PRECEDENTIAL UNITED STATES COURT OF APPEAL FOR THE THIRD CIRCUIT No. 05-1304 AT&TCORP v. Jmc Telecom, LLC

PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
___________
No. 05-1304
__________
AT&T CORP.
v.
JMC TELECOM, LLC,
Appellant
__________________
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 99-cv-02578
District Judge: Hon. Mary Little Cooper
___________________
Argued on March 7, 2006

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2
Before: GREENBERG and ROTH*, Circuit Judges
BUCKWALTER**, District Court Judge
(Opinion Filed: December 1, 2006 )
Joseph R. Guerra, Esquire (Argued)
Sidley Austin
1501 K Street, N.W.
Washington, DC 20005
Richard H. Brown, III, Esquire
Pitney Hardin
P.O. Box 1945
Morristown, NJ 07962
Counsel for Appellee
__________________
*Judge Roth assumed senior status on May 31, 2006.
**Judge Ronald L. Buckwalter, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.

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1 JMC is no longer in business.
3
Joseph M. Alioto, Esquire (Argued)
Alioto Law Firm
One Embarcadero Center
39 th Floor
San Francisco, CA 94111
Gil D. Messina, Esquire
Cassidy, Messina, & Laffey
961 Holmdel Road
Holmdel, NJ 07733
Russell F. Brasso, Esquire
Foreman & Brasso
930 Montgomery Street
San Francisco, CA 94133
Counsel for Appellant
_________________
O P I N I O N
_________________
ROTH, Circuit Judge:
JMC Telecom, L.L.C., was a wholesaler, marketer, and
designer of prepaid telephone cards with experience in the
maritime market. 1 This appeal arises from a suit for breach of
contract brought by AT&T Corporation against JMC. JMC

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2 The maritime market consists of foreign ships and their
crew members and cruise ships and their passengers.
4
counterclaimed for antitrust, federal common law, and state law
violations. The District Court dismissed the antitrust
counterclaim and granted summary judgment to AT&T on its
contract claims and against JMC on its remaining counterclaims.
For the reasons stated below, we will affirm the decision of the
District Court.
I. Background
In September 1998, AT&T and JMC entered into an
agreement under which AT&T would provide prepaid calling
services to JMC and JMC in turn would sell the services as
prepaid telephone cards to end-users in the maritime market.2
The maritime sector represented a new market for AT&T and,
more importantly, a way to expand its business in the
international market for prepaid phone cards, which give the
end-user a preset amount of telecommunications services.
According to JMC, the two companies had an implicit
agreement that restricted JMC’s sales territory for the cards to
the maritime sector.
AT&T and JMC executed four documents to set up the
agreement: the Contract Tariff Order Form, the Professional
Services Agreement, Contract Tariff No. 10344, and an
Addendum. The documents outlined the price JMC would pay
for the telecommunications services behind the cards, as well as
establishing a minimum annual revenue commitment (MARC)
on the part of JMC. The Professional Services Agreement

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3 The meaning of “foreign origination” is in dispute. For
purposes of this appeal, we accept JMC’s proffered definition -
calls between two foreign, i.e., non-U.S., states. Also, for
purposes of this appeal, we assume that any errors in the
instructions were caused by AT&T.
5
provided that JMC would design and print the cards while
AT&T would provide funding in part for card production. The
Addendum stated that, if a business downturn beyond JMC’s
control caused JMC to fail to meet the MARC, the parties would
cooperate to develop a mutually agreeable solution.
In accordance with federal law, AT&T filed with the
Federal Communications Commission (FCC) the executed
Contract Tariff Order Form, Contract Tariff No. 10344, and
AT&T FCC Tariff No. 1, which was a tariff previously filed
with the FCC by AT&T and which was referred to in the other
two documents. The Addendum was never filed with the FCC
despite AT&T’s alleged promise to do so. In addition, JMC
asserts that, pursuant to Contract Tariff No. 10344 and AT&T
Tariff No. 1, AT&T would be the exclusive provider of the
services needed to complete calls using the cards. CT 10344
lists “Other Participating Carriers” as “NONE.”
JMC soon developed concerns with both the quality of
service provided by AT&T and the cards themselves.
Specifically, JMC contends that the cards were often printed
with duplicate identification numbers and incorrect instructions
for foreign origination calls, i.e., calls between two foreign
countries.3 JMC estimated that sales of the cards fell by 50%
because of the problems with foreign origination calls.

