We would like to take this opportunity to provide our readers with a detailed explanation surrounding the absence of phone books since 2008. It is important to shed light on the events that transpired, which ultimately led to the court case and its outcome. We aim to present a fair and comprehensive account of the situation. It is unfortunate that John Newton and the people of American Samoa were unjustly affected by these events. We are committed to finding ways to rectify this issue and ensure that everyone has access to all relevant information.
Unavailable Listings: The Story Behind American Samoa’s Missing Phonebook Since 2008 and the Partial, Outdated Listings Available on this website in 2023
The American Samoa telephone directory was intended to be published in 2011. In 2010, we entered into a 5-year contract with the American Samoa Telecommunications Authority (ASTCA) in which they agreed to provide listings. In return, I would produce printed phonebooks at no cost to ASTCA. It turns out that ASTCA was never able to provide the promised listings and we were unable to produce any phonebooks. As a result, American Samoa has been without a printed phonebook since 2008. Read the full story below.
During the year 2010, I was approached by the marketing manager of ASTCA who asked me to produce future phone directory books for ASTCA. I rejected that idea since Gwen Langkilde, in-house legal counsel, had earlier told me ASTCA would not ask me to continue producing their telephone directories and I sensed a rather hostile attitude from her, but the marketing manager convinced me. I told him I would need a new contract. He told me that Gwen would prepare a contract.
I met with Gwen and J.D. Hall, a recently hired ASTCA employee, in September 2010 to discuss the contract. Gwen called this meeting and assumed the role of chairperson of the meeting. During that meeting, JD confirmed to me and to Gwen that he would be able to prepare listings as required and in a timely manner.
On November 17, 2010, Gwen finally sent me an email with a draft copy of the contract she had prepared attached for my review. In this email, she confirmed that this was a contractual agreement obligating ASTCA to the promises made in its ASTCA Responsibilities Section wherein it was agreed by ASTCA to provide me the required subscriber listings for publishing five annual phone directories, writing as follows:
“I’m attaching a draft of the agreement based on my notes of the [September 2010] meeting, and language from your proposed agreement. Please review and let me know if you have any questions or concerns. I’m also asking JD to review and make sure that we can meet the promises made (ASTCA responsibilities section).”
After reviewing her proffered contract, I met with Gwen again several days later in late November of 2010. Only JD was at that meeting, but he offered nothing. Gwen negotiated with me to make the front and back covers available for ASTCA advertising at discounted prices. I agreed. This was my first really long-term contract with ASTCA, and I wanted to be sure that ASTCA understood its 5-year commitment without any contract renewal procedure as required by my previous ASTCA phone directory contracts. Gwen agreed to my request.
A few days later, Gwen called to tell me the contract was completed and signed by Executive Director Aleki Sene Sr. on November 30, 2010, and that I should stop by and sign it. I did and signed it the next day December 1, 2010.
I had previously published six such telephone directories for ASTCA for the years 2001, 2002, 2003-2004, 2005, 2006-2007, and 2008. Images of their covers are shown above. All of these six prior directories included listings of ASTCA’s postpaid cell phone subscribers, which were consistently submitted to me by ASTCA as part of their subscriber customer service records. I had come to understand that the inclusion of cell phone numbers was a popular and highly desired feature of the phone directory. I noticed with satisfaction this new contract that Gwen had offered did include the actual requirement of ASTCA producing listings from their customer records that would include “postpaid cell phone subscribers” as stated in the MOU.
All my phone directory publishing contracts with ASTCA contained the same straightforward arrangement whereby ASTCA would provide me complete listings of all its subscribers, and upon receipt, I would prepare the phone directory book to be published. I would pay the cost of printing as many copies as ASTCA required. ASTCA’s historical requirements varied between 11,000 and 20,000 copies for a single publication. My only compensation was in my ability to sell commercial advertising within the pages of the telephone directory book and keep the money obtained therefrom for my expenses and compensation. Therefore, it was in my essential interest to see to it that the required printed books got into the hands of the public.
