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11/13/95 JOHN MANNING AND DEAN ZELINSKY v. CITY

November 13, 1995

JOHN MANNING AND DEAN ZELINSKY, PLAINTIFFS-APPELLANTS,
v.
CITY OF CHICAGO, THE OXFORD HOUSE, ZERO PLUS DIALING, INC., RESURGENS COMMUNICATIONS GROUP, INC., INTERNATIONAL TELECHARGE, INC., OPERATOR ASSISTANCE NETWORK, INC., SHEFFIELD SYSTEMS, INC., PEOPLE'S TELEPHONE CO., INC., TELECOM*USA, AND ILLINOIS BELL TELEPHONE COMPANY, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE THOMAS J. O'BRIEN, JUDGE PRESIDING.

Released for Publication December 21, 1995. Petition for Leave to Appeal Denied April 3, 1996.

The Honorable Justice Wolfson delivered the opinion of the court: Buckley and Braden, JJ., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

Someone wants to make a long distance call from a telephone in a public place. He or she reaches for the phone. At that moment, the caller does not know which phone service will be handling the call.

The question is whether that caller, claiming confusion and deception, can sue everyone connected with processing the call for injunctive relief and money damages in a State court.

The trial court found there is no claim because Congress preempted the field. We agree.

BACKGROUND

Before 1982, almost all long distance telephone service in this country was provided by AT&T. The change came in 1982, when the United States and AT&T entered into a consent decree. Among other things, the decree required AT&T to divest itself of its local telephone companies and allow all long distance carriers equal access to local interconnections.

These changes brought competition to the operator service industry. They also brought customer confusion because some operatorservice providers did not identify themselves to callers who made operator-assisted calls over certain public phones. At times, consumers could not reach the carrier they wanted. Rates charged by providers were uneven, some much higher than the rates charged by AT&T for interstate calls.

This history is contained in Senate Report No. 439, 101st Cong., 2d Sess. (1990) (Sen. Rpt.). To respond to these and other concerns, Congress, in 1990, enacted the Telephone Operator Consumer Services Improvement Act (TOCSIA), 47 U.S.C. § 226 (1991).

On December 11, 1992, plaintiffs filed a four-count class action complaint charging defendants with fraud and deceptive trade practices in violation of State statutory and common law.

According to the complaint, certain defendants (as well as others not yet named or known), identified as "aggregators," are entities who own, operate, control, maintain, or provide public pay telephones on their premises.

These aggregators contracted with other defendants, known as Alternative Operator Service Providers or AOSPs, who are non-Bell phone service companies, to provide operator-assisted (live or automated) phone service for their public phones. The aggregators continued to use Bell telephones, or similar-looking Bell-type telephones, and kept the public telephones in the same or substantially the same locations as when the underlying operator-assistance carrier for the public telephones was AT&T or a Bell Operating Company (BOC).

In so doing, plaintiffs claim, aggregators were "passing off" AOSP telephones, services, and rates as those of AT&T or Bell Operating Companies and were thereby creating a misunderstanding or confusion as to the source of the telephone service and the rates charged. According to the complaint, the damage to plaintiffs caused by this "passing off" arose from the fact that AOSPs generally charge higher rates than AT&T or BOCs and the consumer would often be unaware that another carrier had placed the call until the consumer received his/her telephone bill.

Plaintiffs requested temporary and permanent injunctive relief, as well as money damages. In particular, they requested that defendants be enjoined from charging non-BOC rates at BOC-shared or "BOC-type" telephones and that Bell be enjoined from billing or collecting for telephone services on behalf of AOSPs.

In response to the complaint, Telecom*USA and Resurgens Communications Group, Inc. (Resurgens) filed a section 2-619 motion to dismiss the complaint (735 ILCS 5/2-619 (West 1992)), arguing thatthe claims were preempted by the Federal Communications Act (47 U.S.C. § 151 et seq.) and the ...


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