MEMORANDUM AND ORDER

WILLAIM H. PAULEY III, District Judge:

Plaintiffs Connecticut Mobilecom, Inc. ("Mobilecom") and Connecticut Telephone and Communications Systems, Inc. ("CTTEL") (together, "plaintiffs") are telecommunications resellers. Presently before this Court [*2] are motions by defendants Cellco Partnership, d/b/a Verizon Wireless ("Verizon Wireless") and Verizon Communications, Inc. ("Verizon Communications") to dismiss Counts I, V and VII of the Third Amended Complaint (the "Complaint" or "Compl.") alleging violations of the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. § 42-110(a) (2003), tortious interference with prospective contractual and business relations, and violations of the Lanham Act, 15 U.S.C. § 1125(a) (2003), respectively. Simultaneously, Verizon Communications moves to dismiss Counts II and III of the Complaint alleging violations of Section I of the Sherman Act, 15 U.S.C. § 1 (2003), and the Connecticut Antitrust Act, Conn. Gen. Stat. § 36-26 (2003). For the following reasons, Verizon Wireless' motion to dismiss is granted in part and denied in part, and Verizon Communications' motion to dismiss is granted.

BACKGROUND

For purposes of these motions, the allegations in the Complaint are accepted as true. Mobilecom purchases cellular services at wholesale rates from Verizon Wireless and resells those services [*3] at a mark-up to consumers. (Comp. P 34, 39.) CTTEL purchases and resells local and long distance landline telephone, internet and paging services. (Compl. P 35.) CTTEL also provides broadband local telecommunications service in Connecticut for which it uses telephone lines owned by Southern New England Telephone ("SNET"), the local exchange carrier. (Compl. P 35.) Both plaintiffs operate under the trade name "Connecticut Telephone." (Compl. P 36.)

Verizon Wireless sells cellular services directly to its own customers at retail rates, as well as to resellers such as Mobilecom. (Comp. P 39.) Thus, Mobilecom is both a customer and a competitor of Verizon Wireless. (Compl. P 65.) This arrangement was established pursuant to the Federal Communications Act of 1934, 47 U.S.C. § 332(c) (2003), which obligates common carriers such as Verizon Wireless, as defined in 47 U.S.C. § 153(h) (2003), to provide service to all customers - including resellers - on reasonable, non-discriminatory terms. Verizon Communications is the incumbent provider of landline telephone services in several states in the Northeastern United States, including Massachusetts, [*4] New York and New Jersey. (Compl. P 125.) Verizon Communications is also the local provider in Greenwich, Connecticut. (Compl. P 125.)

I. Allegations Against Verizon Wireless

On August 27, 1997, Verizon Wireless and Mobilecom entered into a contract whereby Verizon Wireless agreed to sell cellular services to Mobilecom at wholesale for resale to Mobilecom's customers. (Compl. PP 34, 73.) Verizon Wireless allegedly terminated all services to Mobilecom on June 3, 2002 on the pretext that Mobilecom was unable to bring its account current. (Compl. PP 92-103, 105.)

Mobilecom claims that Verizon Wireless engaged in a pattern of unfair business practices that hindered its ability to survive as a reseller. (Compl. PP 1-6.) Mobilecom alleges that Verizon Wireless put it at a competitive disadvantage while retaining it as a purchaser because of Verizon Wireless' significant market power as a wireless common carrier. (Compl. P 63.) This market power derives from the absence of "number portability" - that is, customers' inability to change service providers while retaining the same telephone number because of the substantial costs, especially for businesses, in attempting to do so. Plaintiffs [*5] argue that the absence of number portability gives wireless common carriers considerable market power over customers and resellers. n1 (Compl. PP 63-65.)

n1 Recent changes to the federal telecommunications regulations have introduced number portability by enabling customers to change mobile phone companies while retaining their wireless numbers. See 47 C.F.R. § 52.31 (2003). This development does not affect the underlying facts here because number portability did not exist at the time the complained of conduct occurred.

Plaintiffs allege that Verizon Wireless abused its market power in a number of ways. (Compl. PP 1-18.) First, Verizon Wireless allegedly discriminated against Mobilecom by offering superior prices and services to Verizon's direct customers in violation of its obligations as a common carrier under the Federal Communications Act. (Compl. PP 42, 53.) Further, plaintiffs assert that Verizon Wireless failed to provide Mobilecom with the same ancillary services, including [*6] long-distance, that Verizon Wireless provided to its own customers, thus impeding Mobilecom's ability to compete as a reseller. (Compl. PP 78, 80-81, 84.)

Second, Verizon Wireless also purportedly entered into negotiations with Mobilecom during 2000 regarding the purchase of Mobilecom's customer base as part of a scheme to acquire information about the reseller's customers. (Compl. PP 89-91.) Mobilecom alleges that Verizon Wireless used proprietary data garnered during these negotiations to solicit Mobilecom's customer base directly. (Compl. PP 42, 89-91.)