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4 After AT&T filed its complaint in this action, JMC filed
a complaint against AT&T in the United States District Court
for the Eastern District of New York. See JMC Telecom, LLC
v. AT&T Corp., 99-cv-03710-SJ-MDG (E.D.N.Y. 1999). The
District Court of New Jersey enjoined JMC from prosecuting the
action in the Eastern District of New York. JMC sought a writ
of mandamus, which we denied. See AT&T Corp. v. JMC
6
Moreover, cardholders complained about AT&T’s customer
service, or lack thereof. Finally, users were frequently unable
to complete calls from the United States to the Philippines,
which was one of the more important selling points of the cards.
JMC estimated that it lost 25% of its business due to the initial
problems in completing calls to the Philippines. This particular
problem was corrected after AT&T switched card traffic away
from the original local country carrier, Pacific Gateway
Exchange (Pacific).
Per the agreement, AT&T sent JMC invoices for its
services. AT&T received a one-time, partial payment on
November 2, 1998, of $400,000. JMC made no further
payments to AT&T.
Due to JMC’s concerns with service and other related
problems, JMC sought more competitive rates from AT&T. The
negotiations pursuant to the Addendum were unsuccessful, and
AT&T filed a complaint against JMC on June 4, 1999, for the
balance owed from cards already sold and the amount JMC
owed under the MARC. JMC filed a counterclaim, alleging
violations by AT&T of state law, the Sherman Act, and federal
common law.4 The District Court dismissed JMC’s antitrust

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Telecom, LLC, 254 F.3d 1078 (3d Cir. 2001). JMC filed a
petition for a writ of certiorari with the Supreme Court, which
it denied. See JMC Telecom, LLC v. AT&T Corp., 534 U.S. 822
(2001).
5 Some of JMC’s additional state law counterclaims were
dismissed pursuant to FED R. CIV . P. 12(b)(6). JMC does not
refer to these claims in its appeal; therefore, they are not before
us.
7
counterclaim under FED . R. CIV . P. 12(b)(6) and granted
summary judgment pursuant to FED . R. CIV. P. 56(c) on AT&T’s
complaint and against JMC on all of its remaining
counterclaims.5 This appeal followed.
II. Jurisdiction and Standard of Review
The District Court had original jurisdiction pursuant to 28
U.S.C. §§ 1331, 1332 and 1337, and 15 U.S.C. §§ 15 and 26.
Also, the District Court had supplemental jurisdiction over
JMC’s state law claims under 28 U.S.C. § 1367. We have
jurisdiction over the District Court’s grant of summary judgment
and motion to dismiss pursuant to 28 U.S.C. § 1291.
The standard of review for a motion to dismiss is plenary.
Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994). When considering an appeal from a
dismissal of a complaint pursuant to Rule 12(b)(6), we accept as
true all of the allegations in the complaint and all reasonable
inferences that can be drawn from them and view them in the
light most favorable to the nonmoving party. Morse v. Lower

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6 AT&T argues that JMC failed to allege that it suffered
an antitrust injury and, as such, failed to state a cause of action.
Since JMC fails to state a violation for other reasons, we do not
reach this issue.
8
Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).
The standard of review from a grant of summary
judgment is plenary. Gottshall v. Consol. Rail Corp., 56 F.3d
530, 533 (3d Cir. 1995). Summary judgment is only appropriate
if there are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law. FED .R.CIV .P. 56(c). In
reviewing the District Court’s grant of summary judgment, we
view the facts in a light most favorable to the nonmoving party.
Gottshall, 56 F.3d at 533.
III. Discussion
A. Antitrust Claim: Violation of 15 U.S.C. § 1
Section 1 of the Sherman Act provides that
“[e]very contract, combination in the form of trust or otherwise,
or conspiracy, in restraint of trade or commerce among the
several States, or with foreign nations, is hereby declared to be
illegal.” 15 U.S.C. § 1. Before the District Court, JMC asserted
two violations of the Sherman Act by AT&T which caused JMC
to suffer an antitrust injury.6 First, AT&T violated the Sherman
Act by refusing to lower the rates assessed to JMC pursuant to
the Addendum. Second, AT&T violated the Sherman Act by
forcing JMC to participate in a scheme to divide the market
between maritime and non-maritime customers. This second

