Weinberg v. Sprint Corp.

VERNIERO, J.,

dissenting.

My difference with the majority is a narrow one. I would not rely on a legal fiction known as the “filed rate doctrine” to dismiss plaintiffs consumer protection claims. I also believe that the public policy behind the Consumer Fraud Act (Act) argues in favor of allowing those claims to proceed to trial.

My rationale for not applying the filed rate doctrine is twofold. First, Sprint should not be permitted to benefit from the protections of that doctrine given the content of its filed tariffs that *255 existed at the time of the litigation. In that respect, as the Court properly acknowledges, Sprint rounded “up to the next minute,” ante at 238, 801 A.2d at 284, notwithstanding that the rate that it filed with the Federal Communications Commission (FCC) “did not explicitly disclose [that] practice[.]” Ibid. The Court also observes that Sprint’s description of its rates “could have been clearer[.]” Id. at 245, 801 A.2d at 288. Thus, the cases cited by the majority, in which the defendants actually did disclose rounding up in their filed tariffs, are inapposite. See, e.g., Marcus v. AT & T Corp., 138 F.3d 46 , 57 (2d Cir.1998) (involving filed rate that stated, “Additional Minute rates apply to each additional minute, or any fraction thereof”) (emphasis in original); Mobley v. AT & T Corp., 717 So.2d 367, 368 (Ala.1998) (same); Hardy v. Claircom Communications Group, Inc., 86 Wash.App. 488 , 937 P.2d 1128, 1132 (Wash.Ct.App.1997) (involving “tariff [that] expressly state[d] that charges are measured in whole minutes with fractions rounded to the next highest minute”). But see Porr v. NYNEX Corp., 230 A.D.2d 564 , 660 N.Y.S.2d 440, 442 (N.Y.App.Div.1997) (holding that filed rate doctrine precluded consumer’s claims in case in which plaintiff alleged that defendant failed to disclose rounding up in its filed rates).

Second, I would not apply a legal fiction whose days, according to some courts, are numbered. I recognize that for close to one hundred years, the filed rate doctrine has served to protect communications companies from suit, even in the face of fraud. See Charles H. Helein, Jonathan S. Marashlian, Loubna W. Had-dad, Detariffing and the Death of the Filed Tariff Doctrine: Deregulating in the “Self’ Interest, 54 Fed. Comm. L.J. 281 , 289-93 (2002) (reviewing early history and principles of filed rate doctrine). The doctrine’s future, however, is dim at best. See MCI WorldCom, Inc. v. Fed. Communications Comm’n, 209 F.3d 760, 765 (D.C.Cir.2000) (observing that FCC no longer accepts filed rates by long-distance carriers because, in part, FCC is “wary that the filed-rate doctrine might be interpreted by state *256 and federal courts to interfere with free-market behavior”); Fax Telecommunicaciones Inc. v. AT & T, 138 F.3d 479, 491 (2d Cir.1998) (explaining that, although filed rate doctrine once served valid public policy purposes, doctrine “is plainly a creature of a different time”); Emperor Clock Co. v. AT & T Corp., 727 So.2d 41, 42 (Ala.1998) (noting argument that recent changes in communications laws may have “effectively repealed the filed-rate doctrine”); Helein, Marashlian, Haddad, supra, 54 Fed. Comm. L.J. at 283-84 (indicating that FCC announced that “carriers may no longer rely on the Filed Tariff Doctrine[,]” and “chief effect of [that] announcement, expressly encouraged by the FCC, is to open the carrier-customer relationship to the scrutiny of state authorities, like the State Attorneys General and state consumer-protection laws ”) (footnote omitted) (emphasis added).

Absent the filed rate doctrine, plaintiff likely has incurred an ascertainable loss, or at least is entitled to prove such a loss at trial. Plaintiff alleges that rounded-up rates are more expensive than sub-minute billing and that New Jersey consumers have paid “excess charges” as a result. He further asserts that contrary to Sprint’s practices, other phone companies were offering sub-minute billing at the time of this litigation. Had New Jersey consumers known of those other options, they may have purchased their long-distance services elsewhere. Thus, in addition to the excess charges incurred by using Sprint in the first instance, consumers may have suffered a continuing opportunity cost by remaining with Sprint rather than using another phone company. The Court dismisses plaintiff’s presentation of advertisements from other phone companies, saying in essence that plaintiff has not shown that he actually could have taken advantage of those rates. Ante at 238-39, 801 A.2d at 284. That, however, is a jury question in my view. Given the procedural posture of this case the Court should not dismiss plaintiffs contentions on that basis. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 , 666 A.2d 146 (1995).

*257 Lastly, the Act has been hailed as “one of the strongest consumer protection laws in the nation[.]” Governor’s Press Release for Assembly Bill No. 2402, at 1 (June 29, 1971). “The history of the Act is one of constant expansion of consumer protection.” Gennari v. Weichert Co. Realtors, 148 N.J. 582, 604 , 691 A.2d 350 (1997). The Act is remedial in nature and, for that reason, “[e]ourts have emphasized that like most remedial legislation, the Act should be construed liberally in favor of consumers.” Cox v. Sears Roebuck & Co., 138 N.J. 2, 15 , 647 A.2d 454 (1994). When assessing individual claims, courts must remain “mindful that the Act’s provision authorizing consumers to bring their own private action is integral to fulfilling the [statute’s] legislative purposes[.]” Id. at 16 , 647 A.2d 454 . In sum, allowing plaintiff’s claim to proceed would be consistent with the Act’s uninterrupted history of expanding consumer protection in these circumstances.

I respectfully dissent.

Justices STEIN and ZAZZALI join in this opinion.

For affirmance — Chief Justice PORITZ and Justices COLEMAN, LONG and LaVECCHIA — 4.

For reversal — Justices STEIN, VERNIERO and ZAZZALI — 3.