AtlasTrdg Conglomerate, Inc. v. AT&T, Incorporated, et al

Filing

REVISED UNPUBLISHED OPINION FILED. [8616264-2] [16-11661]

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REVISED October 19, 2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 16-11661

October 18, 2017
Lyle W. Cayce
Clerk

ATLAS TRADING CONGLOMERATE INCORPORATED, formerly known as
Dollar Phone Access, Incorporated;
Plaintiff - Appellant
v.
AT&T INCORPORATED, a Delaware Corporation; AT&T SERVICES,
INCORPORATED, a Delaware Corporation; SOUTHWESTERN BELL
TELEPHONE COMPANY, a Delaware Corporation; PACIFIC BELL
TELEPHONE COMPANY, a California Corporation; BELLSOUTH
TELECOMMUNICATIONS L.L.C., a Georgia limited liability company;
ILLINOIS BELL TELEPHONE COMPANY, an Illinois corporation;
INDIANA BELL TELEPHONE COMPANY INCORPORATED; MICHIGAN
BELL TELEPHONE COMPANY, a Michigan corporation; NEVADA BELL
TELEPHONE COMPANY, a Nevada corporation; THE OHIO BELL
TELEPHONE COMPANY; WISCONSIN BELL INCORPORATED,
Defendants - Appellees
-------------------BELLSOUTH TELECOMMUNICATIONS L.L.C., a Georgia limited liability
company; ILLINOIS BELL TELEPHONE COMPANY, an Illinois
corporation; INDIANA BELL TELEPHONE COMPANY INCORPORATED;
MICHIGAN BELL TELEPHONE COMPANY, a Michigan corporation;
NEVADA BELL TELEPHONE COMPANY, a Nevada corporation; PACIFIC
BELL TELEPHONE COMPANY, a California corporation;
SOUTHWESTERN BELL TELEPHONE COMPANY, a Delaware
corporation; THE OHIO BELL TELEPHONE COMPANY; WISCONSIN
BELL INCORPORATED,

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Plaintiffs - Appellees
v.
ATLAS TRADING CONGLOMERATE INCORPORATED, formerly known as
Dollar Phone Access Incorporated,
Defendant - Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CV-404
USDC No. 3:14-CV-2132
Before REAVLEY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Several

local

telephone

exchange

carriers

and

Atlas

Trading

Conglomerate Incorporated settled a collection dispute. Atlas later failed to
make payments under the settlement. Subsequently, Atlas brought a lawsuit
to invalidate the settlement and the local exchange carriers brought a lawsuit
to enforce it. The two lawsuits were consolidated in the United States District
Court for the Northern District of Texas. The district court dismissed Atlas’s
claims under Rule 12(b)(6). We AFFIRM.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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FACTUAL AND PROCEDURAL BACKGROUND
Appellant Atlas Trading Conglomerate, formerly Dollar Phone Access,
provides pre-paid long-distance telephone service.

The Appellees are

incumbent local exchange carriers (“ILECs”), 1 as defined by federal law. See
47 U.S.C. § 251(h). The ILECs have designated geographical service areas and
operate local exchange networks in their respective areas. The ILECs provide
switched-access services, which include originating, transporting, and
terminating interexchange telecommunications traffic.
The ILECs’s switched-access services assist long-distance providers, like
Atlas, in the commencement and conclusion of long-distance calls. The ILECs’s
networks transmit the original or final portions of the long-distance calls at
the local network level. The ILECs impose switched-access charges. The rates
for those charges are derived from terms contained in the ILECs’s federal
tariffs, on file with the Federal Communications Commission (“FCC”).
Atlas used the ILECs’s switched-access services but did not pay the
resulting charges. The parties settled before any lawsuit was filed. In the
Confidential Settlement Agreement (“CSA”), Atlas agreed to pay for both pastdue and prospective switched-access charges. For the past-due charges, Atlas
agreed to pay a lump-sum of $105,000. For the prospective switched-access
charges, Atlas agreed to pay the ILECs switched-access charges pursuant to
the applicable terms, rates, and conditions set forth in the FCC tariffs.
The then-effective tariff rates were set forth in an exhibit accompanying
the CSA. The filing location and specific rate elements of the applicable tariff
rates were also outlined in an exhibit. The parties agreed, however, that the
The ILECs consist of Southwestern Bell Telephone Company, BellSouth
Telecommunications, LLC, Illinois Bell Telephone Company, Indiana Bell Telephone
Company, Inc., Michigan Bell Telephone Company, Nevada Bell Telephone Company, Ohio
Bell Telephone Company, Pacific Bell Telephone Company, Wisconsin Bell, Inc., and
Southern New England Telephone Company.
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rates used to calculate the switched-access charges were subject to change if
changes to the ILECs’s tariffs so required. By entering into the CSA, Atlas
also agreed to release any present or future claims – including claims under
the “filed-rate doctrine,” a term we will discuss in detail later.
Atlas initially made payments under the terms of the CSA. By December
2013, though, Atlas ceased payments to the ILECs and has made no payments
since. Rather than paying, Atlas filed a lawsuit in the United States District
Court for the Eastern District of New York, contending that many of the rates,
terms, and conditions set forth in the CSA were materially inconsistent with
the applicable FCC tariffs. 2 The ILECs, seeking to enforce the CSA, responded
by filing a lawsuit against Atlas in the District Court for the Northern District
of Texas. The two lawsuits were consolidated in the Texas district court.
In its Third Amended Complaint, Atlas pled that the ILECs, AT&T Inc.,
and AT&T Services Inc. (collectively, the “defendants”), had violated the
Federal Communications Act of 1934. 3

