during the canvass for the Eastern Montgomery County directory, Donnelley will contact all business telephone subscribers in the Eastern Montgomery County directory distribution area for advertisements in the Eastern Montgomery County Yellow Pages and for advertisements in any other Yellow Pages directory in which they wish to advertise. The only foreign-in advertisers that will be contacted during this canvass are those which advertised in the previous edition of the Eastern Montgomery County directory. All other foreign-in advertisers were solicited for the Eastern Montgomery County directory during the canvasses of the directory distribution areas in which they are located.
At the hearing, counsel for Donnelley stated that Donnelley would not solicit, on its own behalf, any business which remained to be contacted after July 1, 1986, as part of any transition canvass until after the service order close date of that canvass. For example, with respect to a transition canvass in which the canvass of the directory distribution area was still in progress as of July 1, 1986, Donnelley would not contact any businesses in the transition directory distribution area or any of the foreign-in advertisers for that directory for a Donnelley proprietary directory.
The parties have stipulated that there will be no city-wide canvass of Philadelphia in progress on July 1, 1986. Donnelley reasons that since the only businesses in Philadelphia which remain to be contacted on behalf of Bell are businesses which advertised in the previous edition of the transition directories, it may solicit in Philadelphia after July 1 as long as it does not contact any of these potential advertisers until after the service order close date for the transition directories for which they are being solicited.
Donnelley also argues that Bell's interpretation of the consent decree is based on the faulty premise that Donnelley's solicitation of the same businesses on behalf of Bell and another principal is inconsistent with Donnelley's obligations to Bell. Donnelley currently solicits advertising for the directories of ten independent telephone companies in Pennsylvania. The distribution areas of many of these independent telephone company directories are contiguous to the distribution areas of the Bell directories. During the course of the Sales Agreement and prior thereto, Donnelley has solicited advertisers located in Bell directory distribution areas for non-Bell directories. Donnelley reasons that because Bell has acquiesced to Donnelley's practice of soliciting advertisers located in the distribution area of Bell directories for both Bell and non-Bell directories, and entered into the Sales Agreement and consent decree with knowledge of this practice, Bell did not intend for the consent decree to preclude Donnelley's planned solicitation of Philadelphia for a Donnelley proprietary directory after July 1.
The analogy which Donnelley attempts to draw between its solicitations on behalf of the independent telephone companies and its proposed solicitation of Philadelphia is neither accurate nor relevant. Except for a few isolated instances, the distribution areas of the Bell directories and independent telephone company directories have been separate and distinct. Donnelley's proposed Philadelphia directory will be distributed in the same area as Bell directories. Bell has never consented to Donnelley's solicitation of businesses in a Bell directory distribution area for a non-Bell directory that is distributed in the same area as the Bell directory.
Though I do not find Bell's arguments to be without merit, I am not prepared, on the basis of the record before me, to rule that Donnelley is precluded from commencing any activity on its own behalf in the Philadelphia area before November 1, 1986. Due to the hypothetical nature of the present controversy, any discussion of the merits of the case may be premature. I must therefore address the question of whether I have the power to adjudicate the present dispute.
The threshold question in every federal case, which determines whether the court has the power to entertain the suit before it, is whether the plaintiff has made out a "case or controversy" within the meaning of Article III of the Constitution. To satisfy the requirements of Article III, the plaintiff must demonstrate that it has suffered or will suffer a palpable injury due to the challenged conduct of the defendant and that the injury will be redressed by the relief requested. See, e.g., Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 81, 57 L. Ed. 2d 595, 98 S. Ct. 2620 (1978). Recent Supreme Court decisions have articulated the Article III inquiry in terms of standing. See City of Los Angeles v. Lyons, 461 U.S. 95, 102, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983); Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975).
