# Petition for Writ of Certiorari — Dreamscape Design, Inc. v. Affinity NetWork, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 1075

## Text

5

Affinity filed a motion to dismiss the amended
complaint, arguing that Dreamscape’s claims were preempted
by federal law. On July 12, 2004, the district court entered
an order granting Affinity’s motion to dismiss, on the basis
of the Seventh Circuit's decision in Boomer v. AT&T Corp.,
309 F.3d 404 (7thCir. 2002). Following Dreamscape’s appeal,
the Seventh Circuit affirmed the district court's decision on
July 5, 2005. The Seventh Circuit's mandate was issued on
July 27, 2005. This petition follows. |

REASONS FOR GRANTING THE PETITION

This petition should be granted for two principal reasons.
First, the decision of the Seventh Circuit flatly and expressly
conflicts with the decision of the Ninth Circuit in Ting, and
this Court is respectfully asked to resolve this conflict.
Second, the continued application of federal preemption after
detariffing, in the absence of any constitutional or statutory
basis, flies in the face of federalist principles and judicial
precedent. The resolution of the issues in this case is of great
importance for iciecommunications consumers and carriers,
with national significance for other industries that,
historically, have been regulated pursuant to notions of
federal preemption.

Sections 201(b) and 202(a) of the FCA do not contain
preemptive text, and after detariffing, the tariff-filing
requirement of § 203 (which does contain impliedly
preemptive text) is no longer enforced by the FCC. Thus,
express preemption is not an issue here, and the Seventh
Circuit's decision was not based on express exemption.
Likewise, field preemption (sometimes referred to as
complete preemption) is not germane because state law
unquestionably plays a role in the regulation of long-distance

6

contracts, as the Seventh Circuit itself has acknowledged. See
Boomer, 309 F.3d at 424 (rejecting AT&T's field preemption
argument, and stating that “following detariffing there appears
to be some role for state law”). Thus, if federal preemption under
the FCA is to survive detariffing, and indeed to expand to
market-based contracts, it can only be by way of the third prong
of preemption analysis, i.e., implied conflict pre-emption. See
Pac. Gas & Elec. Co. v. Energy Res. Conservation & Dev.
Comm'n, 461 U.S. 190, 204 (1983), /nt’l Paper Co. v. Ouellette,
479 U.S. 481, 491 (1987).

Five months ago, in its consideration of the scope of
federal preemption in the context of the Federal Insecticide,
Fungicide, and Rodenticide Act (“FIFRA”), this Court had
occasion to confirm its reluctance to expand a federal statute
beyond its ordinary meaning through doctrines of implied
preemption. Bates v. Dow Agrosciences LLC, __ U.S. __,
2005 WL 957193 (April 27, 2005). As observed by Justice
Thomas (joined by Justice Scalia), concurring in part and
dissenting in part, “this reluctance reflects that pre-emption
analysis is not ‘[a] freewheeling judicial inquiry into whether
a State statute is in tension with federal objectives’” (citing
Gade v. National Solid Wastes Management Assn., 505 U.S.
88, 111 (1992), Kennedy, J., concurring in part and concurring
in judgment). Bates at *15. Rather, the proper inquiry is into
“whether the ordinary meanings of state and federal law
conflict.” Id. See Camps Newfound/Owatonna, Inc. v. Town
of Harrison, 520 U.S. 564, 617 (1997). Accordingly, the
determination of the issues in the instant case requires an
examination of the words of the FCA, subject to the
alterations made by Congress in the 1996 Act. Those words
should be assessed according to their ordinary meaning. Bates
at *14 (Thomas, J., joined by Scalia, J., concurring in the
judgment in part and dissenting in part).

7

Prior to 1996, the FCA required long-distance
telecommunications carriers to set forth the rates and other
terms and conditions of their service in tariffs to be filed
with the FCC. This regulatory scheme begat the court-
developed “filed tariff doctrine,” under which carriers were
required to charge rates as set forth in the filed tariffs; carriers
were specifically prohibited from deviating from the tariffed
rates. AT&T v. Cent. Office Tel., Inc., 524 U.S. 214, 221-23
(1998); Metro E. Ctr. for Conditioning & Health v. Qwest
Communications Int'l, Inc. 294 F.3d 924, 925 (7thCir. 2002)
(“[nJo private agreement can displace a tariff’s terms”).
The FCA completely preempted state law challenges to rates
contained in a filed tariff. See, e.g., Cahnmann v. Sprint
Corp., 133 F.3d 484, 489-90 (7th Cir. 1998).

The mandatory tariffing aspect of the regulatory scheme
came to an end following passage of the 1996 Act, which

effectively adopted the free-market approach the FCC had

advocated over the preceding fifteen years, due to increased
competition and technological advances. See MCI
Telecomms. Corp. v. AT&T Corp., 512 U.S. 218, 220-21
(1994); see also MCI Telecomms. Corp. v FCC, 765 F.2d
1186, 1193 (D.C. Cir. 1985) (holding that the FCC lacked
Statutory authority to prohibit the filing of tariffs, as it had
tried to do). Armed with the legislative authority of the 1996
Act, the FCC issued a series of orders mandating detariffing,
and as of July 31, 2001, the tariff requirement was canceled
altogether. See Boomer, 309 F.3d at 408-09.

After detariffing in 1996, the old monopoly-based
regime was replaced with one based on market competition.
Long-distance telephone service for any particular consumer
is now arranged by way of an individual contract between
the consumer and the carrier, often called a “customer service

8

agreement,” or “CSA.” This market-based approach depends
in part on state law for the protection of consumers in the
deregulated and competitive marketplace. See Order on
Reconsideration, 12 F.C.C.R. 15,014, p. 42 (1997)
(after detariffing, consumers will “not only have our
complaint process, but will also be able to pursue remedies
under state consumer protection and contract laws”); Second
Report and Order, 1) F.C.C.R. 20,730, p. 5 (“when interstate
. . . Services are completely detariffed, consumers will be able
to take advantage of remedies provided by state consumer
protection laws and contract law against abusive practices”).
Nevertheless, the Seventh Circuit in Boomer held that, even
after detariffing, federal law continues to govern these
market-based contracts, as it had previously governed filed
tariffs, and that state law cannot be the basis for challenging
a carrier’s conduct if such a challenge might affect the
contractually-stated rates. Boomer, 309 F.3d at 418-19.

One year after Boomer, and expressly contrary to the
Seventh Circuit, the Ninth Circuit concluded in Ting that
the preemptive effect of the filed tariff doctrine did not
survive the passage of the Telecommunications Act of 1996.
Ting, 319 F. 3d at 1135, The Ninth Circuit expressly rejected
Boomer’s preemption analysis, concluding that, in the
detariffed environment, state laws did not obstruct the
operation of the FCA. /d. The Ninth Circuit held that,
with the passage of the 1996 Act, the goals expressed in
Sections 201 and 202 of the FCA (reasonableness and
nondiscrimination) were to be enforced by application of state
contract and consumer protection laws. /d. at 1144-45.
Accotdingly, the Ninth Circuit held that the plaintiffs could
challenge the carrier-drafted CSA under California state law.

9

Two years later, in the case at bar, the Seventh Circuit
considered petitioner Dreamscape’s challenge to the
correctness of Boomer, in the light of Ting. The Seventh
Circuit observed (as Dreamscape readily conceded) that
Dreamscape’s breach of contract claim was a challenge to
Affinity’s rates and terms as set forth in its CSA. However,
the Seventh Circuit rejected Dreamscape’s argument that its
consumer fraud claims were based on pre-contractual
conduct, holding that Dreamscape’s “fraud claims are really
no different than a breach of contract claim.” (App. A at 18a,
16a.) Thus construed, the Seventh Circuit opined that none
of Dreamscape’s claims could survive “unless we ‘revisit’
Boomer — by ‘revisit,’ we assume that Dreamscape is asking
that we either distinguish Boomer or set it aside in favor of
the Ninth Circuit’s Ting decision.” (App. A at 18a.) The
Seventh Circuit saw “no way ... to distinguish Boomer,”
and was “unpersuaded by Ting.” Id.

The Seventh Circuit in Dreamscape expressly rejected
Ting's analysis, stating that “we disagree with [the Ninth
Circuit’s] interpretation [of the FCA],” and noting that in
Boomer, the Seventh Circuit had “rejected the very district
court opinion that Ting affirmed.” (App. A at 19a.) Thus, the
Seventh Circuit restated its holding in Boomer that even after
detariffing, state law cannot operate to alter the rates of a
long-distance service contract. In reaching this conclusion,
the Seventh Circuit in Dreamscape declined to undertake a
comprehensive preemption analysis. Rather, the Seventh
Circuit simply concluded that allowing state law challenges
to contractual rates “would be contrary to Congress’s
intent as expressed in Sections 201 and 202” of the FCA.
(App. A at 19a.)

That Congressional intent, as perceived by the Seventh
Circuit in Boomer, was to favor reasonably uniform rates

10

and to disfavor “unreasonable discrimination,” within the
meaning of §§ 201 and 202. Boomer, 309 F.3d at 419-20.
From those principles, the Seventh Circuit in Boomer crafted
an ongoing federal preemption in a detariffed environment,
even though the filing requirement of § 203 (which was the
source of the filed tariff doctrine and federal preemption
under the FCA) had been legislatively abandoned.

