Full opinion text
MEMORANDUM AND DECISION GERTNER, District Judge. I. INTRODUCTION This is yet another chapter in the multivolume saga of litigation which has arisen out of the break-up of the Bell System and the deregulation of the telephone industry. The subject of this episode is “Consumer Owned Coin Operated Telephones,” better known in the industry as “COCOTs.” A COCOT is a type of coin-operated pay telephone. Unlike most pay telephones, which are owned by the Local Exchange Carrier (“LEC”), COCOTs are owned by third parties, which must gain access to the telephone grid through the LEC. Because LECs also own pay telephones, they function both as suppliers and competitors of COCOT owners. It is this inherent conflict of interest and, in particular, the potential for unfair monopolistic practices, which forms the core of this case. II. FACTS A. The Parties Two of the actors in this saga need little introduction. American Telephone & Telegraph Co. (“ATT”) is the largest provider of long-distance telephone service in the United States and formerly held a monopoly on all telephone services in most areas of the country. ATT also owns and operates a small number of pay telephones in Massachusetts. New England Telephone (“NET”) was formerly a subsidiary of ATT and now, as a subsidiary of Nynex Corporation, serves as the LEC for virtually all telephone customers in Massachusetts. NET also owns and operates the vast majority of pay telephones in Massachusetts. Less well known is IMR Capital Corporation (“IMR”). IMR is, and has been since 1987, the owner of several hundred COCOTs throughout Massachusetts. Through these COCOTs, IMR resells local and long-distance telephone service to its customers. IMR, in turn, purchases access to the telephone grid from NET, and, prior to the filing of these actions, subscribed to long-distance service from ATT. In 1990, having become dissatisfied with ATT’s service, IMR entered into agreements with other long-distance carriers, including MCI, which now provide long distance service to its COCOTs. IMR claims that it switched to MCI because MCI agreed to provide it with the terms of service which ATT had refused to provide. B. The Problem With COCOTs Although similar in appearance to NET-owned pay telephones, COCOTs are, according to the amended third-party complaint, fundamentally different devices. NET’s pay telephones are connected to NET’s central switching office through special dedicated “coin lines.” Through these coin lines, the NET phones are able to transmit payment information (i.e. information about the insertion of coins into the phone) from the phone to the central switching office, and NET is able to transmit commands (to return or keep deposited coins) back to the phones. As a result, NET is able to control access to these phones from its switching office, and to prevent the completion of calls unless proper payment has been made. By contrast, COCOTs are connected to NET’s switching offices via ordinary business phone lines. Calls made from a COCOT are ordinarily billed to its owner, just as any other business customer would be billed. Because business lines do not have the ability to transmit control or payment information between the telephone and NET’s central office, the COCOTs attached to them must be “smart” enough to perform all required functions on their own, without any external control. Thus, in order for IMR to make a profit from its operation of COCOTs, its COCOTs’ internal circuits must insure that the user of the phone has deposited an amount of money in excess of the anticipated cost (to IMR) of the call. According to IMR, NET refuses to permit the connection of COCOTs to NET’s dedicated coin lines. The resulting disadvantage to COCOT owners is twofold. First, COCOTs are simply more expensive than conventional pay telephones, as they must contain, in addition to all of the features of an ordinary pay telephone, sophisticated circuitry for performing all of the “gatekeeping” functions which NET performs at its central office. As a result, COCOT owners must spend more on pay telephone equipment than NET in order to provide the same level of service. Second, and perhaps more significantly, COCOTs are susceptible to certain types of fraudulent calling to which NET’s coin line phones are immune. The principal type of COCOT fraud by which IMR claims to be victimized entails access to “secondary dial tones.” Because COCOTs are connected to the telephone network through “dumb” business phone lines (i.e. lines without special “coin line” circuitry), the dial tone on these lines is “open.” The COCOT controls access to the line by generating its own dial tone, and storing the number dialed by a customer in its memory. After checking to see if sufficient funds have been deposited, the COCOT retransmits the stored number to the telephone switching office, and the call is completed. Secondary dial tone fraud occurs by taking advantage of a particular weakness in this system. Once the COCOT has retransmitted the dialed number to NET’s central switching office, it must open a direct connection to the switching office so that the customer’s conversation can be transmitted. In the ordinary course, this direct connection is terminated when the customer finishes speaking and hangs up. However if a call made from a COCOT is terminated by the receiving party, but the caller does not hang up, the central switching office will detect the termination of the call and, after a time, automatically generate a new dial tone for the COCOT. If the COCOT customer fails to hang up after the termination of the call, he will eventually gain access to a central office generated dial tone, which can be used to make new calls which the COCOT is unable to screen. In a typical fraud described by IMR, a customer dials the operator from a COCOT. Because there is no charge for dialing the operator, the COCOT puts the call through without requiring the deposit of any coins. The customer then says nothing and the operator eventually hangs up, thus prompting the generation of a new dial tone, from which the customer can make unlimited calls without paying for them. The charges for these calls, however, still get billed to the COCOT owner. C. IMR’s Disputes With NET and ATT IMR alleges that it has taken all practical steps to prevent fraudulent calls from being made on it COCOTs. One such step was to reprogram its COCOTs to disable the push-buttons after a certain number of seconds off-hook. While this change made it harder to engage in secondary dial tone fraud, it also limited the utility of the COCOTs by preventing customers from accessing voice mail, answering machines, pagers and similar services which require the pushbuttons to operate after the call has been put through. IMR also alleges that it has subscribed to all call screening and blocking services available from NET. These services include “billed-number screening,” which prevents operator assisted long distance calls from being billed to the subscriber’s number through third-party billing, and “originating-line screening,” which prevents operator assisted calls from being billed to the originating telephone line. IMR alleges that NET has failed to properly implement these services. IMR has also asked both NET and ATT to block certain types of calls (such as international calls) from being made from its