Prison Phone Justice

Case 1:09-cv-23093-DLG Document 62

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CLOSED
CIVIL
CASE

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

Case No. 09-23093-CIV-GRAHAM/TORRES
MILLICORP, a Florida corporation,
d/b/a CONSCALLHOME,
Plaintiff,

v.
GLOBAL TEL*LINK CORPORATION, et al.,
Defendants.

---------------_/
ORDER
THIS CAUSE comes before the Court upon Defendants Securus

Technologies, Inc. ("Securus"), Evercom Systems, Inc.

("Evercom"),

and

( "T-Netix" ) ,

T-Netix

Telecommunications

Services,

Inc.

collectively known as the "Securus Defendants"
[D.E. 16]
[D.E.

18],

Motion to Dismiss

and Memorandum of Law in support of Motion to Dismiss
Defendant

Global

Tel*Link

Corporation's

Motion

to

Dismiss or to Stay Proceedings and Incorporated Memorandum of Law
[D. E.

17].

THE COURT has considered the Motion, the pertinent portions of

the record, and is otherwise fully advised in the premises.
I.

BACKGROUND

Plaintiff,

Millicorp,

is a nationwide interconnected voice

over Internet protocol ("VOIP") provider. It is registered with the
Federal Communications

Commission

("FCC").

VOIP is an internet

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application typically used to transmit voice communications over a
broadband internet connection, rather than traditional land lines.
Millcorp provides a range of services including,
this action,

the subject of

a VOIP offering designed to serve the needs of the

friends and families of correctional facility inmates,

known as

ConsCallHome ("CCH"). Millicorp currently provides its services in
47 states, including but not limited to Florida, Texas, California,
Wisconsin, Virginia, and North Carolina.
The

Securus

Defendants

and

Global

Tel*Link

Corporation

("GTL"), provide inmate phone service ("IPS") via payphones located
in state and local confinement facilities throughout the· United
States.

Millicorp

Millicorp's

alleges

customers

who

that

Defendants

subscribed

to

blocked
CCH,

service

to

Millicorp's

interconnected VIOP offering. As a direct result of the blocking of
calls to Millicorp's CCH customers, Millicorp alleges that is has
actually lost a significant portion of its customer base resulting
in a loss of revenue, reputation and goodwill. Millicorp filed the
instant

fifteen count complaint against Defendants. Counts I and

II allege violations of §201 and §202 of the Federal Communications
Act of 1934 ( the "Act"). In Count III Millicorp alleges that the
Defendants

tortiously

interfered

with

Millicorp's

business

relationships. In Counts IV to XV Millicorp alleges violations of
several states deceptive trade practices statues.
In the instant motions,

the Defendants move to dismiss the

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Case 1:09-cv-23093-DLG Document 62

complaint

in

its

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entirety

pursuant

to

Federal

Rule

of

Civil

Procedure 12(b) (6) for failure to state a claim upon which relief
may be granted [D.E. 18]. Defendants also assert that dismissal is
proper pursuant to

Federal Rule of Civil Procedure 12 (b) (1)

because this Court lacks subj ect matter jurisdiction. Specifically,
the Securus Defendants seek dismissal asserting that: 1)

the FCC

expressly permits Defendants blocking of attempts to circumvent
secure inmate telecommunications systems; 2)

FCC policy preempts

all state claims regarding the services that the Securus Defendants
provide; and 3)

Plaintiff has no right, statutory, contractual, or

otherwise, to divert inmate calls [D.E. 18]. In a separate motion,
Defendant

GTL

seeks

dismissal

arguing

that:

1)

Millicorp

is

precluded by statue and this Court is deprived of jurisdiction to
hear this action because Millicorp has already selected its remedy
by invoking the FCC remedial authority; 2) federal law permits the
alleged call blocking of Millicorp's services;

and 3)

claims

asserts,

are

preempted

[D.E.

alternative to dismissal,
Millicorp's

claims

to

17].

GTL

also

the state
in

the

this Court stay the action and refer

the

FCC

under

the

primary

jurisdiction

doctrine [D.E. 17]
II.

DISCUSSION
A. Standard of Review

In

examining

a

motion

to

dismiss,

a

court

accepts

the

plaintiff's allegations as true and construes the complaint in the

3

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plaintiff's favor. See, generally, Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (noting
that

on a

motion

to

dismiss

there

is

an

allegations in the complaint are true).
dismiss,

a

complaint

allegations." Id.

need

not

assumption

all

To survive a motion to

contain

(citations omitted).

that

"detailed

factual

The complaint must contain

"only enough facts to state a claim to relief that is plausible on
its face." Id. at 1974.