As the Ninth Circuit observed in Ting, “save for Boomer,
no court [had] ever referred to § 201 or § 202 [of the FCA]
in declaring a carrier’s tariff immune from state-law
challenge.” Ting, 319 F.3d at 1138. Rather, federal
preemption, prior to Boomer, derived if at all from the filing
requirement of § 203. See AT&T v. Cent. Office Tel., Inc.,
524 U.S. 214, 223 (1998); Maislin Indus., U.S., Inc. v.
Primary Steel, Inc., 497 U.S. 116, 127 (1990). Now that the
FCC no longer enforces § 203’s filing requirement
(in furtherance of the clear wording of the 1996 Act), the
ordinary meaning of the FCA (notably the ordinary meaning
of §§ 201 and 202) provides no ongoing basis for federal
preemption.

Although §§ 201 and 202 survived the 1996 Act and
detariffing, and thereby continue to provide a basis for the
principles stated therein of reasonableness and
nondiscrimination in connection with telecommunications
services, the same cannot be said of the separate principle of
preemption, which was a judicially-created product of the
filed tariff doctrine — a doctrine that by definition did not
survive detariffing. See Notice of Proposed Rule Making,
11 F.C.C.R. 7,141, p. 31 (“the absence of tariffs would
eliminate possible invocation by carriers of the filed rate
doctrine”).

11

In the final analysis, the Seventh Circuit’s misreading
of the clear language of the FCA has the result that a
long-distance carrier such as Affinity can say one thing, but
do another, with immunity if not impunity. Dreamscape’s
amended complaint states that Affinity promised to charge
by the minute, then sent invoices demanding higher payments
based on the TCU method. Affinity’s position is that, even if
this assertion in the amended complaint is true, Affinity
cannot be sued under Illinois law. Under the FCA as it was
between 1934 and 1996, such protection from state challenge
was the recognized law of the land, according to tariff-based
federal preemption. But as the Ninth Circuit recognized, with
the statutory demise of the mandatory filed tariff, no
legislative language remains in support of federal preemption.
Even more importantly, the ordinary meaning of §§ 201 and
202 of the FCA provides no basis for expanding federal
preemption to commercial dealings between contracting
parties.

Because the Seventh Circuit’s holdings in Boomer and
Dreamscape are contrary to the text of both the FCA and the
1996 Act, and because the ordinary words of the FCA and
the 1996 Act provide no statutory basis for continued federal
preemption in a detariffed environment, the decision below
should be reversed so that Congress’s clear wording is
honored. Federal preemption should not be judicially
resurrected in a market-based telecommunications industry,
let alone expanded to interfere with market-driven contractual
arrangements. Certiorari is warranted to resolve the split
between the Ninth Circuit and the Seventh Circuit as to the
post-tariff viability of federal preemption in the field of
telecommunications. |

12

a

CONCLUSION

For the foregoing reasons, petitioner respectfully requests
that the Supreme Court grant review of this matter.

Respectfully submitted,

Gary D. Forrester
Counsel of Record
JoserH W. PHesus
Puesus & Koester
136 West Main
Urbana, IL 61801
(217) 337-1400

Attorneys for Petitioner

APPENDIX

la

APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH
CIRCUIT DECIDED JULY 5, 2005 |
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 04-3035
DrEAMSCAPE DesiGn, INC.,

Plaintiff-Appellant,

V.

' aati EEE

AFFINITY NETWORK, INC.,

Defendant-Appellee.

Appeal from the United States District Court
for the Central District District of Illinois |
No. 02 C 2235—Michael P. McCuskey, Chief Judge |

ArGuep January 5, 2005—-Decipep Jury 5, 2005.

Before Kanne, Rovner, and Sykes, Circuit Judges.

KANneE, Circuit Judge. Dreamscape Design, Inc., sued
Affinity Network, Inc., alleging state law claims of fraud
and breach of contract relating to the cost of long-distance
telephone services provided by Affinity. The district court
concluded that federal law preempted Dreamscape’s claims
and dismissed the complaint. We affirm.

2a

Appendix A
I. Background

In September 2002, Dreamscape filed a class action
complaint in Illinois state court, alleging that Affinity violated
the Illinois Consumer Fraud Act (“ICFA”) by making
misrepresentations about its rates for long-distance telephone
service. Dreamscape claimed that Affinity fraudulently
advertised certain per-minute rates when, in fact, the rates
charged were based upon a wholly different method of
calculation. Specifically, Dreamscape alleges that Affinity
advertised long-distance rates of 5 cents per minute for in-
State service and 8.9 cents per minute for calls from Illinois
to elsewhere in the continental United States. Yet when
Affinity invoiced Dreamscape for services, it billed by
“TCU” instead of by the minute. According to Dreamscape,
Affinity’s use of TCU-based charges resulted in substantially
higher long-distance telephone rates than suggested by the
advertisements. Dreamscape attached to its complaint invoice
examples of TCU-based billing that resulted in charges equal
to more than twice what the perminute charges would have
been. Dreamscape’s complaint sought award of monetary
damages in the amount suffered by the class, punitive
damages, and injunctive relief.

In November 2002, Affinity removed the case to federal
court. Affinity argued that, as an interexchange telephone
communications carrier, it was subject to regulation by the
Federal Communications Commission (“FCC")—

1. ATCU, or “total call unit,” apparently is an abstract measure,
calculated in whole numbers and fractionally in tenths, that Affinity
uses to determine what to charge for its long-distance services.

3a

Appendix A

specifically the so-called “filed tariff”* (or filed rate)
doctrine—pursuant to the Federal Communications Act of
1934 (the “FCA”), as amended, 47 U.S.C. § 203. Thus,
Affinity contended, Dreamscape’s claims challenged
Affinity’s rates, the terms of which were set forth in its
federally mandated tariff filed with the FCC, so Dreamscape’s
claims were necessarily preempted by federal law.

On March 17, 2003, the district court agreed with Affinity
and denied Dreamscape’s motion to remand, concluding that
the bulk of the claims advanced in Dreamscape’s class action
complaint were indeed related to Affinity’s rates for long-
distance service, thus calling for federal preemption under
the filed rate doctrine. The court also granted Affinity’s
motion to compel arbitration in accordance with a clause in
Affinity’s tariff mandating arbitration of disputes.

The arbitrator rendered a decision on April 12, 2004,
concluding that Affinity’s federally filed tariff overrode state
law resolution of Dreamscape’s claims. The arbitrator found
that there was therefore “no remedy for the Plaintiff for any
fraudulent misrepresentations made by the Defendant as
alleged” and dismissed Dreamscape’s claims. But, because
of a recent series of FCC orders calling for “detariffing”

2. As discussed in far greater detail infra, a “tariff” sets forth a
long-distance carrier's rates and other terms of service. Prior to
August |, 2001, under the terms of the Federal Communications Act
of 1934, carriers were required to file their tariffs with the FCC,
which had the power to modify or even disapprove the tariffs.
See Cahnmann v. Sprint Corp., 133 F.3d 484, 487 (7th Cir.1998).
Once the tariffs were filed, the carriers could not deviate from their
terms unless the tariffs were amended, modified, superseded, or
disapproved in accordance with FCC rules. See id.

4a

Appendix A

(cancellation of the requirement to file such tariffs with the
FCC) by July 31, 2001, and because it was unclear whether
Dreamscape’s complaint alleged acts taking place after
detariffing, Dreamscape was granted leave to amend its
complaint to clarify the issue.’

On April 23, 2004, Dreamscape filed an amended class
action complaint, in which it renewed its earlier ICFA claim
regarding rates charged prior to the detariffing deadline of
August |, 2001. Significantly, Dreamscape also added a claim
alleging that it and other putative class members used and
were invoiced for Affinity’s services after detariffing.
Dreamscape purported to be advancing “only state law
claims, which claims are based on conduct of the defendant
occurring after ... July 31, 2001, and accordingly there is
no applicable tariff that . . . could possibly preempt the claims
under federal law [,] and no other federal law question is
raised ... .” Dreamscape also added a claim for breach of
contract, alleging that a contract was formed between Affinity
and Dreamscape (and other putative class members) upon
acceptance of Affinity’s services, and Affinity breached the
contract by charging rates in excess of the agreed rates
“subsequent to July 31, 2001.” Dreamscape in its amended
complaint again sought monetary damages, punitive
damages, and injunctive relief.

3. It is undisputed that prior to August 1, 2001, Affinity charged
Dreamscape in accordance with the terms provided for in its filed
tariff. Affinity gave Dreamscape notice that effective August |, 2001,
its services would be provided in accordance with rates, terms, and
conditions contained in a customer service agreement (“CSA”) that
Affinity posted on its wedsite.

5a

Appendix A

Affinity filed a motion to dismiss the amended
complaint, arguing that Dreamscape’s claims remained
preempted by federal law. For its part, Dreamscape again
filed a motion to remand the case to state court. On July 12,
2004, the district court entered an order granting Affinity’s
motion to dismiss and denying Dreamscape’s motion to
remand as moot. The court concluded that, pursuant to this
court’s opinion in Boomer v. AT & T Corp., 309 F.3d 404
(7th Cir.2002), federal law governs the rates, terms, and
conditions of long-distance service contracts, and state law
cannot operate to invalidate these contracts, even after
detariffing. The court found that Dreamscape’s amended
complaint challenged Affinity’s rates for its long-distance
service, and therefore, consistent with Boomer, the court
concluded that the new claims were likewise preempted by
federal law. Accordingly, the court dismissed with prejudice
Dreamscape’s amended complaint.

On appeal, Dreamscape challenges the district court’s
dismissal of its amended complaint based on its interpretation
of Boomer. In the alternative, Dreamscape urges that we
reconsider our preemption holding in Boomer in light of
conflicting Ninth Circuit precedent.