phones entirely. IMR alleges that both NET and ATT have the ability to block such calls, but have refused to do so. Thus, IMR alleges that, despite its best efforts, fraudulent calling from its COCOTs continues. IMR contends that NET’s failure to provide IMR with access to “coin lines” and NET and ATT’s failure to provide necessary call blocking services are all part of a larger scheme by NET to monopolize the pay telephone market in Massachusetts and by ATT to monopolize long distance service from pay telephones in Massachusetts. IMR claims that, in addition to the above, NET has engaged in anti-competitive practices by predatory pricing of its commissions to location owners, by making misleading comments about the quality of IMR’s service, by charging CO COT owners rates in excess of the effective rate which it charges itself for pay telephone lines, by improperly installing the local exchange access lines upon which IMR’s COCOTs depend, by billing IMR for calls never made, by failing to timely respond to service calls, and by engaging in discriminatory practices against COCOT owners with respect to billing, deposit requirements, payment dates, and the like. IMR also alleges that NET and ATT conspired to eliminate IMR from the pay telephone market in Massachusetts. According to IMR, this conspiracy involved both NET and ATT refusing to provide necessary call blocking services to IMR and to properly implement the ones they did provide, thus interfering with IMR’s ability to prevent secondary dial tone fraud. III. THE ACTIONS A. ATT v. IMR (90-12866) On November 27, 1990, ATT brought suit (C.A. No. 90-12866) against IMR, seeking to collect in excess of $200,000 in unpaid long-distance telephone charges. IMR answered that the telephone charges were the result of calls fraudulently made from its COCOTs and denied that it was liable for the charges. B. IMR v. NET (Third Party Complaint, 90-12866) On November 13, 1991, IMR filed a third-party complaint (subsequently amended) against NET. Counts I and II of the amended third-party complaint allege that NET engaged in a conspiracy with ATT to prevent IMR from competing in the pay telephone market in Massachusetts, in violation of Section 1 of the Sherman Antitrust Act (15 U.S.C. § 1), and Section 4 of the Massachusetts Antitrust Act (M.G.L. ch. 93 § 4). Counts III through VI allege that NET has monopolized or attempted to monopolize the pay telephone market in Massachusetts, in violation Section 2 of the Sherman Act (15 U.S.C. § 2) and Section 5 of the Massachusetts Act (M.G.L. ch. 93 § 5). Counts VII and IX allege that NET’s COCOT access policy is unreasonable and unjust, in violation of Section 201(b) of the Communications Act of 1934 (47 U.S.C. § 201(b)) and Sections 1, 13 and 17 Massachusetts Public Utility Code (M.G.L. ch. 159 §§ 1,13,17), while Count VIII alleges that it is unreasonably discriminatory, in violation of Section 202(a) of the Communications Act (47 U.S.C. § 202(a)). Additional counts include a claim for tortious interference with contract (Count X), and “violation of a duty of due care” (Count XI) and a claim for a declaratory judgment that IMR is not liable for fraudulent telephone calls made from its COCOTs (Count XII). C. IMR v. ATT (92-10919) On April 1,1992, IMR filed a second action (C.A. No. 92-10919) against ATT. The factual allegations in the complaint largely mirror those in No. 90-12866, alleging in essence that ATT refused to provide call blocking services to IMR, and that, as part of a conspiracy with NET, it refused to cooperate with NET to implement call blocking methods requested by IMR. As in No. 90-12866, the complaint alleges various state and federal antitrust counts, violations of federal and state communications law, unfair competition, tortious interference with contractual relationships and breach of duty. It also seeks a declaration that IMR is not liable to ATT for calls fraudulently made from its COCOTs. IV. THE PROCEEDINGS SO FAR On February 4, 1992, NET filed a motion to dismiss the amended third-party complaint in No. 90-12866. On April 28, 1992, ATT filed a motion for summary judgment on its claim for unpaid telephone bills in No. 90-12866. On May 12, 1992, IMR moved, pursuant to Fed.R.Civ.P. 56(f), to postpone consideration of ATT’s summary judgment motion in No. 90-12866 in order to permit time for further discovery. On June 3, 1992, ATT filed a motion to dismiss the complaint in No. 92-10919. On June 30, 1992, Judge Woodlock of this Court heard oral argument on NET’s motion to dismiss. Subsequently, the Court requested an Amicus Curiae submission from the Massachusetts Department of Public Utilities (“DPU”). DPU submitted a memorandum on September 17,1992. On May 16, 1994, both cases were reassigned to me and, on October 7, 1994, oral argument was heard on all four outstanding motions: NET’s and ATT’s motion to dismiss the 1990 third party complaint (No. 90-12866) and the 1992 action (No. 92-10919) respectively; ATT’s motion for summary judgment on its claim for unpaid telephone bills; and IMR’s motions to postpone the former, pursuant to Fed. R.Civ.P. 56(f), pending further discovery. V. ANALYSIS A. NET’s Motion to Dismiss NET has moved to dismiss all of the counts against it. In considering a motion to dismiss the Court begins “by accepting all well-pleaded facts as true, and ... drawing] all reasonable inferences in favor of the [nonmovant].” Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st Cir.1993). The complaint will be dismissed only if “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). In analyzing the sufficiency of the complaint, the court may consider official public records, the authenticity of which are not in dispute. Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993). For the following reasons, NET’s motion is ALLOWED IN PART AND DENIED IN PART. In Part 1 of this subsection, I address NET’s argument that IMR’s federal antitrust claims are barred by the “state action doctrine.” In Part 2,1 address similar issues relating to IMR’s claims under Massachusetts antitrust law. Part 3 deals with NET’s contention that IMR’s claims under the Communications Act of 1934 are barred by the doctrine of primary jurisdiction. Part 4 addresses NET’s argument that IMR’s claims under the Massachusetts Common Carrier Law fail to state a cause of action. Part 5 discusses IMR’s claims under Massachusetts common law. Finally, Part 6 deals with IMR’s request for a declaratory judgment. 1. The Federal Antitrust Counts (I, III and TV) a. The State Action Doctrine NET contends that all of the federal antitrust counts against it (Counts I, III and IV) should be dismissed under the so-called “state action doctrine.” This court-made doctrine is grounded in principles of federalism, and immunizes state regulatory programs from federal antitrust attack. California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 103, 100 S.Ct. 937, 942, 63 L.Ed.2d 233 (1980); Federal Trade Commission v. Ticor Title Insurance Co., 504 U.S. 621, 631-637, 112 S.Ct. 2169, 2176-2178, 119 L.Ed.2d 410 (1992). This immunity extends both to the regulatory activities of the states themselves (see Parker v. Brown, 317 U.S. 341, 350-352, 63 S.Ct. 307, 313-314, 87 L.Ed. 315 (1943)) and to the practices of private parties acting pursuant to state policy. Patrick v. Burget, 486 U.S. 94, 99-100, 108 S.Ct. 1658, 1662-1663, 100 L.Ed.2d 83 (1988). State action immunity is, however, a limited doctrine which, like repeals by implication, is disfavored. Ticor, 504 U.S. at 635-637, 112 S.Ct. at 2178. In applying the doctrine, this Court must be cognizant of the doctrine’s purpose, the avoidance of interference with state regulation, and must insure that the scope of its application is narrowly tailored to achieve that goal. In particular, the doctrine must not be turned into a means by which states can “confer antitrust immunity on private persons by fiat.” 504 U.S. at 633, 112 S.Ct. at 2176. In Midcal, the United States Supreme Court articulated two standards which must be satisfied before state action antitrust immunity may be claimed. “First, the challenged restraint must be one clearly articulated and affirmatively expressed as State policy; second, the policy must be actively supervised by the State itself.” 