The factual allegations "must be enough to

raise a right to relief above the speculative level." Id. at 1965.
"[A]

plaintiff's

'enti tle [ment]

obligation

to

relief'

to

provide

requires

the

more

'grounds'
than

of

labels

his
and

conclusions, and a formulaic recitation of the elements of a cause
of action will not do." Id. at 1964-65. Dismissal of a complaint is
proper where it is "clear that no relief could be granted under any
set of facts that could be proved consistent with the allegations."
Blackston v. Alabama,

30 F.3d 117,

120

(11th Cir.

1994) (quoting

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
In ruling on a Motion to Dismiss, the court can generally only
consider that which is contained within the four corners of the
complaint. See, Long v. Slaton, 508 F.3d 576, 578 n.3
2007).

Under FRCP 12(b) (1)

subject

matter

Dunbar,

919 F.2d 1525,

requires

the

there are two types of challenges to

jurisdiction:

Court

1529
to

(11th Cir.

facial

and

(11th Cir.

examine

4

factual.

1990).

whether

the

Lawrence

A facial

v.

attack

plaintiff

has

Case 1:09-cv-23093-DLG Document 62

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sufficiently alleged a basis of subject matter jurisdiction in its
complaint. Id. In a facial attack, the allegations in the complaint
are taken as true.

Id. Where there is a factual attack, matters

outside the pleadings, such as testimony, affidavits, depositions
or documents, can be considered. Id. Because the Court's power to
hear the case is in question when sUbject matter jurisdiction is
challenged in a factual attack,

the Court is free to weigh the

evidence to satisfy itself that jurisdiction exists. Id. However,
this ability to weigh matters contained outside of the pleadings
depends on whether the factual attack implicates the merits of a
plaintiff's cause of action. Garcia,

M.D. v.

Copenhaver,

Bell &

Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997).

B.

Plaintiff's Claims Under the Communications Act of 1934

and the Telecommunications Act of 1996 (Counts I and II)

Here, Defendants attack on subject matter jurisdiction in this
action is

factual

in nature.

Specifically,

Defendants move

to

dismiss Millicorp's federal claims asserting that Millicorp has
already chosen to pursue a remedy before the FCC ,forclosing the
current action pursuant to 47 U.S.C. §207 [D.E. 46]
are asserting a

factual attack,

As Defendants

the Court may consider matters

outside the pleadings in determining whether it has jurisdiction
over Plaintiff's claims.
Counts I and II of the complaint allege violations of §§ 201

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Case 1:09-cv-23093-DLG Document 62

and

202

of

the

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Communications

Telecommunications Act of 1996.
Defendants under 47 U.S.C.

§§

Act

of

1934

and

the

Millicorp seeks damages against
206 and 207 as a

violating 47 U.S.C. §§201 and 202

[D.E. 1,

~~26

consequence of

and 35]. 47 U.S.C

§207 of the Communications Act provides that:
Any person claiming to be damaged by any common carrier
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 damages for which
such common carrie may be liable ... in any district court
of the United States of competent jurisdiction; but such
person shall not have the right to pursue both such
remedies.
Defendants contend that Millicorp is precluded from bringing
this action, and specifically Counts I and II, based on Millicorp's
July 15, 2009 letter requesting that the FCC's Enforcement Bureau
investigate the call blocking practices of GTL and Securus and
Millicorp's comments and reply comments in response to the petition
for declaratory ruling filed with the FCC by Securus. Millicorp,
however, argues that its federal claims are not barred under the
election remedies provision of §207 because: 1) it has not made any
complaint to the FCC; 2) if it had filed an informal complaint, it
has

not

complained

specifically

to

the

FCC's

Market

Dispute

Division; and 3)it sought declaratory relief and not money damages
before the FCC. In this case, the factual attack does not implicate
the merits of Millicorp's cause of action.
It is clear that §207 permits an injured party to seek relief

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Case 1:09-cv-23093-DLG Document 62

in either
Digitel,

federal

Entered on FLSD Docket 04/14/2010 Page 7 of 10

court or before

Inc. v. MCI Worldcom,

the

Inc.,

FCC,

but

not

in both.

239 F.3d 187, 190

(2 nd Cir.

2001), Mexiport, Inc., v. Frontier Communications Services, Inc.,
253

F.3d

573,

575

(11th

Cir.

2001).

Section

207

requires

an

election between litigation and filing a complaint with the FCC.
A complaint filed with the FCC may be either formal or informal. 47
C.F.R.

§1.711.

