# Opposition Brief — Carter v. American Telephone & Telegraph Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0115%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1967 - **Citation:** 385 U.S. 1008 ## Text « ‘ R os \ 4 : ‘ i _iv Pie. Y Page F a “United States v. ade Air Transport, In¢., 275 F. 2d °: . FT CU CRs DOE wtemistnevinesiesraiiniieenninininnrmntens - § United States v. Borden Co., 347 U.8514" fy” Eee ea ae United States v. Corrick, 298 CE. GID) sic 1 = Nav? Co. v, Cunard SS Co., 384 US. rf e geesens BRAY IN AE RN, Sek NEED eae NOE : +48 United States v. FMC Corp., 218 F. Supp. 817. (N. D, Cal. _~~ 1963), app . dismissed for want of juris., 321 F. 2d 534 (9th Cir 1963), application for preliminary injunction ’ denied by enems J. ‘ in chambers, 11 . Ed. 2d 20 - (1968) .. hae : United States v. "Western Pacific RR.Co., 352 U.S. 59 (1956) 9 United — v. Philadelphia Bank, 874 U.S. 321 (1963) 13: tes’ United 'v., Radio Corp. of America, 9584U.S. 384, 348 (1959) wc... 6, 10 United States v. Standard Oil Co. (Ty. )s 1961 Trade Cases. ! _ 170,181 (ND, Cal. 1968) .... 16 Western States Tel. Co. v. AT&T: “Civ, No. 64-175 PH ee: (al. 1964) (Unreported Decision ; RB. 14D). .ncoccecoree Siinten li,n.3° “Wooton v. Ohler, 303 F. 2d 759 (bth Cir. TEE Ce Yakus v. United ore S21 US. 4i4 oo) sseesvettvccnesees ~~ 15 , - — * * ment. Such tariffs are similar or sdentiosl. to. 8-tryiesl tariff published by Defendant-American Te Prat and = ‘Telegraph Company known as AT&T Tariff FCC No. 132, Message Toll Telephone Service, the language of which i is shown on Exhibit A attached hereto and in- corporated herein. Although the Plaintiffs . deny that- such tariff é is a valid tariff and that such tariff is appli: | . cablé to the Carterfone, regardless of its validity and. its application, the Defendants and the aforementioned - non-party telephone . companies have, as part of a common design and scheme, in uniformly publishing * and enforcing ch tariff, ‘wrongfully used stich tariff to accomplish a Violation of the antitrust laws of the” United States. Such’tariff does not and may not author- ize or excuse the aforementioned violation of the anti- trust laws of the United States.’ “1 me 86). satel aan supplied. y. Soe } “i oe & 3 | "the ehaitaaneat & tariffs pene the telephone industry’s . basic and long standing interconnection policies which have Fd evolved over years. of administrative proceedings and regu- lation. The’ tariffs are applied. uniformly to interconnec-. tions, ‘and respondents have a statutory duty to enforce ae such tariff provisions. Recognizing the need for accommo- dation of the antitrust laws to the pervasive regulatory jschéme contemplated by the Communications Act of 1934, “the district court stayed the action ‘and referred the case to'the FCC under the doctrine of primary jurisdiction for determination of the justness, reasonableness, and validity of the tariff provisions. 250 F. Supp. at 192 (App. A at 7a). __ On the basis of their complaint and ex parte affidavit, peti- _“tioners seek peremptory relief nullifying these tariffs. The relevant facts are well stated by the Fifth Circuit: Court of Appeals! which affirmed the district court’s denial - of a preliminary injunction and upheld the lower court’s” ‘stay of the action pending proceedings in the FCC-based c= 7 on the oct jurisdiction. | — ee - a a OPINIONS BELOW The opinion of the United States District ‘Coast for ; the Northern District of Texas (App. A) is reported at 250 F. Supp. 188. The opinion of the Court of Appeals for" : the Fifth Circuit (App. B). is E eageniee at 355 F. a 486. ’ . before the lower courts, both courts took judicial notice of the records and orders of the. Federal Communications C mmission, as is their prerogative in considering a question of pri jurisdiction. Interstate Natural Gas Co. v. Southern California Gas Co., 209 F. 2d 380, 385 (9th Cir. 1953) ; Fletcher v. Jones, 105. F. 2d 58 (D:C. ‘Cir. ), cert. denied, 308 U.S. 555 (1939) ; . Greeson v. Imperial Irr. a 59 F. 24 529° a sciny Cir. 1932). ce o 4+ + Contrary to petites? assertion that only the’ ice was @ B 7 / ad 4° “STATUTES AND REGULATIONS INVOLVED : Couisininieations Act of 1934, 47 U. 8. C. § 151, 82 201-222 (App. C, PP. dette). 2 Sherman Act, 1 and 2, 15 USE. §§1 and 2 (App. ( c, pp.l4c-l6c). eC | Clayton Act, §§ 3, 4, ik 16, 15 U. S.C.: $s 14, 15, a 26 A (App. C, pp. A6e-17e). . ees bet oa 8 USC. 61202 (a) Cap. ie We). coe Tariff FCC No. 132, § BY, (9 BMB28 63 (App: = QUESTION PRESENTED Respondents submit that the first question ‘presented by |. | petitioners may be more accurately stated as follows: Was it an abuse of the trial court’s. discretion to deny a preliminary injunction after a stay of the anti- trust treble damage action pending the institution and a completion of appropriate proceedings before the Fed- eral Commurfications Commission relating to the just- 3 . Pops reasonableness, and validity of the tariff provi- ‘sions attacked i in the action? eae oe ARGUMENT he aan _ THE COURT oF. APPEALS WAS CORRECT IN | AFFIRMING THE TRIAL COURT’S DENIAL OF PETITIONERS’ - ? approved by the Federal. Mgritime Comphission and were per se violations of the antitrust laws. ” The defendants 2 -- e ° . . *. : © ; a r ae ~ | : oy: eo ¢ ce . oe Seeder anit mal ; ; , of ; fe | : : ; argued, inter alia, that the rate making was done pursuant to a 1952 agreement which had been approved bythe FMC. - This Court held that the doctrine of primary jurisdiction , eo be applied i in a case challenging conduet of “debatable. _ legality” even where it-is alleged that the conduct is with- out any agency approval or sanction. 383 U.S. at 220. It\. emphasized that courts must “refrain from taking action ~ which might interfere with the Commission exercise of its lawful,powers. ” The Court clearly recognized that'a pri- mary determination of. whether the rates challenged were within the approved orders of the Commission - ‘must be. “made by the Commission and that the lower court should - h aye the-case pending a final outcome of the FMC | pro ings. It is equally clear here that an initial detér- mination of whether the FCC tariff prohibition of inter-. connections by use of the Carterfone is valid, just, and reasonable must be made by the FCC and that the lower courts properly stayed the case for that agi ... S. There i is no confiiet between this decision and - « the cases relied upon by petitioners. Petitioners have asserted that respondents’ conduct con- stitutes a per se violation of antitrust laws and, therefore, eas ‘8 As noted by the court of: appeals, like decisions have* been reached in at least four other cases: Marcom, Inc. v. AT&T; Civ. No. 43215 (N.D. Cal. 1965) (Unreported Decision: R. 134) ; Western States Tel. Co. v. AT&T, Civ. No. 64-175 PH (S.C. Cal. 1964) (Unreported: decision ; R. 142) ; Secrafone v. Illinois’ Bell Tel.:Co., Civ. No. 60C 1022 (N. D. Ill. 1961) ; and Pastor v, . ATET Co., 76 F., Supp. 781 (S.D. N.Y. 1940). “In: each case _ it was alleged : that the actions of the defendants, taken in accordance with their foreign attachment and interconnection . tariff provisions, had prevented plaintiffs from marketing their — variéus devices designed for attachment to or interconnection with the channels of the defendants. Plaintiffs alleged that such interference constituted a violation of the antitrust laws. In each casé it. was held that primary jurisdiction of the action lay © in the FCC and appropriate‘s state commissions.” capac 2d at . 498 (App. B at baa ad, : : : 12 the doctrine of primary jurisdiction has no application. in thé instant case. Petitigners.in effect argue that concerted — conduct which constitutes.a per se violation of the anti- _ _ trust laws in a non-regulated industry necessarily consti- ae o tutes a per se violation of the antitrust laws in a regulated industry. This is an’ incorrect view: of ‘the law: Examination must be thade to determine whether accommodation of the antitrust laws and the regulatory scheme contemplated hy the appropriateregulatory statutes justifies.or necessitates _— ats whatever restraint may occur under a particular regulatory provision. As this Court has held, traditional antitrust . concepts have sufficient. flexibility when applied to a regu-- lated: industry to permit the mandate of the ore statute to be carried out. Silver v. New: York Stock Ex- change) 373 U.S. 341, 360-61 (1963); McLean Trucking Co. v. United States, 321 U.S. 67, 80 #1944); Keogh v. Chi- cago & Northwestern Ry., 260. U.S. 156, 162 (1922). Both © of the courts below appropriately recognized this estab- lished principle in applying the doctrine of primary juris- © diction. 