Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
AT&T Mobility LLC,
Proceeding No. 14-260
File No. EB-14-MD-016
memorandum opinion and order
Adopted: July 10, 2015 Released: July 10, 2015
By the Chief, Enforcement Bureau:
The Communications Act provides that a complaint against a carrier for the recovery of damages must be filed within two years of the injury. In this Order, we dismiss such a complaint because it was filed outside this strict two-year period.
Specifically, in this Order, we address a formal complaint seeking damages that James Chelmowski (Chelmowski) filed against AT&T Mobility LLC (AT&T). Chelmowski, a former AT&T customer, alleges that AT&T failed in March and April of 2011 to port a telephone number to his new provider. The Complaint was filed in December 2014, approximately three and a half years after the alleged number porting failure occurred. For the reasons explained below, we hold that the Complaint is time-barred under the two-year statute of limitations in Section 415(b) the Communications Act of 1934, as amended (Act), and must be dismissed with prejudice.
In 2010 and 2011, Chelmowski was a customer of AT&T with four lines of wireless service. In January 2010, AT&T received a request from Chelmowski's new provider, XO Communications, to port the number for one of the lines: (847) 768-0400 (the "0400 number"). The January 2010 porting request, however, was never completed because, according to AT&T, the information provided by XO was incorrect. AT&T also states that the January 2010 request to port the 0400 number was "never modified or cancelled," and, therefore, remained pending in AT&T's system.
In March and April 2011, AT&T received requests to port all four of Chelmowski's numbers, including the 0400 number, to Choice One, on behalf of Choice One's wholesale customer OOMA, and OOMA's retail customer, Chelmowski. Three of the four numbers were ported, but not the 0400 number. On March 17, 2011, after receiving repeated communications from Chelmowski accusing AT&T personnel of "repeatedly [lying and torturing] him," AT&T sent Chelmowski a letter stating that AT&T was terminating his service due to his "abusive treatment" of AT&T employees.
Subsequently, Chelmowski filed with the Commission three informal complaints regarding the unsuccessful porting requests for the 0400 number. He filed the first informal complaint on March 23, 2011, and the second on August 31, 2011. AT&T responded to those informal complaints on April 13 and September 22, 2011, respectively. AT&T states that it sent both responses to Chelmowski. Chelmowski disputes this assertion, and claims that AT&T did not send responses to these two informal complaints directly to him. In any event, the record shows that the Commission provided Chelmowski with a copy of AT&T's response to the first informal complaint on May 24, 2013, and a copy of AT&T's response to the second informal complaint on October 22, 2013.
On February 26, 2013, Chelmowski initiated an arbitration proceeding regarding the failed 0400 number port, pursuant to an arbitration provision in his customer agreement with AT&T. On July 14, 2014, the arbitrator denied Chelmowski's claims. He then brought an action in court seeking to vacate the arbitration award. The United States District Court for the Northern District of Illinois rejected his request and affirmed the arbitration award. Chelmowski is appealing the District Court's decision.
On July 31, 2014, Chelmowski filed a third informal complaint regarding the failed port of the 0400 number. AT&T responded to the third informal complaint on August 13, 2014, and Chelmowski acknowledges that he received this response. On December 11, 2014, Chelmowski filed the instant Complaint seeking damages pursuant to Section 208 of the Act, alleging that, in March and April of 2011, AT&T failed to process his porting requests for the 0400 number, in violation of 47 C.F.R. §§ 52.35 and 52.36.
Chelmowski's Claims are Time-Barred
Section 415(b) of the Act provides that "[a]ll complaints against carriers for the recovery of damages not based on overcharges shall be filed within two years from the time the cause of action accrues." Under Section 415(b), a cause of action accrues at the date of the injury, if it is readily discoverable. If the injury is not readily discoverable, the cause of action accrues when the complainant discovers, or should have discovered, the injury. We find that any injury resulting from AT&T's failure to port the 0400 number was readily discoverable at the time the porting failures occurred, and that Chelmowski in fact discovered his alleged injury no later than when he filed his first informal complaint in March 2011 charging AT&T with "[n]ot porting" the 0400 number. Because Chelmowski did not file his formal Complaint until December 11, 2014--significantly more than two years after both the time of injury and the time of discovery--the Complaint is barred under Section 415(b)'s two-year limitations period.
Additionally, we find that the Complaint cannot be deemed timely under the "relation back" principle in Section 1.718 of the Commission's rules. Rule 1.718 provides that when an informal complaint against a carrier has not been satisfied, the complainant may file a formal complaint which "will be deemed to relate back to the filing date of the informal complaint" provided that the formal complaint is filed within 6 months from the date of the carrier's response to the informal complaint. AT&T responded to the first informal complaint on April 13, 2011, and the second informal complaint on September 22, 2011, alleging in both instances that it provided a "copy to Mr. Chelmowski." While Mr. Chelmowski disputes receiving any of AT&T's responses in 2011, he admits receiving AT&T's responses to the first and second informal complaints no later than October 22, 2013. We need not reach the question of whether the six month relation back period runs from April 13, 2011, September 22, 2011, or October 22, 2013, because Chelmowski did not file the instant formal Complaint until December 11, 2014 -- more than six months after all of these dates. The relation back principle in rule 1.718 is therefore inapplicable here. Finally, we note that the third informal complaint cannot provide a basis for "relation back" under rule 1.718 because that complaint was itself time barred under Section 415(b) when Chelmowski filed it on July 31, 2014, more than two years after the 0400 number porting claim accrued in 2011.
We reject Chelmowski's assertion that the limitations period should be tolled because AT&T continuously and fraudulently concealed the alleged "injury" he suffered. In short, Chelmowski argues that AT&T failed to provide him with material information and thus rendered him unable to discover "material facts [relating] to the basis of his claim." Chelmowski claims that this fraudulent concealment amounts to a continuing harm that tolls the statute of limitations. Although a defendant's active concealment of facts giving rise to a cause of action may provide a basis for equitable tolling of the limitations period, such tolling is unavailable here. The record shows that Chelmowski had the basic facts needed to assert a claim regarding the 0400 number port, and that he actually did so, in two informal complaints in 2011, and in an arbitration proceeding in 2013. Accordingly, Chelmowski cannot persuasively assert that a continuing course of fraudulent concealment by AT&T enables him to "avoid the limitations bar."
The two-year statute of limitations in Section 415(b) of the Act bars Chelmowski's claims. Chelmowski's claims regarding the 0400 number accrued no later than March 23, 2011 when he filed the first informal complaint. Because there is no basis for tolling of the two-year limitations period, Chelmowski's claims expired by March 24, 2013, well before he filed this formal Complaint on December 11, 2014.
Accordingly, IT IS ORDERED, pursuant to Sections 1, 4(i), 4(j), 208, and 415 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 154(j), 208, and 415, and Sections 0.111, 0.311, and 1.711 - 1.735 of the Commission's rules, 47 C.F.R. §§ 0.111, 0.311, and 1.711 - 1.735, that the Complaint IS DISMISSED WITH PREJUDICE.
FEDERAL COMMUNICATIONS COMMISSION