TITLE 47. TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS CHAPTER 5. WIRE OR RADIO COMMUNICATION COMMON CARRIERS COMMON CARRIER REGULATION Review Court Orders which may amend this Rule. 47 USCS § 206 (2003) § 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 Act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this Act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this Act, together with a 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 the case. HISTORY:    (June 19, 1934, ch 652, Title II, § 206, 48 Stat. 1072.) HISTORY; ANCILLARY LAWS AND DIRECTIVES References in text:    "This Act", referred to in this section, is Act June 19, 1934, ch 652, popularly known as the Communications Act of 1934, which appears generally as 47 USCS §§ 151 et seq. For full classification of such Act, consult USCS Tables volumes. Effective date of section:    For effective date of section, see Act June 19, 1934, ch 652, Title VII [Title VI], § 707 [607], 48 Stat. 1105, which appears as 47 USCS § 607. NOTES:                                CROSS REFERENCES    Judgment and costs, USCS Rules of Civil Procedure, Rule 54.    This section is referred to in 47 USCS § 274.                                 RESEARCH GUIDE Federal Procedure:    31 Fed Proc L Ed, Telecommunications §§ 72:321, 1020. Am Jur:    32 Am Jur 2d, Federal Courts § 280.    74 Am Jur 2d, Telecommunications §§ 49, 78. Forms:    15A Fed Procedural Forms L Ed, Telecommunications (2002) § 62:347.    23A Am Jur Pl & Pr Forms (Rev ed), Telecommunications § 79.                         INTERPRETIVE NOTES AND DECISIONS  1. Generally  2. Construction  3. Governing law  4. Liability and damages for failure to deliver  5. Liability and damages for mental anguish  6. Effect of filed-rate doctrine  7. Availability of punitive damages  8. Attorneys' fees  9. Jurisdiction  10. Statute of limitations  11. Miscellaneous 1. Generally    Private party seeking relief under sections 206 and 207 of Communications Act (47 USCS § 206 and § 207) must allege and prove specific damages flowing from violation of Act, and presumed damages cannot be recovered. Conboy v AT&T Corp. (2001, CA2 NY) 241 F3d 242.    Employee of common carrier of communications does not have action at law for injuries sustained as result of defective appliances installed or used in violation of 47 USCS § 151 et seq. Curran v Mackay Radio & Tel. Co. (1954, DC NY) 123 F Supp 83.    General common carrier is not required to undertake interpretation, application, and enforcement of substantive provisions of and disputes arising under 47 USCS § 206. Re Business Radio Service, et al. (1965) 1 FCC2d 524.    Damages claimed by complainant that resulted from carrier's threat to disconnect service to user of registered coupler were natural consequences of illegal conduct and, as such, recoverable under 47 USCS § 206 where complainant, who was manufacturer of coupler, was put to expense of providing engineering services to convince its customer that coupler was lawfully registered, obtaining loan when customer refused to pay manufacturer following receipt of carrier's notice of threatened service termination, and incurring internal costs for additional work needed to rectify effect of carrier's conduct. Edwards Industries, Inc. (1979) 74 FCC2d 322. 2. Construction    In construing 47 USCS §§ 151 et seq., construction of similar sections in Interstate Commerce Act (former 49 USCS §§ 8, 9) will be examined. Stanley v Western Union Tel. Co. (1938, DC Fla) 23 F Supp 674. 3. Governing law    Filed rate doctrine precluded consumers' claims against incumbent local exchange carriers (ILECs) for alleged violations of 47 USCS §§ 206, 207, which purportedly denied consumer free choice in market for digital subscriber line (DSL) services and forced him to use inferior DSL service, inasmuch as measure of recoverable damages necessarily implicated ILECs' filed rates, and claims essentially boiled down to assertion that ILECs were overcharging consumers. Stein v Pacific Bell Tel. Co. (2001, ND Cal) 173 F Supp 2d 975.    Federal rule of damages for failure of common carrier of intelligence to deliver interstate telegraph is applicable in action in state court for such default. Western Union Tel. Co. v Conway (1941) 57 Ariz 208, 112 P2d 857. 4. Liability and damages for failure to deliver    Provision of standard money order contract of Western Union Telegraph Company that "in any event, the company shall not be liable for damages for delay, nonpayment or underpayment of this money order, whether by reason of negligence on the part of its agents or servants or otherwise, beyond the sum of five hundred dollars, at which amount the right to have this money order promptly and correctly transmitted and promptly and fully paid is hereby valued, unless a greater value is stated in writing on the face of this application and an additional sum paid or agreed to be paid based on such value equal to one-tenth of one per cent thereof," constitutes stipulation of maximum amount of damages recoverable in case of failure of company to transmit and pay money order as contracted for, and does not constitute stipulation for liquidated damages so as to entitle sender to recovery of five hundred dollars without proof of actual damages. Western Union Tel. Co. v Nester (1940) 309 US 582, 84 L Ed 960, 60 S Ct 769, 128 ALR 628.    Petition otherwise sufficient and showing loss of specified sum as expense of useless trip occasioned by failure of telegraph company to promptly deliver message, and asking for reasonable attorney's fees, states cause of action against company. Jeremias v Western Union Tel. Co. (1948) 78 Ga App 142, 50 SE2d 797.    