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9
argument is the one stressed by JMC on appeal. Specifically,
JMC contests the District Court’s finding that the restraint at
issue was vertical, i.e., between a supplier and distributor, rather
than horizontal, i.e., between two companies on the same level
of production. Unless the restraint is horizontal, however,
JMC’s claims fail.
We find both of JMC’s arguments to be unpersuasive. In
regard to the first, the Supreme Court has ruled that:
Section 1 of the Sherman Act requires that there be a
“contract, combination . . . or conspiracy” between the
manufacturer and other distributors in order to establish
a violation. 15 U. S. C. § 1. Independent action is not
proscribed. A manufacturer of course generally has a
right to deal, or refuse to deal, with whomever it likes, as
long as it does so independently.
Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761
(1984) (emphasis added). This Court has interpreted Monsanto
to impose a requirement on the distributor to come forward with
evidence that tends to exclude the possibility that the supplier
acted independently. See Arnold Pontiac-GMC, Inc. v. Budd
Baer Inc., 826 F.2d 1335, 1338 (3d Cir. 1987). Here, JMC has
not alleged action by other distributors in concert with AT&T.
As such, JMC’s argument fails because it has alleged only
unilateral action by AT&T. Such action cannot serve as a
violation of the Sherman Act. Monsanto, 465 U.S. at 761.
JMC’s second argument is that AT&T violated the
Sherman Act by prohibiting JMC from selling the cards to non-
maritime customers. Vertical, non-price restraints imposed by

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7 When conducting a rule of reason inquiry, the factfinder
weighs all of the circumstances of a case in deciding whether a
restrictive practice should be prohibited as imposing an
unreasonable restraint on competition. Bus. Elecs. Corp., 485
U.S. at 723 (quoting Cont’l T. V., Inc. v. GTE Sylvania Inc., 433
U.S. 36, 49 (1977)).
10
the supplier are analyzed under the rule of reason standard.7
Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723
(1988). At oral argument, JMC stipulated that it would not
bring a claim under the rule of reason; rather, JMC argued that
the arrangement between AT&T and JMC was a per se violation
of the Sherman Act. According to JMC’s argument, the
agreement between the two companies represented a horizontal,
rather than vertical, restraint. Since horizontal restraints are a
per se violation of the Sherman Act, JMC would not need to
allege a violation of the rule of reason.
The problem with JMC’s argument, however, is that the
relationship was primarily vertical. Although we agree that the
relationship had horizontal elements, it is undisputed that AT&T
supplied telecommunications service to JMC for resale. The
fact that AT&T also sold phone cards at the resale level does not
change the analysis. Vertical restraints are generally not per se
violations of the Sherman Act, even where a distributor and
manufacturer also compete at the distribution level, i.e., have
some form of horizontal relationship (a/k/a/ dual distributor
arrangement), as is the case here. Elecs. Commc’n Corp. v.
Toshiba Am. Consumer Prods., 129 F.3d 240, 243-44 (2d Cir.
1997) (marshaling authority from the Sixth, Seventh and Tenth
Circuits, as well as guidelines from the Department of Justice in

