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 § 207 (2003) § 207.  Recovery of damages Any person claiming to be damaged by any common carrier subject to the provisions of this Act may either make complaint to the Commission as hereinafter provided for, or may bring suit for the recovery of the damages for which such common carrier may be liable under the provisions of this Act, in any district court of the United States of competent jurisdiction; but such person shall not have the right to pursue both such remedies. HISTORY:    (June 19, 1934, ch 652, Title II, § 207, 48 Stat. 1073.) 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:                           CODE OF FEDERAL REGULATIONS    Federal Communications Commission--Interconnection, 47 CFR Part 51.    Federal Communications Commission--Numbering, 47 CFR Part 52.                                CROSS REFERENCES    This section is referred to in 47 USCS § 274.                                 RESEARCH GUIDE Federal Procedure:    31 Fed Proc L Ed, Telecommunications §§ 72:320-322, 1016-1018. 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. Applicability  3. Governing law  4. Exhaustion of administrative remedies  5. Election of remedy  6. Removal of action  7. Recovery for particular actions  8. Nature of damages  9. Injunctive relief  10. Miscellaneous 1. Generally    By its express language, 47 USCS § 207 established concurrent jurisdiction in FCC and federal district courts only, and therefore, Indian Tribal Court lacked jurisdiction to entertain tribe's claim against telecommunications carrier pursuant to Federal Communication Act (47 USCS §§ 151 et seq.). AT&T Corp. v Coeur D'Alene Tribe (2002, CA9 Idaho) 283 F3d 1156, 2002 CDOS 2480, 2002 Daily Journal DAR 3043.    Erroneous FCC decision (that overseas telecommunications service operated by Western Union was not prohibited by Communications Act (47 USCS § 151 et seq.) in which service did not use international records carriers as required by § 222(c)(2) and (e)) does not prevent Western Union from being held liable for its illegal conduct under § 207. RCA Global Communications, Inc. v Western Union Tel. Co. (1981, SD NY) 521 F Supp 998.    FCC does not have exclusive jurisdiction under 47 USCS § 207 over claim for damages against Western Union due to illegal international teletype service offered by Western Union by international record carrier. RCA Global Communications, Inc. v Western Union Tel. Co. (1981, SD NY) 521 F Supp 998.    47 USCS § 207, rather than providing substantive rights, merely outlines concurrent jurisdiction of FCC and Federal District Courts to hear claims of plaintiffs that defendants have violated other provisions of Communications Act (47 USCS §§ 151 et seq.); it does not set out elements which comprise separate and independent cause of action. In re Long Distance Telecommunication Litig. (1985, ED Mich) 612 F Supp 892, affd in part and vacated in part on other grounds, revd in part on other grounds, remanded (1987, CA6 Mich) 831 F2d 627.    Plain language of 47 USCS §§ 207 and 414 demonstrates that Congress did not intend to divest federal and state courts of their concurrent jurisdiction over causes of action that existed independently of Title 47. Vermont v Oncor Communs. (1996, DC Vt) 166 FRD 313.    47 USCS § 207 provides that aggrieved person may file complaint for damages for violation of Communications Act by carrier before either Commission or Federal Court and it would thus appear that Commission has same powers as courts have in awarding damages for violation of Communications Act. Re Richard Johnson, et al. (1969) 18 FCC2d 679. 2. Applicability    47 USCS § 207 is applicable to telephone company which furnished lines to radio station for broadcast purposes even though all property of telephone company was located within a single state. Ward v Northern Ohio Tel. Co. (1962, CA6 Ohio) 300 F2d 816, cert den (1962) 371 US 820, 9 L Ed 2d 61, 83 S Ct 37.    District court lacks subject matter jurisdiction over action brought by private person under Federal Communications Act of 1934 (47 USCS §§ 151 et seq.) where no party to lawsuit is telecommunications carrier regulated by Act. Maydak v Bonded Credit Co. (1996, CA9 Or) 96 F3d 1332, 96 CDOS 7312, 96 Daily Journal DAR 12025.    Claims based on 47 USCS § 207 can only be brought against common carriers. US West, Inc. v Business Discount Plan, Inc. (2000, DC Colo) 196 FRD 576, 2000-2 CCH Trade Cases P 73098.    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.    Connecting carrier, obligated to comply with substantive requirements of 47 USCS §§ 201-205, is also subject to remedial provisions of 47 USCS § 207, which provides that person claiming damages from common carrier subject to 47 USCS for violations thereof may proceed before Commission or Courts, but not both; it would be unreasonable to hold that connecting carrier is not subject to provisions for enforcement of rights which he sees fit to violate. The Fallon Travelodge, et al. (1968) 14 FCC2d 972. 