445 U.S. at 105, 100 S.Ct. at 943. See also Ticor, 504 U.S. at 633, 112 S.Ct. at 2176; Patrick, 486 U.S. at 100, 108 S.Ct. at 1662-1663 (deseribing Midcal standards as “rigorous”). These two standards are closely related, and both are intended to insure that the details of the challenged policy are the “product of deliberate state intervention,” for which the state must take political responsibility. Ticor, 504 U.S. at 634-635, 112 S.Ct. at 2177-2178. The first element of the Midcal test, the existence of a “clearly articulated and affirmatively expressed state policy,” may be satisfied in one of two ways. First, the state legislature may specifically authorize or mandate the challenged activity. See Southern Motor Carriers Rate Conference v. United States, 471 U.S. 48, 63, 105 S.Ct. 1721, 1730, 85 L.Ed.2d 36 (1985). Alternatively, the state legislature may create a regulatory agency, and provide it with the authority and discretion to implement broad state policy in its particulars. Id. at 63-64, 105 S.Ct. at 1730. In such a case, it is appropriate to look to the agency as a source of state regulatory policy. Id. The second Midcal element, relating to “active” state supervision, insures that the state implement the challenged policy “in its specific details.” Ticor, 504 U.S. at 633, 112 S.Ct. at 2176. Under this test, a state cannot merely create a space for private parties to further their own interests by operating in an anti-competitive fashion. Patrick, 486 U.S. at 100, 108 S.Ct. at 1662-1663. Rather, if a state believes that anti-competitive behavior is in the public interest, it must exercise its own “independent judgment and control” so that the specific activities taken under the policy are actually dictated by the state. Ticor, 504 U.S. at 634, 112 S.Ct. at 2177. b. Massachusetts’ Regulation of NET NET accurately contends that its business of providing telephone service in Massachusetts is pervasively regulated by the DPU. Pursuant to authority granted by M.G.L. ch. 159, the DPU exercises “general supervision and regulation of, and jurisdiction and control over ... [t]he transmission of intelligence within the commonwealth by electricity, by means of telephone lines or telegraph lines or any other method or system of communication, including the operation of all conveniences, appliances, instrumentalities, or equipment appertaining thereto, or utilized in connection therewith.” M.G.L. ch. 159 § 12. The DPU is generally empowered to regulate both the “rates, fares or charges” and the “regulations, practices, equipment, appliances or service” of any common carrier operating -within the Commonwealth. M.G.L. ch. 159 §§ 14,16. Although rates are set initially by the regulated carriers, they are subject to pre-approval by the DPU, which may delay their implementation pending public hearing and investigation. M.G.L. e. 159 § 19. Not only does the DPU have the power to regulate NET, but it appears to exercise that power vigilantly. NET’s proposed tariff changes are regularly scrutinized by the DPU in public hearings in which numerous concerned private parties, as well as the Attorney General of the Commonwealth, participate. The DPU has frequently modified these tariffs when they are not found to be in the public interest. See, e.g. New England Telephone and Telegraph Co., DPU 86-124D, 1986 WL 213483 (1986) (modifying tariff filed by NET); New England Telephone and Telegraph Co., DPU 89-300,1990 WL 488888 (1990) (same); New England Telephone and Telegraph Co., DPU 91-30, 1991 WL 501660 (1991) (same); New England Telephone and Telegraph Co., DPU 92-100,1992 WL 421265 (1992) (same). Moreover, the DPU conducts investigations of the telephone industry on its own initiative to determine whether existing levels of service and rate structures are in the public interest. See, e.g. Investigation of Pay Telephone Service, DPU 89-20 (1991) (investigating allegations regarding NET’s treatment of COCOT owners). c. Has Massachusetts Clearly Articulated a Policy? Although NET is heavily regulated by the DPU, this fact alone does not mean that Massachusetts has a policy which is inconsistent with the enforcement of federal antitrust laws. Ticor, 504 U.S. at 635-637, 112 S.Ct. at 2178. See also Hardy v. City Optical, Inc., 39 F.3d 765, 768 (7th Cir.1994) (state may have a regulatory program “that can coexist happily with the full enforcement of federal antitrust principles because the program does not require the supplanting of competition”). As the Supreme Court has noted, “public utility regulation typically assumes that the private firm is a natural monopoly and that public controls are necessary to protect the consumer from exploitation.” Cantor v. Detroit Edison Co., 428 U.S. 579, 595-596, 96 S.Ct. 3110, 3120, 49 L.Ed.2d 1141 (1976). Thus, “there is no logical inconsistency between requiring [a public utility] to meet regulatory criteria insofar as it is exercising its natural monopoly powers and also to comply with antitrust standards to the extent that it engages in business activity in competitive areas of the economy.” Id. When a state regulates a public utility, it is not the state’s policy to prevent competition. Rather, the state, recognizing the inevitability of a monopoly, regulates the monopolist to prevent the kind of harms which result from lack of competition. There is, therefore, nothing about the mere fact that a public utility is regulated by a state to suggest that the state has a policy of encouraging any particular anti-competitive practices by the utility, or of discouraging competition at all, as required by the first element of the Mid-col test. I have carefully examined the DPU regulatory record and the allegations contained in the amended third party complaint, and conclude that at least some of the practices alleged by IMR are not in any way sanctioned by state policy. Accordingly, I am unable to grant NET’s motion to dismiss IMR’s antitrust claims. Massachusetts’ policy with respect to regulation of the telecommunications market is found in M.G.L. ch. 159, and the policies which the DPU has issued pursuant thereto. See Southern Motor Carriers, 471 U.S. at 64, 105 S.Ct. at 1730 (details of state’s policy may be left to a state agency). Although Chapter 159 contains no explicit statement, Massachusetts’ legislative policy can be inferred from the mandate given to the DPU. Under Section 14 of Chapter 159, the DPU is empowered to investigate whether any of the rates of a common