The parties agree that Millicorp did not file a

formal complaint with the FCC. However, the parties dispute whether
Millicorp's July 15, 2009 letter requesting an investigation and
subsequent comments and reply comments to Securus'

petition for

declaratory ruling constitute an informal complaint to the FCC. An
informal complaint is

in writing and contains:

"(1)

address, and telephone number of the complainant;

the name,

(2) the name of

the carrier against whom the complaint is made;

(3)

the

contravenes

act

or

omission

by

the

carrier

that

statement of
the

Communications Act; and (4) the relief sought." Mexiport, Inc. v.
Frontier Communications Servs., Inc., 253 F.3d 573, 575 n.3

(11 th

Cir. 2001).
In considering Millicorp's Comments submitted to the FCC in
response
relief,

to

Securus'

Millicorp

petition

states

"in

to

the

advance

FCC
of

seeking
the

declaratory

instant

Securus

Petition, on July 15, 2009 [Millicorp] contacted and requested the
FCC's Enforcement Bureau to investigate the unlawful call blocking
practices

of

Securus

and

GTL."

7

[D. E.

17- 2,

p.

10].

Further,

Case 1:09-cv-23093-DLG Document 62

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footnote 23 of this same document cites, "Request for Investigation
Letter to Trent Harkrader, Deputy Chief, Investigations & Hearings
Division, Enforcement Bureau, FCC, from William P. Cox, Counsel for
Millicorp, dated July 15, 2009." Id.

While Millicorp disputes that

it filed an informal complaint it concedes that its request for the
FCC to initiate an investigation may contain some of the elements
of an informal complaint as provided in §1.716 of the FCC's rules
[D.E.

40,

p.10].

In

its

reply comments

submitted

to

the

FCC,

Millicorp concludes by requesting the FCC to "prohibit Securus,
GTL, and other ICS providers from blocking calls to Millicorp CCH
customers."

[D.E.

17-5,

p.14].

"Millicorp

also

asks

that

the

Commission specifically find that use of local telephone numbers by
customers of FCC regulated interconnected VIOP providers,
manner described by Millicorp
Comments,
policy."

is

lawful

under

in its

federal

in the

Comments and these Reply

telecommunications

law

and

[D.E. 17-5, p.14]. The Court notes that the Comments and

Reply Comments submitted by Millicorp to the FCC contain many of
the same allegations contained in the instant complaint and meet
the requirements of an informal complaint to the FCC.
A party that files an informal complaint is precluded from
also filing in district court. Digitel at 190. The Court finds that
Millicorp's July 15, 2009 letter requesting the FCC to investigate
alleged unlawful

call

blocking practices

of

Defendants

was

an

invocation of the FCC's jurisdiction sufficient to trigger forum

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selection pursuant to §207. Specifically, Millicorp's letter to the
FCC addresses and requests the FCC to take action regarding the
very same practices it complains of in the instant action.

There

is no indication that Millicorp's request for investigation to the
FCC and the instant action cover different factual or legal issues.
Bell Atlantic Corp. v. MFS Commc'ns Co.,

901 F.Supp. 835

(D.Del.

1995). To the contrary, it appears that Millicorp has attempted to
place the same legal issues before the FCC and this Court thus
precluding

adjudication

Millicorp's claim that

of

these

claims

by

this

Court.

Id.

it did not make an election under §207

because it sought declaratory or injunctive relief rather than
monetary damages is unpersuasive. Section 207 does not require a
person to request damages at the FCC. Beehive Telephone Co., Inc.
v.

Sprint Communications Company L.P.,

2009 WL 3297303

(D.

Utah

2009). "If a person could avoid the election of remedies provision
in §207 simply by styling its FCC complaint as one for declaratory
relief, §207 would be rendered meaningless.

/I

Id *2. The Court holds

that §207 bars Millicorp from bringing its §§ 201 and 202 claims
before this Court. Because Millicorp filed an informal complaint
with the
federal

FCC

it

district

is precluded from also bringing an action in
court.

Mexiport

declines to exercise supplemental
remaining state law claims.

9

at

575.

Further,

the

Court

jurisdiction over Plaintiff's

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III. CONCLUSION

Based on the foregoing, it is hereby
ORDERED

[D.E.

16

AND

and

ADJUDGED

17]

jurisdiction.

are

that

Defendant's

GRANTED

for

lack

Motions
of

to

subject

Dismiss
matter

It is further

ORDERED AND ADJUDGED that this action is DISMISSED without

prejudice. It is further
ORDERED

AND

ADJUDGED

administrative purposes,

that

this

case

is

CLOSED

for

and any pending motions are DENIED as

moot.
DONE AND ORDERED in Chambers at Miami, Florida, this

liJ! day

of April, 2010.

DONALD L.
UNITED STATES DISTRICT JUDGE
cc:

All Counsel of Record

10