Robert J. DeBry v. Quest Dex, Inc.

2006 UT 41
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Robert J. DeBry and Associates,
No. 20050299
P.C., a Utah corporation,
Plaintiff and Appellant,
v.
Qwest Dex, Inc., a Colorado
corporation; and Dex Media West,
LLC, a Delaware limited liability
F I L E D
corporation,
Defendants and Appellees.
July 28, 2006
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Federal Certification
Attorneys: Lynn P. Heward, Salt Lake City, for plaintiff
Joseph J. Joyce, James D. Franckowiak, Salt Lake
City, Bobbee J. Musgrave, Paul J. Lopach, Denver,
CO, for defendant
---
On Certification from the United States Court of Appeals for the
Tenth Circuit, the Honorable Bobby R. Baldock
WILKINS, Associate Chief Justice:
¶1
Defendants Qwest Dex, Inc., and Dex Media West LLC
(collectively, "Dex") permit out-of-area businesses to purchase
local phone numbers and to advertise their available goods and
services in the Ogden area telephone directory. We have been
asked by the United States Court of Appeals for the Tenth Circuit
to determine whether Defendants violated Utah Code section 13-
11a-3(1)(b), (d), or (t) by publishing both a table of numerical
prefixes associated with "a local calling area" and
advertisements by third parties that include a market expansion
line telephone number without any physical business address; and
if so, whether Defendants are exempt from liability under Utah
Code section 13-11a-5(1). We conclude that Dex's actions did not
violate Utah Code section 13-11a-3(1). As a result, it is
unnecessary for us to address whether Dex is exempt under section
13-11a-5(1).

BACKGROUND
I. FACTUAL BACKGROUND
¶2
"We accept as true the facts described by the [Tenth
Circuit] in the certification order."1
¶3
Dex prints telephone directories, containing
residential and corporate phone numbers, throughout the State of
Utah. It also sells advertising in the "yellow page" section of
its directories.
¶4
Each city in Utah has a specific series of numerical
prefixes associated with the telephone listings in that city.
Toward the front of the phone book, Dex provides its customers
with a list of all prefixes affiliated with the local calling
area and states that "the prefix(es) listed beside your community
and those communities listed below it represent your local
calling area."
¶5
Dex permits businesses that do not have a "local
presence" in the particular geographic area to purchase a local
telephone number, known as a "Market Expansion Line" (MEL), to be
listed in the telephone directory.2 An MEL allows customers to
dial local telephone numbers to connect with out-of-area
businesses without incurring long distance charges. The MEL
phone numbers contain the designated numerical prefixes for
telephone listings in the specific geographic area. For example,
a business in Salt Lake City may purchase an MEL number with an
Ogden prefix, and a person in Ogden may then call the Salt Lake
City business without incurring long distance charges.
¶6
The Utah Public Service Commission, the government
agency responsible for telephone communications in the state, has
a written agreement with Dex regarding the MEL program. The
agreement, known as the "Exchange and Network Services Tariff"
(the Tariff), requires Dex to provide "one free listing in the
White and Yellow Page directories covering the exchange in which
the MEL CO is located." "[H]owever, at the customer's request,
the listing may be omitted at no charge." The language of the
Tariff does not expressly or impliedly require that the yellow
page listing contain an address.

1 Kunz v. Rockwell, 2004 UT 71, ¶ 2, 99 P.3d 793.

2 Some of these companies include the law firm of Siegfried
& Jensen, and a printer repair company known as Copy Doc, Inc.
No. 20050299
2

¶7
Plaintiff Robert J. DeBry and Associates (DeBry) hired
a marketing research firm to conduct a survey in the Ogden area
about the potential confusion resulting from Dex's MEL program.
The survey "show[ed] that 67% of Dex customers are tricked or
misled when they see a `Market Expansion Line' telephone number
in their local Dex yellow page directory with no listed address,
because they believe that the business or profession actually has
a local Ogden office." DeBry sent the results of the survey to
Dex.
¶8
DeBry contends that the advertisements containing MEL
numbers without addresses are deceptive and violate section 13-
11a-3(1)(b), (d), and (t) of the Utah Truth in Advertising Act
(UTIAA).3
II. PROCEDURAL BACKGROUND
¶9
DeBry sued Dex in a state district court for violations
of the UTIAA. Dex removed the case to the United States District
Court for the District of Utah. Pursuant to rule 12(b)(6) of the
Federal Rules of Civil Procedure, the federal district court
dismissed DeBry's complaint for failure to state a claim upon
which relief can be granted. Because Dex's conduct was in
compliance with the Tariff on file, the federal district court
did not decide the question of whether Dex was exempt from
liability under the UTIAA.4
¶10
DeBry appealed to the Tenth Circuit of the United
States. The Tenth Circuit, recognizing that neither the Utah
Supreme Court nor the Utah Court of Appeals has yet decided a
case arising under the UTIAA, certified the above question for
our review.
ANALYSIS
¶11
The Tenth Circuit has asked us for guidance in this
specific area of Utah law. Accordingly, we are not presented
with a decision to affirm or reverse, and traditional standards
of review do not apply.5 We have jurisdiction under Utah Code