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8 At oral argument, JMC’s counsel stipulated that “[w]e
specifically have claimed a per se case, only.”
9 Federal common law creates a cause of action for
breach of a communications contract. Worldcom, Inc. v.
Graphnet, Inc., 343 F.3d 651, 654 (3d Cir. 2003).
11
finding that such restraints are not per se violations of the
Sherman Act).
We conclude that Electronics Communication represents
the best way for analyzing such arrangements and is consistent
with the Supreme Court’s observation that it is slow “to extend
per se analysis to restraints imposed in the context of business
relationships where the economic impact of certain practices is
not immediately obvious.” F.T.C. v. Indiana Fed’n of Dentists,
476 U.S. 447, 458 (1986). JMC could have argued that the
restraint at issue ought to be analyzed under the traditional rule
of reason rather than attempt to squeeze the restraint into the
per se realm.8 JMC, however, did not. Accordingly, JMC failed
to state a claim pursuant to the Sherman Act. The District Court
properly dismissed the antitrust claim.
B. JMC’s Federal Common Law Claims
On appeal, JMC also asserts two federal common law
counterclaims against AT&T: breach of Tariff No. 1, and
breach of the Contract Tariff.9 Many of JMC’s claims are
derived from the quality, or lack thereof, of service provided by
AT&T to cardholders. Specifically, JMC alleges that AT&T did
not provide JMC with the “world class dependability” that is

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12
expected from AT&T and, generally, provided poor customer
service. These claims, however, are barred by the filed rate
doctrine.
The Federal Communications Act requires that common
carriers, such as AT&T, file “schedules showing all charges for
itself and its connecting carriers.” 47 U.S.C. § 203(a). The
schedule must show the classifications, practices, and
regulations affecting the charged rates. Id. The carrier shall not
“extend to any person any privileges or facilities in such
communication, or employ or enforce any classifications,
regulations, or practices affecting such charges, except as
specified in such schedule.” 47 U.S.C. § 203(c). According to
the filed rate doctrine, a customer is prevented from enforcing
contract or tort rights that contradict the tariff. AT&T v. Cent.
Off. Tel., Inc., 524 U.S. 214, 226 (1998) (noting that
“[r]espondent can no more obtain unlawful preferences under
the cloak of a tort claim than it can by contract”). The classic
example of the preemptive power of the doctrine occurs when
a customer makes a claim for a rate that was not filed by the
carrier – such claims are barred.
JMC claims that AT&T did not grant lower rates to JMC
pursuant to the Addendum. The Addendum, however, was
never filed with the FCC. As such, the Addendum is a
contractual right that contradicts the tariff; the tariff establishes
a set-price that the Addendum effectively limits and calls into
question. Consequently, the Addendum cannot afford a
privilege, i.e., a lower rate, to JMC. Moreover, the fact that
AT&T allegedly agreed to file the Addendum provides no
recourse to JMC; otherwise, the filed rate doctrine would have
no import vis-à-vis its goals of transparency and non-

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10 JMC cites AT&T v. NOS Communications, Inc., 830
F.Supp. 225 (D.N.J. 1993), in support of its claim. NOS,
however, pre-dates the Supreme Court's articulation of the
doctrine's expansive reach in AT&T v. Central Office Telephone,
Inc.
13
discrimination of rates. Id. at 222 (arguing that the carrier’s
intentional misrepresentations are irrelevant).
Furthermore, the filed rate doctrine has been expanded to
exclude claims of insufficient and poor-quality service:
Any claim for excessive rates can be couched as a claim
for inadequate services and vice versa. If discrimination
in charges does not include non-price features, then the
carrier could defeat the broad purpose of the statute by
the simple expedient of providing an additional benefit at
no additional charge. . . . An unreasonable discrimination
in charges, that is, can come in the form of a lower price
for an equivalent service or in the form of an enhanced
service for an equivalent price.
Id. at 233 (citations and internal quotations omitted). Here, JMC
is claiming poor customer service in areas, such as customer
support, that are not spelled out in the tariff. As such, JMC’s
claims of poor service are barred by the filed rate doctrine.10
The District Court also rejected JMC’s claim that AT&T
breached the tariff by not providing foreign origination
capability on the grounds that JMC admitted in an e-mail that