We review de novo the district court’s order dismissing
Dreamscape’s claims. See Veazey v. Communications & Cable
of Chi., Inc., 194 F.3d 850, 853 (7th Cir.1999), Before
proceeding to the merits, however, we will briefly recap the
aforementioned filed tariff doctrine and related caselaw.
As we indicated earlier vrior to August 1, 2001, the FCA

———

—————— ——— a OQ ee +

6a

Appendix A

required long-distance telecommunications carriers to set
forth the rates and other terms and conditions of their service
in tariffs to be filed with the FCC. 47 U.S.C. § 203(a); 47
C.F.R. § 61.1. This regulatory scheme begat the filed tariff
doctrine,‘ under which carriers are required to charge rates
and otherwise abide by the terms set forth in the filed tariffs.
AT & T v. Cent. Office Tel., inc., 524 U.S. 214, 221-23, 118
S.Ct. 1956, 141 L.Ed.2d 222 (1998); Cahnmann v. Sprint
Corp., 133 F.3d 484, 487 (7th Cir.1998). Carriers are
specifically prohibited from deviating from the tariffed rates
and are not free to negotiate different rates with customers.
See 47 U.S.C. § 203(c); see also Metro E. Ctr. for
Conditioning & Health v. Qwest Communications Int'l, Inc.,
294 F.3d 924, 925 (7th Cir.2002) (“No private agreement
can displace a tariff’s terms.”); Cahnmann, 133 F.3d at 487.
The doctrine also applies to non-rate provisions of a tariff,
such as “provisioning of services and billing,” so carriers
may not depart from non-price terms, either. See 47 U.S.C.
§ 203(c); Cent. Office Tel., 524 U.S. at 224-25, 118 S.Ct.
1956. ,

Although it may be tempting to view a filed tariff as
simply another contract enforceable under state law, this court
and others have recognized that tariffs are something more—
at least the equivalent of federal regulations or law—-so suits
to challenge or invalidate tariffs arise under federal law.
Cahnmann, 133 F.3d at 488-89; see also Qwest, 294 F.3d at
925; accord Hill v. BellSouth Telecomms., Inc., 364

4. The FCA’s filed tariff doctrine is derived from, and a close
cousin to, the tariff provisions of the Interstate Commerce Act. See
AT & T v. Cent. Office Tel., Inc., 524 U.S. 214, 222, 118 S.Ct. 1956,
141 L.Ed.2d 222 (1998).

—_——- --

7a

Appendix A

F.3d 1308, 1315 (11th Cir.2004); Bryan v. Bellsouth
Communications, Inc., 377 F.3d 424, 429 (4th Cir.2004);
ICOM Holding, Inc. v. MCI Worldcom, Inc., 238 F.3d 219,
221 (2d Cir.2001); MCI Telecomms. Corp. v. Garden State
Inv. Corp., 981 F.2d 385, 387 (8th Cir. 1992). Under the filed
tariff doctrine, courts may not award relief (whether in the
form of damages or restitution) that would have the effect of
imposing any rate other than that reflected in the filed tariff.
See Cahnmann, 133 F.3d at 489. This is so even if a carrier
intentionally misrepresents its rate and a customer relies on
the misrepresentation. See Cent. Office Tel., 524 U.S. at 222,
118 S.Ct. 1956 (holding that the carrier cannot be held to the
promised rate even if it conflicts with the published tariff).

The courts have enforced the apparent harshness of the
doctrine because rigorous enforcement of filed tariffs serves
Congress’s goals of ensuring uniformity and preventing
unreasonable prices or service discrimination among long-
distance customers. See 47 U.S.C. §§ 201(b), 202(a); see
also Cent. Office Tel., 524 U.S. at 223, 118 S.Ct. 1956;
Cahnmann, 133 F.3d at 487, 490. Accordingly, pursuant to
the filed-tariff doctrine, courts have unhesitatingly found that

claims purportedly challenging rates or terms of filed tariffs ©

under state law were preempted. See, e.g., Cahnmann, 133
F.3d at 489-90; Bryan, 377 F.3d at 431-32.

The mandatory aspect of the regulatory scheme came to
an end following passage of the Telecommunications Act of
1996. 47 U.S.C. § 160(a). Under the new legislative scheme,
the FCC was empowered to exempt carriers from filing
tariffs—trates, terms, and conditions of long-distance service
would now be governed by individual contracts between each

_——o

8a

Appendix A

carrier and its customers. Pursuant to the act, the FCC issued
a series of orders mandating detariffing, and as of July 31,
2001, the tariff requirement was canceled altogether. See
Boomer, 309 F.3d at 408-09 (describing history of detariffing
and citing FCC orders).

Our opinion in Boomer addressed the preemption
question in the wake of detariffing, when-the terms of
individual contracts or customer service agreements governed
long-distance service. In Boomer, the plaintiff, an AT & T
customer, brought a putative class-action suit alleging that
AT & T overcharged customers in violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act. See
Boomer, 309 F.3d at 408. Like Affinity, AT & T notified its
customers that, after detariffing, all of its rates and conditions
would be set forth in a customer service agreement. /d. at
409. AT & T’s CSA included an arbitration clause, which
the plaintiff challenged as unenforceable under Illinois law.
The district court agreed with the plaintiff and denied AT &
T’s motion to compel arbitration.

We reversed the district court’s order, holding that the
plaintiff's state law challenges to the arbitration clause were
preempted by federal law. Jd. at 418. In so doing, we
reaffirmed our Cahnmann holding that, prior to detariffing,
“the [FCA] completely preempted state law challenges to
the terms and conditions contained in a filed tariff.” Jd. at
424 (citing Cahnmann, 133 F.3d at 489-90). We aiso
concluded, however, that Sections 201 and 202 of the FCA,”

5. Section 201(b) states:

All charges, practices, classifications, and regulations

for and in connection with such communication service,
(Cont'd)

9a

Appendix A

read together, express Congress's intent that long-distance
customers receive uniform and reasonable rates, terms, and
conditions of service. See Boomer, 309 F.3d at 421-22.
Section 203, which required the filing of tariffs, was simply
the express means of effectuating Congress’s intent, which
remained unchanged despite the passage of the
Telecommunications Act of 1996 and the onset of detariffing.
See id. (“{DJetariffing does not alter the fundamental design
of the [FCA], nor modify Congress’s objective of uniformity
in terms and conditions for all localities.”). We also noted
that although the FCC was authorized to dispense with the
tariff-filing requirement, it must first ensure that, consistent
with Congress’s intent, a tariff would “not [be] necessary to
ensure that the charges, practices, classifications, or
regulations ... are just and reasonable and are not unjustly

(Cont’d)
shall be just and reasonable, and any such charge,
practice, classification, or regulation that is unjust or
unreasonable is declared to be unlawfull.]

47 U.S.C. § 201(b). Section 202(a) states:

It shall be unlawful for any common carrier to make
any unjust or unreasonable discrimination in charges,
practices, classifications, regulations, facilities, or
services for or in connection with like communication
service, directly or indirectly, by any means or device,
or to make or give any undue or unreasonable preference
or advantage to any particular person, class of persons,
or locality or to subject any particular person, class of
persons, or locality to any undue or unreasonable
prejudice or disadvantage.

47 U.S.C. § 202(a).

10a

Appendix A

Or unreasonably discriminatory.” /d. at 421 (quoting
47 U.S.C. § 160(a)(1)). Moreover, we recognized that even
the FCC understood that detariffing “did not affect [FCC]
enforcement of carriers’ obligations under [S]ections 201 and
202[,]” which expressed Congress’s intent. /d. at 422 (citation
omitted). Thus, the FCA continues to provide federal
remedies for customers seeking to challenge the justness and
reasonableness of long-distance charges and practices.
47 U.S.C. $§ 207, 208; see also Boomer, 309 F.3d at 422.

We therefore opined in Boomer that allowing a state law
challenge to AT & T’s CSA “would result in customers
receiving different terms based on their locality[,]” and could
thwart Congress’s intent by “creat[ing] a labyrinth of rates,
terms and conditions.” 309 F.3d at 418, 420. We concluded
that state law “cannot operate to invalidate the rates, terms
or conditions of a long-distance service contract[,]” even after
detariffing. /d. at 424. The Boomer plaintiffs challenge to
the validity of AT & T’s arbitration clause amounted to a
challenge of AT & T’s contract and, necessarily, the contract’s
rates, terms and conditions. In sum, we determined that
“{a]llowing [such a] state law challenge[] to the validity of
the terms and conditions contained in [AT & T’s] long-
distance contract[] ... [would] result [] in the very
discrimination Congress sought to prevent.” /d. at 423.

Turning to the merits in the present case, it is undisputed
that Affinity provided its services in accordance with its filed
tariff, and then, after detariffing, in accordance with the terms
of its CSA. The critical question in this case is whether
Dreamscape’s claims are federally preempted as a matter of
law even after detariffing—a result seemingly required by

lla

Appendix A

our holding in Boomer. Dreamscape nevertheless does its
level best to avoid application of Boomer by steadfastly
insisting that its amended complaint in no way challenges
Affinity’s rates or filed tariff and therefore does not invoke
the filed tariff doctrine. According to Dreamscape, Affinity
engaged in pre-tariff (or pre-contract) fraud by inducing
Dreamscape to purchase long-distance services that were not
billed in accordance with the rates advertised in 1999, and
Affinity is therefore liable under Illinois law. Dreamscape
claims to have sustained damages for the alleged fraud after
July 31, 2001, when the tariff was no longer in effect and
Affinity’s rates were thereafter delineated in its CSA.