Third, plaintiffs allege that Verizon Wireless attempted to tie the sale of cellular service to the sale of long-distance service by offering Mobilecom generic long-distance service only if Mobilecom agreed to purchase such service for all its customers, regardless of their individual needs. (Compl. PP 85-87.)

Fourth, Verizon Wireless' termination of cellular service to Mobilecom allegedly lacked any legitimate business purpose and was effected solely in retaliation for Mobilecom's refusal to accept a new contract. (Compl. PP 43-44.) In April 2002, Verizon Wireless proposed a new contract, which would have imposed various onerous [*7] conditions on Mobilecom. (Compl. P 97.) Verizon Wireless allegedly pressured Mobilecom either to accept or reject the proposed contract by May 15, 2002. (Compl. PP 100-101.) When Mobilecom failed to do so, Verizon Wireless issued a "default" notice and, on June 3, 2002, terminated service to all Mobilecom customers. (Compl. P 105.) Consequently, Mobilecom filed a voluntary Chapter 11 petition and then commenced this adversary proceeding. (Compl. PP 4-6, 106.)

Finally, plaintiffs allege that Verizon Wireless initiated a campaign to defame plaintiffs and steal their customers. (Compl. P 107.) While Verizon Wireless knew that both plaintiffs operated under the trade name "Connecticut Telephone," and that CTTEL was not a party to the dispute, Verizon allegedly disseminated fraudulent statements about Connecticut Telephone to Mobilecom customers and the press. The Hartford Courant published two of the allegedly defamatory statements, namely that Connecticut Telephone was not authorized to resell Verizon Wireless services and that Connecticut Telephone had been warned that its reseller status was in jeopardy. (Compl. PP 108, 109.)

In addition to identifying specific Mobilecom customers, [*8] plaintiffs allege that Verizon Wireless diverted the business of Foxwoods Casino and Resort from Mobilecom by offering lower rates than Verizon had offered to Mobilecom. (Compl. P 114.) Plaintiffs maintain that Verizon Wireless' knowing falsehoods caused Mobilecom to lose existing customers and thus the opportunity to sell add-on services, such as high-speed internet access, to them. (Compl. P 116.)

II. Allegations Against Verizon Communications

CTTEL alleges that Verizon Communications has conspired with SBC Communications, Inc. ("SBC") and its subsidiary, SNET, to restrict telephone service competition in each other's geographic markets. (Compl. P 18.) While the Telecommunications Act authorized existing telephone companies to offer local telephone services in each other's territories, they have for the most part stayed out of one another's landline markets. (Compl. PP 54, 119.) Plaintiffs contend that this is the product of collusion among existing landline telephone companies to allocate geographic markets. (Compl. PP 120, 122.) Thus, incumbent providers are allegedly able to exert significant control over the regulatory process, which results in higher wholesale prices [*9] for resellers. (Compl. P 123.)

Despite Verizon Communications' strong market position in areas surrounding Connecticut, and a beachhead in Greenwich, it has not expanded in that state. (Compl. PP 119, 122, 125.) Plaintiffs allege that Verizon Communications has conspired with SBC to refrain from making inroads in the Connecticut market in return for SBC's agreement to stay out of areas where Verizon is the incumbent. (Compl. PP 122, 125.) Plaintiffs argue that if Verizon Communications had entered Connecticut, it would have used its resources to influence the regulatory environment and foster more favorable conditions for competitors and resellers. (Compl. P 132.)

DISCUSSION

I. Standards for A Motion to Dismiss

On a motion to dismiss, a court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in a plaintiff's favor. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). A court should not dismiss a complaint for failure to state a claim unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80 (1957). [*10] In this limited task, the "issue is not whether plaintiff will or might ultimately prevail on her claim, but whether plaintiff is entitled to offer evidence in support of allegations in the complaint." Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 62 (2d Cir. 1997).

On a motion to dismiss, a plaintiff need only give a short plain statement that gives notice to the opposing party in an antirust suit. George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 554 (2d. Cir. 1977); In re Nine West Shoes Antitrust Litig., 80 F. Supp. 2d 181, 185 (S.D.N.Y. 2000). Accordingly, there are no heightened pleading requirements for antitrust cases. See Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001). Moreover, "in antitrust cases in particular, the Supreme Court has stated that 'dismissals prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly.'" George Haug Co. v. Rolls Royce Motor Cars, Inc., 148 F.3d 136, 139 (2d Cir. 1998) (quoting Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 746, 48 L. Ed. 2d 338 (1976)). [*11] However, it is improper "to assume that the [plaintiff] can prove facts that it has not alleged or that the defendants have violated the antitrust laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526, 74 L. Ed. 2d 723 (1983).