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11 Although the filed rate doctrine produces harsh results
in this case as alleged, such equitable concerns have been
rejected by the Supreme Court. Maislin Indus. v. Primary Steel,
Inc., 497 U.S. 116, 128 (1990) (noting that “[d]espite the harsh
effects of the filed rate doctrine, we have consistently adhered
to it.”). This is true regardless of AT&T’s ulterior motives. See
Cent. Off. Tel., 524 U.S. at 223.
14
the “customer who uses the card outside the country always
connects with the network.” The email in question, however, is
highly ambiguous, and it is unclear whether the context of the
message was foreign origination calls or another, non-germane
topic.
Nonetheless, JMC’s argument still fails. The record
illustrates that the problem with foreign origination stemmed
from the fact that the cards “did not have the proper written
instruction on how to (make such a call).” The quality of the
written instruction on the cards, and the corresponding “ease of
use,” is beyond the terms of the tariff. Moreover, “ease of use”
is potentially a method by which a carrier can introduce
discrimination between customers. As such, JMC’s argument
is, again, one of quality of service beyond the scope of the filed
tariff and, consequently, is banned by the filed rate doctrine. 11
Id.
On appeal, JMC has stressed that many of its claims seek
to enforce promises made pursuant to the filed rate, rather than
promises to generate an additional benefit. In this connection,
JMC claims that AT&T beached the tariff by not serving as the
exclusive provider of services to the Phillippines and but instead

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15
by relying on Pacific.
Contract Tariff No. 10344 lists “other participating
carriers” as “NONE.” 47 C.F.R. § 61.3(z) defines an” other
participating carrier” as a “carrier subject to the (Federal
Communications) Act that publishes a tariff containing rates and
regulations applicable to the portion o[f] (sic) through service it
furnishes in conjunction with another subject carrier.” JMC
claims that AT&T breached this provision because Pacific was
an undeclared “other participating carrier.”
The District Court rejected JMC’s argument. First, the
District Court examined Pacific’s actual filed tariff with the
FCC. The District Court found that, since Pacific’s filed tariff
only pertained to international direct dial service and Pacific did
not provide international direct dial service to customers in this
case, the tariff does not contain “rates and regulations
applicable” to the service Pacific provided to AT&T.
Consequently, Pacific was not a participating carrier and,
therefore, did not need to be listed on AT&T’s tariff.
We disagree with the District Court’s reasoning, but we
nonetheless reach the same result. Specifically, the International
Services Termination Agreement between AT&T and Pacific
provides that the Pacific will supply AT&T with “international
direct dial voice, fax or data communication.” Simply put, the
International Services Termination Agreement is not
reconcilable with the District Court’s rationale.
A better method of analyzing whether Pacific was a
participating carrier is to consider the parties’ relationship in
terms of “end-on-end” versus “end-to-end” transmission set-ups.

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12 In the Matter of AT&T Co. Application for Authority
Pursuant to Section 214, 11 FCC Rcd 5396 (1996) is also
illustrative. AT&T wanted to provide end-to-end service to the
ship-to-shore communications market, which is governed by a
different statutory regime. Comsat objected to the application
on the grounds that end-to-end service would be inconsistent
16
An “end-on-end” service arrangement is one in which each
carrier participating establishes a separate rate for its segment of
the service. See Offshore Tel. Co. v. South Cent. Bell Tel. Co.,
2 FCC Rcd. 4545, ¶ 13 n. 10 (1987). In an “end-to-end”
arrangement, the carriers establish a rate for the entire
transmission and the customer pays a single uniform rate to one
carrier for completing a call. Id. For example, in In the Matter
of AT&T Commc’n Revisions to Tariff F.C.C. Nos. 9 and 10, 2
FCC Rcd 100 (1987), AT&T was allowed to de-list an Alaskan
company, Alascom, as a participating carrier on its filed tariff.
Previously, the two companies “provided interstate private line
service on an end-on-end bases, each maintaining its own rates
and tariffs for the private line service that it provided.” Id. at ¶
2 (footnote omitted). In response to an antitrust suit, AT&T
changed the arrangement so that all its customers received the
same rate for calls into Alaska regardless of whether they used
Alascom or a competing service; hence, the companies now had
an end-to-end arrangement with one rate for the service
provided to the consumer. In the Matter of AT&T
Communications Revisions to Tariff F.C.C. Nos. 9 and 10, 1985
FCC Lexis 2096, ¶ 7 (1985). As was the case with Alascom
after the change in service, the price JMC card users paid is not
a direct function of Pacific’s price and, therefore, AT&T need
not list the carrier as an other participating carrier.12