Perhaps recognizing the uphill battle it faces with respect
to Boomer and other preemption caselaw, Dreamscape styles
this appeal as a simple dispute over the proper interpretation
of its amended complaint—under the well-pleaded complaint
doctrine, Dreamscape advanced only state law claims that
did not challenge Affinity’s rates, and thus federal law is not
implicated at all. Dreamscape therefore argues that Boomer
is not relevant to the present case. But even if Boomer applies,
Dreamscape asks that we reconsider Boomer’s preemption
holding in light of contrary reasoning in Ting v. AT & T, 319
F.3d 1126 (9th Cir.2003).

As for its breach of contract claim, Dreamscape candidly
conceded at argument that the claim necessarily challenged
the rates contained in Affinity’s filed tariff, but nevertheless
suggests that the claim is not necessarily preempted if we
favor Ting over Boomer or otherwise resolve the apparent
conflict between the two cases.

12a

Appendix A
A. Fraud

We first consider Dreamscape’s assertion that the well-
pleaded complaint doctrine saves its fraud claims from
preemption. Under this doctrine, “whether a case is one
arising under the Constitution or a law or treaty of the United
States . . . must be determined from what necessarily appears
in the plaintiff’s [complaint]. . . , unaided by anything alleged
in anticipation or avoidance of defenses which it is thought
the defendant may interpose.” City of Chicago v. Comcast
Cable Holdings, 384 F.3d 901, 904 (7th Cir.2004) (quoting
Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724,
58 L.Ed. 1218 (1914)).

Dreamscape argues that the doctrine, as employed in our
recent Comcast opinion, applies here, and we should reach
the same result. We disagree. Comcast had nothing to do
with long-distance services or filed tariffs or rates regarding
such service. Instead, at issue in that case was 47 U.S.C.
§ 542, which governs franchise fees relating to cable
operators. We concluded that the plaintiff's claims did not
present a federal question because Congress did not intend
§ 542 “to override state law, let alone to deny states all power
in the field.” Jd. at 905. Indeed, it was clear that Congress
left to the states “most questions about the regulation and
taxation of cable TV franchises.” Jd. Therefore, because
Congress had not indicated its intent that federal law preempt
state regulation of such franchises, the Comcast defendants’
efforts to raise a § 542(b) federal defense to the plaintiff's
action could not invoke federal jurisdiction over the city’s
state law claims. See id. We concluded that, pursuant to the
well-pleaded complaint doctrine, the city pleaded only state-

13a

Appendix A

law claims that did not implicate federal law, so it was
necessary to remand the action to state court. See id.

Comcast is readily distinguishable from the present case,
however. In contrast to § 542, there is no question that
Congress intended the FCA to displace state law with respect
to long-distance telephone service terms and conditions. See
Boomer, 309 F.3d at 423. The only question here is whether
such preemption survived detariffing, which we answered
in the affirmative in Boomer. Comcast says nothing about
that issue, so Dreamscape cannot simply invoke the well-
pleaded complaint doctrine, as applied in Comcast, to save
its claims from preemption here.°

A better case for Dreamcast is /n re Long Distance
Telecommunications Litigation, 831 F.2d 627 (6th Cir. 1987)
(“Long Distance Litigation”), which was decided prior to
detariffing. In Long Distance Litigation, AT & T was alleged
to have fraudulently advertised that its rates were lower than
competitors’ rates but hid the fact that it actually charged for
uncompleted phone calls. 831 F.2d at 628. Among other
claims, the plaintiffs filed various state law claims for fraud

6. For similar reasons, our opinion in Fedor v. Cingular Wireless
Corp., 355 F.3d 1069 (7th Cir.2004), does not help Dreamscape.
That case dealt with a completely different provision of the FCA,
47 U.S.C. § 332(c)(3)(A), which governs mobile communications
and specifically reserves to the states the right to regulate non-rate
“terms and conditions of commercial mobile services.” /d. at 1071.
The plaintiff's claim did not challenge Cingular's rates or their
reasonableness, nor did it challenge market entry as defined in
§ 332. See Fedor, 355 F.3d at 1074. Preemption was therefore not
appropriate under § 332. See id. at 1074-75.

l4a

Appendix A

and deceit, and the Sixth Circuit held that the district court
erroneously found these claims preempted by the FCA.
Id. at 633-34. The court determined that the plaintiffs’ claims
did not relate to long-distance rates or service, but simply
sought damages for AT & T’s failure to disclose its practice
of billing for uncompleted calls. See id. at 634. The court
concluded, however, that if the case had related to such rates
or service, preemption would be likely. See id.

In the present case, Affinity is alleged to have
fraudulently advertised that it billed at per-minute rates, when
in fact it billed by TCU. In certain respects, as Dreamscape
alleges, Affinity’s alleged fraud is facially difficult to
distinguish from AT & T’s. So it is helpful to look not only
to the nature of the claims advanced, but also to the relief
sought in order to determine whether the claims intrude upon
the areas of communications law expressly reserved to the
FCC’s purview. See Bastien v. AT & T Wireless Servs., Inc.,
205 F.3d 983, 989 (7th Cir.2000). If, for example, the Long
Distance Litigation plaintiffs sought rescission of the contract
because of AT & T’s failure to disclose its billing practices,
we agree that preemption would be improper in that case.
After all, such a claim arguably would not seek relief that
would alter or affect AT & T’s rates, terms, or conditions of
service—the sort of requested relief that even the Long
Distance Litigation court recognized as likely to bring a claim
within the bounds of federal jurisdiction. 831 F.2d at 634
(citation omitted).

The precise relief sought by the Long Distance Litigation
plaintiffs is not readily discernible, but it is clear, as we
determined in Cahnmann, that the adjudication of those

15a

Appendix A

plaintiffs’ claims would not have required determining the
validity of AT & T’s tariff. See Cahnmann, 133 F.3d at 488.
This stands in stark contrast to Dreamscape’s claims in the
present case—no matter how Dreamscape attempts to
characterize them—so even Long Distance Litigation cannot
save Dreamscape. Dreamscape does not seek rescission of
the contract, but instead seeks monetary damages for what it
claims to have overspent for long-distance service as a result
of Affinity’s alleged fraud—in other words, payment of the
difference between what Affinity advertised and what
Affinity’s tariff or CSA provided for. We do not see how a
court could possibly grant that form of relief without
invalidating the contracted rates at issue, as delineated first
in the filed tariff and then under the CSA. Payment of such
damages would effectively grant a lower rate to Dreamscape
than to other customers not included in the putative class
and would require the court to determine a “reasonable” rate.
Cf. Bryan, 377 F.3d at 431. Likewise, the special or punitive
damages Dreamscape seeks would amount to a retroactive
rate change as well. To grant any of this requested relief would
be squarely at odds with both the filed tariff doctrine and
our holding in Boomer.

As we noted in Boomer, with the passage of the
Telecommunications Act of 1996, it is clear that Congress
envisioned some role for state law after detariffing, so federal
law no longer completely preempts the entire field. Boomer,
309 F.3d at 424. With respect to long-distance service
contracts, however, we expressly held (and reaffirm now)
that state law cannot operate to invalidate the terms and
conditions of such contracts. Because Dreamscape’s claim
seeks relief that would in effect do just that, we fail to see

OO

16a
Appendix A

how Dreamscape’s claims are not preempted in the same way
the Boomer plaintiff's claims were. In short, we agree with
the district court’s conclusion that even after amending its
complaint, Dreamscape’s claims and the relief it sought
primarily concern the rates Affinity has charged for its long-

distance service and should be preempted.

Nevertheless, Dreamscape argues that it only challenges
Affinity’s pre-contract promises, not the rates or other terms
of Affinity’s tariff or CSA. According to Dreamscape,
“(i]t matters not whether [Affinity] was selling cars or fruit
or refrigerators or long-distance service. The ICFA requires
that [Affinity’s] advertising and solicitations be truthful.”
Dreamscape’s blithe assertion notwithstanding, it does matter
in this case what sort of goods or services Affinity sells,
because that is precisely the point of Boomer and other cases
exploring the bounds of preemption. In this instance,
Congress has clearly indicated its goal of ensuring uniform
and reasonable rates for long-distance service—thus calling
for preemption in this area, if not the unrelated types of
commerce Dreamscape lists.

Although Dreamscape argues that Affinity’s actions
amounted to simple fraud, we find that its fraud claims are
really no different than a breach of contract claim
(notwithstanding that it advances such a claim under a
separate count, as discussed below), in terms of the relief it
seeks. See Cahnmann, 133 F.3d at 490. As we indicated
above, the relief Dreamscape seeks is impossible to grant
without effectively invalidating Affinity’s contractual rates,
terms, or conditions. See Boomer, 309 F.3d at 423; cf. ICOM,
238 F.3d at 222- 23. The substance of Affinity’s contractual

17a

Appendix A

provisions cannot be severed from the alleged fraud that
induced Dreamscape into purchasing Affinity’s long-distance
services to begin with. Cf, Cahnmann, 133 F.3d at 489 (noting
that if the parties’ contract had included a provision entirely
unrelated to the tariff in which the defendant promised
“to sell the plaintiff a bushel of Ugli fruit at market price,”
such a promise might be severable from the defendant’s filed
tariff and thus actionable under state law). Affinity’s alleged
fraud pertained to something, after all, and that “something”
is set forth within Affinity’s filed tariff and CSA, which detail
the rates, terms, and conditions of which Dreamscape
ultimately complains.

