Wednesday, March 7, 2012
Appeals Court Upholds Charges for Unpublished Phone Numbers
By a MetNews Staff Writer
A Los Angeles Superior Court judge properly abstained from ruling on a suit charging AT&T with charging excessive rates for unpublished landline telephone numbers.
Div. Five, in a 2-1 decision, affirmed Judge Anthony Mohr’s dismissal of an action for restitution under the Unfair Competition Law. The plaintiffs charged that forcing them to pay $1.25 per month for nonpublished service and $1 per month for unlisted service was an unlawful business practice because it was unconscionable, since it was non-negotiable and exceeded the actual cost to AT&T of providing the services, and violated their right to privacy under the state Constitution.
Justice Sandy Kriegler said the trial judge properly exercised his discretion by concluding that the issues involved complex policy questions that should be addressed to the Legislature or to an administrative agency.
In sustaining the company’s demurrer, Mohr took judicial notice of a pair of decisions by the California Public Utilities Commission, including a 1994 ruling that allowed GTE California to raise its monthly rate for nonpublished service from 60 cents to $1.50 and to implement a $1 charge for unlisted service.
Twelve years later, the CPUC eliminated all price regulation with regard to unlisted and nonpublished service, and of charges for listing in the phone book, subject to reregulation in the future if market conditions demanded.
Mohr concluded that since the commission had decided to “let the free market control the prices,” and since there is “no inherent right to privacy in a telephone listing,” the court would “avoid the fray” and abstain.
No Reasonable Expectation
The plaintiffs, he added, could not claim a reasonable expectation of privacy, since they knew when they signed up for telephone service that they would either have to be listed in a telephone directory or pay for nonpublished or unlisted service.
Kriegler, writing for the appellate panel, noted that the Court of Appeal has upheld judicial abstention with regard to a number of policy issues, including cigarette sales to minors, protection of farm laborers from illegal immigrant competition, bank service fees, and various aspects of insurance regulation.
“It was not an abuse of discretion to conclude that judicial review of AT&T’s fees for nonpublished service and unlisted service is inappropriate and overseeing service fees is besleft to the CPUC,” the justice said. “…Without alleging the market is less competitive now than it was in 2006, plaintiffs are asking the judiciary to reregulate fees which the CPUC determined should be deregulated. In the context of the affirmative resolution of the issues presented to the CPUC, and the evidence of a complex market system which is constantly evolving, judicial abstention is not an abuse of discretion where the CPUC retains jurisdiction to revisit the issue should it become necessary.”
Presiding Justice Paul A. Turner concurred in the opinion.
Justice Richard Mosk, dissenting, argued that the issues were not so complex as to require abstention.
“We are not concerned here with the amount of the charge, but the legality of the contract in which the charge in question is included,” Mosk wrote. “ The resolution of these issues does not involve a resolution of complex economic theories.”
No View on Merits
The dissenting jurist emphasized that he was not rendering an opinion on the merits, but believed the trial court should have overruled the demurrer and allowed the plaintiffs to litigate their claims of unconscionability and invasion of privacy.
Maxwell M. Blecher, Donald R. Pepperman, Maryann R. Marzano, William C. Hsu and Majed Dakak of Blecher & Collins represented the plaintiffs. The defense counsel on appeal were Matthew I. Kaplan, Nathan T. Newman, Irene C. Keyse-Walker, and Patrick J. Pascarella of Tucker Ellis & West, and Gleam O. Davis of the AT&T Legal Department.
The case Is Willard v. AT&T Communications of California, Inc., B231137.
Copyright 2012, Metropolitan News Company