carrier are “unjust, unreasonable, unjustly discriminatory, [or] unduly preferential____” Under Section 16, the DPU may proscribe any “regulations, practices, equipment, appliances or service” of a common carrier which it finds to be “unjust, unreasonable, unsafe, improper or inadequate.” Under both sections, the DPU may issue orders mandating rates, policies or services which satisfy the normative requirements of the statute. The DPU’s specific policy with respect to NET’S provision of service to COCOTs has its genesis in the aftermath of the Modified Final Judgment in United States v. AT & T, 552 F.Supp. 131 (D.D.C.1982) aff'd sub nom. Maryland v. United States, 460 U.S. 1001, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983). The Modified Final Judgment mandated the break-up of the old Bell Telephone System, and the introduction of competition into the long distance telephone market. Under its terms, the former service area of the Bell System was divided into small regions designated as Local Access and Transport Areas (“LATAs”). The former Bell Operating Companies (“BOCs”), such as defendant NET, were prohibited from providing telephone service between LATAs. Such interLATA service was to be provided by ATT and its new competitors, such as MCI and Sprint. United States v. Western Elec. Co., Inc., 569 F.Supp. 990, 993-994 (D.D.C.1993). Although the Modified Final Judgment was intended to develop a competitive environment for interstate telephone service, the appropriate level of intrastate and intraLATA competition was left to the determination of state regulatory agencies. U.S. v. Western Electric Co., Inc., 569 F.Supp. at 1005. The DPU quickly approved interLATA competition within Massachusetts. Its position with respect to intra-LATA competition was, however, somewhat more cautious. In an order dated October 18, 1985, the DPU issued its initial determination concerning intra-LATA competition. See Intrctr-LATA Competition, DPU 1731 (1985). The DPU carefully considered all of the economic and social concerns surrounding intra-LATA competition, and in particular, the sometimes competing concerns of economic efficiency and universal service. DPU 1731 at 19-23. The DPU rejected suggestions that intraLATA competition would undermine its goal of universal service and declared that competition would be introduced into the intraLATA market on December 1, 1986. DPU 1731 at 42-44. Although the DPU was determined to introduce competition into the intra-LATA market, this competition was not to be completely unregulated. In particular, the DPU found that NET and ATT were “dominant carriers” within the intra-LATA market in Massachusetts, thus requiring a high degree of pricing regulation which would not be imposed on other, non-dominant, carriers. DPU 1731 at 65-70. As dominant carriers, NET and ATT were required to support all proposed pricing policies with incremental cost studies and the like, while non-dominant carriers were permitted to price their services essentially as the market permitted, with only minimal documentation or scrutiny by the DPU. Id. As part of its October 18, 1985 deregulation order, the DPU determined that so-called “resale” of telecommunications services should be permitted in the intra-LATA market. DPU 1731 at 77-84. Accordingly, on May 1, 1986, NET filed proposed tariff revisions eliminating restrictions on the resale of its services and introducing for the first time “Public Access Line” (“PAL”) service, by which COCOTs could be connected to the telephone network. See New England Telephone and Telegraph Co., DPU 86-124-D at 2, 1986 WL 213483 (1986). On November 26,1986, DPU issued a decision and order based on its review of NET’s proposed tariff revisions. See New England Telephone and Telegraph Co., DPU 86-124-D, 1986 WL 213483. The DPU approved NET’s proposal to offer PALs using a billing scheme similar to other types of business phones. DPU 86-124r-D at 20. Under this plan, COCOTs would subscribe to local exchange service from NET, just as would any business customer. Calls made from COCOTs would be billed to the COCOT owner at the generally applicable business rate, and the COCOT owner was to be responsible for billing its own customers in whatever fashion it deemed feasible. With respect to “non sent paid calls” (i.e. calls made without coins, such as credit card or collect calls), the COCOT owner would be free to negotiate commission agreements with long distance carriers as it saw fit. DPU 86-124-D at 21. On December 1, 1989, NET filed proposed tariff revisions relating to PAL service for COCOTs, which contained some modification in the rate structure of its earlier tariff, including a rebate plan for operator assisted calls, but largely kept in place the PAL-as-Business-Line arrangement. The DPU held hearings at which numerous COCOT owners intervened. See New England Telephone and Telegraph Co., DPU 89-300, 1990 WL 488888 (1990). The COCOT owners objected to the proposed tariff revisions, arguing that they should receive rates and treatment equivalent to that which NET provides to its own pay-telephone division, and contended that the proposed rate structure was unfair, as it resulted in an internal subsidy of NET’s pay telephone service. On June 29, 1990, the DPU issued a decision and order. See New England Telephone and Telegraph Co., DPU 89-300, 1990 WL 488888. The DPU largely accepted NET’s position, rejected the COCOT owners’ call for equivalent treatment, and approved, with some modification, NET’s proposed tariff revisions. In making this determination, the DPU acknowledged that it was balancing conflicting goals involved in rate-setting, which included: Aligning rates with marginal costs, simplicity, continuity, universal service, fairness, and earnings stability. DPU 89-300 at 271-275 & n. 123. The DPU has also responded directly to complaints by COCOT owners concerning many of the service issues raised in this action. On February 19, 1991, the DPU issued a report on an investigation it had conducted concerning various issues related to pay telephone service in Massachusetts, including COCOT service. See Investigation of Pay Telephone Service, DPU 89-20 (1991). Within the scope of the DPU’s investigation were allegations by COCOT owners of anti-competitive practices by NET, including alleged inferior customer service provided to COCOT owners and NET’s alleged failure to properly block the completion of operator-assisted calls, third-party calls, and collect calls from pay telephones where it had been requested to do so by COCOT owners. The DPU concluded that there was a factual basis to these allegations, and ordered NET to take remedial measures and to report back to the DPU concerning future service problems. DPU 89-20 at pp. 32-45. The most recent DPU review of NET’s COCOT policies, to which the Court has been referred, was completed on October 28,1992. See New England Telephone, DPU 92-100, 1992 WL 421265 (1992). In the context of a proposed tariff revision, the DPU once again considered complaints by COCOT owners, including IMR, concerning NET’s rate structure and the quality of service which it provided on PAL lines. The DPU rejected IMR’s challenge to NET’s rate structure, finding that it had failed to demonstrate that the rate structure was inconsistent with the DPU’s policy goals. DPU 92-100 at pp. 50-55. With respect to IMR’s