Massachusetts Supreme Judicial / Appeals Courts

App. Ct. 600 (2005) GLOBAL NAPS, INC. v. VERIZON NEW
ENGLAND, INC.[fn1] No. 04-P-247. Appeals Court of
Massachusetts. Suffolk. December 7, 2004. May 23, 2005.

[fn1] Doing business as Verizon Massachusetts.

Present: Greenberg, Laurence, & Cohen, JJ.

“Anti-SLAPP” Statute. Constitutional Law, Right to petition
government. Statute, Construction.

In an action brought against a telecommunications provider
(defendant), alleging defamation and trade disparagement
arising from a statement made by the defendant’s employee to
a newspaper reporter, the judge properly denied the
defendant’s special motion to dismiss, brought pursuant to
G.L. c. 231, § 59H, the “anti-SLAPP” statute, where
the defendant failed to demonstrate that the statement in
question, which was a tangential statement intended, at
most, to influence public opinion in a general way
unrelated to governmental involvement, was made “in
connection with” a matter under review by the Department
of Telecommunications and Energy and thus constituted
protected petitioning activity as defined by the statute.

CIVIL ACTION commenced in the Superior Court Department on
January 28, 2003.

A special motion to dismiss was heard by Margaret R.
Hinkle, J.

Joseph D. Steinfield (David E. Plotkin with him) for the

Jeffrey C. Melick for the plaintiff.


At the center of this action is a clash between
telecommunications providers, both of which are regulated by
the Federal Communications Commission under the
Telecommunications Act of 1996, 47 U.S.C. §§
251 et seq. (2000). Pursuant to 47 U.S.C. §
252(b)(1), the plaintiff, Global NAPs, Inc. (Global),
brought two arbitration actions against the defendant,
Verizon New England (Verizon), which were resolved Page
601 in Verizon’s favor in 2002. Subsequent to those
decisions, one of which had already been appealed, Jack
Conroy, Verizon’s regulatory affairs chief, gave an
interview to a Boston Globe business reporter, who quoted
Conroy as having said that the arbitrator’s decision
essentially shut down a “scam” that Global very cleverly
had developed in the late 1990’s.

As a result, Global brought the instant action against
Verizon for defamation and trade disparagement. Verizon’s
special motion to dismiss pursuant to G.L. c. 231, §
59H (the anti-SLAPP[fn2] statute), was denied by a Superior
Court judge, and Verizon appeals.[fn3]

1. Background. At issue is whether G.L. c. 231, §
59H, protects Verizon from liability for the disparaging
statement Conroy made during the course of his interview
with the Boston Globe reporter. In particular, Verizon
contends that Conroy’s comment satisfies the statutory
definition of petitioning activity. It contends that
Conroy’s statement was made in connection with Global’s
pending appeal of the arbitrator’s decision. We conclude
that the statement does not fall within the ambit of the
statute’s protection because it was merely an oblique
reference to Verizon’s petitioning activity and was not a
protected instance of “full participation . . . and robust
discussion of issues before [a governmental body].”
Duracraft Corp. v. Holmes Prod. Corp. 427 Mass. 156, 161
(1998), quoting from the preamble to 1994 House Doc. No.

To place the issue in context, we summarize the undisputed
facts from the pleadings and affidavits contained in the
record that both parties compiled for this appeal. The
statement upon which Global bases its defamation claim was
made within the context of a larger business dispute.
Global and Verizon provide telecommunications services in
Massachusetts. The two companies are competitors regulated
by the Telecommunications Act of 1996 (1996 Act). Verizon,
among other things, is Page 602 an “incumbent local
exchange carrier” (ILEC), which means that it provided
telephone exchange service in Massachusetts prior to the
passage of the 1996 Act. Global is a “competitive local
exchange carrier” (CLEC), meaning that it began providing
service after the 1996 Act required ILECs to allow CLECs to
connect to their telecommunications networks and to enter
into “interconnection agreements” that specify the terms of
use and payments for service between companies. Global’s
business is routing “dial up” telephone calls from end
users’ computers to Internet service providers (ISPs). As
competitors in a regulated industry, the two companies are
frequently, if not constantly, involved in proceedings
before courts and other governmental entities.