365 F. 2d at_492-93 (App. B at 11b) ; 250 F. Supp. 190 (App. A at 4a).4 : Petitioners also seek to. Noid the doctrine of primary. jurisdiction with the argument that no immunity from the antitrust laws is conferred upon the regulated telephone , -compaaies by the Communications Act of 1934 and, there- ¢ Tuite petitioners” ‘thine thereon, Georgia v Vv. : Pennsylvania RR Co., 324 U.S. 489: (1945), does not in any manner conflict with the position on primary jurisdiction. reached by the lower courts. eThis Court in Georgia permitted the State of Georgia to seek injunctive relief against an alleged rate-seeking- con- spiracy but held that regulatory tariffs could not be attached through the vehicle.of an antitrust suit, stating: i “Georgia in this proceeding is not seeking an injunction - against the continuance of any tariff; nor does she seek: to have any tariff provision changed. ” 394- U.S: at 455... Contrast this to the position of petitioners who seek to have respondents enjoined from obeying and ertforcing - ‘the intércon-- nection provisions of Tariff FCC No. 1382. & ~ ee ; “~ ; 13 é fore, the doctrine is inapplicable.® This argument is clearly erroneous for the doctrine applies whether immunity is - conferred or not.. United States Nav. Co. v. Cumard S.S. Co., _ 384 US. 474, 487 (1932) ; Far East Conf. v. United States, . ~ 342 U.S. 570, 575 (1952); Maddock & Miller, Inc. v. United States Lines, 365 F. 2d 98, 102 (2d Cir. 1966); 3 Davis Administrative Law, § 19.07 at 40 (1958). See also the court of appeals oe below, 365 F, 2d at 499 (App. B at 24b). Califerma v. Federal Power Commi’n, 369 U.S. 482. (1962), and United States v. Philadelphia Nat'l Bank, 374 U.S. 321 (1963), relied axpon by petitioners, are not contrary to the . position of the courts below. Both are cases involving mer- ~_ - gets challenged under Section .7 of the Clayton Act. This Court has recognized that the legislative policy. behind — Section 7 requires reseryation to the courts of the resolution | of the complex competitive issues presented by mergers. California v. Federal Power Comm'n, 369 U.S. at 487-90. In - Philadelphia Bank the appropriate agency proceeding had. been completed prior. to the commencement of the antitrust - agtion, thereby removing any possible need for admjnistra- tive referral. 374 U:S. at 353. In California the trial court | did not seek to utilize the primary jurisdiction doctrine. Rather the defendants there sought to deprive the trial court of jurisdictiqn’ by beginning a collateral administra- 5\It must be noted that respondents have not contended that the ‘Communications Act .“immunizes” them from the application Bove antitrust laws, nor has — of the lower courts so held. ~ pondents have only urged and the lower court# have only held that the FCC must first determine the justness, reason- * ableness, and validity of the tariff provisions prohibiting Car- © . terfone interconnections before the courts can adjudicate the . antitrust issues. 365 F. 2d at 498 (App. B. at 21b et seq) ; ;°250 F. Supp. at 192 (App. A at 7a). The effect to be given the . agency decision is to be determined when that issue.is reached in the antitrust trial (365 F. 2d at 499, App. B at 24b, 25b), and . no such question is now before the Court. : - \ = S ves 14 : tive proceeding. Thus neither case even.involved the pro- ' priety of the exercise of the doctrine of primary jurisdiction. In summary, it is apparent from the face of the com-" plaint that petitioners claims for damages and demand for . injunction. inescapably raise the question of how and by.- whom. the interconnection. of telephone channels is to be _ regulated. Petitioners’ claims involve a direct attack upon | ee the respondents’ interconnection tariffs which have been) | filed with and are subject to-the broad regulation of the = __FCC. No clearer’ case requiring the application ofthe doc- ~ trine of primary jurisdiction can be imagined;and the care- fully reasoned opinions of the trial court and of the‘court - of appeals, affirming the trial court’s stay of the action pending the FCC proceedings, were clearly correct.® Cmts en Ne &B. Eps. ‘The grant or refusal of a preliminary injunction was in the sound discretion of the trial, court. - Regardless of the proprie yof the trial court’s finding of primary jurisdiction in the FCC, the grant or refusal of a preliminary injunction was in the sound discretion of | 3 6 On October 20, 1966, the Federal Communications Commission. - took cognizance of the opinions of the two lower courts and upon its own motion commenced a proceeding (FCC Docket No. 16942) to determine the reasonableness of the subject tariff pro- visions as applied to the use of Carterfone (Appendix E). The. ‘prehearing conference was held on November 17, 1966, before © the Commission Hearing Examiner. appointed’to conduct the proceeding. Following such conference an order was entered on November. 21, 1966, specifying the procedures to be followed in Z presenting evidence on the designated issues (Appendix F)._ oe This order requires that the respondent telephone companies and . the petitioners exchange copies of the sworn written testimony to be put in exhibit form, lists of witnesses whose evidence will be presented orally, and a brief statement as to the scope of each | witnesses’ testimony. This evidence is to be directed to the first three of the five issues previously specified by the commission. The hearing is scheduled to commence on January 23, 1967 . , (App. F). - supra. the trial court. The standard on review is abuse of diecre- tion. "Yakus v. United States, 321 U.S..414 (1944); Nalco Chemical Co. v. Hall, 347 F. 2d 90. (5th Cir. 1960) ; Home Decorators, Ine. v. Herfort, 179 F. 2d 398 (5th Cir. 1950) ; ' United States v. Corrick, 298 U.S. 435 (1936); 3 Barron es, Holteoff, Federal Practice ¢.Proceduré "91433 (Wright-. ed. 1958). Consequently, at this stage of the proceedings the merits of.a case are not usually to be decided. Tatum v. Blackstock, 319 F. 2d 397 (5th Cir. 1963) ; Barnwell Drill- ing Co. v. Sun Oil Co. 300 F. 2d 298 (5th Cir. 1962) ; Miami ‘Beach Federal Savings & Loan Ass’n v. Callander, 256 F. 2d 410 (5th Cir. 1958).-The trial°court in exercising his dis- me, 2 \ — a —— ——— — . 2. : z . ‘ ee aoe ew ee Fe ee eee ef ee — oe en ee ae ee nite Bee rel ae Le be Pe : Petitioners 3 in said case: -@* . ° @ , Me PE, ; ee 20 | sg CERTIFICATE OF SERVICE wen ? hihi J effers, an attorn¢y’ for Respohdents American r : Telephone and Telegraph Company ; and Southwestern Bell’ Telephone’ Company, depose and say that I have this day | . served copies of the foregoing Brief by mailing the. same by United States certified mail, return receipt, requested, postage prepaid, to the besten counsel of neate? for. t Bill Brice . Ray Besing tj wt oO | ' 2500 LTV .Tower Ris Gar Ss 1s ee Dallas, Texas 75201 sae Pea a aie ae ’ William VanDerereek - i ® 3315-Daniels — sioner: Texas- a 0 Leroy J offers Subscribed ion sworn to Kefore me on this the 12th day _ of December, 1966. Re ea d. Lv] : |Notary Public in and for 4 ° Harris County, Texas {) “ v . Ja ae Me es APPENDIX A ao ‘TEXAS. see THOMAS ¥. CARTER AND: _ CARTER ELECTRONICS CORPORATION, ef & : ee yiaiahs Pjaintitts, . | . v ae $e ee TELEPHON E AND TELEGRAPH CORFANT, ET AL, : _ Defendants. eee on aie Py! No, 3-1294 isonet! ie .- rat wet ° “,. + ESTES, Chief Judge . - ; February. 