complaints concerning service problems, the DPU refused to order any particular remedy, but did require that NET meet with interested parties in informal “technical conferences”, to be held quarterly under the DPU’s auspices, where quality-of-service issues would be discussed. DPU 92-100 at pp. 72-79. d. Are the Complained of Actions the Product of Massachusetts’ Articulated Policy? In determining whether the state action doctrine applies, I must determine: Whether the State has exercised sufficient independent judgment and control so that the details of the rates or prices have been established as a product of deliberate state intervention, not simply by agreement among private parties. Much as in causation inquiries, the analysis asks whether the State has played a substantial role in determining the specifics of the economic policy. The question is not how well state regulation works but whether the anti-competitive scheme is the State’s own. Ticor, 504 U.S. at 634-635, 112 S.Ct. at 2177. Applying this test to the allegations against NET, it is apparent to me that most of actions complained of are not the product of state policy and, in some instances, are contrary to it. Only in the case of DPU approved price structures do I find that the state action doctrine bars an antitrust cause of action. (1) Discrimination and Poor Service The most significant category of IMR’s claims is that relating to NET’s alleged discrimination in its provision of service to COCOT owners. Among IMR’s charges are that NET refuses to offer COCOT owners the same type of “coin line” service which it uses for its own pay telephones, that it refuses to provide adequate call blocking services and other security measures necessary for COCOT owners to prevent fraudulent calls, and that it fails to timely or adequately respond to service calls from COCOT owners. None of these allegations, if true, would further any policy articulated by the Commonwealth of Massachusetts. Indeed, they are contrary to Massachusetts’ policies of promoting competition and of insuring reliable and high quality telephone service to all customers within the Commonwealth. Because NET is classified as a dominant carrier by DPU, NET’s rates and minimum services levels are mandated by DPU policy. But nothing in this policy prohibits NET from introducing new services or higher quality services for which there is a demand. There is, accordingly, no way in which these policies could be considered “the State’s own”, Ticor, 504 U.S. at 635, 112 S.Ct. at 2177, and therefore no reason for this Court to decline to scrutinize these allegations under the antitrust laws. NET attempts to overcome this seemingly obvious conclusion by stressing the DPU’s broad authority to regulate NET’s activities (including the ones complained of here), and by noting that the DPU has, on occasion, considered complaints on these matters, and has failed to act. From these facts NET apparently concludes that none of its activities which are subject to DPU regulation can ever violate federal antitrust law, since they are being “actively supervised” by the DPU. This argument fundamentally misapprehends the nature of the state action doctrine. As explained above, states may not simply “confer antitrust immunity on private persons by fiat.” Ticor, 504 U.S. at 633, 112 S.Ct. at 2176. The immunity arises only where the state has specifically intended to “displace competition in a particular field with a regulatory structure.” Southern Motor Carriers, 471 U.S. at 64, 105 S.Ct. at 1730. And even where the state regulates one aspect of a firm’s activities through non-market mechanisms — here pricing — all of its remaining activities continue to be subject to antitrust scrutiny. See Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976). What NET’s argument fails to acknowledge is that it is not the purpose of all “regulatory structures” to displace competition. See Capital Telephone Co. v. New York Telephone Co. 750 F.2d 1154, 1160 (2d Cir.1984) cert. den. 471 U.S. 1101, 105 S.Ct. 2325, 85 L.Ed.2d 843 (1985); Hardy, 39 F.3d at 768. Virtually every industry in the United States is regulated to some degree. Yet we still live in a market economy in which the antitrust laws remain in full force. See Ticor, 504 U.S. at 635-637, 112 S.Ct. at 2178. A distinction must therefore be drawn between that type of regulatory scheme which is inherently anti-competitive and that type of regulation which merely restrains the exercise of market power. Id. Only in the former case would the application of antitrust law interfere with the legitimate regulatory power of the state. See Midcal, 445 U.S. at 104, 100 S.Ct. at 942-943. NET cites to cases upholding state-approved, private rate setting mechanisms for the proposition that state regulation can exempt an entire field of activity from antitrust scrutiny. See Southern Motor Carriers, 471 U.S. at 64, 105 S.Ct. at 1730; Massachusetts Furniture and Piano Movers Ass’n v. FTC, 773 F.2d 391 (1st Cir.1985); New England Motor Rate Bureau, Inc. v. F.T.C., 908 F.2d 1064 (1st Cir.1990). To the contrary, what these cases stand for, to the extent they are still good law, is that firms which comply with a state policy authorizing collective rate-setting activities are immune from antitrust attack, but only with respect to those activities which the state authorizes, and actively supervises. The distinction is important because the alleged activity at issue here was never authorized by the DPU. The DPU never adopted a policy of permitting NET to discriminate against COCOT owners. Neither did it adopt a policy that only current levels of service, and not higher ones, were in the public interest. If IMR’s allegations of discrimination are true, they would, it seems, violate the policy against discriminatory and unfair acts enshrined in Massachusetts public utility law. M.G.L. ch. 159 § 14. Neither DPU’s mere failure to act against these allegations, nor its theoretical power to regulate such behavior, is enough to make such behavior the state’s own, and immunize it from federal law. Ticor, 504 U.S. at 633-639, 112 S.Ct. at 2177-2179. Finally, I note that my conclusions here are in accord with those of the two other Federal District Courts to consider similar issues. See AT & T v. Eastern Pay Phones, Inc., 767 F.Supp. 1335 (E.D.Va.1991) vacated as moot 789 F.Supp. 725; AT & T v. North American Industries, 772 F.Supp. 777, 787-789 (S.D.N.Y.1991) modified in part 783 F.Supp. 810 (1992). In both of these cases, COCOT owners brought antitrust actions against LECs for their refusal to provide coin lines and/or call blocking services. Both courts found that, while the LEC in question was in fact subject to pervasive state regulation, no state policy supported the allegedly discriminatory conduct in question. Eastern Pay Phones, 767 F.Supp. at 1340-1342; North American Industries, 772 F.Supp. at 787-789, 783 F.Supp. at 812-813. As one court noted, no court: Has ever suggested that anti-competitive activities inimical to the subject of the state legislation also are protected by the state action defense. Such a suggestion would transform a device created to protect state policy into a tool to undermine state policy. It would also transform the limited policy of federalism that underlay the original rule into an odd and sweeping canon of reverse preemption, with federal