3 Utah Code Ann. § 13-11a-3(1)(b), (d), (t) (2006).

4 See id. § 13-11a-5(1).

5 See Miller v. United States, 2004 UT 96, ¶ 10, 104 P.3d
1202, 1204.
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No. 220050299

section 78-2-2(1) to answer a question of law certified by the
Tenth Circuit.6
¶12
This is a case of statutory interpretation. We have
not been asked to focus on the merits of the federal court's
12(b)(6) motion. Therefore, our analysis focuses strictly on the
statutory language and on applying Dex's actions to the terms of
the UTIAA found in Utah Code section 13-11a-3(1)(b), (d), (t)
(2006):
(1) Deceptive trade practices occur when, in
the course of his business, vocation or
occupation:
. . .
(b) [a] person causes likelihood of
confusion or of misunderstanding as to
the source, sponsorship, approval, or
certification of goods or services.
. . .
(d) [a] person uses deceptive
representations or designations of
geographic origin in connection with
goods or services.
. . .
(t) [a] person engages in any other
conduct which similarly creates a
likelihood of confusion or of
misunderstanding7.
We conclude that Dex's practice of permitting corporations to
advertise MEL phone numbers without listing addresses does not
violate the UTIAA. Inasmuch as we have found no violation of

6 Utah Code section 78-2-2(1) states that "the Supreme Court
has jurisdiction to answer questions of state law certified by a
court of the United States."

7 Utah Code Ann. § 13-11a-3(1)(b), (d), (t) (2006).
No. 20050299
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the UTIAA, we need not reach the second question as to whether
Dex would be exempt from liability under Utah Code section 13-
11a-5.8
¶13
We first address the statutory language of Utah Code
section 13-11a-3(1)(b) to determine whether Dex has caused a
likelihood of confusion as to the source, sponsorship, approval,
or certification of goods or services. Next, we analyze whether
pursuant to section 13-11a-3(1)(d), Dex made deceptive
representations as to the geographic origin of the goods or
services. Third, we consider whether Dex engaged in "any other
conduct which similarly create[d] a likelihood of confusion or
of misunderstanding" as required by section 13-11a-3(1)(t).
I. DEX DID NOT VIOLATE SECTION 13-11A-3(1)(B) BECAUSE THE SOURCE,
SPONSORSHIP, APPROVAL, OR CERTIFICATION OF GOODS OR SERVICES IS
NOT MISLEADING OR CONFUSING
¶14
DeBry first argues that Dex's publication of MEL
numbers without addresses for out-of-area businesses violates
section 13-11a-3(1)(b) of the UTIAA. Under section 13-11a-
3(1)(b), deceptive trade practices occur when a person causes
"likelihood of confusion or of misunderstanding as to the source,
sponsorship, approval, or certification of goods or services."9
DeBry contends that when businesses list MEL numbers without
addresses in advertisements, those businesses mislead consumers
and violate this UTIAA provision. We disagree.
¶15
Although DeBry does not specify whether it claims the
source, sponsorship, approval, or certification of goods and
services is misleading, the implication based on the facts
presented is that DeBry challenges the publication of MEL numbers
without addresses as misleading as to the "source" of the
advertisement. Thus, we begin by looking at the common
definition of "source" as used in the statute. "Source" is
generally defined as "a point of origin" or "one that supplies
information."10 In light of these definitions, we interpret the
"source" of goods or services advertised in a telephone directory

8 The UTIAA exemption provision found in Utah Code section
13-11a-5 states, "This chapter does not apply to:
(1) conduct in compliance with the orders or rules of, or a
statute administered by, a federal, state, or local governmental
agency[.]"