8, 1966 Plaintiffs, Thenies F. Carter — Carter Naas Cor- . poration, claim that they manufacture and sell a°device ' called the “Carterforie,” which permits a person receiving. . an incoming teléphone call to transmit such call from the “ location received to another: location by the use of two-way © . radio communication. The party receiving the incoming . oy telephone call places the telephone receiver handset ona: ; ' cradle which forms part.of the Garterfone; and by ‘process ‘of induction, “without ‘any electrical connection,” the two- | . way radio communication system is activated, and the tele- e _ phone ‘¢aller ¢an communicate with another” person who | _ May be located’ several miles away from the telephone re- —~ *° eeiver. ‘Plaintiffs assert that defendants,. American Tele- ~phione and Telegraph Company, Southwestern Bell Tele- _ phone Company and The General Telephone Company of *s ° * ° -_@ e artes ° ‘eo Ate States Bistrict Court — 5 i LAE LTRT IE AMR enh SS Hah dl” a NPN oN dnd eR Ne eden RE a oe » Pin .2a preliminary ‘injunction, not the validity’ of ‘the reasons therefor, which triggers ‘the: interlocutory appeal as.a mat- ter of right under § 1292( a) (1)..Our conclusion is not in any, eae Airlines, Inc. For “certs: denied; :346 0 S-806 a ‘Allied Air Freight: the unsuccessful plaintiffs in a triple n, 3 Cir.;,1953, 204 -F, 24 230, . damage action. Q ot injunction) Sought. to make- thestay a. : , Vicarious granting of a preliminary injunction. On familiar {pees see note 2, supra, this would not work. In Amer-: "ican ‘ Airlines the defendant sought te. appeal from a. denial “of its motion to-dismiss on the ground that: primary. juris- diction was in the CAB, Not.unexpectedly the Court of Ap-, - peals: found Bevappeslable brtier and also denied relief nae : A -s-- - telephone company is required to file with the Commission, and keep open for public inspection, tariffs setting forth its ‘charges, classifications, regulations, and practices. 47 _ USCA § 203(a). Such- tariffs must be followed until such time as they are amended in the manner provided by the, statute. 47, USCA § 203(b). A: telephone company may not. provide service unless tariffs are filed covering such service . and the company may not deviate from the rates, classifica- -15b- “tions; regulations or practices éontatned in the’ tariffs so ea filed. 47 USCA § 203(¢). Dalene Kee Ciara kM The FCC has’ the power anal duty to ‘examine all tariffs aS filed and may either on comiplaint or on its own initiative : determine and prescribe what charges, classifications, regu- - “fations, and practices-are “just, fair, and reasonable” and aretp be thereafter followed by the telephone company in question. 47 USCA § 205(a). The Commission is given ex- tensive power to assess the value of the facilities of tele- phone companies. 47. USCA § 213. The Commission has the power to order a telephone company to provide additional — f facilities for the performance of its duties as a public utility, . -af such addition is “in the interest of public convenience and necessity” or “the expense involved therein will not impair -the ability of the carrier to perform its duty to the public.” 47 USCA § 214(d). However, a carrier does not have the right to, extend its’ lines unless the Commission. authorizes it to do so by the issuance of a certificate of: public conven- ience and necessity. 47 USCA § 214(a). The Commission has . power to examine transactions entered into by any. comnion carrier which may affect the carrier’s charges or services.. 47 USCA § 215 (a), The Commission has the specific psig to keep informed as to “technical developments and im- , provements in wire and radio communication *** to the end that the benefit of new inventions and developments may ‘be made available to the people of the United States, ” ae e USCA § 218. : Againat this intricate statutory structure i in orl s®carce- ly a single business act i is free from continuous regulation or at. least’ administrative governmental -review, one thing © cs emerges clearly. It is that Tariff No. 132, its meaning, its ‘scope, its-applicability, its validity for any or all govern- - mental purposes, is ever-present. The best illustration is to accept momentarily the concession’ of appellants that fe 2. 2 teh Pe ab ces ae a 4. and antitrust. implications, The Supremé Court has made this clear. Ta. ‘United a v. +: Radio — of ae, 1959, 858 “ 17b. ‘the tariff. were among thr factors considered and evaluated “by the, FCO, a. Court would be hard put in either contriv-* ing or thereafter. verbalizing.a concept which, in.a sort of Ce -.: now-you-see-it, now-yot-don’t sleight of hand,’ would allow the tariff-to be valid and yet. invalid at one. and the same time." 16.” U.S. 834, 348, 79 S.Ct A5T, 466 3 L. Ea. 2a 354, 364, the a “- Gourt said: a 4 a= “Accordingly, this Court comsletenthy held that when rates and practices relating thereto were challenged: under the antitrust laws, the agencies had primary jurisdiction to consider the reasonableness of such rates and practices in the light of the many relevant factors including alleged antitrust - violations, for otherwise sporadic action by federal courts: pt an agency’s delicate regulatory scheme, ag »\s ; woutd-disru would throw existing rate structures out of balance.” Even more pointed is the holding in McLean Trucking Co.: v.” United States, 1944, 321 U.S. 67, 80, 64 8. Ct. 370, 377, 88 L. Ed. _ 544, 553, where the Court held: “But in executing those policies [of the hinmmsentniiee” Act committed directly to the ICC] the Commission may be’ . faced with overlapping and at -times inconsistent policies — eanbodiad-i in other legislation enacted at different times and._ , «= with different problems in-view. When this is true, it can- not, without more, ignore the latter. The precise adjustments which it must, make, hoWgver, will vary from instance to i, instance depending ‘on: te extent to which Congress indi- . cates a desire to have those policies leavened 4 implemented - in the enforeement of the. various specific provisions of the. legislation with which the Commission i is primarily and di- rectly concerned.” - See also FCC v. RCA Communications,’ Ine., 1953, 346. US. 86, 73 S.Ct. 998, 97 -L. Ed. 1470; Only, of Pittsburgh v. FPC, D.C. Cir., 1956, 237 F. 3d. 741, 754... 16 Cf, Pan American’ Airways .v. United States, 1963, 371 US. * 296, 309, 83 S.Ct. 476, 484, 9 L. Kd. 2d 325, 335: - “Tt would be strange, indeed, if a ‘division of territorion or an allocation of: routes. which met the requirements of the © * ‘public interest’ as defined in § 2 were. held to be antitrust _ Violations. It would also be odd to conclude that an affiliation -_ between. a common carrier and.an air®?carrier that passed - muster under § 408 should run : afoul .of the antitrust laws.” G QO ok, ener eee pa tee +> Despite the disparagement of plaintiffs that the tariff = §=—# is initially the handwork ‘of the Telephone Companies’ : seriveners and is, at any event, not a.rate but a mere ~ equipment. tariff, _two.things are po sitive.» » First, a ‘tariff, o - required by law to be filed, is not a mere contract." It is’ the ‘law, Compania Anonima.Venezolana. De Navegacion -v, A. J. Perez Export Co., 5 Cir., 1962, 393 F. 2d 692, 696 ” &n. 12, cert; denied, 371 U.S. 942, 83 S. Ct? 321, 9 L. Ed... 2d 276; United States v.\ Associated Air Transp. Inc., 5 - - Cir., 1960, 275 FY? 2d 827, 833. ‘Second; the telephone utility _ is required to. file in its schedules and tariffs “the classi- : * fications, practices, and regulations affecting such charges,”, oe 7 USCA‘ § 203(a). ‘The “classifications, ‘practices, and =~ regulations,” . as well.as the charges, must be “Gust and . reasonable.” 47 USCA § 201(b). The Commission ‘is em- = powered to determine whether they are and its power ex- - tends to détesmining “what classification, regulation, or. - , practice is or will be just, fair, and reasonable. ” AT. USCA , §205(a). The “* * * Commission’s range of power over ? the regulated companies” extends to “* * * ‘charges, prac- tices * * *” and is not limited to rates and * * * services.” | Aaland, Inc. v. United States; 1945, 325 U.S. 31/, 323, _ « « 6 8. Ct. 1151, 1154, 89 L. Ed. 1637, 1642. Considering that. so long as the tariff is. “administratively” valid and ; applicable — as. is assumed — the Telephone Company vot only may, but: must,-enforce it-uniformly_as_to_al)_simil¢ oe ‘situated, to permit the Antitrust Court to declare it in-. valid would be putting judicial imprimatur on operational chaos. It woul require in effect that the Telephone Com- pany discon ck service to those using Carterphones but ‘who do not sue, while continuing service to those who sue. Worse, retepegters, including those coerced under the op-— erative effect of the tariff to discontinue Carterphone, would bear their proportionate part of the amount of = — damages and attorneys’ fees paid out to.the success- ¥ | ee gy Yon. rae wea | ke estates suing customer. 