antitrust laws giving way to state regulation whether or not a violation of federal law is needed to help achieve the goal of such regulation. North American Industries, 783 F.Supp. at 813. (2) Unfair Competitive Practices A second category of IMR’s claims relate to NET’s alleged unfair tactics as a direct competitor for public pay telephone customers. These tactics include the making of allegedly disparaging remarks by NET representatives concerning the quality of COCOT service, the predatory placement of NET telephones in the vicinity of COCOTs, and allegedly uncompetitive commissions paid to location owners. As with IMR’s quality of service complaints I find that none of these alleged activities are immunized by the state action doctrine. Although the DPU has, in passing, made reference to or analyzed the significance of allegations similar to those here, there is nothing in the administrative record suggesting any coherent state policy promoting the activities alleged. In particular, NET retains full discretion in the placement of its pay telephones, as it does with the content of its advertising and the level of commissions it pays to location owners. Although the DPU apparently has authority to regulate these activities, it is equally apparent from the regulatory record that they have not done so to any significant degree. I thus conclude that Massachusetts has no policy regarding these activities, and they are, accordingly, not protected by state action immunity. (3) NET’s Alleged Conspiracy With ATT A third category of allegation involves NET’s supposed conspiracy with ATT to exclude third-party COCOT owners from competing with NET’s pay telephone service. Under this theory, IMR alleges that NET and ATT have an arrangement whereby ATT provides all of the long distance service to NET’s pay telephones. It is thus in ATT’s supposed interest to eliminate COCOT owners, which might use a long distance carrier other than ATT. The conspiracy allegedly involves a scheme whereby ATT and NET agreed not to address the security concerns of COCOT owners, as a means of forcing them out of the market. Since this allegation, if true, would certainly not further any articulated state policy, it is not immunized from antitrust attack by the state action doctrine. (4) Rate Setting The final set of anti-competitive allegations against NET concern its charges to COCOT owners for access to NET’s network, and to the public for the use of its pay telephone service. According to IMR, the charges incurred by COCOT owners are in excess of the effective rate which NET charges itself. Conversely, NET’s charges for public pay telephone service are allegedly unreasonably low because they are cross-subsidized from other areas of NET’s business. Under IMR’s theory, NET’s charges to COCOT owners make COCOT service charges to the public unreasonably high, while NET’s cross-subsidy makes NET’s service charges to the public unreasonably low. The net result is to squeeze COCOT owners out of the market. I agree with NET that its tariffed rates, which are the product of an extensive investigation and review by the DPU, express a clearly articulated and actively supervised state policy, and are therefore immune from antitrust attack. Midcal, 445 U.S. at 105, 100 S.Ct. at 943. As explained above, NET, unlike other pay telephone providers in Massachusetts, is considered a “dominant carrier” by the DPU. As such, its rates are subject to pre-approval and intense scrutiny and revision by the DPU. By comparison, the rates charged by COCOT owners are largely determined by the market. Moreover, the DPU does not merely rubber-stamp proposed tariffs filed by NET. Compare Ticor, 504 U.S. at 637-639, 112 S.Ct. at 2179 (state agencies which were empowered to, but rarely did, seriously scrutinize rate filings, did not exercise active supervision over collective ratesetting scheme). Rather, the DPU actively and regularly scrutinizes NET’s rate structure, and makes specific adjustments when it finds that proposed rates are not in the public interest. In its review of NET’s rates, the DPU has taken into account a number of potentially conflicting public policy concerns, including aligning rates with marginal costs, simplicity, continuity, universal service, fairness, and earnings stability. See New England Telephone and Telegraph Co., DPU 89-300 at 272, n. 123, 1990 WL 488888 (1990). Weighing all of these factors, the DPU has specifically found that the rates charged by NET for its pay telephone service, after adjustment by the DPU, were appropriate in light of the aforementioned concerns. DPU 89-300 at 271-275. With respect to the rates charged to COCOT owners, the DPU recognized the existence of NET’s cross-subsidy of its pay telephone rates and therefore ordered NET to modify its tariff to provide for a 20% discount to COCOT owners to counter the effect of this cross-subsidization. DPU 89-300 at 273. In sum, by retaining NET’s “dominant carrier” status, the DPU has expressed a clear intent to closely regulate the rates which NET charges to its customers, and has, in fact, mandated specific rates and changes in rates in light of public policy concerns. I therefore find that NET’s rate structure is the direct product of state policy and is, accordingly, immune from antitrust attack at this time. Accord Coin Call, Inc. v. Southern Bell Tel. & Tel. Co., 636 F.Supp. 608, 613-614 (N.D.Ga.1986) (where state public service commission actively enforced telephone tariff and participated in its revision, and where particular tariff provision was in accord with explicit state commission policy, tariff provision was immunized from antitrust attack by state action doctrine). e. Abstention The DPU, as Amicus Curiae, has argued that even where this Court finds that the state action doctrine does not immunize certain of NET’s alleged activities, it should nonetheless abstain, under the doctrine of Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), from exercising jurisdiction in order to permit the DPU to respond to the allegations, through regulatory means, in the first instance. I decline this invitation. In Burford, the Supreme Court held that it was sometimes appropriate for federal courts to abstain from exercising equity jurisdiction over disputes involving difficult or unsettled questions of state law, where such exercise would interfere with the state’s own framework for developing the law in a particular field. 319 U.S. at 333-334, 63 S.Ct. at 1107. See also Colorado River Water Cons. Dist. v. U.S., 424 U.S. 800, 814, 96 S.Ct. 1236, 1244-1245, 47 L.Ed.2d 483 (1976); Friends of Children, Inc. v. Matava, 766 F.2d 35, 36 (1st Cir.1985). “[T]he state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Colorado River, 424 U.S. at 814, 96 S.Ct. at 1245. As the First Circuit noted in Construction Aggregates Corp. v. Rivera de Vicenty, 573 F.2d 86, 92 (1st Cir.1978), cases in which abstention is appropriate typically involve interference with specialized state tribunals (see Burford, supra (special state court for settling claims on underground oil deposits); Alabama Public Service Commission v. Southern Ry. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951) (special state court for reviewing decisions of public service commission); Allstate Ins. Co. v. Sabbagh, 603 F.2d 228, 233-234 (1st Cir.1979) (action for injunctive relief against insurance rate-setting commission, avoiding state mandated review by the Supreme Judicial Court); Bettencourt v. Board of Registration in Medicine, 721 F.Supp. 382, 384 (D.Mass.1989) aff'd 904 F.2d 772 (1st Cir.1990) (action for injunctive relief against medical licensing board); Friends of Children, Inc. v. Matava, 766 F.2d 35 (1st Cir.1985) (challenge to determination of Department of Social Services in adoption case)), or requests that federal courts intervene in disputes “involving a complicated system of local law presumably beyond the ken of a federal court.” Construction Aggregates, 573 F.2d at 92. See Burford, supra (Texas law for allocate rights in underground oil deposits); Louisiana Power & Light Co. v. Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959) (Louisiana law empowering municipalities to take land by eminent domain); Kaiser Steel Corp. v. W.S. Ranch Co., 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835 (1968) (case of first impression interpreting New Mexico statute governing water rights). However, not every case which raises these concerns is appropriate for abstention. “Abstention from the exercise of federal jurisdiction is the exception, not the rule.” Colorado River, 424 U.S. at 813, 96 S.Ct. at 1244. Burford type abstention is reserved “for the relatively rare case where the equities strongly point in the direction of litigation exclusively in the state forum.” Construction Aggregates, 573 F.2d at 92-93. In particular, there is “no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of state policy.” Id. at 92 (quoting Zablocki v. Redhail 434 U.S. 374, 380, n. 5, 98 S.Ct. 673, 678, n. 5, 54 L.Ed.2d 618 (1978)). Indeed, the presence of a federal basis for jurisdiction may raise the level of justification needed for abstention. Colorado River, 424 U.S. at 815, n. 21, 96 S.Ct. at 1245, n. 21. In light of these principles, I conclude that Burford abstention is not appropriate in this instance. This is so for two reasons. First, a fundamental requirement for Burford abstention is the existence a “difficult question of state law.” Colorado River, 424 U.S. at 814, 96 S.Ct. at 1244. The state law question I have considered, whether Massachusetts has a “clearly articulated” state policy concerning NET’s allegedly anti-competitive practices is, by its very nature, not difficult. See Pinhas v. Summit Health, Ltd., 894 F.2d 1024, 1031 (9th Cir. 1989) aff'd 500 U.S. 322, 111 S.Ct. 1842, 114 L.Ed.2d 366 (1991) (Burford abstention inappropriate where court determined that state action doctrine did not bar antitrust claim); Coin Call\ 636 F.Supp. at 609-612 (in antitrust case challenging defendant’s refusal under its tariff to permit resale of telephone services, court would apply state action doctrine, rather than Burford abstention doctrine, to determine whether antitrust laws inappropriately interfered with state regulation). To the extent that there are difficult claims before me, they arise out of federal antitrust and communications law, not the laws of Massachusetts. Second, there is no danger that a ruling of this Court might interfere with Massachusetts’ ability to make telecommunications policy. As described above, to the extent that NET’s actions are already the product of “a clearly articulated and affirmatively expressed State policy,” and subject to state supervision, those actions are immune from antitrust attack under the state action doctrine. Midcal, 445 U.S. at 105, 100 S.Ct. at 943; Ticor, 504 U.S. at 631-633, 112 S.Ct. at 2176. In those areas where DPU has not yet articulated a policy and issued appropriate supervisory orders, nothing in this decision precludes it from doing so. Thus, the state action doctrine makes application of the Bur-ford abstention doctrine superfluous in a case such as this. Coin Call, 636 F.Supp. at 609-612. For all of these reasons, I find that this is not a case in which the equities “point in the direction of litigation exclusively in the state forum,” Construction Aggregates Corp., 573 F.2d at 92-93, and I will not dismiss IMR’s antitrust claims on that basis. Accordingly, NET’s motion to dismiss Counts I, III and IV is DENIED, except that NET’s motion is ALLOWED with respect to the allegations in Counts III and IV concerning the rates charged by NET to COCOT owners. 2. The State Antitrust Counts (II, V and VI) NET contends that the claims against it under the Massachusetts Antitrust Act (M.G.L. ch. 93) (Counts II, V and VI), are barred under a provision of that statute which excludes claims regarding activities which are “exempt from any of the federal antitrust laws ... or ... [a]ny activities which are subject to regulation or supervision by state ... agencies.” The Massachusetts Supreme Judicial Court has construed this exemption to be no broader than that found under the federal “state action” doctrine discussed above. See Commonwealth v. Mass. CRINC, 392 Mass. 79, 90-91, 466 N.E.2d 792 (1984). In the absence of an explicit federal exemption, an activity only escapes state antitrust scrutiny if it is mandated by state law or regulation. Id. at 91, 466 N.E.2d 792. Accordingly, I find that NET’s activities are immune under the Massachusetts antitrust statute only to the extent they are immune under federal law, as analyzed above: NET’S motion to dismiss Counts II, V and VI is DENIED, except that it is ALLOWED with respect to the allegations in Counts V and VI concerning the rates charged by NET to COCOT owners. 3. The Communications Act Claim Counts VII and VIII allege that, through the various practices described above, NET violated Sections 201(b) and 202(a) of the Communications Act of 1934, 47 U.S.C. §§ 201(b), 202(a), respectively. These provisions make it unlawful for common carriers to employ unjust and unreasonable charges and practices or to unfairly or unjustly discriminate among customers. Section 207 of the Act, 47 U.S.C. § 207, permits parties damaged by common carriers through violations of the Act to bring an action before the FCC or in federal court. NET contends that these claims should be dismissed under the doctrine of primary jurisdiction. This doctrine is concerned with “promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.” United States v. Western Pac. R. Co., 352 U.S. 59, 63, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). It is invoked “whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” Id. at 64, 77 S.Ct. at 165. Under the doctrine, a court will decline to decide an issue which is best left to the expertise of an administrative agency. The First Circuit has described three primary factors which this Court should consider in determining whether to defer to an administrative agency: (1) Whether the determination is at the heart of the task assigned to the agency by Congress; (2) whether agency expertise is required to unravel intricate, technical facts; and (3) whether the agency determination would materially aid the court. New England Legal Found, v. Mass. Port Auth., 883 F.2d 157, 172 (1st Cir.1989). Analyzing these factors in this case, I conclude that the FCC has primary jurisdiction over IMR’s Communications Act claims, which should, accordingly, be dismissed. With respect to the first factor, there is no doubt that a determination of the reasonableness or discriminatory nature of common carrier rules and charges is squarely at the heart of the FCC’s