiff's opposition, and defendant's reply. For the reasons set forth below, defendant's motion is granted and the case is dismissed.

 Background

 Plaintiff ALLNET Communications is an inter-exchange carrier (IXC) that provides long distance telephone service in two markets. In the interstate long distance market, ALLNET competes against other inter-exchange carriers such as AT&T, MCI, and others. In the intrastate long distance market, plaintiff competes against local exchange carriers (LECs) such as C&P Telephone Co.

 Defendant National Exchange Carrier Association (NECA) is a non-profit, non-stock membership corporation established pursuant to regulations promulgated by the Federal Communications Commission (FCC) in the wake of the 1984 AT&T divestiture. See 47 C.F.R. §§ 69.601-69.612 (1989) (description of NECA functions and composition). NECA is comprised of the approximately 1,400 local exchange carriers in the United States. Moreover, many of NECA's officers and employees are on temporary assignment from the member LECs.

 NECA acts as the administrator of the LA & USF program. Once a month, NECA bills certain IXCs that use local exchange switching facilities for the LA & USF charge. See 47 C.F.R. §§ 69.116-117 (1989). NECA also collects and allocates the LA & USF revenue among the local exchange carriers. Id.

 ALLNET refuses to pay NECA the LA & USF tariff for the period April 1, 1989, through August 1, 1989. ALLNET contends that for various reasons, the tariff at that time was invalid under 47 U.S.C.A. § 203 (West 1962 & Supp. 1990). *fn2" ALLNET moved for an order temporarily restraining defendant from sending out notices of ALLNET's non-payment of the tariff to the NECA membership. *fn3" NECA voluntarily has refrained from sending out the notices and has in turn filed a motion to dismiss. *fn4" NECA suggests that this Court lacks subject matter jurisdiction over ALLNET's claims, and that the controversy should in any event be referred to the FCC under the doctrine of primary jurisdiction.

 ALLNET counters that its suit is properly before a district court for three main reasons. First, ALLNET properly elected a district court forum due to the interrelationship between the Communications Act, 47 U.S. C.A. ch. 5 (West 1962 & Supp. 1990), and the Declaratory Judgment Act, 28 U.S.C.A. § 2201. Second, the issues at hand are legal questions properly within the competence of this court, rather than questions within the exclusive jurisdiction of the FCC. Third, the FCC cannot assure an impartial adjudication of the dispute between the parties.

 Discussion

 The Court agrees with ALLNET's own conclusion that NECA is not a common carrier. *fn5" Accordingly, the Communications Act does not confer a cause of action or jurisdiction upon this court, and therefore, this case must be dismissed.

 ALLNET attacks the validity of the relevant LA & USF tariff in reliance upon 47 U.S.C.A. § 203. The problem with this challenge is that § 203, and the rest of title II, proscribe the activities of common carriers. Therefore, it is not for this Court to determine whether the LA & USF tariff complies with section 203, as this statute only proscribes the tariffs of common carriers. NECA is not a common carrier, thus title II provides no statutory authority upon which to base liability against NECA for any alleged violations of the Communications Act. American Sharecom, Inc. v. Southern Bell Tel. and Tel. Co., 1989 U.S. Dist. LEXIS 13684, No. 87-1334 (D.D.C. August 18, 1989) (LEXIS 13684, Genfed library). *fn6"

 ALLNET has stated that NECA acts as an agent for its common carrier members. See footnote 5. However, this does not transform NECA into a carrier for purposes of title II. See American Sharecom. Title II makes no reference and imposes no liability on those acting for the benefit of, or as the agent for, common carriers. Id. Therefore, NECA may not be held accountable for any alleged violations of title II due to its ...


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