II. Verizon Wireless' Motion to Dismiss

A. Count I - Violation of the Connecticut Unfair Trade Practices Act

CUTPA provides that "no person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Conn. Gen. Stat. § 42-110b(a) (2003). Courts construe CUTPA broadly, as it "is the intention of the legislature that this chapter be remedial and be so construed." Conn. Gen. Stat. § 42-110b(d)(2003); see also Associated Inv. Co. L.P. v. Williams Assocs. IV, 230 Conn. 148, 645 A.2d 505, 510 (Conn. 1994) ("there is 'no ... unfair method of competition, or unfair [or] deceptive act or practice that cannot be reached [under CUTPA]."') (internal quotations omitted).

Verizon Wireless moves to dismiss plaintiffs' [*12] CUTPA claim on four grounds: (1) CUTPA does not apply to wireless common carriers such as Verizon; (2) CUTPA is preempted by the Federal Communications Act; (3) plaintiffs' claims regarding the reasonableness of Verizon's rates are within the primary jurisdiction of the FCC; and (4) the CUTPA claim is predicated upon a flawed antitrust tying theory.

1. Applicability of CUTPA to Wireless Common Carriers

Despite CUTPA's broad reach, the Connecticut Supreme Court has held that certain regulated entities are exempt. See Connelly v. Hous. Auth., 213 Conn. 354, 567 A.2d 1212, 1217 (Conn. 1990). In determining whether a regulated entity is exempt from CUTPA, it is necessary to consider and balance four factors:

(1) applicability of Federal Trade Commission rules to the suspect conduct and the absence of any Federal Trade Commission regulatory activity over industry practices; (2) the existence and scope of an alternate comprehensive regulatory scheme or system; (3) the absence of any activity by the [Connecticut] commissioner of consumer protection within this area; and (4) the case law of other jurisdictions.

Normand Joseph Enters., Inc. v. Conn. Nat'l Bank, 230 Conn. 486, 646 A.2d 1289, 1302 (Conn. 1994). [*13] The burden of proving the exemption rests with the party claiming it. Conn. Gen. Stat. § 42-110c (2003). Verizon Wireless fails to carry this burden.

Regarding the first Normand Joseph factor, Verizon Wireless argues that it is exempt from CUTPA because its conduct is not covered by the Federal Trade Commission Act ("FTC Act"). While the FTC Act on its face does not apply to common carriers that are subject to the Federal Communications Act n2, the Normand Joseph court held that banks' exemption from the FTC Act did not alone exempt them from CUTPA. Normand Joseph, 646 A.2d at 1301. The Normand Joseph court explained that Section 5(a)(1) of the FTC Act is the source of CUTPA's substantive standards for regulating unfair trade practices, while banks derive their FTC Act exemption from Section 5(a)(2). See Normand Joseph, 646 A.2d at 1301. The court reasoned that it would be inconsistent with the remedial purposes of CUTPA to broaden Section 42-110b(b)'s reference to Section 5(a)(1) of the FTC Act by including the blanket exemption for banks contained in Section 5(a)(2), even though the court recognized the FTC's [*14] authority to promulgate rules impacting the conduct of banks. Normand Joseph, 646 A.2d at 1302-03 ("Courts should not create exemptions that the legislature has not enacted.").

n2 The FTC Act exempts common carriers subject to the "Acts to regulate commerce." 15 U.S.C. § 45(a)(2) (2003). The "Acts to regulate commerce" include the Federal Communications Act of 1934. 15 U.S.C. § 44 (2003)

Like the banks in Normand Joseph, common carriers such as Verizon Wireless find their exemption from the FTC Act in Section 5(a)(2). See 15 U.S.C. § 45(a)(2) (2003). Further, the Connecticut legislature did not include common carriers among the exclusive list of entities expressly exempted from CUTPA. See Conn. Gen. Stat. § 42-110c. While no Connecticut court has spoken directly to this issue, the district court in Valdes v. Qwest Communications Int'l, Inc., allowed a CUTPA claim to proceed against Qwest, [*15] a common carrier, despite the fact that the conduct at issue was not regulated by the FTC Act. 147 F. Supp.2d 116, 124 (D. Conn. 2001).

In view of the broad remedial purpose of the statute and the Connecticut Supreme Court's caution against creating exemptions not enacted by the legislature, this Court cannot conclude as a matter of law that wireless common carriers are exempt from CUTPA solely because the FTC Act does not regulate them.

Regarding the second Normand Joseph factor, Verizon Wireless argues that because the rates charged by common carriers are comprehensively regulated by the FCC through the Federal Communications Act, CUTPA is inapplicable. See Normand Joseph, 646 A.2d at 1304; see also Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 510 A.2d 972, 976 (Conn. 1986) (refusing to apply CUTPA to the sale of securities because of comprehensive regulation by Securities and Exchange Commission).