17 hut chads, of: course, edaaa Sethe _. be eliminated by the Antitrust. Court holding that despite eee earlier . FCC approval of the tariff, the monopolistie . im- . \o plications are so great that it gannot stand for any pur- pose. This, in effect, would be a first, second, or third tier _ _ re-review*® of an already reviewed administrative deci- mission created” ,e ae Fer the purpose of regulating tateratate and foreign commerce in’ communication by wire and radio so as to .- make available, so far as possible, to all the people of the _.° “ United States a rapid, efficient, Nation-wide, and world- wide wire-and radio ccmmenfietion service with adequate | _ facilities at reasonable charges, for the purpose of the na- ‘tional defense, for the purpose of promoting safety of life: and property through the use of wire and radio edminuni- _ eation, and for the purpose of securing a more effective exe n. of this- policy by centralizing authority hereto- oe ene by law to several agencies and by granting . ad nal authority with-respect to interstate and foreign ‘ commerce in wire and radio commanication, there is cre- © ated a commission to be known as the “Federal: Communi- any undue or unreasoniible prejudice or disadvantage. : —, &b).. Charges or services, whenever referred to in, this chapter include charges for,-or services in connection with, the use of comman carrier lines of communication, whether derived from wire or radio facilities, in chain broadcasting . or incidental to radio communication of Wy, kind. (c) ‘Any carrier who knowingly visiates . provisions -of this section shall forfeit to the United States the sum of $500 for each such offense and $25 for each and every. day of the continuance of such offense. June 19, 1934, ¢. 652, .. Title II, § 202, 48 Stat. 1070; Sept. 13, 1960, Pub. L. 86 — 751, 74 Stat. 888. ee ) Gee § 203. Schedules of* ilies filing swith: Ounaiihen: 7 changes in- schedules; organ and “sat ‘penalty: for violations (a). Every common carrier, except éonnecting earriece, shall, within such reasonable time as the Commission shall designate, file with the Commission and print and keep open for public inspectioa schedules showing ali charges for it- self and its connecting carriers for interstate and foreign _ wire or radio communication between the different points - on its own system, and between points on its own system: | and: points on the system of its connecting carriers or @ Seas . = al points on the system of any othe caxrior subject to this » chapter when a through route has been established, whether such charges are joint or separate, ang, showing the classi- na fications, practices, and regulations affecting’ such charges. Such schedules shall contain such other information, and’ be printed in such form, and be posted and kept open for public inspection in such places, as the Commission may by regulation require, and each such schedule shall give notice. of its effective date; and such common carrier shall furnish such schedules to each of its connectizig carriers, and such connecting carriers shall keep such’ schediles open for inspection in such — places as the — may require. » '(b) No change shall be made in ‘the charges, Sittin: a tions, regulations, or practices which have been so filed and published except after thirty days’ notice to the Commission and to the public, which shall be ‘published in such form and . contain such information, as the Commission may by: regu- lations prescribe; but the Commission may, in its discretion and for good cause shown, modify the requirements made by or under authority of this section in particular instances (e). No carribr,. unless ‘otherwise provided by or enite authority of this chapter, shall engage or participate in ‘or by a general order applicable to epecial al circumstances-or——— ‘conditions. eT ee Re . such communication unless schedules have been filed and published in accordance with the provisions of this chapter and with the regulations made: thereunder; and no carrier shall (1) charge, demand, collect, ‘or receive a greater: or less or different compensation for such communication, or _ for any servicéjn connection therewith, between the points named i in any such schedule than the charges | specified in ‘the schedule then in effect, or (2) refund or remit by any means or device any portion ofthe charges so specified, or G a ee & (3) extend to any person any privileges or facilities i in- such “gommunication, or employ or enforce any classifications, regulations, or practices affecting such charges, a as ; specified i in such. schedule. ; : (d) The Commission may reject and vitene to file any. - Schedule entered for filing which does not provide and give lawful notice of its effective date. Any schedule so rejected by the Commission shall be void and its use shall be unlaw- | re * (e) In case of failure or refusal on the part of any car- ’ rier to comply with the provisions of this section or of any regulation or order made by the Commission thereunder, such carrier shall forfeit to the United States the sum of. $500 for each such offense, and $25 for each and every day . e. of the continuance of such offense. June 19, 1934, e¢, 652, oe Title II, § 203, 48 Stat. 1070. $204. Hearings oif new chee; suspension pending hear- = ing; refunds fe — ——er ; ! Whenever there is. filed-with ‘the Commission any new charge, classification, regulation, or practice, the Commis-: sion may either upon complaint or upon its own initiative _ without complaint, upon reasonable notice, enter upon a hearing concerning the lawfulness thereof; and pending such hearing and the ‘decision thereon the Commission, * upon delivering to the carrier or carriers affected thereby ~ ‘a statement in writing. of its‘reasons for such suspension, may suspend the operation ‘of such charge, classification, regulation, or practice, but not for a longer period than three months beyond the time when it would hr hae go. into effect; and after full hearing the Ce ssion may — make such order. with reference thereto as would be-proper’ : in a proceeding initiated after it had become effective. If the proceeding has: not been concluded and an order made : 5 oh * ae g "et g 2 o> e be _ within the period of the ‘suspension, the proposed change © of charge, classification, regulation, or. practice ‘shall go ~ into effect at the end of such period; buf in case of a pro- posed increased charge, the Commission may by order re- quire the interested carrier or carriers to keep accurate aa account of all amounts received by. reason of such i increase, ie - specifying by whom and in whose behalf’ such amounts are ‘ paid, and upon completion of the hearing and decision may by further o -derieequire the interested carrier or carriers | to refund, with interest, to the persons in ‘whose behalf such amounts were paid, such portion of. such increased eerea a, charges .as by: its decision shall be found net: justified. At es . . any hearing involving a ¢ -ficreased, or sought to be increased,.after“the organization of the Commission, the -burden of proof to show that the increased charge, or pro- . posed . increased charge, is just. ‘and reasonable shall be - upon the carrier, and the Commission shall give to the hear- ing and decision of such questions preference over all other 7 questions pending before it and decide the same as speedily jo as possible. June 19,, 1984, ce. 652, Title II, § 204, 48 Stat. 1071. - Q@« °- youk —g 205. Commission authorized to- preseribe ae and rea- e sonable charges; penalties for. Violations Se . Whenever, after. ‘full opportunity for hearing, upon 8 complaint or under an order. for investigation and hear-. ing made by the Commission on its own- initiative, the Com- ‘ mission shall be of opinion that ‘any charge, classification, % _ *regulation, or practice of any carrier or carriers is or will a violation of any of the provisions of this chapter, the . ‘ , Commission is authorized and empowered to determine and . -. prescribe what will be the just and reasonable charge or | _ the maximum: or minimum, or maximum and minimum, ~ . charge or marge to be thereafter observed, and what clas- | _ sification, regulation, or practice-is or will be just, fair, and reasonable,:.to be thereafter followed, and to make an , order that the carrier or carriers shall cease and desist ~ from such violation to the extent that the Commission finds * that the same does or will exist, and shall not thereafter publish, demand, or collect any charge other than the