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with a participating carrier system, which it claimed was the
governing structure for the market. The FCC noted that Comstat
and other carriers had been allowed to deviate from a purely
participating carrier arrangement because they had been allowed
to bill collectively, i.e. one company bills for the service
provided by a group of companies. Id. at ¶ 13.
17
Given the FCC’s role in interpreting the FCA, the
aforementioned decisions deserve Chevron-style deference. See
Nat’l Cable Telecomm. Ass’n v. Band X Internet Serv., 2005
U.S. LEXIS 5018, *27 (2005) (noting that “we apply the
Chevron framework to the Commission's interpretation of the
(Federal) Communications Act”); Chevron U.S.A. Inc. v. NRDC,
467 U.S. 837 (1984). In contrast, JMC’s proffered expert
witness testimony regarding the definition of “other
participating carrier” is unpersuasive because the question is one
of law and because her testimony did not elaborate on how the
term “participating carrier” has been defined by the FCC.
Returning to the text of 47 C.F.R. § 61.3(z), Pacific did
not publish a rate applicable to the portion of through service it
provided to AT&T for JMC traffic because the rate was not
separate as is characteristic of an end-to-end relationship. As
such, Pacific was not an “other participating carrier,” and,
consequently, AT&T did not violate the tariff by failing to list
Pacific.
Finally, to the extent that JMC claims that AT&T orally
represented that it would provide JMC with exclusive AT&T service,
such a claim is one for quality of service and is barred by the filed

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13 In so much as this is a claim for fraud, the allegation is
also barred by the filed rate doctrine. See Fax Telecomm. v.
AT&T, 952 F. Supp. 946, 952 (E.D.N.Y 1996), aff’d 138 F.3d
479 (2d Cir. 1998).
18
rate doctrine.13
C. JMC’s State Law Claims
JMC asserted four state law counterclaims against AT&T
that were dismissed at summary judgment: breach of contract,
fraud, negligent misrepresentation, and breach of the covenant
of good faith and fair dealing. The District Court found that
each of the counterclaims was preempted by federal law. In the
alternative, the District Court found that JMC’s state law claims
were barred by the filed rate doctrine.
We agree with the District Court in that JMC’s state law
claims are barred by the filed rate doctrine. First, there is no
fraud exception to the filed rate doctrine. Fax Telecomm., 952
F. Supp. at 952 (quoting Wegoland Ltd. v. Nynex Corp., 27 F.3d
17, 22 (2d Cir. 1994)). Similarly, JMC’s claim of negligent
misrepresentation fails; to rule otherwise would “force the
courts to determine what the reasonable rate would be in order
to assess damages” and, therefore, violate the filed rate doctrine.
Fax Telecomm., 952 F. Supp. at 952; also Marcus v. AT&T
Corp., 138 F.3d 46, 60 (2d Cir. 1998) (noting that the task of
determining a reasonable rate is reserved to the exclusive
province of the FCC). Also, enforcement of the duty of good
faith and fair dealing would impermissibly enlarge the rights as
defined by the tariff. Cent. Off. Tel., 524 U.S. at 227 (finding a

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19
claim for breach of the implied covenant of good faith and fair
dealing to be barred). As such, the claim is preempted by the
filed rate doctrine.
Finally, JMC’s claim of breach of contract under state law
mirrors its claim under federal common law. Both seek to enforce
the terms of the tariff. Consequently, and for the reasons previously
espoused, JMC’s state law claim for breach of contract necessarily
fails.
D. Summary Judgment for AT&T for Breach of Tariff
Terms
We agree with the District Court in that JMC has failed
to show that it should be excused from its contractual obligation
to pay AT&T according to the tariff terms. JMC’s defenses,
much like its counterclaims, are based on AT&T’s alleged
breaches, which, as previously discussed, are barred by the filed
rate doctrine. Since the material facts supporting AT&T’s
breach of tariff claim are not in dispute, summary judgment in
favor of AT&T was appropriate.
IV. Conclusion
For the reasons discussed above, we will affirm the
District Court’s order dismissing JMC’s antitrust claim. We
will affirm the District Court’s grant of summary judgment in
favor of AT&T and against JMC on the remaining claims and
counterclaims.

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