The Federal Communications Act makes clear that issues concerning rates charged by commercial mobile services are governed exclusively by the FCC. See 47 U.S.C. § 32(c)(3)(A). However, the Federal [*16] Communications Act expressly reserves to the states the ability to regulate "terms and conditions of commercial mobile services" other than their rates. 47 U.S.C. § 332(c)(3)(A) (2003). Therefore, in contrast to the pervasive federal securities laws in Russell, there is no alternative statutory scheme, either in Connecticut or at the federal level, to govern the non-rate setting business practices of common carriers. Thus, an alternative regulatory system as contemplated by Normand Joseph does not govern the trade practices other than rate setting of wireless common carriers. Because plaintiffs' CUTPA claim is premised on issues other than Verizon Wireless' rates, including, inter alia, a defamatory campaign and pretextual negotiations for the purpose of stealing Mobilecom's customer base, Verizon Wireless has not satisfied the second Normand Joseph factor.

The third Normand Joseph factor requires courts to consider whether the commissioner of consumer protection has sought to enforce CUTPA in a given industry or against a specific type of entity. 646 A.2d at 1305. Since 2000, the Connecticut Attorney General and Commissioner [*17] of Consumer Protection have initiated CUTPA suits against common carriers such as AT&T. (Pl.s Op., Exs. A-B.) n3 Accordingly, the third Normand Joseph factor does not weigh in favor of exemption. See Conn. Gen. Stat. § 42-110c (2003).

n3 Plaintiffs have attached press releases to their brief in opposition to Verizon Wireless' Motion to Dismiss concerning the Commissioner's activities in this area. It is proper for this Court to take judicial notice of these press releases. See In re Merrill Lynch & Co., Inc., 273 F. Supp.2d 351, 356-57 (S.D.N.Y. 2003) (on a 12(b)(6) motion, court may consider facts of which judicial notice may be taken under Rule 201 of the Federal Rules of Evidence); In re Ashworth, Inc. Securities Litig., No. 99CV0121-L (JAH), 2000 WL 33176041, at *3 (S.D. Cal. Jul. 18, 2000) (taking judicial notice of press releases pursuant to Federal Rule of Evidence 201).

[*18]

Finally, with respect to the fourth Normand Joseph factor, neither party has cited precedent from other jurisdictions either applying other states' unfair trade statutes to common carriers or holding that other states' unfair trade practices are inapplicable to common carriers.

Because Verizon Wireless, as the party claiming to be exempt, has not met its burden of showing that the four Normand Joseph factors weigh in favor of exemption, its motion to dismiss Count I of the Complaint on the basis that CUTPA is inapplicable to wireless common carriers is denied.

2. Preemption of CUTPA by the Federal Communications Act

Verizon Wireless next argues that because plaintiffs' CUTPA claim is premised on a challenge to the reasonableness of Verizon Wireless' rates, it is preempted by Section 332(c) of the Federal Communications Act. 47 U.S.C. § 332(c)(3)(A) ("No State or local authority shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services."). [*19]

To the extent that plaintiffs' CUTPA claim rests on a challenge to Verizon Wireless' rates, it is expressly preempted by Section 332(c)(3)(A) of the Federal Communications Act. 47 U.S.C. § 332(c)(3)(A); see also Gatton v. T-Mobile USA, Inc., No. SACV 03-130 DOC, 2003 WL 21530185, at *8-9 (C.D. Cal. Apr. 18, 2003) (state unfair trade practices claim preempted by Section 332(c)(3) because it required assessment of reasonableness of wireless carrier's billing factor). However, as noted in Section I.A.1., supra, plaintiffs' CUTPA claim is also premised on allegations that Verizon Wireless tried to steal Mobilecom's customers, terminated Mobilecom's service without justification, and mounted a defamatory campaign against plaintiffs. Thus, to the extent that plaintiffs' CUTPA claim challenges "other terms and conditions" of Verizon Wireless' relationship with Mobilecom, it is not preempted. See, e.g., Valdes, 147 F. Supp. at 122 (holding that Congress did not intend the Federal Communications Act to occupy the field of unfair trade practices). Plaintiffs may thus proceed with their CUTPA claim but may not rely on a challenge to Verizon Wireless' [*20] rates as the basis for this claim.

3. FCC Primary Jurisdiction

Verizon contends that because plaintiffs' CUTPA claim centers on the reasonableness of Verizon's rates, a matter within the FCC's expertise, plaintiffs' claims should be referred to the FCC. Under the primary jurisdiction doctrine, issues within the special competence of an administrative agency, such as the FCC, should be referred to that agency. Ricci v. Chicago Mercantile Exch., 409 U.S. 289, 304, 34 L. Ed. 2d 525 (1973); see also MFS Sec. Corp. v. N.Y. Stock Exch., Inc., 277 F.3d 613, 620-21 (2d Cir. 2002) (lawfulness of NYSE's practices referred to SEC under primary jurisdiction doctrine).