The defendants moved to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6). They argued that all of
Atlas’s claims were barred by the parties’ earlier settlement, the CSA. Atlas
argued the CSA was unenforceable because it violated the filed-rate doctrine.
The district court agreed with the defendants and dismissed Atlas’s claims.
After that dismissal, the ILECs’s claims against Atlas remained. The
ILECs moved for summary judgment. The district court concluded that the
ILECs were entitled to “judgment as a matter of law, court costs, post-

In its initial complaint, Atlas named the ILECs’s then-parent company, AT&T Inc.,
and AT&T Services, Inc., as the defendants instead of the ILECs. Notably, neither AT&T
Inc. nor AT&T Services, Inc. was a party to the CSA.
3 In addition to the claims brought under the Communications Act of 1934, Atlas
alleged fraud, negligent misrepresentation, tortious interference, civil conspiracy, and unjust
enrichment. Atlas also sought a declaratory judgment.
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judgment interest, attorneys’ fees, and the entire amount owed because of
Atlas’s breach of the” CSA. Atlas timely appealed.
DISCUSSION
Atlas argues the district court erred by dismissing its claims under the
Communications Act of 1934. First, Atlas argues its claims are not barred by
the CSA because the CSA is unenforceable under the filed-rate doctrine.
Second, Atlas argues the district court erred when it applied a Tenth Circuit
decision in granting the motion to dismiss. Finally, Atlas argues the district
court erred when it concluded that Atlas released its claims under the filedrate doctrine.
Because we conclude that Atlas has failed to state a facially plausible
claim that the defendants violated the filed-rate doctrine, we do not address
Atlas’s other arguments. In addition, we do not address the district court’s
grant of summary judgment because Atlas did not raise any argument
pertaining to the grant of summary judgment in its original brief.

“[A]n

argument not raised in appellant’s original brief as required by FED. R. APP. P.
28 is waived.” United States v. Ogle, 415 F.3d 382, 383 (5th Cir. 2005).
“We review de novo a district court’s dismissal under Rule 12(b)(6)[.]”
Childers v. Iglesias, 848 F.3d 412, 413 (5th Cir. 2017). We accept all well-pled
facts as true and view those facts in the light most favorable to the plaintiff.
Id. “However, we do not presume true a number of categories of statements,
including legal conclusions; mere ‘labels’; ‘[t]hreadbare recitals of the elements
of a cause of action’; ‘conclusory statements’; and ‘naked assertions devoid of
further factual enhancement.’” Morgan v. Swanson, 659 F.3d 359, 370 (5th
Cir. 2011) (en banc) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“If the complaint has not set forth ‘enough facts to state a claim to relief
that is plausible on its face,’ it must be dismissed.” Hines v. Alldredge, 783
F.3d 197, 201 (5th Cir.) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
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(2007)), cert. denied, 136 S. Ct. 534 (2015)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
“The plausibility standard is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that
are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of entitlement to relief.’” Id. (quoting
Twombly, 550 U.S. at 557). We may affirm the district court’s order granting
the motion to dismiss on any basis supported by the record. R2 Investments
LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005).
“Section 203(a) of the Communications Act requires every common
carrier to file with the [FCC] ‘schedules,’ i.e., tariffs, ‘showing all charges’ and
‘showing the classifications, practices, and regulations affecting such charges.’”
Am. Tel. & Tel. Co. v. Cent. Office Tel., Inc., 524 U.S. 214, 221 (1998) (quoting
47 U.S.C. § 203(a)). The corollary of Section 203(a) is the filed-rate doctrine:
“the rate of the carrier duly filed is the only lawful charge” and “[d]eviation
from it is not permitted upon any pretext.” Id. at 222 (quoting Louisville &
Nashville R.R. Co. v. Maxwell, 237 U.S. 94, 97 (1915)). In short, “under the
filed rate doctrine, . . . no rate other than the one on file may be charged.”
Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 581 (1981).
In its Third Amended Complaint, Atlas alleged three claims under the
Communications Act of 1934. In each of these claims, Atlas argued that the
defendants violated the Communications Act of 1934 because the rates
assessed in the CSA were not the same as those set forth in the applicable FCC
tariffs. Thus, all invoke the filed-rate doctrine.
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Atlas argues that the district court erred in dismissing each of its claims
because it pled with specificity numerous known violations of the applicable
tariffed rates. Atlas points out that it pled four types of charges assessed by
the ILECs but allegedly “not found in any applicable switched-access tariff”:
composite access-rate charges, miscellaneous services, a seven-percent charge
for call set-up time, and a state cost-recovery fee.
Atlas has neither pled nor shown, though, how these charges are
inconsistent with the tariffed rates. That the terms are not found in the tariffs
is insufficient. For example, it could allege what it should have been charged
under the tariffed rate or compared that to what it was actually charged. It
simply asserts that charges such as the composite access-rate charge are not
found in the tariffs and from that asks the court to let its claims go forward.
Even accepting as true Atlas’s allegation that the labels for the charges
are not found in the tariffs, we cannot make a reasonable inference that the
defendants have violated the filed-rate doctrine. At most, we can only infer
that certain labels for charges are not found in the tariffs filed with the FCC.
Such an inference is not the equivalent of a plausible allegation that the
defendants have charged Atlas different rates from those on file with the FCC.
AFFIRMED.

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