9 Utah Code Ann. § 13-11a-3(1)(b) (2006).

10 Webster's Third New International Dictionary 2177 (1986).
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No. 220050299

to ordinarily be the business that placed the advertisement.
This will commonly be the company that financed the advertisement
for the purpose of endorsing its own goods or services. And this
"source"--the name of the business--is stated in the directory as
part of the listing or advertisement.
¶16
For example, in this case, DeBry argues that one of the
businesses advertising with an MEL number but no address is the
law firm of Siegfried & Jensen. In such an example, the "source"
of the advertised goods or services is Siegfried & Jensen because
the advertisement most likely originated with and was funded by
Siegfried & Jensen for the purpose of endorsing its legal
services. Additionally, Siegfried & Jensen probably supplied Dex
with the information contained in the advertisement.
¶17
Both the certification order and the record list
several other businesses that have purchased MEL numbers for the
same reason and have similarly advertised in the Ogden yellow
pages. Such advertisements are not misleading or confusing as to
the "source" of goods or services offered because the name of the
business and its products or services are generally printed on
the advertisement. Consequently, as publisher of those
advertisements, Dex has not violated section 13-11a-3(1)(b).
II. DEX'S PUBLICATION OF TELEPHONE NUMBERS DOES NOT CONSTITUTE A
REPRESENTATION OF GEOGRAPHIC ORIGIN OR LOCATION FOR WHICH DEX IS
LIABLE UNDER UTAH CODE SECTION 13-11A-3(1)(D)
¶18
DeBry next alleges that Dex uses "deceptive
representations or designations of geographic origin in
connection with goods or services."11 We conclude that Dex makes
no "representation or designation of geographic origin," much
less a deceptive one. Contrary to DeBry's assertions, Dex does
not purport to list only those businesses with offices physically
located in the calling area; rather, Dex merely lists the contact
information for businesses offering products or services to
customers in the calling area, regardless of the businesses'
geographic locations. For example, by listing the telephone
number for the law firm of Siegfried & Jensen, Dex does not
represent that the firm has an office in the calling area-it
only informs customers that the firm is willing to provide its
services to those located in the calling area. Absent a
representation as to geographic location, Dex could not have
violated Utah Code section 13-11a-3-(1)(d).

11 Utah Code Ann. § 13-11a-3(1)(d) (2006).
No. 20050299
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III. DEX DID NOT ENGAGE IN ANY OTHER CONDUCT THAT COULD SIMILARLY
CONFUSE OR MISLEAD UNDER SECTION 13-11A-3(1)(T)
¶19
Finally, DeBry contends that Dex violated the UTIAA's
"catch all" provision found in section 13-11a-3(1)(t), which
prohibits a person from engaging "in any other conduct which
similarly creates a likelihood of confusion or of
misunderstanding."12 Broadly speaking, MEL listings may result
in some confusion or misunderstanding among consumers-some may
presume that businesses with a local number have an office in the
vicinity. Nonetheless, the statute requires that any confusion
or misunderstanding must be of a magnitude similar to the related
provisions.
¶20
In assessing whether conduct "similarly creates a
likelihood of confusion or of misunderstanding," we note that the
statute generally addresses "false front" business operations
that attract customers by misrepresenting the nature, location,
source, or quality of their goods or services. DeBry contends
that MEL listings provide such a "false front" by permitting out-
of-area businesses to use local numbers. While perhaps confusing
to some, such a program does not invoke the type of deceptive
misrepresentation contemplated under the statute. As we have
noted, the Dex listings provide nothing more than a list of
businesses willing to provide services to the calling area. That
some consumers might presume more does not render the listings
misleading or confusing. DeBry has not alleged that merely
because the businesses are located outside the calling area, the
nature, location, source, or quality of their services would be
materially changed. As such, we cannot classify Dex's use of MEL
numbers without addresses as confusing or misleading under
section 13-11a-3(1)(t).
CONCLUSION
¶21
For the above reasons, Dex has not acted in violation
of the Utah Truth in Advertising Act (UTIAA). Dex's publications
did not cause a likelihood of misunderstanding or confusion as to
the source, sponsorship, approval, or certification of goods or
services as required by Utah Code section 13-11a-3(1)(b). Dex
did not use deceptive representations or designations of
geographic origin in connection with goods or services pursuant
to section 13-11a-3(1)(d). And Dex did not engage in any other
conduct similarly creating a likelihood of confusion or
misunderstanding pursuant to section 13-11a-3(1)(t).

12 Utah Code Ann. § 13-11a-3(1)(t) (2006) (emphasis added).
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No. 220050299

Consequently, we need not determine whether Dex would be exempt
under section 13-11a-5(1).
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Chief Justice Durham, Justice Durrant, Justice Parrish, and
Justice Nehring concur in Associate Chief Justice Wilkins'
opinion.
No. 20050299
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