If plaintiffs' CUTPA claim were based only on issues pertaining to Verizon Wireless' rates, the claim would lie within the FCC's primary jurisdiction. See, e.g., AT&T Co. v. IMR Capital Corp., 888 F. Supp. 221, 244 (D. Mass. 1995) ("[A] determination of the reasonableness or discriminatory nature of common carrier rules and charges is squarely at the heart of the FCC mandate."). However, as discussed earlier, plaintiffs also base their CUTPA claim on allegations other than [*21] rate setting. See supra Sections I.A.1-2. The plain language of the Federal Communications Act makes clear that issues such as defamation or the theft of customers are matters of state law. See 47 U.S.C. § 32(c)(3)(A) ("other terms and conditions" of wireless mobile services reserved to the states); see also Williams Assocs., 645 A.2d at 510 ("there is no unfair method of competition, or unfair or deceptive act or practice that cannot be reached under CUTPA."). Therefore, Verizon Wireless' motion to dismiss Count I on primary jurisdiction grounds is denied.

4. Plaintiffs' Tying Theory as a Basis for CUTPA

Finally, in support of its argument to dismiss Count I, Verizon Wireless argues that plaintiffs' CUTPA claim is premised on a legally defective tying claim.

To allege a tying claim, a party must plead five elements: (1) a tying product and a tied product; (2) actual coercion by the seller that forced the buyer to accept the tied product; (3) market power in the tying product market sufficient to coerce purchaser acceptance of the tied product; (4) anticompetitive effects in the tied product market; and (5) involvement of a "not [*22] insubstantial" amount of interstate commerce in the tied product market. Hack v. Pres. and Fellows of Yale Coll., 237 F.3d 81, 85-86 (2d Cir. 2000).

Plaintiffs' tying claim is legally inadequate because it fails to allege anticompetitive effects in the tied product market. See Cancall PCS, LLC v. Omnipoint Corp., No. 99 Civ. 3395 (AGS), 2001 WL 293981, at *4 (S.D.N.Y. Mar. 26, 2001) (dismissing tying claims for failure to allege anticompetitive impact in tied product market). Also fatal to plaintiffs' tying claim is their failure to allege antitrust injury. To plead antitrust injury, plaintiffs must allege that the challenged action has had actual adverse effects on competition as a whole in the relevant market rather than just individual harm. See Capital Imaging Assocs., P.C. v. Mohawk Valley Med. Assocs., Inc., 996 F.2d 537, 543 (2d Cir. 1990). Plaintiffs make no such allegation.

However, there are valid bases for plaintiffs' CUTPA claim other than an illegal tying arrangement, including (1) defamation, (2) termination of Mobilecom's service, and (3) theft of Mobilecom's customers. Therefore, Verizon Wireless' argument that plaintiffs' [*23] CUTPA claim must be dismissed because it relies on an erroneous antitrust theory is unavailing.

Accordingly, Verizon Wireless' motion to dismiss Count I is denied. However, plaintiffs' are precluded from premising their CUTPA claim on an antitrust tying theory.

B. Count V - Tortious Interference with Prospective Contractual and Business Relations

Next, Verizon Wireless moves to dismiss Count V of the Complaint, alleging tortuous interference with prospective contractual and business relations. To state a claim for tortious interference with prospective contractual and business relations under Connecticut law n4, a plaintiff must plead that: (1) a prospective business relationship existed between the plaintiff and a specific third party, or at least that there was a reasonable probability that the plaintiff would have entered into a contract or made a profit with that third party; (2) the defendant knew of the relationship; (3) the defendant intentionally interfered with the relationship; and (4) as a result of the defendant's tortious conduct, the plaintiff suffered actual, ascertainable loss. See Hi-Ho Tower, Inc. v. ComTronics, Inc., 255 Conn. 20, 761 A.2d 1268, 1275 (Conn. 2000); [*24] Amatulli Imports, Inc. v. Nargezian, No. 30 90 84, 1993 WL 11937, at *3 (Conn. Super. Ct. Jan. 19, 1993); Norden Sys., Inc. v. Gen. Dynamics Corp., No. CV89 0101260 S, 1990 WL 264084, at *3 (Conn. Super. Ct. Nov. 8, 1990).

n4 Because the alleged tort in this case occurred in Connecticut, Connecticut law applies. See, e.g., Continental Cas. Co. v. Pullman, Comley, Bradley & Reeves, 929 F.2d 103, 105 (2d Cir. 1991) (applying Connecticut state law to tort arising from actions in Connecticut).

