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