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During the preliminary objection stage, a Philadelphia common pleas judge dismissed a class action suit which claimed that Bell Atlantic Corp. — now Verizon — misrepresented the meaning of the phrase “non-published telephone number.” In an opinion dated May 22, Judge Albert W. Sheppard Jr. rejected the claim that the phone company’s Web site implicitly but misleadingly states that its nonpublished number service option extends to the bills sent to owners of toll-free phone numbers. “I think this is important because it shows that consumer class action suits which challenge regulatory issues are not going to be embraced by the courts,” said Dechert’s Robert Heim, who handled the case on behalf of Verizon along with partner Robert Clothier and associate Jay O’Connor. “The court’s going to look first at what you paid under the tariff and whether you got the service outlined in the tariff and it’s not going to go any further. The U.S. Supreme Court has said as much and so have other [state and local court] jurisdictions.” The defendants in Knipmeyer v. Bell Atlantic Corp., et al., which was filed in August 2000, are Verizon’s nine local operating companies that serve 10 states and the District of Columbia. The plaintiffs, Pennsylvania residents and Bell Atlantic-Pennsylvania (now Verizon Pennsylvania) customers Kevin and Joanne Knipmeyer, paid a premium to have a nonpublished phone number that was not listed in either the company’s phone book or its directory assistance service. Nonpublished telephone service does not completely bar a number from disclosure. When billing an owner of a toll-free number for calls made to that number, the phone company lists all phone numbers — including nonpublished ones — that placed calls. The Knipmeyers did not challenge this practice, but they did take exception to Verizon’s Web site descriptions of nonpublished telephone service. The Knipmeyers argue that “nonpublished” falsely implies that the phone company does not disclose nonpublished numbers to anyone, including owners of toll-free numbers. The two-count complaint sought damages for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law and for conspiracy to violate the UTPCPL. In its preliminary objections to the complaint, Bell Atlantic argued that it should be dismissed because: � The filed rate doctrine bars the claims; � the Pennsylvania Public Utility Commission has primary jurisdiction over the claims; � the plaintiffs failed to allege any false or deceptive statement; � the court does not have personal jurisdiction over 10 out-of-state local operating companies; � the UTPCPL does not apply to out-of-state transactions by out-of-state local operating companies; � and the court does not have personal jurisdiction over the out-of-state class members. “We basically argued that the plaintiffs’ case is barred by the filed tariff doctrine and that if the court had any concern about its application, it could refer the case to the PUC because it regulates the service in question,” Heim said. “And in addition to all that, we said there wasn’t much weight to the claim that the Web site was misleading. We even suggested that the judge read the description on the Web site and judge for himself.” Sheppard sustained the objection on the basis of the filed rate doctrine and dismissed the complaint. As a public utility, Verizon must file tariffs with the PUC showing all schedules of rates, rules, regulations, practices or contracts within the regulatory body’s jurisdiction. Unless the PUC grants an exception, a utility cannot charge any other rate than the one in the tariff. Any attempt to vary the terms of the tariff, even by agreement with the customer, is not effective, Sheppard said in his opinion. Federal and other state courts have named this the filed-rate doctrine, under which customers are charged with notice of filed tariffs and must abide by them. Ignorance or misquotation of the tariff is no excuse for deviating from its terms. Though the Knipmeyers alleged Verizon misrepresented its nonpublished number service on its Web site, Sheppard said the tariff specifically defines the rights of customers who pay for such a service: omission of the customer’s telephone number from the phone book and inability of an outside caller to connect with the customer without knowing the customer’s phone number. “Omission of the customer’s telephone number from bills to toll-free number owners is not one of those rights,” Sheppard wrote. “The Knipmeyers essentially ask the court to expand their rights under nonpublished telephone service beyond the rights specifically set forth in the tariff. The filed-rate doctrine prohibits this court from expanding those rights and bars the Knipmeyers’ claims.” Sheppard said the Knipmeyers’ description of their injury — paying for a service they did not receive — in the plaintiffs’ complaint reinforces this conclusion. “To award damages for this injury, the court would have to calculate the difference in value between the non-published phone number service that Bell Atlantic advertised and the non-published telephone service that the Knipmeyers actually received,” Sheppard wrote. “The end result of such an award would be an impermissible refund of a portion of Bell Atlantic-Pennsylvania’s filed rate for non-published telephone number service.” Chimicles & Tikellis’ Michael Gottsch, who represented the Knipmeyers along with James Malone and Roy Catnel of Washington, D.C.’s Finkelstein Thompson & Loughran, said the plaintiffs’ attorneys are still undecided whether they will appeal Sheppard’s decision. He said the filed-rate doctrine is silent on the precise matters discussed in the plaintiffs’ complaint.

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