One feature of the 1996 Act is a provision for binding
arbitration by State commissions when ILECs and CLECs
cannot agree on the terms of an interconnection agreement.
In Massachusetts, such arbitration is before the Department
of Telecommunications and Energy (DTE). 47 U.S.C. §
252(b)(1). The two arbitration actions against Verizon were
decided by the DTE in Verizon’s favor on December 12, 2002,
and December 20, 2002. Both arbitrations were related to
Global’s provision of virtual exchanges to ISPs. A virtual
exchange allows dial-up Internet users to dial what appears
to be a local telephone number to connect to ISPs whose
physical equipment is at Global’s Quincy premises,
regardless of whether the dial-up customer ordinarily can
make “local” calls to Quincy. Global and Verizon disagreed
whether such calls should be treated as “local” in their
interconnection agreement. If deemed “local” under the 1996
Act, Verizon would be responsible for toll-free
transmission of its customers’ “local” calls all the way to
Quincy, and Verizon would also have to pay Global for each
call by one of its customers to Global’s virtual “local”
exchange. If the calls were not treated as “local,” Global
would pay the cost of transmission to Quincy and would not
be entitled to payment for receiving calls from Verizon
customers. In the first ruling, the DTE determined that the
companies should not treat Global’s use of “virtual
exchanges” as “local” calls. In Page 603 the second
ruling, the DTE determined that the interconnection
agreement between the companies did not require reciprocal
payments to Global for ISP-bound calls from Verizon
customers. Global appealed the December 12, 2002, ruling
before the comments that gave rise to its defamation claim
were made.

On January 3, 2003, the Boston Globe printed an article
about the arbitration rulings. Howe, Firms Come Up Empty
vs. Verizon in Rulings, Boston Globe, January 3, 2003, at
E3. The article stated that “[i]n a pair of rulings” the
DTE determined that “[Internet] traffic originated by
Verizon customers does not consist of local calls that
require Verizon to make so-called reciprocal compensation
payments to carriers such as . . . Quincy-based Global
NAPs.” Ibid. It said that the rulings “closed what Verizon
called `a loophole’ forcing it to pick up the cost of
carrying [Internet] traffic from throughout Eastern
Massachusetts to Global NAPs’ data center in Quincy.” Ibid.

The article then summarized and quoted a conversation
between the reporter and Conroy, which became the focus of
Global’s defamation claim:

“Jack Conroy, Verizon’s Massachusetts regulatory affairs
chief, said the DTE ruling shut down `a scam’ he said
Global NAPs very cleverly developed in the late 1990s.
Using so-called virtual phone numbers throughout the state
that did not require Global to install any switching
equipment, Conroy said, Global got Verizon to pay for most
of the cost of handling calls to its Internet service
provider customers while claiming Verizon owed it
additional reciprocal compensation payments as well.”


2. Analysis. The burden is on Verizon as the moving party
to make a threshold showing that the activity at issue is
petitioning activity within the purview of the anti-SLAPP
statute. Fabre v. Walton, 436 Mass. 517, 522 (2002). In
support of its motion, Verizon furnished affidavits and
pleadings to the motion judge indicating that Conroy’s
comment was made “in connection with a matter under review
by the DTE and the courts” and, Page 604 thus,
“constituted . . . petitioning activity” as defined by the
anti-SLAPP statute. The judge rejected this contention.[fn4]

Relying on a broad reading of the statutory definition of
a “party’s exercise of its right to petition,” Verizon
argues that the motion judge’s determination was incorrect.
The statute states that “a party’s exercise of its right of
petition” shall mean:

“[1] any written or oral statement made before or
submitted to a legislative, executive, or judicial body,
or any other governmental proceeding; [2] any written or
oral statement made in connection with an issue under
consideration or review by a legislative, executive, or
judicial body, or any other governmental proceeding; [3]
any statement reasonably likely to encourage consideration
or review of an issue by a legislative, executive, or
judicial body or any other governmental proceeding; [4]
any statement reasonably likely to enlist public
participation in an effort to effect such consideration;
or [5] any other statement falling within constitutional
protection of the right to petition government.”