Plaintiffs argue that Mobilecom was deprived of the opportunity to sell additional services to its existing customers as a result of Verizon Wireless' wrongful acts. While plaintiffs identify several existing Mobilecom customers that Verizon Wireless allegedly tried to steal (Compl. PP 113-115), they fail to allege prospective business relations with any of them - i.e., that these customers would actually have purchased various add-on services from Mobilecom but for Verizon's interference. [*25] Such a finding is fatal to plaintiffs' tortuous interference with prospective business and contractual relations claim. See Amatulli, 1993 WL 11937, at *3 ("It is essential to a cause of action for unlawful interference with business that ... there was a reasonable probability that the plaintiff would have entered into a contract or made a profit.") (internal quotations omitted); Norden, 1990 WL 264084, at *3 (alleged actual loss cannot be speculative for tortious interference with prospective contractual and business relations claim). Accordingly, Verizon Wireless' motion to dismiss Count V of the Complaint is granted and plaintiffs' claim for tortious interference with prospective business and contractual relations is dismissed.

C. Count VII - Lanham Act Violations

Finally, Verizon Wireless moves to dismiss plaintiff's Lanham Act claim.

Section 43 of the Lanham Act, 15 U.S.C. § 1125(a) (2003), authorizes two types of claims for unscrupulous commercial conduct likely to cause confusion as to the source and other qualities of goods or services. See Thompson Med. Co. v. Pfizer, Inc., 753 F.2d 208, 212 n.3 (2d Cir. 1985). [*26]

The "unfair competition" or "consumer confusion" section of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A) (2003) ("Section A"), is intended to prevent confusion, mistake, or deception regarding the source of goods or services. Target Adver. v. Miller, No. 01 Civ. 7614 (AGS), 2002 WL 999280, at *6 (S.D.N.Y. May 15, 2002). Section A provides in relevant part:

Any person who, or in connection with any goods or services ... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation or origin, false or misleading description of fact, which --

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person ... shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C. § 1125(a)(1)(A).

The "false advertising" provision of the Lanham Act, 15 U.S.C. § 1125 (a)(1)(B) [*27] (2003) ("Section B"), is intended to prevent confusion, mistake, or deception regarding the characteristics or qualities of goods or services. Target, 2002 WL 999280, at * 8. Section B provides in pertinent part:

Any person who ... in connection with any goods or services ... uses in commerce any word, term, name symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which-

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C. § 1125 (a)(1)(B).

1. Plaintiffs' Unfair Competition Claim

To state a claim under Section A, plaintiffs must allege facts indicating that their trade names, or "marks," are entitled to protection, and that there is a likelihood of confusion in Verizon Wireless' use of a similar name. Yarmouth-Dion, Inc. v. D'Ion Furs, Inc., 835 F.2d 990, 992-93 (2d Cir. 1987); [*28] Textile Deliveries, Inc. v. Stagno, No. 90 CIV. 2020 (JFK), 1990 WL 155709, at *4 (S.D.N.Y. Oct. 9, 1990).

Verizon Wireless argues that plaintiffs fail to state a Section A claim because the language in their Complaint mirrors the false advertising language of Section B, rather than the consumer confusion language of Section A. Verizon Wireless is correct that Count VII of the Complaint tracks only the language of Section B. Nevertheless, this Court reads the complaint as a whole and draws all inferences in plaintiffs' favor on a motion to dismiss. Gibson, 355 U.S. at 45-46. Thus, plaintiffs' Lanham Act claim must be considered in context with the entire Complaint. Plaintiffs allege several misstatements by Verizon Wireless concerning the status and activities of "Connecticut Telephone," the trade name for Mobilecom and CTTEL. (Compl. P 108.) Several of these misstatements - for example, that Connecticut Telephone caused the June 3, 2002 shutdown (Compl. P 108) - could be construed as relating to the affiliation or origin of plaintiffs' services because consumers might reasonably construe this statement to mean that CTTEL and not Mobilecom had been [*29] a party to that dispute. Furthermore, the Complaint alleges quite palpably that, as a result of Verizon Wireless' misstatements, consumers were confused as to the source of Connecticut Telephone's wireless service. (Compl. P 15.) Thus, the Complaint clearly alleges consumer confusion "regarding the source of goods or services," Target, 2002 WL 999280, at * 6, and accordingly alleges a Section A claim. See 15 U.S.C. § 1125(a)(1)(A) (creating liability for misrepresentations concerning "affiliation, connection, or association" and "origin, sponsorship, or approval" of goods or services).

Verizon Wireless also argues that plaintiffs fail to allege that they own a valid mark capable of protection. EMI Catalogue P'Ship v. Hill, Holliday, Connors, Cosmopulos, 228 F.3d 56, 62 (2d Cir. 2000) (a "plaintiff claiming unfair competition under [Section A] must show that it owns a valid trademark eligible for protection."). Specifically, Verizon Wireless contends that the trade name "Connecticut Telephone" is merely a descriptive mark - that is, one that describes the qualities or other features of plaintiffs' services naturally and [*30] in ordinary language. Thompson Med. Co., 753 F.2d at 212. Without proof of secondary meaning, descriptive marks are not protectible. Thompson Med. Co., 753 F.2d at 212; see also 815 Tonawanda Street Corp. v. Fays Drug Co., Inc., 842 F.2d 643, 647 (2d Cir. 1988) (defining secondary meaning as the "power of a name or other configuration to symbolize a particular business, product or company."). Verizon argues the Complaint is defective because plaintiffs fail to allege that "Connecticut Telephone" has acquired any secondary meaning.