mandate. See Ambassador v. United States, 325 U.S. 317, 324, 65 S.Ct. 1151, 1155, 89 L.Ed. 1637 (1945); National Comm. Ass’n v. AT & T, 46 F.3d 220, 223 (2d Cir.1995); In Re Long Distance Telecommunications Litigation, 831 F.2d 627, 632 (6th Cir.1987); MCI Communications Corp. v. AT & T, 496 F.2d 214 (3rd Cir.1974); Booth v. AT & T, 253 F.2d 57, 58 (7th Cir.1958); MCI Telecommunications Corp. v. Ameri-Tel, Inc., 852 F.Supp. 659, 665 (N.D.Ill.1994); Southwestern Bell Telephone Co. v. Allnet Communications Services, Inc., 789 F.Supp. 302 (E.D.Mo.1992); Eastern Pay Phones, 767 F.Supp. at 1343. Indeed, the FCC was created by Congress specifically to enforce the provisions of the Communications Act of 1934, including Sections 201(b) and 202(a). See 47 U.S.C. § 151. Neither can there be any doubt that the FCC has special expertise in this area. The Communication Act’s prohibition of “unreasonable,” “unjust” and “discriminatory” practices is a contentless injunction, which essentially invites the FCC to promulgate specific policies governing the practices of the telecommunications industry. See Allnet Communication Service, Inc. v. National Exchange Carrier Association, Inc., 965 F.2d 1118, 1120-1121 (D.C.Cir.1992) (“judicial resolution of Allnet’s claims here would preempt the Commission from implementing what amount to policy decisions”); Booth, 253 F.2d at 58 (“Ratemaking is an administrative not a judicial function for to reduce the abstract concept of reasonableness to concrete expression in dollars and cents is the function of the Commission.”). Such policy-making requires a detailed knowledge of the economics and standard practices of the telephone industry, and an understanding of the technical feasibility of various proposed alternatives. It is obvious that the FCC, and not this Court, is the body with both the expertise and the Congressional mandate to accomplish this task. Other courts considering this issue have, accordingly, consistently refused to adjudicate cases brought under the Communications Act without a clear statement of policy from the FCC. See Ambassador v. United States, 325 U.S. at 324, 65 S.Ct. at 1155; National Exchange Carrier, 965 F.2d at 1120-1123; In Re Long Distance Telecommunications Litigation, 831 F.2d at 632; MCI Communications Corp. v. AT & T, 496 F.2d at 214; Booth v. AT & T, 253 F.2d at 58; Southwestern Bell, 789 F.Supp. 302; Eastern Pay Phones, 767 F.Supp. at 1343. Because IMR has not demonstrated that the FCC has ever addressed any of the issues raised in this action, I conclude that this Court should decline to rule on them at this time. Finally, because the FCC has full power to grant the relief requested by IMR (see 47 U.S.C. §§ 206-207), nothing would be served by this Court retaining jurisdiction over these claims. See Booth, 253 F.2d at 59. Accordingly, NET’s motion to dismiss Counts VII and VIII is ALLOWED. 4. Claims for Violation of M.G.L. ch. 159 In Count IX, IMR charges NET with violations of the Massachusetts Common Carrier Law, M.G.L. eh. 159, §§ 1, 13, and 17. Section 1 of the Law prohibits price discrimination by common carriers “of merchandise or other property,” and grants the Supreme Judicial and Superior Courts jurisdiction in equity to enforce its provisions. Section 13 authorizes the DPU to inquire into the “rates, charges, regulations, practices, equipment and services of common carriers.” Section 17 requires that all charges made by common carriers be “just and reasonable.” IMR contends that these sections create an implied cause of action under state law for damages caused by the actions of a common carrier which do not meet the standards of reasonableness and non-discrimination outlined above. I disagree. Section 1 of the Law, which was enacted in 1869, applies only to “common carriers of merchandise or other property” and thus is inapplicable here. Section 13 merely authorizes investigations by the DPU. It too has no applicability here. This leaves Section 17. This section, likes its federal analog (47 U.S.C. § 201(b)), requires that telephone service providers charge “reasonable rates.” And, like the federal law, this one provides no definition of reasonableness, leaving the determination up to the appropriate administrative agency, in this case the DPU. See M.G.L. ch. 159 § 14. The structure of this chapter makes it apparent that it is the DPU which must make determinations of reasonable rates in the first instance. See Gurney Heater Mfg. Co. v. New York, N.H. & H.R. Co., 264 Mass. 427, 162 N.E. 897 (1928) (holding that Common Carrier Law abrogated prior judicially enforceable common law right against unreasonable rates by common carriers). The law provides that common carriers, including telephone service providers, must file rates with the DPU, which must approve them before they take effect. M.G.L. ch. 159 § 19. Once the DPU has made a final determination, it is appealable directly to the Supreme Judicial Court. M.G.L. ch. 25 § 5. Any rate approved by the DPU is considered to be prima facie lawful until it has been changed or modified by the DPU. M.G.L. ch. 159 § 17. It is thus clear that the requirement of Section 17 that rates be reasonable means that they must be reasonable as determined by the DPU in the first instance, with the role of the judiciary limited to a review of the DPU’s determination. As with the federal law described above, it would clearly frustrate the intent of the legislature to create a regulatory regime governing telephone services if disgruntled consumers could resort directly to the courts to challenge the reasonableness of particular practices. The entire regime of administrative policy-making would thereby be undermined. Accordingly, I find that IMR has failed to state a claim under M.G.L. ch. 159. NET’s motion to dismiss Count IX will, therefore, be ALLOWED. 5. Common Law Claims In Counts X and XI, IMR alleges various state common law torts, to wit: Tortious interference with contractual relationship, business tort, unfair competition (Count X) and breach of duty (Count XI). NET contends that these claims are all preempted by the Communications Act of 1934, 47 U.S.C. § 151 et seq., and by the Massachusetts Common Carrier Law, M.G.L. eh. 159, and that they otherwise fail to state claims cognizable under Massachusetts law. IMR’s Count X is captioned “Tortious Interference with Contractual Relationship/Business Tort/Unfair Competition” and alleges that NET “damaged IMR’s pay phone business” by engaging in much of the conduct outlined in the previously discussed counts, including failing to provide adequate types and levels of service, failing to block fraudulent calls, and using predatory pricing practices to drive IMR from the market. There is no generic “business tort” in Massachusetts, so I analyze the allegations to determine whether they state a claim for tortious interference with contractual relationship (“tortious interference”) or unfair competition. To prove a claim for tortious interference, the plaintiff must show that “(1) [it] had a contract with a third party, (2) the defendant knowingly induced the third party to break that contract, and (3) the plaintiff was harmed by the defendant’s action.” United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 812, 551 N.E.2d 20 (1990). The key issue here is whether NET knowingly induced a third party to break a contract with IMR. NET’s