charge © : so prescribed, or in excess of the maximum or less than the _ minimum so prescribed, as the case may be, and shall adopt the classification and shall conform, to and observe the reg- ulation or practice so prescribed. . (b) Any carrier, any officer, representative, or agent of - ° . & carrier, or any réceiver, trustee, lessee, or agent of either _ of them, who knowingly fails or neglects to obey any. order made under the provisions of this section shall forfeit to -the United States‘the sum of $1 ,000,for each offense. Every ‘distinct violation sh be a separate offense, ‘and. in case © of continuing violation each day shall‘be deemed a separate offense. June ‘19, 1934, c. 652, Title Hi, § 205, 48 Stat. 1072. | § 206, Carriers’ liability for damages In case any common carrier‘shall do; or cause or permit . to be done, any act, matter, or thing in this chapter pro- _ hibited or declared to-be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable t® the person or per- sons injured thereby for the ‘full amount of damages .sus- _ tained in consequence of’ any such violation of the provi- _ _. sions of: this chapter, together.with & reasonable counsel or attorney’s fee, to be fixed by the court in every case of . - recovery, ‘which attorney’s fee shall be taxed and collected: ' as part of the costs in ot case. June 19, 1934, c. . 652, Title II, § 206, 48 Stat. 1072. fy . ‘ or State commission, | F 207. Recovery of damages Any person. claiming to be damaged by any common car- rier subject to the provisions of this chapter may either make complaint ‘to the Commission as hereinafter provided . for, or may bring suit for the recovery of the damages for which such common carrier may be liable under the provi- sions of this chapter, in any district court of. the United States of competent jurisdiction;, but ‘such. person shall not . have the right to pursue both such remedies, June 19, 1934, C. 652, Fifle: Il, § 207, 48 State 1073. a § 208. Complaints to Commission; investigations _Any person, any bod 7 ‘ politic or municipal organization, c omitted- to be done. by any common carrier subject to this chapter, in contravention of the provisions : thereof, may apply to said Commission by petition which shall briefly. . . state ¢he facts; whereupon a statement. of the complaint thus made shall be forwarded by: the Commission to such common -carrier, who shall be called upon,to satisfy the complaint or to answer the same in writing within a reason- able time to be specified by the Commission. If such com- . mon carrier within the time specified shall make reparation . for thé injury alleged to have been caused, the. common _ carrier shall be relieved of liability tothe complainant only — ___ for the particular violation of law thus complained of. If ~ such carrier or, carriers shall not satisfy the complaint within the: time specified or there shall. appear ‘to be any. reasonable ground for investigating said complaint, it shall ~ be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper. No complaint shall at any time be dismissed - because of the absence of direct damage to the complainant. : June 19, 1934, C. , 652, Title IT, § 208}, 48 a 1073. omplaining of anything done or - & ae : | 9c ~ § 208. ‘Orders for payment of money _ “If, after hearing on a complaint, the Conittiission shail determine that any party complainant is. entitled ‘to an ; award of damages under the provisions of this chapter, . the Coimmission shall make ‘an order directing the carrier — to pay to the complainant the sum to. which he is entitled on or before a day nanted. June 19, 1934, cs . 652, Title H, ‘$209, 48 Stat. 1073.- ? es @ 210. Franks and passes; ‘es service to governmental | ‘agencies in sense with national defense LAwYEr’s Note . - [While part of the comprehensive regulatory scheme that the tele- - phone companies are subject to, the text of this section is omitted . because not directly involved in the instant case. ] ; § 211. - Contracts of carriers; filing with Commission (a). ‘Every carrier subject: to’ ‘this chapter shall file with * the Commission copies’ of all. contracts, agreements, or arrangements with other carriers, or with common earriers — not subject to ‘the provisions of this chapter, i in relation to. any traffic affected. By the provisions of this chapter to... which it may be a party.” ? : (b) - The. Commission shall lave authority to require the filing of any other contracts of any carrier, and shall also have authority to exempt any carrier from ‘submitting copies of such minor contracts as the Commission may i determine. June 19, 1934, c. 652, Title If, si 48 Stat. 1073. $212. “Interlocking directorates; officials dealing in ae securities | Lawyer’s Nore. © | _ [While part of the ciiaiiasiins sania scheme that the téle- . phone companies are subject to, the text of this section is omitted - because not oe involved in the instant case. ]. pi , ieee 10¢ " 2013, Valuation of property of ‘carrier YLawim’s NoTE he. [While part of the ccmnpeediunaive) regulatory scheme that ee tele-— ' phone: ‘companies are subject to, the text of this.section is omitted _ because not directly involved i in the instant case. ] i g214. Extension of lines; certificate of public convenience “ ui - .. and necessity; discontinuance of service .° - (a). No carrier. shall undertake the: construction of a ~ new line or pf an extension of any line, or shall acquire or operate any ling, or ‘extension thereof, or shall engage .in transmission over or by means of such additional a _ extended line, unless and until there shall first have’ been. - obtained from the Commission a certificate that the present or future ‘public convenience and necessity require or-will - require the construction, or operation, or construction and - operation, of such additional or extended: line: Provided, ~ _ That no such certificate shall be required under this section for the construction, acquisition, or operation of (1) & line within a single. State unless. such -line constitates part of an interstate line, (2) local, branch, or terminal ‘tines. not exceeding ten milés iri length, or (3) any: line acquired under. “section 221 or 222 of this title: Provided further, That the _ Commission may, upon appropriate request being made, ; >. + authorize temporary or emergency service, or, the supple- | menting of existing facilities, without regard to- the pro- visions of this section. No carrier shall discontinue, reduce, or impair-service to a community, or part of a community,*¢ unless and until the¥e shall first have'been obtained from : the Commission a certificate that neither the present nor ' future public cényeniende and necessity. will be adversely affected thereby; except that the Commission may, upon is appropriate request being made, authorize temporary or | Seg - + emergency discontinuance, reduction, of impairmént of _ Sh seryice, or partial discontinuance, reduction, or impairment _ ELEY : J, oD, * | of service, withéut regard. to the provisions. of this séction: _ As used in this s¢ction the:term “line” means any channel © | ave i > ° ‘ E of communication established by thésuse- of appropriate equipment, other than a channel of communication’ estab- lished by the interconnection of two or’ more existing chan- nels: Provided, however, That nothing i in this section shall - ‘De constyued.to require a certificate or, other authorization . ' 3 from the Commission for any installation, replacement, or: | other changes i in plant,,operation, or equipment, other than new iy afhervoe :which will. not impair the 2 ey oe: quality of*service provided: (b) Upon’ receipt of an application for any wich: certifi-. *.° . cate, the Commi ion shall cause notice thereof to be given to, and shall cau a copy of such application. to be filed © _ with, the Secre of the Army, the Secretary of the Navy, an@ the Governor of each State in which such ‘line.is. pro- posed. to be constructed, extended, acquired, or operated, or in which such discontinuance, réduction, or impairment - of service is proposed, with the right to those notified to. be heard; and the. Commission may require stich puplighed “notice as if shall determine. 