Fake Ring Tone Defendant Granted Motion for Judgment on the Pleadings

U.S. District Judge Sharon Johnson Coleman for Eastern Illinois in Chicago granted defendant Inteliquent’s motion for judgment on the pleadings in the fake ring tones case against T-Mobile, said her signed memorandum opinion and order Thursday (docket 1:19-cv-07190). After two rounds of motions to dismiss, Coleman’s order absolves Inteliquent of the one remaining civil conspiracy count against it.

Coleman agreed with Inteliquent that the plaintiffs, Craigville Telephone and Consolidated Telephone, “failed to state a civil conspiracy claim under the applicable state law,” said her order. The case involves T-Mobile, which as a mobile carrier accepts calls from customers and relies on intermediate providers like Inteliquent to route the calls to local exchange carriers like Craigville and Consolidated for completing the calls.

T-Mobile and Inteliquent contracted to make Inteliquent the near-exclusive provider of out-of-network calls to rural communities. Craigville and Consolidated alleged the contract was a conspiracy in which the defendants agreed to take cost-saving measures to execute these calls, resulting in call delivery failures and low-quality call service. To mask those problems, T-Mobile is alleged to have used fake ring tones, in violation of FCC prohibitions, to fool customers into believing their calls had been connected to the intended recipient, even though the calls were never completed.

Inteliquent’s motion for judgment on the pleadings comes down to the “one central argument” that the plaintiffs “did not allege a civil conspiracy claim under the applicable state law,” said Coleman’s order. Inteliquent contends the applicable law should be Minnesota or Indiana, and that Illinois law doesn't apply to the civil conspiracy claim, it said. The judge agreed.

Inteliquent “demonstrated a conflict of law between Illinois law and Minnesota or Indiana law,” said the order. The plaintiffs argue “there is no conflict because each state defines civil conspiracy as a combination of persons to accomplish an unlawful purpose or a lawful purpose by unlawful means,” it said. But Inteliquent says each jurisdiction “has different requirements for what is needed to establish a civil conspiracy claim,” and again the judge agreed.

Illinois courts “broadly construe which underlying acts can support a conspiracy claim, such that there need not be an alleged underlying tortious act,” said Coleman’s order. As Inteliquent argues, Indiana and Minnesota “appear to take a more restrictive view on the conduct that can support a civil conspiracy claim,” it said: “Minnesota, like Indiana, appears to require that a civil conspiracy claim rest on a narrow set of underlying claims: specifically a tort or a criminal act.”

The court hasn't found a case in Illinois, Indiana or Minnesota “where courts considered whether a Communications Act violation is a tort, nor have parties pointed to any such cases,” said the order. Courts in other jurisdictions “are split as to whether Communications Act claims constitute independent tort claims,” it said. Coleman said the alleged Communications Act violations “do not constitute tortious conduct,” in the order.

The plaintiffs “conclusorily argue” the use of fake ring tones “amounts to fraud,” but the court views those allegations “as simply unlawful practices, outlawed by statute and FCC rules,” said Coleman’s order. Though using fake ring tones may be prohibited practices, “they are not criminal acts,” it said. The judge finds Indiana and Minnesota courts “would conclude that the underlying Communications Act claims would be insufficient to support a civil conspiracy claim,” it said.

Illinois courts “would likely sustain a civil conspiracy claim based on these allegations,” said the order. Inteliquent established “an outcome determinative difference exists between the jurisdictions,” it said. The court “does not find that Illinois has a more significant relationship to the occurrences and parties in this case,” it said. Based on the court’s reading of the complaint, “the injury occurred in Minnesota and Indiana,” it said.