Therefore, it is the artful pleading doctrine, not the well-
pleaded complaint doctrine, that properly guides
interpretation of Dreamscape’s amended complaint. See
Bastien, 205 F.3d at 986 (“It is true that a plaintiff is ... master
of his own complaint and may seek to avoid federal
jurisdiction by pleading only state law claims, . . . but when
that complaint, fairly read, states a federal question, the
defendant may rémove the case to federal court.”) (internal
citations omitted). Dreamscape seeks to convince us that its
fraud claims do not touch upon Affinity’s rates and, as the
Cahnmann plaintiff did, “emphatically disclaims any
intention of prosecuting a federal claim.” Cahnmann, 133
F.3d at 489.

We are just as unpersuaded here as we were in
Cahnmann, however. Our interpretation of Dreamscape’s
complaint and conclusion arise from an “uncontroversial
application of the artful pleading doctrine.” Jd. at 490
(quotation marks omitted). Pursuant to Boomer and related

18a

Appendix A

caselaw, we conclude that Dreamscape’s fraud claims are
federally preempted and were properly removed to federal
court. See Boomer, 309 F.3d at 423; see also Cahnmann,
133 F.3d at 490 (“If a claim can arise only under federal law,
because federal law has extinguished the state law basis under
which it might otherwise arise, the case is removable to
federal court even if the plaintiff sedulously avoids mention
of federal law in his complaint.”); see also Bastien, 205 F.3d
at 986 (“[I]n some instances, Congress has so completely
preempted a particular area that. . . removal is proper despite
the well-pleaded complaint rule.”) (citations omitted).

B. Breach of Contract

Dreamscape’s remaining claim alleges that Affinity
breached its contract. But Dreamscape candidly concedes
(as it must) that this claim necessarily challenges Affinity’s
rates and terms as set forth in its tariff and CSA and thus
cannot survive unless we “revisit” Boomer—by “revisit,” we
assume that Dreamscape is asking that we either distinguish
Boomer or set it aside in favor of the Ninth Circuit's Ting
decision. We see no way, however, to distinguish Boomer
and, further, reaffirm it because our analysis in Boomer
remains sound.

We are unpersuaded by Ting. Contrary to Boomer, the
Ninth Circuit held that federal preemption under the filed
tariff doctrine did not survive detariffing. Ting, 319 F.3d at
1135. In fact, the court expressly rejected Boomer’s
preemption analysis, concluding that, in the detariffed
environment, state laws did not obstruct Congress’s intent
with respect to the FCA. See id. The Ninth Circuit concluded

19a

Appendix A

that, with the passage of the Telecommunications Act of 1996,
Congress intended state contract and consumer protection
laws to play a role in governing the carrier-consumer
relationship after detariffing, and preemption did not survive
the passage of the act. See id. at 1144. The court believed
that Congress intended the goals expressed in Sections 201
and 202 to be enforced by application of state law. See id.
at 1144-45. Therefore, the Ninth Circuit held, the plaintiffs
could challenge the carrier’s CSA under California state law.

We disagree with this interpretation. For the reasons we
discussed at length in Boomer, we do not see how Congress’s
clearly expressed intent regarding uniformity and
reasonableness of rates, as demonstrated in Sections 201 and
202 of the FCA, can be squared with Ting’s apparent
conclusion that state contract law can invalidate the terms
or conditions of long-distance contracts after detariffing.
See Boomer, 309 F.3d at 417-23. Indeed, in Boomer we
rejected the very district court opinion that Ting affirmed.
See id. at 422. As indicated in Boomer and in this opinion,
we conclude that even after detariffing, state law cannot
operate to invalidate the rates, terms, or conditions of a long-
distance service contract (which is precisely what
Dreamscape’s amended complaint seeks, whether it admits
it or not) because such a result would be contrary to
Congress’s intent as expressed in Sections 201 and 202.

Dreamscape’s claims are preempted by federal law, and
removal of Dreamscape’s action and dismissal of its amended
complaint were appropriate.

20a

Appendix A
Ill. Conclusion

For the reasons given, we AFFIRM the order of the
district court dismissing Dreamscape’s amended complaint.

A true Copy:
| Teste:

Clerk of the United States Court of
Appeals for the Seventh Circuit

2la |

APPENDIX B — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE CENTRAL DISTRICT
OF ILLINOIS, URBANA DIVISION
FILED JULY 12, 2004

ow

UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION

Case No. 02-2235

DREAMSCAPE DESIGN, INC., a corporation,

Plaintiff,
‘ :
AFFINITY NETWORK, INC., a corporation, |

Defendant. |
ORDER |

This case is before the court for ruling on the Motion to
Dismiss Second Amended Class Action Complaint (#54) filed
by Defendant, Affinity Network, Inc., and the Motion to
Remand (#56) filed by Plaintiff, Dreamscape Design, Inc.
Following this court's careful consideration of the arguments
of the parties, Defendant's Motion to Dismiss (#54) is
GRANTED, and Plaintiff's Second Amended Class Action
Complaint is dismissed with prejudice. Therefore, Plaintiff's
Motion to Remand (#56) is DENIED as moot.

22a

Appendix B
BACKGROUND

In September 2002, Plaintiff filed a Class Action
Complaint in the circuit court of Champaign County. Plaintiff
alleged that Defendant violated the Illinois Consumer Fraud
Act by advertising that it provided long distance telephone
service at certain per minute rates when, in fact, Defendant’s
bills were at rates based upon “TCU’s” rather than per minute
charges. According to Plaintiff, this resulted in rates
substantially in excess of the advertised rates. Plaintiff
attached to its Complaint copies of two of Defendant’s
advertisements, which included fax machine dates showing
that they were faxed in 1999, and a copy of a 1999 invoice.
On November 12, 2002, Defendant removed the case to this
court. Defendant contended that Plaintiff's claims were

preempted by federal law.

On March 17, 2003, this court entered an Order (#27)
which denied Plaintiff's Motion to Remand (#8) and granted
Defendant’s Motions to Compel Arbitration and Stay
Proceedings (#5, #24) and Defendant's Cross-Motion to Stay
or Deny the Class Certification Motion as Premature (#17).
This court agreed with the reasoning of Magistrate Judge
David G. Bernthal in his Report and Recommendation (#21).
This court stated that it agreed with the Magistrate Judge
that “a review of the complaint makes it clear that this suit is
primarily about the rates Defendant charged its customers
for service.” This court further stated that it agreed with the
Magistrate Judge’s conclusion that, because a large part of
Plaintiff's claims were related to Defendant’s methods and
rates for billing long-distance service, a subject governed by
Defendant's tariff, the purported state claims at issue in the

23a

Appendix B

suit were preempted by federal law. This court noted that the
tariff requirement was canceled on July 31, 2001, as part of
the detariffmg program of the Federal Communications
Commission (FCC) but that it appeared from the attachments
to the Complaint that “Plaintiff's claims relate to the period
before July 31, 2001, when tariffs were still required.”
This court also noted that the Seventh Circuit, in Boomer v.
AT & T Corp., 309 F.3d 404, 424 (7 Cir. 2002) held that,
even after deregulation, the Communications Act of 1934
preempts state law in cases involving the rates, terms, and
conditions of the contract between a long-distance carrier
and its customers. In addition, this court found that the
arbitration clause contained in Defendant's tariff required
arbitration of Plaintiff's dispute. This court specifically found
that “Defendant's tariff was in force when the dispute arose
and thus governs its resolution.” Plaintiff's Motion to Certify
Class (#14) was stayed pending the outcome of arbitration.’

Subsequently, Plaintiff, on two occasions, asked this
court to reconsider its ruling that its claim was preempted
by federal law and subject to arbitration. On May 9, 2003,
this court entered an Order (#34) which granted Defendant's
Motion to Strike Plaintiffs Amended Motion for
Reconsideration. Although this court struck tne Amended
Moticn for Reconsideration, this court also stated that it had
carefully reviewed the arguments made by Plaintiff and found
them entirely without merit. This court stated, “[bJecause
the terms of service provided to Plaintiff by Defendant were
governed by Defendant’s filed tariff, the filed tariff doctrine

1. Plaintiff's Motion to Certify Class (#14) was later withdrawn
with leave to reinstate at the conclusion of arbitration.

24a

Appendix B

applies and operates to bar Plaintiffs purported state law
claims. Plaintiffs claims are preempted by federal law.”

On January 23, 2004, Plaintiff filed another Motion to
Reconsider (#38). Plaintiff argued that this court should
reconsider its Order denying remand based upon the January
22, 2004, decision of the Seventh Circuit in Fedor v. Cingular
Wireless Corp., 355 F.3d 1069 (7 Cir. 2004). This court
entered an Order (#47) on March 3, 2004, and denied
Plaintiffs Motion. This court concluded that the decision in
Fedor did not apply to the facts of this case and stated that
“this court remains convinced that Plaintiffs claims in this
case are related to Defendant's methods and rates for billing
long-distance service, a subject governed by Defendant's
tariff. Therefore, in this case, the question of ‘whether the
claim necessarily treads upon the federally-reserved areas’
must be answered in the affirmative. See Fedor, 355 F.3d
at 1072.” However, this court denied Defendant’s Motion
for Sanctions in an Order (#49) entered on March 11, 2004.
This court concluded that sanctions against Plaintiff were
not warranted.