In all my previous contracts with ASTCA to publish its phone directory, there never were any significant delays or problems in obtaining the subscriber listings from ASTCA to complete the project. In 2003 and again in 2006, there was a minor delay due to technical issues within ASTCA systems that caused us to have to combine 2003-2004 and 2006-2007 into combined years directories. Except for those two years, subscriber lists were readily forthcoming from ASTCA. In my history of dealing with ASTCA, there was never a claim by either party with respect to any breach of contract. Our relationship was a well-traveled and successful road of understanding what was expected by both sides in our repeated contractual agreements to create telephone directories for the public in the Territory.
However, in proceeding with this new 2010 five-year contract for five annual phone directories, signed by ASTCA and me dated November 30, 2010, a wholly different course of conduct emerged. What began as a concerted effort by the assigned ASTCA employee, J. D. Hall to deal with the routine details of providing the complete subscriber listings quickly turned into a constant routine of ASTCA’s earnest expressions of reasons why and how the complete listings were not yet available. This routine of earnestly offering to work on still unavailable complete listings was carried on by ASTCA throughout the entire five-year duration of the contract.
Throughout these five years following the signing of this contract, two courses of conduct were steadfastly followed by ASTCA with unfailing and unvarying certainty. Firstly, there was a constant continuing assertion that the various listings would be complete and forthcoming, or in the case of cell phones, according to JD Hall, that management had not yet rendered a decision on when they would be available. The second course of conduct was to not actually hand over anything in the contract-specified file type that they would confirm is the complete list.
Instead of an orderly process of providing listings as had been the case in previous contracts, and as was specified in the 2010 MOU, there began endless encounters between myself and ASTCA over the entire five-year term of the contract. These were encounters of my pleading with everyone concerned at ASTCA to get me the subscriber listings to produce the five contracted phone directories.
From time to time from the beginning of this contract, ASTCA submitted partial lists of subscribers, often even noting that they were not complete and without any stated purpose. An example of this would be an email, from JD to myself, in which he attached what he calls ASTCA’s public subscriber listings and ASG public listings. There never was any mention of “ASTCA’s public subscriber listings” or “ASG public listings” under ASTCA Responsibilities or any place else in the MOU. It was this kind of arbitrary renaming of the contract-required sections that caused confusion and left open the opportunity for ASTCA to claim they had provided listings when, in fact, what was provided had no basis for compliance with the Contract.
These files were not formatted properly and/or were not in compliance with the file types specified in the Contract. I began the process of applying correct formatting. But, as I began to work with the files, I found that even these files were not complete, accurate, or current. In any event, these files were only the white pages listings and ASG government listings. Other required listings for the commercial (Yellow Pages), post-paid cell phone listings, and the general information section were still not made available to me. Even as late as July 9, 2013, JD wrote saying he would work on the updated listings. At this point in time three years of directory publications had been missed along with the income I had expected.
Accordingly, over the course of the five-year contract, now ended by date, no subscriber list was ever given by ASTCA to me, as the lists ASTCA deemed suitable for even one directory. Nor has ASTCA ever stood by a claim during the entire five-year duration of this contract that they had complied with its requirement of providing actual contract-required subscriber lists that were complete, and usable.
It was on October 25, 2012, when JD responded to my email of the October 23 question “Is this your final submittal?”, saying “yes it is”. My October 23 email was just a test to see if JD really thought he had completed his tasks. His October 25 email caused me to finally seek legal assistance in compelling ASTCA to provide the items listed under ASTCA Responsibilities in their MOU because it seemed useless to continue my pursuit of listings from JD. Unable to find legal assistance, I filed a Complaint against ASTCA for Breach of Contract as a pro se Plaintiff, in July of 2015.
ASTCA has never claimed, during the course of this Contract, that it could not provide the Contract-required listings. In its very last email to John Newton, on September 17, 2014, ASTCA claimed it was still working to get the lists prepared for subscribers whose last names began with the letter V through Z. Then John Newton questioned in his next email, on September 24, 2014, as to when they would be finished with these subscriber listings, and this question was never answered by anyone at ASTCA.
ASTCA still was telling me that they, ASTCA senior management, had not yet made up their mind whether to include its cell phone telephone numbers in any newly published telephone directory, as JD Hall stated in his emails of July 9, 2013, and September 17, 2014.