G.L. c. 231, § 59H, sixth par., inserted by St. 1994,
c. 283, § 1. Verizon focuses on the second phrase in
the definition, arguing that Conroy’s statement was made
“in connection with” the appealed DTE ruling and was
therefore protected by the statute. Under this view, any
statement about an issue under some form of government
consideration, whether defamatory or not, would be
protected by the statute. We read the phrase “in connection
with” more narrowly.

The statute enumerates no fewer than five types of
statements Page 605 that comprise petitioning. Verizon
focuses exclusively on the second category and asks us to
read it broadly and in isolation. Paying attention to the
context compels the conclusion that the sweep of “in
connection with” is limited because the phrase pertains to
statements made to influence, inform, or at the very least,
reach governmental bodies — either directly or
indirectly. Specifically, the first, third, and fourth
phrases support reading “in connection with” as embodying,
to some extent, similar purposive elements.[fn5]
Additionally, Verizon fails to acknowledge that the first
sentence of G.L. c. 231, § 59H, refers to a “party’s
exercise of its right of petition under the constitution of
the United States or of the Commonwealth.” See Plante v.
Wylie, ante 151, 156 n. 6 (2005). That a statement concerns
a topic that has attracted governmental attention, in
itself, does not give that statement the character
contemplated by the statute.

Our conclusion in this case is supported by three recent
decisions, Kobrin v. Gastfriend, 443 Mass. 327 (2005)[fn6];
Plante v. Wylie, supra,[fn7] and Wynne v. Creigle, ante 246
(2005). All three of these decisions emphasize the language
set forth in the first sentence of G.L. c. 231, §
59H, i.e., that claims sought to be dismissed pursuant to a
special motion must be “based on said party’s exercise of
its right to petition under the constitution of Page 606
the United States or of the Commonwealth.” As the Supreme
Judicial Court stated in Kobrin v. Gastfriend, supra at
333, “The right of petition contemplated by the Legislature
is thus one in which a party seeks some redress from the
government.” In the instant case, the tangential comment is
not one that is related to the petitioning process.

The recent case bearing most directly on the issues here
is Wynne v. Creigle, supra. In Wynne, a former firefighter
brought suit against the widow of a deceased firefighter on
the basis that she had defamed the plaintiff in the course
of a fire department investigation. The plaintiff alleged
that both a written statement to the Greenfield fire
department and articles in the Greenfield newspaper
contained defamatory statements by the defendant about the
plaintiff. Sometime after her husband’s death, which was a
suicide and which the defendant maintained was precipitated
by the plaintiff’s harassment of her husband, the defendant
pursued legislative benefits as the widow of a deceased
firefighter. See Wynne v. Creigle, supra at 248 & n. 3. At
oral argument the plaintiff apparently conceded that the
written statement to the Greenfield fire department made
during the course of an investigation came within the ambit
of the anti-SLAPP statute. Wynne v. Creigle, supra at 253.
Therefore, this court only had for its consideration the
question whether the statements to the newspaper reporter
were entitled to anti-SLAPP protection.

The court reasoned that the statements to the Greenfield
newspaper “were essentially mirror images of those she made
during and `in connection with’ the departmental
investigation of the plaintiff. Taken in context, her mere
repetition of those statements to the media was also
possessed of the characteristics of petitioning activity.”
Wynne v. Creigle, supra at 254. Additionally, the court
concluded that “the defendant’s statements were
sufficiently tied to and in advancement of her petition for
benefits as the widow of a firefighter . . . [to] fall
within the ambit of statements made `in connection with’
legislative proceedings within the meaning of G.L. c. 231,
§ 59H, and constitute protected petitioning activity
on that basis as well.” Ibid.