Thereafter, the arbitration proceedings continued before
retired Judge Richard E. Neville. On April 12, 2004,
Arbitrator Neville entered a decision in the case. The
arbitrator first found that the dispute was governed by the
arbitration clause in the tariff. The arbitrator next found that
the tariff overrode State law and applied to the dispute
“and that there is no remedy for the Plaintiff for any
fraudulent misrepresentations made by the Defendant as
alleged.” The arbitrator therefore dismissed Plaintiff's claims.
However, the arbitrator noted that July 31, 2001, was the

25a

Appendix B

cancellation date for FCC tariffs and that the record was not
clear regarding whether all of Plaintiffs claims occurred
before July 31, 2001. Therefore, the arbitrator stated that he
would allow Plaintiff to file an amended claim to address
this issue if Plaintiff chose to do so.

On April 23, 2004, Plaintiff filed its Second Amended
Class Action Complaint (#53).? In Count 1, Plaintiff stated
that the Amended Class Action Complaint wis designated
as Count | and was not abandoned. However, Plaintiff
acknowledged that this count was dismissed by the arbitrator
on April 12, 2004. In Counts 2 and 3, Plaintiff alleged that
it, and other putative class members, utilized Defendant's
service subsequent to July 31, 2001. In Count 2, Plaintiff
alleged that Defendant violated the Illinois Consumer Fraud
Act and that “the plaintiff and the putative class members
were damaged in that they paid more for their intrastate and
interstate long distance service than the represented rate of
5 cents per minute for intrastate and 8.9 cents per minute for
interstate long distance subsequent to July 31, 2001.”
In Count 3, Plaintiff alleged that a contract was formed
between Defendant and Plaintiff and the putative class
members upon their acceptance of Defendant's services.
Plaintiff further alleged that the relevant term of this contract
was that Plaintiff and the putative class members would pay
5 cents per minute for intrastate long distance and 8.9 cents

2.- On February 4, 2003, Plaintiff filed an Amended Class Action
Complaint (#22). However, this court noted, in its March 17, 2003,
Order (#27) that it agreed with Defendant that the amended complaint
did not cure the federal preemption of Plaintiff's claims as the “claims
still hinge upon the amounts charged by Defendant, which are
governed exclusively by Defendant's tariff.”

— ——-— er

- ee eee =

26a

Appendix B

per minute for interstate long distance. Plaintiff alleged that
Defendant breached this contract by charging rates in excess
of the contract rates “subsequent to July 31, 2001.” Plaintiff
attached to its Second Amended Class Action Complaint the
same copies of Defendant’s advertisements it attached to its
original Complaint. As noted previously, these copies show
that they were received by fax in 1999.

On May 7, 2004, a status conference was held before
this court. At the conference, this court confirmed that, based
upon the arbitrator’s ruling, Plaintiff's claims were dismissed.
However, this court noted that, since the arbitrator’s ruling,
Plaintiff had filed its Second Amended Class Action
Complaint. This court therefore lifted the stay which had
been imposed pending arbitration and also ruled that Count
1 of Plaintiff's Second Amended Class Action Complaint
was dismissed. Defendant was allowed until June 21, 2004,
to respond to Counts 2 and 3 of the Second Amended Class
Action Complaint.

On ‘une 18, 2004, Defendant filed a Motion to Dismiss
Second Amended Class Action Complaint (#54) and a
Memorandum of Law in Support (#55). Defendant argued
that Plaintiff's claims are still preempted by federal law and
mist be dismissed. On June 28, 2004, Plaintiff filed a Motion
to Remand (#56) and argued that its state law claims should
be remanded back to the circuit court of Champaign County.
On July 2, 2004, Plaintiff also filed a Reply to Defendant’s
Motion to Dismiss (#58). Plaintiff argued that its claims in
Couat 2 and Count 3 allege only state claims based on
services rendered and invoices submitted by Defendant after
July 31, 2001, after detariffing, and are not preempted.

27a

Appendix B
ANALYSIS

In this case, this court previously ruled that Plaintiffs
state law claims, as alleged in its Class Action Complaint
and Amended Class Action Complaint, appeared to relate to
the period before July 31, 2001, when tariffs were still
required, and were therefore preempted by federal law and
subject to arbitration based upon the arbitration clause in
the tariff. The arbitrator concluded that, to the extent
Plaintiff's claims arose before July 31, 2001, the tariff
overrode state law and, thus, “there is no remedy for the
Plaintiff for any fraudulent misrepresentations made by the
Defendant as alleged.” This court agrees with the arbitrator's
conclusion. Prior to 2001, the Communications Act of
1934 (Communications Act), as amended by the
Telecommunications Act of 1996, required long distance
’ carriers to set forth their charges and other terms and
conditions of service in tariffs filed with the FCC. Boomer,
309 F.3d at 408; see also A T & T Co. v. Cent. Office Tel.,
Inc., 524 U.S. 214, 221-23 (1998). In the interest of
preventing unreasonable and discriminatory charges,
the rates a long distance carrier charged had to be the rates
stated in its tariff. See Cent. Office Tel., 524 U.S. at 221-22.
Therefore, “even if a carrier intentionally misrepresents its
rate and a customer relies on the misrepresentation, the carrier
cannot be held to the promised rate if it conflicts with the
published tariff” Cent. Office Tel., 524 U.S. at 222; see also
Boomer, 309 F.3d at 408 (“Under the ‘filed tariff doctrine,’
customers were bound by the terms of the tariff even if they
had never seen the tariff, and even if the consumers had been
promised service under different rates, terms or conditions.”).
This is because “the policy of nondiscriminatory rates is

~— <2 a aE HE oases
= » ; —<--

28a
Appendix B

violated when sirnilarly situated customers pay different rates _
for the same services.” Cent. Office Tel., 524 U.S. at 223.

The issue now before this court, raised by both
Defendant's Motion to Dismiss and Plaintiff's Motion to
Remand, is whether Plaintiff can bring state law claims, based
upon the same alleged misrepresentations, because it has now
alleged that it received invoices from Defendant after July
31, 2001. This court concludes that, based upon the Seventh
Circuit's decision in Boomer, this question must be answered
in the negative.

As noted previously, the tariff requirement was ended,
effective July 31, 2001, by a series of orders from the FCC.
See Boomer, 309 F.3d at 409. Instead of filing tariffs, carriers
were then required to provide customers with notice of the
rates, terms, and conditions of service, and to offer customers
service under those terms and conditions. Boomer, 309 F.3d
at 409; see also Ramette v. AT & T Corp., __ N.E.2d __,
2004 WL 1393613, at * 1 (Ill. App. Ct. 2004). The customers
could, in turn, accept or reject the carrier’s offer. Boomer,
309 F.3d at 409; Ramette, 2004 WL 1393613, at *1. If the
customer accepted the terms of the offer by continuing
service, the terms and conditions set out by the carrier became
the agreement between the customer and the carrier.
See Boomer, 309 F.3d at 409-10. According to Defendant,
on August |, 2001, it provided Plaintiff (and its other long
distance customers) with a notice stating that its services
would be provided according to the terms and conditions
posted on its website.’

3. Plaintiff has not disputed this assertion.

29a

Appendix B

~ In Boomer, a class action suit was filed against A T & T
alleging that it overcharged customers for contributions to
federal universal service funds. In that case, A T & T sent
out Customer Service Agreements to its customers in June
2001. A notice included with the agreements provided that,
“by enrolling in, using, or paying for the services, you agree
to the prices, charges, terms and conditions in this
agreement.” Boomer, 309 F.3d at 409. The agreements sent
out by A T & T included an arbitration clause. Boomer,
309 F.3d at 410. The plaintiffs in Boomer argued that the
arbitration clause was not enforceable under Illinois law.
Boomer, 309 F.3d at 411. However, the Seventh Circuit held
that state law challenges to the validity of the arbitration
clause contained in the agreement were preempted by the
Communications Act. Boomer, 309 F.3d at 418.

In reaching this conclusion, the Seventh Circuit
stated that provisions of the Communications Act, and
the Communications Act in general, “demonstrate a
congressional intent that customers of individual long-
distance carriers receive uniform terms and conditions of
service” and “a congressional intent that individual long-
distance customers throughout the United States receive
uniform rates, terms and conditions of service.” Boomer, 309
F.3d at 418. The Seventh Circuit determined that, allowing a
state law challenge to the arbitration clause in the agreement
“would result in customers receiving different terms based
on their locality.” Boomer, 309 F.3d at 418. The court also
Stated that section 201 of the Communications Act “declares
unlawful rates, terms and conditions which are not just and
reasonable, demonstrating Congress's intent that federal law
govern the validity of the terms and conditions of long-

30a
Appendix B

distance service contracts.” Boomer, 309 F.3d at 418. The
Seventh Circuit noted that allowing state law to determine
the validity of the various terms and conditions would
“create a labyrinth of rates, terms and conditions and this
violates Congress’s intent in passing the Communications
Act.” Boomer, 309 F.3d at 420. The court in Boomer
went on to state that, following detariffing, “there appears to
be some role for state law.” Boomer, 309 F.3d at 424. The
court therefore indicated that, after detariffing, the
Communications Act does not completely preempt state law.
Boomer, 309 F.3d at 424. However, the court specifically
stated that state law “cannot operate to invalidate the rates,
terms or conditions of a long-distance service contract.”
Boomer, 309 F.3d at 424.

