Supreme Court Grants Certiorari in Case Regarding Private Rights of Action Under Communications Act

January 4, 2008. The Supreme Court granted certiorari in Sprint Communications v. APCC Services, a case regarding private rights of action under the Communications Act for violation of FCC rules -- in this case, payphone compensation rules. See, Orders List [4 pages in PDF] at page 2-3.

The U.S. Court of Appeals (DCCir) issued the opinion [PDF] under review on June 8, 2007. This is the second time that this case has been before the Supreme Court.

APCC and the other respondents are payphone service providers (PSP) and aggregators -- intermediaries between PSPs and interexchange carriers (IXCs). Respondents Sprint and AT&T are IXCs. The plaintiffs below (who are now respondents before the Supreme Court, and were previously its petitioners) filed complaints in U.S. District Court (DC) claiming compensation owed to them by IXCs for coinless payphone calls required by Federal Communications Commission (FCC) rules. The IXCs moved to dismiss the aggregators' claims, asserting lack of standing. The District Court, back in 2003, held that the petitioners had standing to sue.

The Court of Appeals wrote in its June 8, 2007, opinion that "The IXCs moved to dismiss on the grounds that the aggregators did not have standing to sue and the Communications Act of 1934, 47 U.S.C. § 151 et seq., did not give the plaintiffs a private right of action to recover for a violation of the regulation. The district court denied the motions, concluding the aggregators had standing, ... and that § 276 of the Act created a private right of action."

On June 28, 2005, the Court of Appeals issued its divided opinion [32 pages PDF] in APCC Services v. Sprint, 418 F.3d 1238. The Court of Appeals held then that Chapter 5 of the Communications Act, which is codified at 47 U.S.C. §§ 151–615b, does not create a private right of action for an owner or operator of a payphone to recover from an interexchange carrier (IXC) the compensation for coinless payphone calls required by a FCC rules.

The Court of Appeals wrote a short summary of its June 28, 2005 opinion in its June 8, 2007 opinion. It wrote that "This court reversed. The panel determined, over the dissent of Judge Sentelle, that the aggregators had standing to sue and, over the dissent of Chief Judge Ginsburg, that none of the provisions cited gave the plaintiffs a right to sue in federal court; they were remitted to filing a complaint for reparations before the FCC."

The plaintiffs (APCC et al.) petitioned the Supreme Court for writ of certiorari. On April 23, 2007, the Supreme Court wrote in its Orders List [10 pages in PDF] that "The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the District of Columbia Circuit for further consideration in light of Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc., 550 U. S. __ (2007)."

The Supreme Court issued its opinion [40 pages in PDF] in Global Crossing on April 17, 2007. It wrote in that opinion the FCC "has established rules that require long-distance (and certain other) communications carriers to compensate a payphone operator when a caller uses a payphone to obtain free access to the carrier’s lines (by dialing, e.g., a 1–800 number or other access code)." (Parentheses in original.)

The Supreme Court continued that the FCC has written rules that make a carrier's refusal to pay compensation a practice that is unjust or unreasonable under the Communications Act, at 47 U. S. C. §201(b). It further wrote that the act "links §201(b) to §207, which authorizes any person ``damaged´´ by a violation of §201(b) to bring a lawsuit to recover damages in federal court."

The Supreme Court stated that the issue is "whether this linked section, §207, authorizes a payphone operator to bring a federal-court lawsuit against a recalcitrant carrier that refuses to pay the compensation that the Commission’s order says it owes." The Supreme Court held that "the FCC’s application of §201(b) to the carrier’s refusal to pay compensation is a reasonable".

On remand, the Court of Appeals issued the June 8, 2007 opinion now under review. It affirmed the District Court's ruling that the plaintiffs lack standing, and remanded to the District Court.

The Court of Appeals offered this explanation. "The Supreme Court, however, held in Global Crossing that a violation of the regulation at issue is a violation of § 201(b) of the Act, for which a private right of action is authorized by § 207 of the Act, in effect creating a right of action to remedy a violation of the regulation itself. ... It is now clear, therefore, that APCC et al. may pursue their case in district court under § 201(b). Accordingly, the orders of the district court denying the motions to dismiss are affirmed, and the case is remanded for further proceedings."

Sprint and AT&T then filed a petition for writ of certiorari. They argue that the Supreme Court's opinion in Global Crossing addresses remedies of PSPs, while, in contrast, they seek dismissal of claims by aggregators.

And now, the Supreme Court has granted certiorari again.

This case is Sprint Communications v. APCC Services, Supreme Court of the United States, Sup. Ct. No. 07-552, a petition for writ of certiorari to the U.S. Court of Appeals for the District of Columbia.

Sprint is represented by Thomas Goldstein of the Washington DC office of the law firm of Akin Gump.

APCC is represented by Roy Englert of the Washington DC office of the law firm of Robbins Russell.

The brief of petitioners is due by Thursday, February 14, 2008. The brief of respondents is due by Wednesday, March 12, 2008.