3. Governing law    Questions relating to duties, privileges and liabilities of telegraph companies in transmission of interstate messages which contain defamatory matter must be governed by federal rules and are not to be determined on basis of state common law or statutes. O'Brien v Western Union Tel. Co. (1940, CA1 Mass) 113 F2d 539.    Liability of telegraph and telephone companies for negligence in field of interstate communication is regulated exclusively by law as it is applied in federal courts. Western Union Tel. Co. v Junker (1941, Tex Civ App) 153 SW2d 210. 4. Exhaustion of administrative remedies    Where federal communications commission has not made formal determination of rates, individual's action under 47 USCS § 207 is premature and subject to dismissal in view of remedy afforded by 47 USCS §§ 208, 209 and 402. Booth v American Tel. & Tel. Co. (1958, CA7 Ill) 253 F2d 57.    Telephone company's action against communications company for failure to pay for contracted local access services is stayed, where communications company filed complaint with FCC challenging reasonableness and discriminatory nature of tariff and rates charged, because 47 USCS § 207 does not give telephone company exclusive right to seek court relief, but only provides for concurrent jurisdiction, and suspension of suit pending FCC determination of tariff issues is proper under doctrine of primary jurisdiction. Southwestern Bell Tel. Co. v Allnet Communications Services, Inc. (1992, ED Mo) 789 F Supp 302.    Action for damages for improper long-distance telephone tariff rates is dismissed, where dominant carrier sued non-cominant carriers, alleging that their filings and failures to file tariff rates with the Federal Communications Commission violated 47 USCS § 203, and entitled dominant carrier to damages under 47 USCS § 207, because identical issue was pending in administrative hearing before FCC, and doctrine of primary jurisdiction requires deferral to federal agencies in areas requiring agency expertise. American Tel. & Tel. Co. v MCI Communications Corp. (1993, DC Dist Col) 837 F Supp 13. 5. Election of remedy    Because interstate access customer of telephone company filed action with FCC claiming that telephone company had charged unreasonable and unlawful rates during time period in question, customer could not raise as counterclaim in district court its claim for refund for alleged overcharges for years in question. Cincinnati Bell Tel. Co. v Allnet Communication Servs. (1994, CA6 Ohio) 17 F3d 921, 1994 FED App 76P, reh den (1994, CA6) 1994 US App LEXIS 7216.    Once complainant files either formal or informal complaint with FCC, she is thereafter barred from bringing suit in federal court on same claim. Stiles v GTE Southwest (1997, CA5 Tex) 128 F3d 904, reh, en banc, den (1998, CA5 Tex) 137 F3d 1353.    Where disgruntled telecommunications customer sent "informal complaint" letter to FCC, letter constituted binding election by customer to pursue its remedies before agency and not in federal court. Digitel, Inc. v MCI Worldcom, Inc. (2001, CA2 NY) 239 F3d 187.    Claimant may file complaint with FCC or in federal district court, but not both, and statute does not distinguish between informal and formal complaints filed with FCC. Mexiport, Inc. v Frontier Communs. Servs. (2001, CA11 Fla) 253 F3d 573, 14 FLW Fed C 789.    Telephone company must follow its election of fora and proceed with its 47 USCS § 203(a) claims against communications company before FCC, even though FCC has failed to act on complaint in timely fashion, where claims asserted here overlap and involve same legal issues as those brought before FCC, because bar of 47 USCS § 207 intends that party's election of fora, once made, is irrevocable, in order to prevent duplicative adjudications and inconsistent results between courts and FCC. Bell Atl. Corp. v MFS Communications Co. (1995, DC Del) 901 F Supp 835, 1995-2 CCH Trade Cases P 71238.    47 USCS § 207 sets out two forums wherein complainant can receive hearing, and if complainant should choose to have his complaint heard by Commission in lieu of court, Commission cannot legally deny complainant statutory right; however, § 207 does not permit party to go forward with complaint before Commission while it litigates same claim before District Court. Re ITT World Communications, Inc., et al. (1973) 44 FCC2d 605.    Commission may require plaintiff to decide in which forum it will seek its remedy and if plaintiff elects to pursue remedy before commission, then plaintiff is required to seek dismissal of suit filed in district court. Re Mocatta Metals Corp. et al. (1975) 54 FCC2d 104. 