In this case, this court has previously found that
Plaintiff's claims are “primarily about the rates Defendant
charged its customers for service” and are related to
Defendant’s methods and rates for billing long-distance
service. The allegations in the Second Amended Class Action
Compiaint demonstrate that is still the case. The Seventh
Circuit has clearly stated that federe law governs the rates,
terms and conditions of long-distance service contracts and
that state law “cannot operate to invalidate the rates, terms
or conditions of a long-distance service contract.” Boomer,
309 F.3d at 418, 420. Therefore, based upon Boomer, this
court agrees with Defendant that Plaintiffs state law claims
are still preempted, even though Plaintiff has alleged that it
received invoices from Defendant after detariffing.

This court finds unavailing Plaintiff's various arguments
regarding why Boomer does not apply to this case. Plaintiff

3la

Appendix B

first argues that Boomer is factually distinct. Plaintiff
contends that Boomer was limited to the narrow issue of the
arbitration clause, an issue no longer present in this case.
However, as already noted by this court, Plaintiff's state law
claims in this case challenge the rates charged by Defendant,
which is a subject the court in Boomer specifically stated is
governed by federal law.

Plaintiff next argues that this court should follow the
decision of the Ninth Circuit Court of Appeals in Ting v.
AT & T Corp., 319 F.3d 1126 (9® Cir. 2003), cert. denied,
124 S. Ct. 53 (2003). The Ninth Circuit, in Ting, disagreed
with the Seventh Circuit's decision in Boomer and found
that the principle of preemption was a product of the filed
rate doctrine and did not survive detariffing. Ting, 319 F.3d
at 1138-46.

This court, however, is bound to follow the rulings of
the Seventh Circuit, the Circuit in which this court is located,
unless powerfully convinced that the Seventh Circuit would
overrule that decision at the first opportunity. See Brenner v.
Brown, 814 F. Supp. 717, 718 (N.D. Ill. 1993), citing Colby
v. J.C. Penney Co., 811 F.2d 1119, 1123 (7* Cir. 1987); see
also McBride » St. Anthony Messenger Magazine, 2003 WL
1903381, at *8 (S.D. Ind. 2003). This court has no reason to
believe that the Seventh Circuit would overrule its decision
in Boomer and follow the reasoning of the Ninth Circuit in
Ting.

Further, this court agrees with a recent decision of the
Illinois Appellate Court which found that Boomer is the
better reasoned of the two decisions. See Ramette, 2004

32a
Appendix B

WL 1393613, at 6-8. The court in Ramette declined to follow
Ting and specifically found that Boomer was “a well-reasoned
opinion that detailed the congressional intent behind the
{Communications Act].” Ramette, 2004 WL 1393613, at *6.
The court also noted that the plaintiff in that case, in arguing
that Boomer was incorrectly decided, failed “to recognize
the purpose of the [Communications Act] was to advance
uniformity in telecommunications services. Allowing state-
law challenges to the [customer service agreement] would
create a diversity in terms and conditions of service.”
Ramette, 2004 WL 1393613, at *6. The Illinois Appellate
Court stated that it found Boomer “to be persuasive in its
logic and reasoning.” Ramette, 2004 WL 1393613, at *8. The
court also noted that Boomer had been followed outside the
Seventh Circuit in In re Universal Serv. Fund Tel. Billing
Practices Litig., 300 F. Supp. 2d 1107 (D. Kan. 2003).
Ramette, 2004 WL 1393613, at *8.

The court in Universal Serv. Fund noted that the FCC
has stated:

We therefore agree with A T & T, Spring, and
WorldCom that the Communications Act
continues to govern determinations as to whether
rates, terms, and conditions for interstate,
domestic, interexchange services are just and
reasonable, and are not unjustly or unreasonably
discriminatory. While the parties only sought
certification that the Communications Act governs
the determination as to the lawfulness of rates,
terms, and conditions, we note that the
Communications Act does not govern other issues,

33a

Appendix B

such as contract formation and breach of contract,
that arise in a detariffed environment. As stated
in the Second Report and Order, consumers may
have remedies under state consumer protection
and contract laws as to issues regarding the legal
relationship between the carrier and customer in
a detariffed regime.

Universal Serv. Fund, 300 F. Supp. 2d at 1120 (emphasis
omitted), quoting Order on Reconsideration, Interstate
Interexchange Marketplace, 12 F.C.C. Rep. 15014, 15057
(1997); see also Ramette, 2004 WL 1393613, at *9, This
court concludes that the FCC’s statement is entirely
consistent with the Seventh Circuit’s conclusion in Boomer
that the rates, terms and conditions of long distance telephone
service are governed by federal law and are not subject to a
state law attack. The FCC’s remaining statements regarding
the availability of state law challenges of other issues, such
as contract formation and breach of contract, does not help
Plaintiff in this case. Plaintiff has alleged that Defendant
made misrepresentations in its advertisements in 1999, before
detariffing, and alleges that bills it received for services after
July 31, 2001, were contrary to the advertised rates.
Therefore, Plaintiff is not alleging the breach of a contract
which was formed after detariffing.

Accordingly, for all of the reasons stated, this court
agrees with Defendant that the state law claims alleged in
Plaintiff's Second Amended Class Action Complaint are
preempted and must be dismissed. Any relief Plaintiff
believes it is entitled to must begin with a complaint to the
FCC. Ramette, 2004 WL 1393613, at *11; see also Boomer,
309 F.3d at 420 n.9.

34a
Appendix B
IT IS THEREFORE ORDERED THAT:

(1) Defendant's Motion to Dismiss the Second Amended
Class Action Complaint (#54) is GRANTED. Plaintiffs
Second Amended Class Action Complaint (#53) is dismissed
with prejudice.

(2) Plaintiffs Motion to Remand (#56) is therefore
DENIED as moot.

This case is terminated.
ENTERED this 9th day of July, 2004

s/ MICHAEL P. McCUSKEY
U.S. DISTRICT JUDGE

IN THe

Supreme Court of the United Stutes

nt

$$

DREAMSCAPE DESIGN, INC.

P etitioner,

FOR THE SEVENTH Cincurr
__. a

Attorneys for Respondent
ala
(90) 2763321 (do sop. aasy

ee Ee

i

QUESTION PRESENTED

Whether state law challenges to the rates charged by
common carriers for long distance telecommunications
services are preempted by Sections 201 and 202 of the Federal
Communications Act.

i

RULE 29.6 STATEMENT

Respondent Affinity Network Incorporated is a privately
held corporation and has no parent corporation. No publicly
held company owns 10% or more of the stock of Affinity
Network Incorporated.

iii

TABLE OF CONTENTS

Page
QUESTION PRESENTED ..............0eeeeee i
RULE ZO.G STATEMENT cccccccccvcccccccess il
BARES Ce GUUEEITED csccdccceseccesecccce iti
TABLE OF CITEDAUTHORITIES ............ v
SE clieds bnos ncues kedeedenes oa l
COUNTER-STATEMENT OF THE CASE ....... 2
A. Regulatory Background................. 2
B. Factual And Procedural Background ...... 5
1. Proceedings Before The District Court ;
2. Proceedings Before The Court of Appeals
For The Seventh Circuit ............ 8
REASONS FOR DENYING THE PETITION .... 10
I. THERE IS NO CONFLICT WARRANTING
REVIEW BY THIS COURT ............. 10

A. This Court Has Already Declined To
Review The Alleged Split Between The
Courts In Jing And Boomer ......... 10

iv

Contents

B. Significant Factual Differences Between
Boomer And Ting And This Case Weigh
Heavily Against Review ............

1. Boomer And Ting Addressed Non-Rate
Specific Issues, While This Case Directly
a) Re reer

2. This Case Directly Involves Rates And
Is Therefore Distinguishable From Ting,
And Not In Conflict With Ting Or

NS SUS ovis ehh a dia aceasta

Il. This Case Is A Poor Vehicle To Address The
Relationship Between Federal And State Law
In This Area Because Of The Unique Facts Of
TE 0. 0's nc.c0vdd saab epcanavneunaes

Ill. The Petitioner Has Not Presented An
Important Federal Question That Warrants
PEGE UU. 6 cccacvaeeweeei sane

a ee ee ae ae

Page

1]

12

12

15

16

TABLE OF CITED AUTHORITIES

Page
CASES
AT&T v. Central Office Telegraph, Inc., 524 U.S. 214
SEE cdewdia ri ceudeesevevaebenneoectient 3, 13,14
American Broadcasting Cos. v. FCC, 643 F.2d 818
Ch Ge SUED pv cdednesucesdsoonndeesbecs 2,3
Boomer v. AT & T Corp., 309 F.3d 404 (7th Cir.
ED is bed db obaabdehednetoth« taba 1,9, 10, 11, 12

Cahnmann v. Sprint Corp., 133 F.3d 484 (7th Cir.),
cert. denied, $24 U.S. 952 (1998) ............ 13

Louisville & Nashville R. Co. v. Maxwell, 237 U.S.
DOREPEED. cacccvecsidedvescocivaceoveneees 13

MCI Telecommunications Corp. v. AT&T, 512 U.S.
BCE i cddcvdecdvcccbdvsees téebeeedes 3

MCI Telecommunications Corp. v. FCC, 765 F.2d
ft 1.8, 3 ES rere 3

Maislin industrial, U.S., Inc. v. Primary Steel, Inc.,
Se ee MERE ccccceédcdudveneéenuess 3,13

Metropolitan E. Ctr. For Conditioning & Health v.
Qwest Communications International, Inc.,
294 F.3d 924 (7th Cir. 2002) .... 2... cc evenness 14

