Judge Mukasey in Marcus v. A.T.&T. Corp., supra.
Cahnmann does not concede any of this but argues that even if these are the rules of this game, she can still win because all she asks is that I enforce the original tariff. This way, she reasons, I do not tromp upon the powers of the FCC and it is still a "tariff" that is the source of her telephone bills. The obvious difficulty is that I would not be enforcing "the" tariff, I would be enforcing a different tariff. I do not believe that the Federal Communications Act would permit a court to choose among several tariffs filed by a single company over the years and enforce whichever one it selects.
There are cases which enforce a tariff against claims of retroactive amendment, but there is no claim here that Cahnmann has been charged for Friday calls which occurred prior to the amendment. Cahnmann does argue, as a last resort, that there is a retroactive amendment here because the tariff said "customers can receive free usage (outbound international only) on one day a week (such day to be determined by Sprint) for 12 months." See Alabama State Docks Dept. v. Bunge Corp., 655 F.2d 64, 67 (5th Cir. Unit B 1981) (ordinary rules of contract interpretation apply to interpret tariff language). This argument is sketched rather than made.
There is no precedent, cited to me, for the proposition that "customer can" is, in a tariff, the equivalent of saying "the company must provide such service" or "the company promises to provide the service for up to 12 months if that is what the customer elects." I am under no obligation to consider such an undeveloped argument and I refuse to do so. United States v. Giovannetti, 919 F.2d 1223, 1229 (7th Cir. 1990) ("A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is a good point despite a lack of supporting authority or in the face of contrary authoriy, forfeits the point.").
Cahnmann cannot prevail and secure the principal relief she seeks. Her contract claim dies because it is the tariff and not the contract that controls the terms of business between Cahnmann and Sprint. The fraud claims fail because damages are not possible without a judicial amendment of the tariff which is forbidden. This reasoning would apply even if Cahnmann had made the more extreme allegation that Sprint had offered Free Fridays, deliberately intending to amend the tariff after it had lured enough customers to its service.
There is no fraud exception to the rule which denies judicial remedies to those who are charged the filed rates. See Taffet v. Southern Co., 967 F.2d 1483, 1488-90 (11th Cir. 1992) (en banc).
The damage claims under state law are untenable since both applicable state laws, found in the Illinois Consumer Fraud and Deceptive Business Practices Act, contain specific exemptions for "actions or transactions specifically authorized by... any regulatory body ...acting under statutory authority of ... the United States," (815 ILCS 505/10b), and "conduct in compliance with ... rules of ... a Federal ... agency," (815 ILCS 510/4). In Kellerman v. MCI Telecommunications Corp., 112 Ill. 2d 428, 493 N.E.2d 1045, 98 Ill. Dec. 24 (1986), the leading state case, the state court never confront the question of whether damages (as opposed to other remedies) were available.
Finally, there is a routine request in the complaint for a permanent injunction against continuing to advertise Free Fridays, but this relief cannot be granted on these pleadings. There is one allegation that such continuing advertising is occurring, but it is clear that the Free Friday program still exists for all but nine nations. Whether the current advertising is deceptive cannot be discerned from the pleadings (and this is unsurprising since the worth of this claim to Cahnmann is nil because she now knows the truth ). There might be some declaratory or injunctive remedy left to pursue under state law, but I do not see it appropriately pled in this case and I suspect there is little financial incentive to do so.
In defending against the motion for judgment on the pleadings, the plaintiff never raises the non-monetary remedies as a reason to keep the case alive. Indeed, in arguing for its motion to remand, plaintiff eschews the significance of injunctive relief. Claims for something other than damages are, I find, not effectively prosecuted here.
The motion of Sprint for judgment on the pleadings is granted. The motion of Cahnmann to remand is denied.
James B. Zagel
United States District Judge