The doctrine of estoppel is not available as a means of voiding the limitation of liability contained in a telegraph company's tariff in an action for damages resulting from delay in transmission of an unrepeated message, since application of the doctrine will result in the plaintiff receiving a preference or advantage contrary to 47 USCS § 202(a). Komatz Constr. Inc. v Western Union Tel. Co. (1971) 290 Minn 129, 186 NW2d 691, cert den (1971) 404 US 856, 30 L Ed 2d 98, 92 S Ct 102.    Compliance with printed conditions under which telegraph company accepts message for transmission is essential to recovery in action for damages for failure to deliver such message. Spann v Western Union Tel. Co. (1945, App, Hamilton Co) 43 Ohio L Abs 353, 62 NE2d 576.    Action for damages for failure to promptly transmit money order telegram is not one for violation of this act (47 USCS §§ 151 et seq.); hence, attorney's fee is not allowable as part of damages; federal rule as to damages controls in actions under 47 USCS § 151 et seq. for failure to promptly transmit telegram. McCollum v Western Union Tel. Co. (1943) 180 Tenn 403, 175 SW2d 544. 5. Liability and damages for mental anguish    "Damages" are only such damages as are lawfully recoverable under laws of United States, and do not include damages for mental anguish. Stanley v Western Union Tel. Co. (1938, DC Fla) 23 F Supp 674; Welsh v Western Union Tel. Co. (1945) 207 SC 102, 34 SE2d 398.    Telegram between two states is in interstate commerce, and covered by federal statutes, which do not permit recovery for mental pain and anguish for failure to deliver telegram, where no injury is done to person, property, health or reputation. Vaigneur v Western Union Tel. Co. (1940, DC Tenn) 34 F Supp 92; Burke v Western Union Tel. Co. (1939) 137 Neb 878, 291 NW 555.    Plaintiff suing to recover for mental suffering arising from delay in delivery of interstate death telegram, is not entitled to recover, in view of federal law, where there is no financial loss or physical injury, though state law is contrary. Fortier v Western Union Tel. Co. (1936, La App) 168 So 321.    There can be no recovery of damages for infliction of mental anguish in respect of interstate transaction, unless victim can show that he also suffered physical injury. Western Union Tel. Co. v Junker (1941, Tex Civ App) 153 SW2d 210. 6. Effect of filed-rate doctrine    Although 47 USCS § 207 permits lawsuit for damages to be brought by any person claiming to have been damaged by any common carrier, and 47 USCS § 206 makes carriers liable to such plaintiffs for full amount of damages sustained in consequence of any such violation, "filed rate doctrine," which bars courts from reexamining reasonableness of rates that have been filed with regulatory commissions, bars consumer actions for damages that are claims for overcharges that carrier had allegedly been able to impose on consumers as result of its failure to carry out its responsibilities under Telecommunications Act (47 USCS §§ 151 et seq.). Goldwasser v Ameritech Corp. (2000, CA7 Ill) 222 F3d 390, 2000-2 CCH Trade Cases P 72977. 7. Availability of punitive damages    There appears to be no provision in Communications Act that prohibits Commission from awarding punitive damages where justified by evidence. Re Richard Johnson et al. (1969) 18 FCC2d 679.    No punitive damages can be recovered for erroneous transmission of interstate message. Welsh v Western Union Tel. Co. (1945) 207 SC 102, 34 SE2d 398. 8. Attorneys' fees    Pay telephone operator which won declaration of nonliability for $ 1.2 million in charges by telephone company is denied payment of attorney's fees and legal expenses, even though it was prevailing party, because 47 USCS § 206 does not cover attorney's fees incurred in proceedings before FCC, nor provide for fees for party not "recovering" damages. American Tel. & Tel. v United Artists Payphone Corp. (1994, SD NY) 852 F Supp 221, affd without op (1994, CA2 NY) 1994 US App LEXIS 30987, reported in full (1994, CA2 NY) 39 F3d 411.    47 USCS § 206 of Communications Act authorizes recovery of attorneys' fees only in court action. Re WSAZ, Inc. v A. T. & T. (1961) 31 FCC 175. 9. Jurisdiction    In diversity action for damages allegedly arising from negligent nondelivery of an interstate telegraph money order, federal district court lacked jurisdiction for want of requisite jurisdictional amount since maximum recovery was $ 500.00 under the contract of transmittal in accordance with federal statute and tariff regulations. Schaafs v Western Union Tel. Co. (1963, ED Wis) 215 F Supp 419.    Right of action conferred under 47 USCS §§ 206, 207 applies not only to Telecommunications Act of 1996, but to implementing Federal Communications Commission regulations as well. Precision Pay Phones v Qwest Communs. Corp. (2002, ND Cal) 210 F Supp 2d 1106. 10. Statute of limitations    Commission has no choice but to dismiss complaint against defendants under 47 USCS § 206 where any cause of action carrier may have had, based on alleged discriminatory practices by defendants, is now barred by statute of limitations. Re Armstrong Utilities, Inc., et al. (1970) 25 FCC2d 385. 11. Miscellaneous    Where local exchange carriers' earnings exceeded maximum rates of return prescribed by Commission, such overearning constituted per se violation of requirement of Communications Act (47 USCS § 201) that common carrier maintain just and reasonable rates and may serve as sole basis for damage liability pursuant to § 206. MCI Telecommunications Corp. v FCC (1995, App DC) 313 US App DC 419, 59 F3d 1407, cert dismd (1996) 517 US 1129, 134 L Ed 2d 537, 116 S Ct 1458 and cert den (1996) 517 US 1240, 135 L Ed 2d 184, 116 S Ct 1890.