The Contract (MOU) as written at page 1 thereof, required ASTCA to provide to John Newton (PPC) “to the extent available in ASTCA customer service records” a listing of “postpaid cell phone subscribers.” No request was ever made by ASTCA to amend the contract to exclude postpaid cell phone subscribers in its customer service records although all previous directories published, since 2001, by John Newton, had a section for cell phone listings.
Gwen who drafted and offered this ASTCA contract to me, remained employed by ASTCA for almost three years after the Contract was signed. She resigned her employment in September 2013. During this three-year period of her continued ASTCA employment since the inception of this contract, no phone directory was published that the contract required, and never once did she complain to me in any regard that I was not complying with the contract. She was silent.
During the 34 months in which she remained employed with ASTCA since the commencement of this Contract, she was immersed in the voluminous correspondence copied to her regarding the failure of ASTCA to provide the subscriber lists required by her contract. Never once did she respond to any of these emails or reply to me even when I once pleadingly contacted her directly.
It was at a point about two years into the contract, and being alarmed over Gwen’s seeming indifference and lack of response to ASTCA’s non-compliance with the contract requirement of submitting subscriber lists to me, I emailed her on September 7, 2012, asking for a response and inquiring if there was anything I could do to help ASTCA in the following message:
From: John Newton [mailto:john@johnnewton
Sent: Friday, September 7, 2012 2:21 PM
To: ‘Gwen Tauiliili-Langkilde’ <[email protected]>
Subject: Telephone Directory
I am just wondering if there is any plan to ever get listings to me as we agreed over two years ago. Is there anything I can do to expedite this process?
I never received a response from Gwen Langkilde to this email. I have never received any communication in any form on any matter from Gwen Langkilde since the inception of this contract until I finally filed a lawsuit, and then she only responded when a Motion for default judgment was filed, after she failed to answer the Complaint in the time required.
By the time I sent the above September 7, 2012, email to Gwen, I had previously sent or received 54 emails copied to her concerning ASTCA’s failure to provide the lists. In her deposition at trial, Gwen stated, “They would often “CC” me with ongoing projects, but again unless an issue came up, I would not necessarily pay much heed to an ongoing project when my role had been the completion of a contract…” This attitude toward ongoing projects is inconsistent with the role of Contract Manager and with the attitude that I had become accustomed to in dealing with the in-house counsel.
Gwen’s only communication with me during the duration of this contract was to demand that I remove the statement I had placed on my website saying “ASTCA is either unable or unwilling to supply listings”. Her email is shown below.
From: Gwen Langkilde [mailto:[email protected]]
Sent: Thursday, March 31, 2011 3:05 PM
To: ‘John Newton’ <[email protected]>; ‘J.D. Hall’ <[email protected]>; ‘Ethan'<[email protected]>
Cc: ‘Alex Sene’ <[email protected]>; ‘Toni Betham’ <[email protected]>
Subject: RE: Statement in PagoPago.com website
As you know, JD has been working diligently to provide you with verified telephone listings, instead of the raw data that we have always provided you throughout the past years. He’s completed and provided this to you for the residential listings, and is working on the business/government listings.
If you prefer, we can provide you with the raw data like we have in the past – whichever between that data and the 2008 listings would be more accurate. Let JD know.
As long as we are progressing with this verification process, your statement is untrue, and is defaming.
Again, you are asked to REMOVE this statement from your website immediately.
FCC rules governing the publishing of directories in the telecommunications industry.
Title 47, Chapter I, Subchapter B, Part 64, Subpart X of the Code of Federal Regulations (CFR) outlines regulations established by the Federal Communications Commission (FCC) in accordance with the Telecommunications Act of 1934. These regulations pertain to the provision of subscriber list information by telecommunications carriers for the purpose of publishing directories. The rules require carriers to provide subscriber list information in a timely and unbundled manner, under nondiscriminatory and reasonable rates, terms, and conditions.
The definition of terms used in this subpart is also provided, including the definitions for base file and updated subscriber list information, business and residential subscribers, and primary advertising classification. The subpart also outlines the requirements for providing and requesting subscriber list information, as well as record keeping and confidentiality agreements.
