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GILMORE v. SOUTHWESTERN BELL MOBILE SYSTEMS

August 10, 2001

BRUCE GILMORE, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PEOPLE SIMILARLY SITUATED, PLAINTIFF,
v.
SOUTHWESTERN BELL MOBILE SYSTEMS, INC., D/B/A, CELLULAR ONE OF ILLINOIS, DEFENDANT.



The opinion of the court was delivered by: William T. Hart, United States District Judge.

  MEMORANDUM OPINION AND ORDER

Named plaintiff Bruce Gilmore filed this putative class action in the Circuit Court of Cook County, Illinois. Defendant Southwestern Bell Mobile Systems, Inc.*fn1 d/b/a as Cellular One of Illinois removed the case to federal court contending that plaintiff's claims were completely preempted by federal law and therefore necessarily stated a basis for federal jurisdiction. Plaintiff has moved to remand the case to state court and defendant has moved to dismiss plaintiff's cause of action.

Plaintiff alleges that he has been a cellular telephone customer of defendant since before 1995. He further alleges that he has a contract under which he agrees to pay certain rates for his cellular telephone service. "Nowhere in the Contract or elsewhere did Plaintiff agree to pay higher rates for cellular service or to pay additional fees for which no significant additional goods or services were rendered." Plaintiff alleges that applicable taxes are the only appropriate additional charges. In 1995, defendant began charging a monthly "Corporate Account Administration Fee" (hereinafter the "Fee").*fn2 No significant administrative or other services are provided for the Fee and the monthly bills do not explain what services, if any, are provided for the Fee nor has it been specifically identified as a rate increase. Plaintiff alleges that the Fee was imposed "for the sole purpose of enabling [defendant] to generate more revenue without appearing to raise its rates for cellular service." It is further alleged that plaintiff and the class "have been deceived into paying a fee for which they receive no significant goods or services. Plaintiff and the Class also have been deceived, in effect, into paying for cellular service at rates higher than the rates for which they contracted."

The putative class identified in the complaint is "all persons with Illinois billing addresses who have subscribed to cellular telephone services provided by Defendant since 1995 . . . and from whom Defendant has collected a Corporate Account Administrative Fee." The complaint contains four counts, all of which are denominated as state law claims. Count I is a claim for breach of contract in which it is contended that the Fee is not permitted under the parties' alleged contract. Count II is a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2, in which it is claimed that defendant used deception in charging the Fee by misrepresenting its true nature. Count III charges the same alleged misrepresentations as common law fraud. Count IV charges the alleged practice as unjust enrichment.

Defendant contends that plaintiff is challenging the rates it charges and therefore all of plaintiff's claims are preempted by the Federal Communications Act ("FCA"), specifically 47 U.S.C. § 332 (c)(3). Defendant further contends that the FCA has so completely preempted the field that any challenge to rates is necessarily a federal claim. Plaintiff contends he is not challenging rates. Alternatively, he contends that his particular rate challenges are not preempted or that the field is not so completely preempted that any challenge to rates is necessarily a federal claim. Assuming there is federal jurisdiction, defendant moves to dismiss all the claims because they are preempted or, alternatively, because the FCC has primary jurisdiction. Alternatively, defendant contends Counts II and III do not satisfy the pleading requirements of Fed. R. Civ. P. 9(b) and Count IV should be dismissed because unjust enrichment does not apply when there is a contract.

Preemption is a defense. That a claim is preempted by federal law is not a sufficient basis for invoking federal question jurisdiction. Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987). Preemption can only be a basis for federal question jurisdiction if there is complete preemption, i.e. "the pre-emptive force of a statute is so `extraordinary' that it `converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'" Id. (quoting Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 65 (1987)). A plaintiff is the master of his complaint; he may choose to bring state law claims only even if a federal claim is available. See Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 809 n.6 (1986).

As to cellular telephone services,*fn3 the FCA provides:

Notwithstanding sections 152(b) and 221(b) of this title, no State or local government 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. Nothing in this subparagraph shall exempt providers of commercial mobile services (where such services are a substitute for land line telephone exchange service for a substantial portion of the communications within such State) from requirements imposed by a State commission on all providers of telecommunications services necessary to ensure the universal availability of telecommunications service at affordable rates. Notwithstanding the first sentence of this subparagraph, a State may petition the Commission for authority to regulate the rates for any commercial mobile service . . . .

47 U.S.C. § 332 (c)(3)(A).

The FCA also contains a savings clause:

Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.

Id. § 414.

The Seventh Circuit has considered the interplay between these two statutory provisions and the ...


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