6. Removal of action    Customer's action against telephone company for fraud in billing alleged violation of traditional common law standards and did not allege violation of any specific provision of Communications Act; therefore 47 USCS § 207 does not provide basis for removal. Nordlicht v New York Tel. Co. (1986, CA2 NY) 799 F2d 859, cert den (1987) 479 US 1055, 93 L Ed 2d 981, 107 S Ct 929 and (criticized in Marcus v AT&T Corp. (1998, CA2 NY) 138 F3d 46) and (criticized in Fax Telecommunicaciones v AT&T (1998, CA2 NY) 138 F3d 479) and (ovrld in part on other grounds as stated in Gilmore v Southwestern Bell Mobile Sys. (2001, ND Ill) 2001 US Dist LEXIS 19850). 7. Recovery for particular actions    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 Telecommunication Act (47 USCS §§ 151 et seq.). Goldwasser v Ameritech Corp. (2000, CA7 Ill) 222 F3d 390, 2000-2 CCH Trade Cases P 72977.    Immunity of telegraph company from liability to defamed person when it transmits libelous message must be broad enough to enable company to render its public service efficiently and with dispatch; publication of libelous matter by telegraph company to its own employees, involved in mere transmission of message, cannot be relied upon in action for libel against telegraph company; to justify recovery against telegraph company by party libeled by message transmitted, there must be evidence of actual or express malice, bad faith, or knowledge on part of telegraph company that sender was acting not in protection of legitimate or privileged interest, but in bad faith for purpose of traducing another. Von Meysenbug v Western Union Tel. Co. (1944, DC Fla) 54 F Supp 100.    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 provisions of 47 USCS §§ 151 et seq. Curran v Mackay Radio & Tel. Co. (1954, DC NY) 123 F Supp 83.    Since 47 USCS §§ 201, 202, and 203 impose no duty on common carriers to make accurate and authentic representations in their promotional practices, 47 USCS § 207 provides no remedy for deviation from such conduct; thus, 47 USCS § 207 does not provide remedy through which customer may recover for common carrier's failure to disclose billing practice. Weinberg v Sprint Corp. (1996, DC NJ) 165 FRD 431, app dismd (1996, DC NJ) 1996 US Dist LEXIS 22512.    Statutory fraud and breach-of-contract claims do not fall within scope of 47 USCS § 207, even though cellular telephone services provider asserts that claims fit within scope of § 207 by virtue of duty imposed in § 201(b), because claim that provider failed to accurately disclose its divergent practice of billing for "non-communication" periods does not challenge reasonableness of billing practice within meaning of § 201(b). Sanderson, Thompson, Ratledge & Zimny v AWACS, Inc. (1997, DC Del) 958 F Supp 947.    "Complete preemption" does not provide court with federal-question jurisdiction over state's restitution claim, where Minnesota complains that long distance carrier either fails to disclose or inadequately discloses material terms of its "Five Cents Everyday" calling plans, because Congress did not intend, in enacting 47 USCS § 207, completely to preempt state-law claims seeking monetary relief for false or deceptive advertising of long distance telephone rates. Minnesota v Worldcom, Inc. (2000, DC Minn) 125 F Supp 2d 365.    Defendant shall pay complainant prescribed sum where unlawful refusal to permit complainant to utilize television channel as authorized is proximate and direct cause of payments for occasional service during refused time periods and losses occasioned during refused time periods. Re WSAZ, Inc. v A. T. & T. (1961) 31 FCC 175. 8. Nature of damages    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.    Control of interstate business of telegraph companies by federal government, through published rules, regulations, and tariffs, was not intended to change or affect long-established rule that recovery for special damages can be had only in cases where special damage was within contemplation of parties. Siegel v Western Union Tel. Co. (1941) 312 Ill App 86, 37 NE2d 868. 9. Injunctive relief    Injunctive relief to prevent carrier from cutting off communications service, pending determination of billing dispute, is inapplicable since 47 USCS § 207 offers complainant two forms wherein he can seek legal remedies for any charges levied against him which he considers to be unlawful. Re Mocatta Metals Corp., et al. (1973) 42 FCC2d 453. 10. Miscellaneous    District court properly made determination that tribal court did not possess jurisdiction over Indian tribe's action against telecommunications company brought under Federal Communications Act; 47 USCS § 207 established concurrent jurisdiction in Federal Communications Commission and federal district courts only, leaving no room for adjudication in other forum, be it state, tribal, or otherwise. AT&T Corp. v Coeur D'Alene Tribe (2002, CA9 Idaho) 295 F3d 899.    Commission has no choice but to dismiss complaint against defendants under 47 USCS § 207 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.