Plaintiffs do not dispute that Connecticut Telephone is a descriptive term. Thus, plaintiffs' trade name is eligible for protection if plaintiffs establish that the trade name acquired some secondary meaning. However, plaintiffs are not required to do so for pleading purposes, as the issue of whether a trade name has acquired secondary meaning is a question of fact and therefore not appropriately decided on a motion to dismiss. Textile Deliveries, Inc., 1990 WL 155709, at *6 (plaintiff stated unfair competition Lanham Act claim for descriptive mark without alleging secondary meaning). Accordingly, [*31] the Complaint properly states a claim for unfair competition under Section A.

2. Plaintiffs' False Advertising Claim

To state a false advertising claim under Section B of the Lanham Act, a plaintiff must allege that: (1) the defendant made false or misleading misrepresentations concerning the nature, characteristics, or quality of plaintiffs' services or commercial activities; (2) the misstatements were used in commerce; (3) the misstatements were made in the context of commercial advertising or promotion; and (4) the defendant's actions caused plaintiffs to believe they would be damaged by the misstatements. Gmurzynska v. Hutton, 257 F. Supp.2d 621, 628-29 (S.D.N.Y. 2003).

To satisfy the third element of a Section B claim, the alleged misrepresentation must consist of commercial speech that was made for the purpose of influencing customers to buy a defendant's goods or services. See Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 56-57 (2d Cir. 2002) (defining commercial speech as that which "is made for the purpose of influencing the purchasing decisions of [the] consuming public."). "Proof of widespread dissemination [*32] within the relevant industry is [also] a normal concomitant of meeting this requirement." Fashion Boutique, 314 F.3d at 57.

Verizon Wireless contends that plaintiffs fail to state a Section B claim because they do not specifically allege that Verizon Wireless' misstatements concerning Connecticut Telephone were made in "commercial advertising and promotion," as required by 15 U.S.C. § 1125(a)(1)(B). However, plaintiffs allege that Verizon Wireless embarked on a defamatory campaign to solicit Mobilecom's customers for itself by issuing defamatory statements about the reseller (Compl. PP 45-46, 110-11.) and thus for a commercial purpose.

Verizon Wireless further argues that plaintiffs have merely pled "isolated" and "sporadic" statements in a market consisting of millions of customers because they identify only a handful of Mobilecom clients to whom the alleged misrepresentations were made. See Med. Graphics Corp. v. SensorMedics Corp., 872 F. Supp. 643, 650 (D. Minn. 1994) ("isolated incidents" in which representative made alleged misstatements to potential customer insufficiently widespread to fall within Lanham Act). The [*33] widespread dissemination requirement does not, however, require a plaintiff to identify the number of recipients or the identity of each person to whom the alleged misrepresentations were made. Widespread dissemination is a fact-specific question that varies from case to case and industry to industry. See Avon Prods., Inc. v. Johnson & Son, Inc., 984 F. Supp. 768, 795 (S.D.N.Y. 1997) (distribution of 100 defamatory lists sufficient to state false advertising claim where target audience was in millions).

While plaintiffs have only identified a handful of Mobilecom customers that received Verizon Wireless' alleged misstatements, they allege that the misstatements about Connecticut Telephone were repeated to "countless other Mobilecom customers and to the press." (Compl. P 46.) Moreover, the Complaint alleges that Verizon Wireless issued "at least two" misleading statements to the Hartford Courant, a Connecticut newspaper. (Compl. P 108.) Accordingly, the Complaint alleges significant, albeit undefined, dissemination of the representations concerning Connecticut Telephone. Verizon Wireless' motion to dismiss plaintiffs' Section B claim is thus denied.

III. [*34] Verizon Communications' Motion to Dismiss

Verizon Communications moves to dismiss CTTEL's Sherman Act and Connecticut Antitrust Act claims on several grounds.

To assert a private action under the Sherman Act, a plaintiff must have antirust standing, which is based on a showing that he has been "injured in his business or property by reason of anything forbidden in the antitrust laws," 15 U.S.C. § 15(a) (2003); Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 110-11, 93 L. Ed. 2d 427 (1986). To establish antitrust standing, a plaintiff must show antitrust injury, which is defined as harm to competition in the relevant market as well as individual harm to the plaintiff. See Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334, 337, 109 L. Ed. 2d 333 (1990); Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 50 L. Ed. 2d 701 (1977).