8. | € : a | (c) The Chastalnion shall have power to issue such cer- tificate as applied for, or to refuse to issue it, or. to issue it _ for a portion or portions of a line, or ixtinsion thereof, or discontinuance, ‘reduction, or - impairment of. service, des- - eribed ‘in the application, or’ for the partial exercise only . of such right or privilege, and may attach to the issuance . of the certificate such terms and o@nditions as in its.judg- ment the public convenience and necessity may require. . -- After issuance of such certificate, and not ga the carrier may, without securing approval other such certificate, : comply” with the‘terms. and conditions contained/in_or- at- ; tached to the i issuance £33 such certificate and proceed with e > o : a : t i “ i | ae i 3 geome ie “” , the construction, extension, acquigition, operation, or dis- ” continuance, reduction, or impairment of service covered ~ thereby. Any construction, extension,. acquisition, operation, discontinuance, reduction, or impairment of service contrary . . to, the provisions of this section maybe enjoined by any court of competent jurisdiction at the suit ofthe United States, the Commission, the State commission, any State ‘i affected, or any party in interest. -. @ (dy The Commission may, after full sovoitniity for hearing, in a proceeding upon complaint or upon its own / initiative without, complaint, authorize oF require by order . -* any carrier, party to. such proceeding, to provide itself with’ adequate facilities for the expeditious and efficient perform-s ance of. its service as a.common carrier and. to extend its _ © tlh gio! - _ lie offices, or: as to such extensi¢n, that. it is reasonably re- quired i in the interest of public convenience and ‘necessity, -- or as to such extension or facilities that the expense involved. ‘therein will not impair the ability of the-carrier to perform " ~ its ctype public. Any carrier which.refuses or neglects ‘to comply With any order of the Commissién made in pur- - suance of this ‘subsection shall forfeit to the United States $100 for each day during which such refusal or neglect con- tinues. June 19, 1934,.%. 652; Title. II, § 214, 48 Stat. 1075; ‘Mar. 6, 1943, c. 10, §§ 2-5, 57 Stat. 11. Serca. coe : sis: Services, ‘equipment, etc.; examination of transac. -! . tions by ——— Lawyer’s Nore | _[{While part of the ‘ciipiidiiaae requlateey scheme that the tele _ * phone companies are subject to, the text of this Bection is omitted because not directly involved in the instant case. ] a ae ae a line or to establish a public office; but no such’ eee ee 13¢ . §216.: Recetveds and truatoon; s; application of chapter > LAWYER’S Nore. orf ee [While part of the. comprehensive dilate. ssliainih that the tele- . phone companies are subject to, the text of this section i is omitted “ao bufiness of all because not directly involved i in the instant ease. ] § 217. Agents’ dots and omissions; liability of carrier _Lawyer’s Nore - {While part of the comprehensive gulatects seb that the tele- phone companies are subject to, the text of this section is omitted , oe. not maid meer in the instant case. ]. eo: § 218. Management ‘of business; inquiries by Commission’ The Commission ay inquire into the management of : pire subject to this chapter, and'shall - keep itself informed as to the manner and method inwhich _ the same is conducted and as to technical developments _ and improvements in wire and radio communication and "may obtain from such carriers and from persons directly F or indirectly controlling or controlled by, or ‘under. direct or indirect common control with, such carriers full and’ radio transmission of energy to.the end that the benefits of néw inventions and developments may be made avail- able to.the people of the United States. The Commission : complete information necessary to enable the Commission to perforin the duties and carry out the objects for which it was: created. June 19, 1934, c. 652, Title Ii, § 218, 48 - Stat.’1077. . Q § 219." Reports by carriers; contents and requireinents _ LAwYErR’s Notre | im " generally [While part of the comprehensive regulatory tibiae that the tele- ‘phone com ob aie are subject to, the text of this section js: omitted because no fepatcina tavelved 5 in the instant case. J @- . Pi >) — -§ 220. “Accounts, records, and ‘memoranda; depreciation : ee Nore : ' _ [While part ‘of the comprehensive regulatory scheme that the tele- ‘phone companies dre subjéct to, the text of this section is omitted a not- directly involved i in the instant ease. ]. - 14¢e aide charges; forfeitures and penalties LAWwY¥ER’s NOTE [While part of the comprehensive sitters scheme that the tele- phone companies are subject to, the text of this section is one because not directly involved in the instant case. ] § 221. Telephoné companies; peer meen state juris- 2 diction over services, charges, etc., unaffected; . determination of property used i in interstate toll - service; heenacanen ! o Are | § 222. ~ Consolidations and’ mergers of telegraph carriers — eee. Definitions a 4 LAWYER’s NoTE _ [While part of the comprehensive sidney slit that the tele- « _phone companies are subject to, the text of this section is omitted because not directly involved in the instant case. ] 2. Sherman Act, gg i and 2, 15 USC. §§ 1 and 2 $1. Trusts, etc., in restraint of trade illegal; exception of resale price agreements; penalty Every contract, combination ‘in the form of we or’.” otherwise, or conspiracy, in restraint of trade of commerce among the several States, or with foreign nations, is de-_ . clared to be ‘illegal : Provided, That nothing contained in ~ sections 1-7 of this. title shall render illegal, ¢ontracts or agreements prescribing minimum prices for the resale of _a commodity: which bears, or the fabel’ or container of | _ which bears, the trademark, brand, or name of the pro- ‘ducer or distributor of such commodity and which is in free and open. competition with commodities of the same gen- a at . 15e im, eral class produced or distributed by others, when contracts or agreements of that description are lawful as applied to intrastate transactions, under any statute, law, or public policy now or hereafter in effect in any State, Territory, | . or the District of Columbia in which such resale'is to be made, or to which the commodity is to be transported for — such resale, and the making of such contracts or agree- ments shall not.be an unfair method of competition under section 45 of this title: Provided further, That: the pre- - ceeding Proviso shall not make lawful any contract or agree-* © . ment, providing for the’ establishment or maintenance of _ minimum resale prices. on any commodity herein involved, between, manufacturers, or between producers, or between wholesalers, or between. brokers, or between factors, or between retailers, or between persons, firms, or corpora- tions «in competition with each other. Every person who Shall make any contract or engage in any combination. or conspiracy declared by sections 1-7 of this title to be illegal a” shall be deemed guilty of a misdemeanor, and, on convic- tion thereof, shall be punished by fine not exceeding fifty thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the ‘court. July 2, 1890, c. 647, § 1, 26 Stat. 209; “Aug. 17, 1937, _ ¢ 690, Title VIII, 50 Stat. 693; July 7, 1955, «. 281, 69 Stat. 282. « § 2. Sittin trade a misdemeanor; penalty Every person who shall monopolize, or attempt to mo- nopolize, or combine or conspire with any other person. or © persons, to monopolize any part of the trade or commerce amgug the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and; on conviction thereof, shall be punished by fine not’ exceeding fifty thousand dol- lars, or by imprisonment not exceeding one year, or by both said punishments, in the diseretion of the court. J uly % 2 16¢ _ ~ : 2, 1890,-c. 647, $2, 26 Stat. 2095; July 7, _ e. 281, 69 a Stat. 282. eee det §§3, 4, and 16, 15 USC. §§ 14, 15, and 26 ge Sale, etc.; on agreement ‘not to use goods of © ’ competitor : ‘ --It'shall be unlawful. for any person ‘etarhined in com- . Inerce, in: the course of such commerce, to lease or make a sale or contract for sale of goods, wares, merchandise, -tmachinery, supplies, or other commodities, whether pat-— ented or unpatented; for use, consumption; or resale with- in the United States or any Territory thereof or the Dis- trict of Columbia or any insular | possession. or other place . under the jurisdiction of the United States, or ‘fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement, or understanding that the lessee or purchaser. thereof shall not use’ or deal in the | goods, wares, ‘merchandise, machinery, supplies, or other | commodities of a competitor or competitors of the lessor _ or seller, where the effect of such lease, sale, or contfact for sale or such conc joh, agreement, or understanding may be to‘ substantially lessen competition or tend to cre- ate a monopoly in any line of commerce. Oct, 15, 1914, ¢.