Ting v. AT & T, 319 F.3d 1126 (9th Cir.), cert. denied,
tf Go OT, rr rye 1, 10, 11,12

vi

Cited Authorities
Page

OTHER AUTHORITIES
Competitive Carrier, Fourth Report & Order,

Sr aene SORGROEED “baccddecsdpocéucdorat 3
Competitive Carrier, Sixth Report & Order,

FD CAAnDe CGO CRSGED ccccccdcucbiccceces 3
Interstate Interexchange Marketplace, \\ F.C.C. Red

PEEP CEN - cbdccene séaudactceresean 4,5, 14, 15
Interstate Interexchange Marketplace, |12 F.C.C. Red

SPORES OEE wv vetdudnd co cdcncdsontoyeet ose 4,14
Interstate Interexchange Marketplace, |14 F.C.C. Red

i PP eer or itt it 4,14
STATUTES
GF Cae BOE covecvecwcicsdedeceudtaeurbes 2
47 U.S.C. § 160 ...... baud: -aeadepdobeedus 4
GF Wn DODO wopcvcrvecceevecvcdecvecvedes passim
Sy ES 6 bc bbiecé debe Wdsceeeswueetes passim
SP ees OE ed 0 wos oenecctnetecunyedsace ts 2,3

i ee 15

l
INTRODUCTION

The question presented by petitioner Dreamscape Design,
Inc. (“Petitioner”) does not warrant review by this Court. First
and foremost, this Court has already declined to review a case
arguing that there is a split between the Court of Appeais for
the Seventh Circuit's decision in Boomer v. AT & T Corp., 309
F.3d 404 (7th Cir. 2002), and the Court of Appeals for the Ninth
Circuit's decision in Ting v. AT & T, 319 F.3d 1126 (9th Cir.),
cert. denied, 540 U.S. 811 (2003). This alleged split between
Boomer and Ting (rather than any alleged split created by this
case) is the sole basis asserted by the Petitioner for review. This
Court declined review in Jing and nc other circuit court has
addressed the issue of federal preemption of claims challenging
long distance telecommunications rates in a detariffed
environment. Thus, there exists no basis to warrant this Court’s
intervention.

Further, significant factual differences between this case
and Boomer and Ting weigh heavily against review by this Court.
Boomer and Ting involved challenges to arbitration clauses
contained in a consumer services agreement, while this case
involves a direct challenge to the rates charged by respondent
Affinity Network Incorporated (“Affinity”) for long distance
telecommunications service. There is no case that holds that a
challenge to such rates is governed by state law. All of the cases
uniformly hold that such challenges fall squarely within the
scope of Section 201(b) and 202(a) of the Communications Act.

In any event, this case is a poor vehicle to address the
relationship between federal and state law in the detariffed
environment because the claims here arose while the tariff- filing
requirement was in place, and therefore are inextricably
connected to the tariff. Finally, given the ample redress available
to consumers of long distance service under federal law,
Petitioner fails to present an important question of federal law
that would require this Court’s intervention.

2

COUNTER-STATEMENT OF THE CASE

A. Regulatory Background

As a provider of interstate telecommunication services,
Affinity is subject to federal regulation as a common carrier
under the Federal Communications Act, 47 U.S.C. § 151
et seq. (the “Communications Act”). Indeed, as a “common
carrier,” the rates, terms, and conditions of interstate
telephone service that Affinity may offer its customers are
subject to the substantive requirements of Sections 201 and
202 of the Communications Act. See 47 U.S.C. §§ 201, 202.
Under these provisions, carriers may impose only those
“charges, practices, classifications, and regulations” that are
“just and reasonable” under Section 201(b)), and may not
engage in any “unjust or unreasonable discrimination™
between customers regarding such rates, terms, or conditions
of service pursuant to Section 202(a). /d. In addition, Section
202(a) bars carriers from making or giving any “undue or
unreasonable preference or advantage to any particular
person, class of persons, or locality.” 47 U.S.C. § 202(a).

Until August | , 2001, Section 203 of the Communications
Act required long distance telecommunications carriers,
including Affinity, to set forth the rates and other terms and
conditions of their service in tariffs filed with the Federal
Communications Commission (the “FCC”). See 47 U.S.C.
§ 203(a). Section 203 provided the FCC with a procedural
vehicle that operated “[{i}Jn furtherance” of the substantive
standards of Sections 201 and 202 of the Communications
Act. American Broadcasting Cos. v. FCC, 643 F.2d 818, 822
(D.C. Cir. 1980). It centralized all determinations of the
lawfulness of the carriers’ rates, terms and conditions at the
FCC and enabled the FCC to review the tariffs under the
standards of Sections 201 and 202. Under Section 203, all
rates, terms, and conditions of interstate long distance service

3

were valid unless and until they were determined by the FCC
(or by a court reviewing an FCC order) to violate the
substantive requirements of the Act and the tariff was changed
appropriately. See id. at 822-823; see aiso 47 U.S.C. § 203.

Under the “filed tariff doctrine,” customers were bound
by the terms of the tariff even if they had never seen the
tariff. See, e.g., Maislin Indus., U.S., Inc. v. Primary Steel,
Inc., 497 U.S. 116 (1990). Customers were conclusively
presumed to have “notice” of whatever rates, terms, and
conditions were contained in the tariffs that were currently
on file (see id.), and to have “accepted” these terms by using
the long distance or other tariffed service. /d. at 127-28; AT&T
v. Central Office Tel., Inc., $524 U.S. 214, 222-24 (1998).

Prior to 1996, the FCC entered orders exempting
“nondominant carners” (defined as those lacking market
power) from the tariff-filing requirements of Section 203 of
the Communications Act. See Competitive Carrier, Fourth
Report & Order, 95 FCC 2d 554 (1983), vacated by MCI
Telecommunications Corp. v. AT&T, 512 U.S. 218 (1994);
see also Competitive Carrier, Sixth Report & Order, 99 FCC
2d 1020 (1985), vacated by MCI Telecommunications Corp.
v. FCC, 765 F.2d 1186 (D.C. Cir. 1985). Notably, the FCC’s
orders provided that the rates, terms, and conditions of these
carriers’ service would continue to be governed exclusively
by the substantive requirements of Sections 201 and 202 of
the Communications Act. See id. These Orders, however,
were vacated on the ground that the FCC lacked the authority
under the Communications Act to exempt certain carriers
from the tariff-filing requirement of Section 203. See MC/
Telecommunications Corp., 512 U.S. at 234 (citing prior
decisions).

When Congress passed the Telecommunications Act of
1996, however, it expressly gave the FCC the authority to

4

forbear from applying the tariff-filing requirement if the FCC
determined that, among other things, the “enforcement of
such regulation or provision is not necessary to ensure that
the charges, practices, classifications, or regulations . . . are
just and reasonable and are not unjustly or unreasonably
discriminatory.” 47 U.S.C. § 160(a)(1). Thus, continued
fulfillment of the substantive requirements of Sections 201
and 202 was an express precondition to any detariffing order.
See id.

Armed with this new authority, the FCC issued a series
of orders providing that long-distance carriers were no longer
required to file tariffs. See /nterstate Interexchange
Marketplace, 11 FCC Red. 20,730 (1996) (“Second Report
and Order’’), Interstate Interexchange Marketplace, \2 FCC
Red. 15,014 (1997); Interstate Interexchange Marketplace,
14 FCC Red. 6004 (1999) (collectively, the “Detariffing
Orders”). The carriers were now required to provide
customers with notice of the rates, terms, and conditions of
service, and to offer customers service under such terms and
conditions. See id. The customers, in turn, could accept or
reject the carrier's offer. See id. The FCC anticipated that
carriers would enter into such contracts through the use of
“short, standard contracts.” Second Report and Order, \\
FCC Red. at 20,736.

The FCC determined that discontinuing the filing of
tariffs would not affect the enforcement of the statutory
standards under Sections 201 and 202 because: (i) customers
retained the right under the “complaint process” of Section
208 of the Communications Act to file claims that a carrier's
rates, terms, and conditions violated the substantive standards
of Sections 201 or 202; and (ii) the development ot fierce
competition in the long distance services market meant that
carriers were unlikely to seek to impose rates and terms of

5

service that violated Sections 201 or 202 and that “any
attempt to do so would cause their customers to switch to
different carriers.” Second Report and Order, || FCC Red.
at 20,743

B. Factual And Procedural Background

Affinity is a telecommunications company offering
interstate service. It is undisputed that from 1999 (when
Petitioner alleges that it became an Affinity customer) until
August |, 2001, Affinity charged Petitioner in accordance
with the terms provided in its federally filed tariff. Appendix
to Petition (“App.”) 4a.

It is also undisputed that Affinity gave Petitioner notice
that effective August |, 2001, its services would be provided
according to the terms and conditions set forth in a Customer
Services Agreement (the “CSA”) that Affinity posted on its
website. See id. It is further undisputed that, boginning on
August |, 2001, Affinity provided its services to Petitioner
in accordance with the terms and rates set forth in its CSA.
App. 10a.

1. Proceedings Before The District Court

The district court’s opinion exhaustively describes the
proceedings before it. App. 2la-34a. Petitioner filed this
putative class action against Affinity on September 26, 2002,
in the Circuit Court of the Sixth Judicial Circuit, Champaign
County, Illinois, alleging that Affinity violated the linois
Consumer Fraud Act (“ICFA”). App. 22a. Petitioner based
its ICFA claim on its contention that, in early 1999, Affinity
sent advertisements to it stating that it provided long distance
telephone service at certain per minute rates when, in fact,
Affinity’s bills were based upon “TCU’s” in accordance with

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0294%3A1. Public record. Not legal advice.