The CFR has been around for a while but it was difficult to access even for determined researchers. The online version of the CFR, known as the eCFR is a very new addition to the transparency of Federal Regulations. If you use this link, it will take you to the entire eCFR beginning with the relevant FCC section. At the top of each page is a navigation link which takes you to the previous or next part of the regulations. It was only with the advent of the eCFR that we were able to learn that the Federal Government has very strict rules regarding the responsibility of telecommunications companies to share their listings with directory publishers.
FCC rules regarding the sharing of listings with directory publishers have been in effect since the Telecommunications Act of 1934 was enacted. It is the responsibility of all telecommunications companies to be aware of FCC rules and to follow them. ASTCA is funded by the FCC through grants. They are required to abide by FCC rules. It is the responsibility of the in-house legal officers to know and understand these rules and to be certain that their organization follows the rules.
None of the rules were followed by ASTCA. This caused the territory to be without a telephone directory since 2008.
§ 64.2309 Provision of subscriber list information.
(a) A telecommunications carrier that provides telephone exchange service shall provide subscriber list information gathered in its capacity as a provider of such service on a timely and unbundled basis, under nondiscriminatory and reasonable rates, terms, and conditions, to any person upon request for the purpose of publishing directories in any format.
(b) The obligation under paragraph (a) to provide a particular telephone subscriber’s subscriber list information extends only to the carrier that provides that subscriber with telephone exchange service.
§ 64.2313 Timely basis.
(a) For purposes of § 64.2309, a telecommunications carrier provides subscriber list information on a timely basis only if the carrier provides the requested information to the requesting directory publisher either:
(1) At the time at which, or according to the schedule under which, the directory publisher requests that the subscriber list information be provided;
(2) When the carrier does not receive at least thirty days advance notice of the time the directory publisher requests that subscriber list information be provided, on the first business day that is at least thirty days from date the carrier receives that request; or
(3) At a time determined in accordance with paragraph (b) of this section.
(b) If a carrier’s internal systems do not permit the carrier to provide subscriber list information within either of the time frames specified in paragraph (a)(1) of this section, the carrier shall:
(1) Within thirty days of receiving the publisher’s request, inform the directory publisher that the requested schedule cannot be accommodated and tell the directory publisher which schedules can be accommodated; and
(2) Adhere to the schedule the directory publisher chooses from among the available schedules.
ASTCA Breached Contractual Obligations and Willfully Failed to Provide Information, Leading to the Non-Production of Telephone Directories by Newton
After carefully evaluating all the presented evidence during the trial, it was demonstrated that the American Samoa Telecommunications Authority (ASTCA) failed to provide Newton with the essential information they were obligated to give under the Contract. Of significant note is the fact that their negligence in providing this information resulted in Newton’s inability to produce the necessary telephone directories for their project. Based on the exchanges that occurred between these two parties, it seemed apparent that ASTCA’s non-compliance with the Contract conditions was not just a mere oversight or a disregard for their obligations under the Memorandum of Understanding (MOU), but rather a deliberate decision to not comply. By choosing to act contrary to the contract terms, ASTCA left Newton with no other choice than to suffer the consequences of non-performance, even though he was willing and ready to deliver on his part of the agreement. Newton filed a Breach of Contract lawsuit in 2015.
Elements for a Successful Breach of Contract Claim
When it comes to breaching a contract, the complaining party must be able to prove all the elements in order for the claim to be successful. The most important and often hardest element to prove is that a valid contract existed. This requires an offer, mutual acceptance of the terms, a meeting of the minds, communication of acceptance by both parties, and mutual intent for the contract to be legally binding. A contract becomes enforceable once either party acts upon their promise.
Once a valid contract is established, the plaintiff must then show that they upheld their part of the agreement and that the defendant did not fulfill their obligations. The plaintiff must also show evidence of actual damages suffered as a result of the breach. Compensation for breach of contract claims is typically financial, with general damages compensating for direct losses and special damages covering indirect and foreseeable losses.
If one party begins to act on their obligations, the court will not prevent enforcement of the contract. Partial performance can also be used as an exception to the requirement that certain contracts must be in writing for enforcement. In summary, all elements must be met and proven for a successful breach of contract claim.
Acceptance by Conduct Contract Law
Acceptance by conduct contract law means that a party can be found by the court to be in agreement with a contract based on his or her actions, even if the contract has not been signed.