A plaintiff need not wait for an actual injury to occur in order to present a justiciable case or controversy. See In re Grand Jury Proceedings, 625 F.2d 1106, 1108 (3d Cir. 1980). Where the plaintiff complains of threatened as opposed to actual harm, the court must determine whether the case is ripe for adjudication, i.e., whether the need for a current adjudication outweighs the possibility of a decision based on an imcomplete factual record or on circumstances which may change. See Democratic Party of the United States v. National Conservative Political Action Committee, 578 F. Supp. 797, 807-08 (E.D.Pa. 1983), modified, 470 U.S. 480, 105 S. Ct. 1459, 84 L. Ed. 2d 455 (1985). The doctrines of ripeness and standing are similar; both prevent courts from becoming enmeshed in abstract issues. See Warth v. Seldin, 422 U.S. at 499 n.10; Pence v. Andrus, 586 F.2d 733 (9th Cir. 1978).
Some courts have considered the question of ripeness as a part of the Article III "case or controversy" requirement. See Spencer v. Honorable Justices of the Supreme Court of Pennsylvania, 579 F. Supp. 880, 882 n.1 (E.D.Pa. 1984), aff'd mem., 760 F.2d 261 (3d Cir. 1985) (issue of ripeness subsumed in requirement of actual or threatened injury); Democratic Party of the United States v. National Conservative Political Action Committee, 578 F. Supp. at 812. Other courts treat ripeness as a combination of the constitutional requirements of Article III and the practical determination of whether the clarity and concreteness of the issues and underlying facts will improve with the passage of time. See Goldberg v. Rostker, 509 F. Supp. 586, 591 (E.D.Pa. 1980), rev'd on other grounds, 453 U.S. 57, 69 L. Ed. 2d 478, 101 S. Ct. 2646 (1981); Amico v. New Castle County, 553 F. Supp. 738, 740-43 (D.Del. 1982). Whether stated in terms of standing or ripeness, the operative inquiry is whether the threatened injury is sufficiently describable and certain to permit the court to decide a real controversy as opposed to a set of hypothetical questions.
The parties have stipulated that as of July 1, 1986, or shortly thereafter, Donnelley plans to begin soliciting within the City of Philadelphia for a Donnelley Philadelphia directory which will be distributed in or around Philadelphia. The nature and scope of Donnelley's contemplated conduct, however, is unclear. Donnelley has frequently modified its proposals concerning its course of conduct after July 1, 1986, and has not foreclosed the possibility of further alteration of its plans. Robert Sullivan, assistant to the vice-president and general manager of Donnelley Directory, testified that the most current document concerning Donnelley's activities on its own behalf after July 1 had been written the previous night. Sullivan also testified that he could not say for certain whether Donnelley's position would change between the date of the hearing and July 1.
Furthermore, Donnelley has not indicated how its sales force which is soliciting for the Bell transition directories will respond to inquiries concerning the forthcoming Donnelley proprietary directories. For example, a Donnelley salesperson soliciting advertisers for one of Bell's transition directories may be asked whether an advertisement in one of the new Donnelley directories would be more effective. The Donnelley salesperson's response would have to be carefully tailored to avoid violating paragraph 1(d) of the consent decree, which precludes Donnelley from "disparaging Bell of Pennsylvania or Bell of Pennsylvania's directories directly, indirectly or by implication." Although Sullivan suggested ways in which Donnelley salespeople would reply to this hypothetical question, he also testified that Donnelley had not yet instructed its sales force on how to respond to this type of inquiry and that no proposal addressing this issue had been put in writing by Donnelley's management.
What I am being asked to do, in effect, is issue an advisory opinion delineating what Donnelley may undertake to do on its own behalf after July 1 consistent with the restrictions imposed by the consent decree. Supposedly the consent decree was written for this very purpose; if so, I have to question why the matter of Donnelley's conduct after July 1, 1986 was left so open to dispute.
Whether viewed in terms of standing or ripeness, I conclude that the present controversy is not appropriate for judicial resolution. Proper adjudication requires a factual context which is sufficiently concrete to ensure resolution of the issues. A factual setting as ill-defined as the one before me cannot support a decision on the merits.
I will be in a better position to determine whether Donnelley has violated the terms of the consent decree when it has been proven to me precisely what Donnelley has actually done after July 1.
Accordingly, I decline to rule on plaintiff's motion to enforce on the present state of the record and will deny the motion to enforce.
This 17th day of June, 1986, it is ORDERED that the Motion of The Bell Telephone Company of Pennsylvania for Enforcement of the Consent Decree is DENIED.
ALFRED L. LUONGO, Chief Judge