In the market for landline telecommunications services in Connecticut, CTTEL is both a customer and a competitor of SBC/SNET. As a customer, it purchases SBC/SNET's services for resale. As a competitor, it competes with SBC/SNET for landline customers [*35] in Connecticut. CTTEL cannot establish antitrust injury either as a competitor or as a direct purchaser because the alleged harm is attributable not to Verizon Communications but, rather, to the Connecticut Department of Public Utility Control ("DPUC").

CTTEL alleges that, absent the agreement with SBC/SNET, Verizon Communications would have entered the Connecticut market and lobbied for lower wholesale rates, which are set by the DPUC. (Compl. P 132.) The Complaint asserts that in states where local incumbents face greater competition, "state regulators have established wholesale margins for resellers in the range of 40-45%." (Compl. P 124.) In Connecticut, by contrast, "state regulators ... have established a wholesale margin for the resale of the incumbent's telephone services of less than 25%." (Compl. P 124.) Were Verizon Communications to enter the Connecticut market, CTTEL argues, lower wholesale rates would benefit resellers in the form of higher profit margins. CTTEL, therefore, does not allege that the wholesale rates in Connecticut were set at less-than-competitive levels as the result of the agreement between Verizon Communications and SBC/SNET but, instead, that Verizon [*36] Communications has not used its resources to secure rates lower than those fixed by the DPUC.

The Sherman Act does not apply to anticompetitive restraints imposed by the states as acts of government. Parker v. Brown, 317 U.S. 341, 352, 87 L. Ed. 315 (1943). So-called "Parker immunity" extends to municipal governments as well. See City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 375, 377-78, 113 L. Ed. 2d 382 (1991). CTTEL alleges that Verizon Communications has not attempted to influence the DPUC to lower pre-existing rates. Because it is the DPUC that set the rates in question, CTTEL's grievance lies with the DPUC, which is immune under Parker. 499 U.S. at 375.

CTTEL argues that the DPUC merely sets wholesale minimums and that Verizon and SBC/SNET could charge lower rates. A similar argument was rejected in Sandy River Nursing Care v. Aetna Casualty, 985 F.2d 1138, 1146 (1st Cir. 1993), where the plaintiffs argued that insurers' charging uniform rates was not immune under Parker in light of a law allowing downward rate deviation. The First Circuit held that because of the state's uniform approach [*37] to ratemaking, the insurers were entitled to immunity as private parties acting pursuant to a statutory regime authorized, albeit not compelled, by the state. Sandy River, 985 F.2d at 1146. This Court is persuaded by the First Circuit's reasoning in Sandy River.

Further, CTTEL's reliance on Ice Cream Liquidation, Inc. v. Land O'Lakes, Inc., 253 F. Supp.2d 262, 267 (D. Conn. 2003), to establish antitrust injury is misplaced. Ice Cream Liquidation involved alleged collusion to fix prices of certain staple products that were components of a federally regulated formula for minimum milk prices. In Ice Cream Liquidation, however, the plaintiff's challenge was not to the federal milk pricing formula but, rather, to the defendants' conduct in manipulating the underlying components of the formula. 253 F. Supp.2d at 275. Here, by contrast, CTTEL's claims focus directly on the rates set by DPUC. Because CTTEL challenges what amounts to government action, it has not asserted cognizable claims under the antitrust laws. n5 Therefore, Verizon Communications' motion to dismiss Counts II and III of the Complaint is granted.

n5 Even assuming, arguendo, that CTTEL had antitrust standing, it lacks Article III standing required to bring an action against defendants. To satisfy the case or controversy requirement of Article III of the Constitution, a plaintiff must establish injury-in-fact, causation and redressability. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103, 140 L. Ed. 2d 210 (1998); Sierra Club v. Morton, 405 U.S. 727, 732, 31 L. Ed. 2d 636 (1972). Where the alleged injury is traceable not to the defendant but to the conduct of an independent third party the causation and redressability requirements cannot be satisfied. ASARCO Inc. v. Kadish, 490 U.S. 605, 615, 104 L. Ed. 2d 696 (1989). It is apparent from the Complaint that the current wholesale minimums in Connecticut were set by the DPUC independent of Verizon Communications' conduct. (Compl. PP 124, 132.) Therefore, CTTEL cannot seek a remedy from Verizon Communications.

[*38]

CONCLUSION

For the foregoing reasons, Verizon Wireless' motion to dismiss is granted as to Count V of the Complaint, and denied as to Counts I and VII. Further, Verizon Communications' motion to dismiss Counts II and III of the Complaint is granted. As plaintiffs have no remaining claims against Verizon Communications, it is dismissed as a defendant in this action.

Dated: December 23, 2003

SO ORDERED:

WILLIAM H. PAULEY III

U.S.D.J.