- .” 323, $3, 38, wee 731.. § 15. Suits by persons injured; amount of recovery _ Any person who shall be. injured in his business or prop- erty by reason of anything forbidden i in the antitrust laws may’sue therefor i in any district court of the United States in the district in which the defendant resides or is found . or ‘has an agent; ‘without respect to the amount in contro-— . versy,-and shall. recover threefold the damages’ by him sus- tained, and the cost of suit, including a reasonable attor- ney’s fee. Oct. 15, 1914, c. 323, § 4, 38 Stat. 731. me —_— 17 . §26. . Injunctive relief for private parties; exception _Any person, firm, éorporation; or association shall be - entitled to sue for and have injunctive relief, in any ‘court’ _ title, when and under. the same-eonditions and principles~ as injunctive relief against threatened conduct’ that will of the United States having jurisdiction over the parties, Against threatened loss or damage by a violation of the : antitrust laws, including sections 13, 14, 18, and 19 of this cause loss or damage i is granted by courts of equity, under ‘the rules governing such proceedings, and upon the execu- _ ,tion of proper bond against damages for an injunction , improvidently granted and a showing that the ‘danger. of © irreparable loss or damage is immediate, a preliminary in-- junction may issue: Provided, That’ nothing herein con- tained shall be construed to entitle any person, firm, cor- __ poration, or association, except the United States, to bring . suit in equity for injunctiye -relief against any common carrier subject to the provisions of the Act to regulate — commerce,. approved February fourth, eighteen hundred - and eighty-seven,. in respect of :any matter subject to the - regulation, supervision, or other jurisdiction of thé Inter- state Commerce. Commission. Oct. 15, 1914, c. 323, § 16, 38 Stat. 737- | ; as ~ ee EO 4. 28 V8.0. § 1292(a) (1) . an §. 1292. , Interlocutory decisions ies ae (a) “The courts of appeals shall ‘haye paren of : appeals from: ( 1) Tniterlocutory otlee of ihe district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, _ and “the District Court ‘of the Virgin Islands, or of the judges thereof, gzanting, contineing, modifying, refusing ‘ é 18¢ AREe or dissolving injunctions, or refusing to dissolve or modify hy Pea. injunctions, except where a direct review may be had in the apres Court; ee ae a 1d _ APPENDIX D = a | TARIFF F.0.C. NO. 132 - AMERICAN 'TELEPHON E AN D“ TELEGRAPH COMPANY. LONG LINES DEPARTMENT | | ei ee: | MESSAGE TOLL TELEPHONE SERVICE B: GENERAL REGULATIONS (Cont'd) "7. ‘Unauthorized Attachments or Connections ceties '. No equipment, apparatus, circuit or device not a2 - . furnished by the Telephone Company shall be at- 3 tached to or connected with-the facilities furnished — by the Telephone Company, whether physically, . . by induction or otherwise, except as provided in « - this Tariff. In case any such unauthorized attach- ment or.connection is made, the Telephone Com- pany shall have the right to remove or disconnect the same; or to suspend the service during the continuance of. said attachment or connection ; ‘or to terminate the service. - res 2 @ 24. : Miscellaneous Devices. Provided by the Customer (Filed in compliance with Federal ‘Communica- ik, tions Commission order dated abaciciad fy 6, 1957, in SENS: ' Docket No. 9189) - The provisions of Paragraph 7.. preceding shall _ onot be construed or applied to bar a customer from -using devices whieh serve his convenience in his _ use of the facilities of the Telephone.Company in — * the service for which they are furnished under this tariff, provided any such device so used would not endanger the safety of Telephone Company employees or the public; damage, require change © A AL? er cee ies 2d o> » in or wiinneiioe of, or involve direct’ élostrical. con- nection to, the equipment or other facilities of the _ Telephone Company; or interfere with the proper functioning of such equipment or facilities; or im- - pair the operation of the telephone. system or otherwise injure the publié in its use of the Tele- phone’ ‘Company’s. services, ‘Except as other kine. provided i in ee tariff, noth- _ ing herein shall be construed to permit the ‘use of a recording device, or of a device to interconnect ’ any line or channel: of. ‘the Telephone Company with apy other communications line or channel of. the Company or of any other person. | Connectidns with Certain Facilities of Power Pipe Litie and Railroad Companies Telephone facilities of an electric power company : or oil, oil products or natural gas pipe line com- pany, or railroad company, provided primarily to communicate with points located along a right-of- way (including premises of such’ company. any- where in cities, towns or villages along the right-. _ of-way) owned or controlled by such company and © extending between’ or beyond exchange areas of the Telephone Company, will be connected with -— Message Toll Telephone Service furnished by the Telephone Company subject to the regulations and ~~ - 7 conditions stated in Tariff F.C.C. No. 134 of this Company, and amendments thereto and successive ‘ issues thereof, for conneqtion of such facilities to e Telephone Company eon line services and. channels. a £ cc. eB J ‘26. Connection te Experimental Satellite Facilities Message toll talephone service may be connected through suitable connecting equipment provided * by the Telephone Company to ground stations for a a transmission to or from experimental satellites. ? 97, Connections with Certain Facilities of the National - Aeronautics and Space Administration | Telephone facilities-of the N ational Aeronautics ~ and Space Administration will be connected with me Message Toll Telephone Service furnished by the.’ ' ° Telephone Company subject to the regulations and | conditions stated in Tariff F. 0.0. No. 134 of this Company, and amendments thereto and successive - ‘issues thereof, for eonnection of such facilities to . Telephone Company private line services and chan- "nels. | | ) pee 28. Connéctions i. Facilities of. the Us. . _ Army, Navy and Air Force . a . a. Facilities of-a telephone system of the Uv. S.. Department of the Army, Navy or Air Force ° which serves an establishment ° operated and ~ . | administered under the direction of the Depart-. ment and commanded by authorities of .such Department, and which ‘is located generally within the boundaries of such establishment, _ will be connected with Message Toll Telephone Service furnished by the Telephone ,Company where the Secretary of the Department certifies in writing. that reasons of military necessity _Tequire that the establishment be served by -a ‘telephone ‘system of the Department. In addi- tion, the facilities of ‘a temporary telephone 3 e 3 *@* . 4d svahaah oft yuch: Distieians Leasted off a perma- nent establishment of the Department for ma- aeuvers, mobilization tests or r technical senha . tests. will be 80 connected. * é b. “Telephone facilities of the U. 18. euaeiasan of the Army, Navy or Air Force, other.than those , described - ‘in‘*a.. above, will be connected by ' means: of switching or connecting equipment: | i furnished by the Telephone Company, toa pri- | ' vate branch exchange switchboard or other. telephone switching. or terminal equipment of _* the Telephone Company, for communication with stations and private line facilitiés asso- _ ciated ‘with said. switching or terminal equip- ment, where the Secretary of the Department or his authorized representative notifies the . Delephone' Company in writing that such con- nection ‘is: required for . reasons of: military necessity. Such Department. telephone facilities will be connected with Message Toll Telephone Service furnished by the Telephone Company only in cases of emergency involving safety of life or property, unless the aforesaid De-— | partment facilities are in locations where it is impracticable for the ios oi Company to — | furnish its facilities. J. SERVICE THROUGH ‘MISCELLANEOUS’ COM.’ ‘MON CARRIERS i as defined in Part 21 of the F. ap C. _ rules) mae 7 + Service is available to and from customers of the mis- “cellaneous common carriers listed"below through intra- exchange connecting facilities provided by the Tele- | phone Company, - ADS int 4 hee ot vow - c ' Lawyer’s Nore: * The states between the Pe wire telephone rate - center and the rate center of the common carrier listed | below are the rates set forth in C. and D. of this tariff. An additional charge, which the miscellaneous Common carrier bills to and collects from its customer, is: ap- \ - plicable to the remainder of the haul, as set forth j dn. 1. x following or in -” tariff indicated i in » iets 8 \: [Section J then lists by name 114 inleoeinewas | common a whose customers the Telephone Company provides-service = intraexchange connecting facilities — these MC©’s are not ceo se forth _ may be found at wee 105-109 of the — : ee fo . @ 2 ¢ / ‘ _ ee ae a -. + APPENDIX E | # ee - gr OS ees FCC 66-924 RS ; | , 89476 .- Before the ° . © “Federal Communications - Canctsilon | Washington, D. C. 20554 , oe " Deekcst No. 16942 : ae Re. ‘ In the Matter. of Use of the Oniterrhidin Device in eas , Maninge Toll i cea Service. - os | “sh p 0 ORDER * * By the Commission: es, eee as ee At a session of the Federal Commmnications Commission held at its offices in Wasting, D. C., on the 20th ol of i October*4966; ‘ Ane ee The Commission having under. consideration the decision of the United States Court of Appeals for the Fifth Circuit in Carter, et al. v. American Telephone and Telegraph Co., _ et al. (No. 23556, Slip Opinion, ae 17, 1966) and the regulations published in American: Telephone and Tele- graph Company Tariff F.C.C. No. 132 (Message Toll Tele- phone Service) which purport to ihe gan extent to which telephone users may attach or connect devices to the facili- _ ties of the operating telephone companies for use in inter- state or foreign message toll telephone service : J PB APPEARING, That the Court, in the above-refer ed wee py. decision affirmed. a February 8, 1966, decision by ee nh ee fi States _— Court for the Northern District o> ee he * Ye * ‘Texas, Dallas Division, wherein the District Court, in a private antitrust action for.triple damages and injunctive relief filed by Thomas F. Carter and, Carter Electronics * : . ‘Corporation against American Télephone and Telegraph . Co. and.the General Telephone Company of the. Southwest, invoked the doctrine-of primary jurisdiction and referred to this Commission for resolution, the quéstion of the just- ° ness, reasonableness, v validity and effect of the-tariff regu- . lations and ‘practices complained. of in ‘the aforesaid action and wherein the said. District Court stayed the proceedings - in the aforesaid action pending the conclusion of appro- “priate administrative proceedings initiated before the Commission, Carter, et al. v. American Telephone and Tele- graph Co.,' et al., (Memorandum~ Order filed dasciad 8, 1966, Civil Action No. 3- 1294).- e _ . JT IS ORDERED, That, ihciraiaadit to the provision of. '_ Sections 201, 202, 2055403 and 411 of the Communications _ ' Act of 1934, as amended, a public hearing shall be held at a’ time and place to be hereinafter designated upon the follow- ing specific 1 issues::, 9, @ ISSUES oc. 1. Tie nature and extent of the public need and demand for the use of the Carterphone device in connection with interstate or foreign message. toll telephone service ; 2. The effect of the use of the Carterphone device upon the operation of the telephone system used to provide inter--. - state and foreign telephone message toll telephone services — _to the public or upon:the employees and facilities of the . telephone companies providing such services: or upon the public i in its use of ‘such telephone ‘system; 3. Whether the provisions of Tariff F.C.C; No. 132 filed by | American | Telephone rer Telegraph Company may 8 3e properly be construed to prohibit any telephone user from attaching the Carterphone device to the facilitieg of the - ‘telephone companies for use in connection with interstate and foreign message toll telephone services; 4, -If the aforesaid tariff provisions may properly be construed to prohibit. any telephone user from attaching . the Carterphone device to the facilities of the telephone companies for use in tonnection with interstate or foreign | message toll telephone services : . PL: (a) Whether such regulations are, or will be, unjust _and unreasonable and, ‘therefore, unlawful within the - meaning of Section 201(b) of the Communications Act of 1934, as.amended, or are, or will be, unduly discrim- -inatory or preferential i in violation of Section nee? of said Act; (b) Whether, in the light of facts deveined’ in con- ° “tection with the foregoing issues, the Commission, in . accordance with the provisions of Section 205 of the Act, should prescribe tariff hoe deri will per- . mit the use of the Carterphone device in connection. with interstate and foreign message toll telephone serv- - ice and, if so, the kind of tariff eae tee which aan be so prescribed ; . > & the aforesaid 4 tariff vegulatinie of the telephone companies may not properly be construed to prohibit tele- - phone users from attaching the Carterphone device to the .. facilities of the telephone companies for use in connection | with interstate or foreign message toll telephone’ Services, what*action, if any, should be taken by the Commission 7 with respect thereto. _ IT IS FURTHER. ORDERED, That chins F. Carter, Carter Electronics Corporation, the American Telephone a ae al * 4e and Telegraph Co., the General Telephone Company of the. Southwest, and the associated Bell System companies listed ~ in the attached Appendix are hereby made parties respond- ent.to this proceeding and a copy of this Order shall be served upon such: party respondents ; : IT IS FURTHER ORDERED, That any suai: : ; connecting: and other participating carrier, listed as such _. in-the aforesaid tariff, the United States Independent Tele- phone Association, the Gerferal Telephone and Electronics Service Corporation, the National Association of Railroad and Utilities Commissioners and any state regulatory body is HEREBY GRANTED leave to intervene upon the filing of a notice of intention” to appear and participate in these proceedings within 30 days from the date of the publication of this Order in the Federal Register; IT IS FURTHER ORDERED, That a hearing examiner SHALL BE DESIGNATED to preside in the proceedings ordered herein who shall prepare an initial decision on, all of the issues as provided i in Section 1. 267 of: the Commis- sion’ s Rules. o FEDERAL COMMUNICATIONS a ra caiare | Ben F. Waple : Secretary hice Released : Onion 21, 1966 a APPENDIX F —— ° Before the epee & . oo Faderal Communications Commission | | Washington, D. C. 20554 FOC 66M-1569 92182 ° In the Matter of | 5 Use of the Carterphone Device in Message. , Toll: Telephone § Service + DOCKET NO. 16942 : ORDER | A prehearing conference having been held on November 17, 1966, at which certain agreements were reached and certain rulings were made; — : ITIS ORDERED, This 17th re of November, 1966, t that: (1) The parties’ direct cases on Issues 1, 2 and 3 may be: presented either orally or, in whole or in pant, in the ferm of sworn, written exhibits; ( 2) On or before J anuary 9, 1967, the parties shall ex- change copies of their said exhibits, and shall also exchange a list of their witnesses to be presented orally togethér with a brief — as to the scope _ of each witness’s testimony ; i (8). Any party wishing to all for cross-examination the sponsor of any other parties’ exhibit shall give notifi- cation thereof on or before January 16, 1967 ; ‘ rps Released: November 21, 1966: ee Oey Tere (4) Hearing limited to the ariiee’ direct, affirmative. cases on [§sues 1, 2 and 3 shall commence on January ~ 23, 1967 at 10:00 a.m. in the offices of the Commission at Washington, D. C. . ee - Cuester F. Navmowicz, JR. , Kays Hearing Hixaminer o Federal Communications — _ Commission ie) Baw F. Warns ' Secretary: et 3 1The specification of hearing site is, of course, subject to the action of the Chief Hearing, Examiner on ane now pend- ing before him. ; --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0115%3A2. Public record. Not legal advice.