An examination of the materials supporting Verizon’s
motion does not indicate that Conroy’s disparaging comment
concerning Page 607 Global’s position before the DTE had
the potential or intent to redress a grievance, or directly
or indirectly to influence, inform, or bring about
governmental consideration of the issue. Because it lacks
that crucial characteristic, the case law suggests it
should not be deemed petitioning protected by the statute.
Unlike the statements to the reporter that were found to be
protected in Wynne, the statements here were not “mirror
images” of what was said in a governmental forum, nor were
they made in conjunction with any legislative petitioning.
Wynne v. Creigle, supra at 254. Instead, the comments were
incidental observations that were not tied to the
petitioning activity in a direct way. See McLarnon v.
Jokisch, 431 Mass. 343, 348 n. 7 (2000) (special motion to
dismiss should not be allowed “merely because there is
ongoing litigation between the parties in a different
forum”); Ayasli v. Armstrong, 56 Mass. App. Ct. 740, 749
(2002). Contrast Office One, Inc. v. Lopez, 437 Mass. 113,
122-123 (2002) (communications with officials from the
Federal Deposit Insurance Corporation and efforts to spur
others to contact elected officials, by unit owners of a
condominium opposing plaintiff’s purchase of units, fall
within the definition of petitioning activity protected by
the statute); MacDonald v. Paton, 57 Mass. App. Ct. 290,
295 (2003).

From the language of § 59H, its context that we have
described, and its treatment in other Massachusetts
decisions, it appears that the insulation with which the
statute covers statements made before a public body,
statements made to further a citizen’s efforts to gain
governmental relief, or statements made to enlist public
participation to effect favorable consideration of an issue
by a public body, does not protect tangential statements
intended, at most, to influence public opinion in a general
way unrelated to governmental involvement.

Order denying special motion to dismiss affirmed.

[fn2] The acronym “SLAPP” stands for Strategic Lawsuit
Against Public Participation.

[fn3] Interlocutory review is appropriate in this case
because the claims against the defendant would be entirely
eliminated had the Superior Court judge granted its special
motion to dismiss. See Fabre v. Walton, 436 Mass. 517, 522
(2002); Baker v. Hobson, 62 Mass. App. Ct. 659, 662-663

[fn4] Although we agree with the judge’s conclusion that
Conroy’s comments did not constitute “petitioning activity”
as contemplated by the statute, we reach our conclusion
for different reasons. The judge based her decision, in
part, on the view that “[t]he only party that exercised the
right of petition to seek protection of its rights in this
matter was [Global],” as it was the party that initiated
arbitration proceedings and appealed the results of
arbitration. We question this portion of the Superior
Court’s decision limiting the protection of the anti-SLAPP
statute to those parties who first bring a dispute to the
attention of governmental officials or seek to have some
adjudicatory body resolve a claim. See Kobrin v.
Gastfriend, 443 Mass. 327, 338 (2005) (“there is no
statutory requirement that petitioning parties directly
commence or initiate proceedings”). See also Wynne v.
Creigle, ante 246, 253 n. 9 (2005).

[fn5] The last, or fifth, phrase in the list, “any other
statement falling within constitutional protection of the
right to petition government,” is different in nature from
the first four. The list nonetheless suggests a more
limited reading than Verizon advocates. This final phrase
serves as a catchall provision at the end of the
enumeration, and we read it to indicate that the four
specific items listed in the sixth paragraph of c. 231,
§ 59H, are meant to be illustrative, not exhaustive.
Such a catchall provision does not change or expand the
nature of the other listed statements or activities.

[fn6] In Kobrin v. Gastfriend, supra, the Supreme Judicial
Court determined that the statute did not protect a
defendant whose relationship to the petitioning activity
under analysis was in the capacity of a paid expert.
Specifically, the Supreme Judicial Court stated, “In other
words, the statute is designed to protect overtures to the
government by parties petitioning in their status as
citizens. It is not intended to apply to those performing
services for the government as contractors.” Id. at 332.

[fn7] In Plante v. Wylie, supra, this court reversed the
denial of a special motion to dismiss filed by the
defendant, an attorney who was representing a party
unarguably involved in petitioning activity. This court
held that such legal representation was on a “very
different footing” from that of the paid expert. Plante v.
Wylie, supra at 156. Essentially, the court held that the
attorney’s status was coextensive with that of his
clients. Page 608