# Opposition Brief — CenturyTel, Inc. v. Beattie (No. 08-414)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

(02 D Ree ie
(2) : OCT 17 2008

[OFFICE OF THE CLERK |
IN THE
Supreme Court of the United States

CENTURYTEL, INC.,
Petitioner,
v.
BARBRASUE BEATTIE and JAMES SOVIS,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES CourRT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

PaTRICK E.. CAFFERTY Exiwoop S. SIMON

CaFFERTY FAUCHER LLP Counsel of Record
101 N. Main Street JOHN P ZUCCARINI
Suite 450 E.Lwoop 8S. SIMON & Assoc. PC.
Ann Arbor, MI 48104 355 S. Old Woodward Ave.
(734) 769-2144 Suite 250

Birmingham, MI 48009
(248) 646-9730

Counsel for Respondents

218862 cr)

COUNSEL PRESS
(800) 274-3321 * (800) 359-6859

i
QUESTION PRESENTED

Whether the petition sets forth any compelling
reasons to review the Sixth Circuit’s decision holding
that the district court acted within its discretion in
entering an interlocutory order certifying a class of
consumers for claims against their telephone company
for unjust and unreasonable billing practices in violation
of the Federal Communications Act of 1934, 47 U.S.C.
§ 151 et seq.

il

TABLE OF CONTENTS

Page
Les og ea gk.) Oy Os 5 ear erreree i
Bere FE CHAPIN SEINE cc vccacnsccvncaveses il
TABLE OF CITED AUTHORITIES ......... iii
COUNTERSTATEMENT OF THE CASE .... 3
REASONS FOR DENYING THE PETITION ... 9
I. THIS COURT RARELY REVIEWS —
INTERLOCUTORY RULINGS. ....... 9
Il. THE UNDERLYING FACTUAL
EVENTS ARE UNLIKELY TO
ED ev sobs navi ces alenhwenhe res 13
Ill. THE SIXTH CIRCUIT RULING IS
NOT IN CONFLICT WITH THE
RULINGS OF ANOTHER CIRCUIT. ... 15
IV. THE SIXTH CIRCUIT CORRECTLY
HELD THAT THE DISTRICT COURT
ACTED WITHIN ITS DISCRETION.... 18

DAEED os oncecacsentavecestnaeukenae 23

Ul

TABLE OF CITED AUTHORITIES

Page
Cases
Amchem Products, Inc. v. Windsor,
ee, ee ewok es eceeses 12
Barnes v. Illinois Bell Telegraph Co.,
DPA. 2G 1287 (PCC TOG) nc cic ccccese 22

Brotherhood of Locomotive Firemen
& Enginemen v. Bangor & Aroostook A. R. Co.,
a es 8 See i ee re 9

Carnegie v. Household Intern., Inc.,
376 F.3d 656 (7th Cir. 2004),
cert. denied, 543 U.S. 1051 (2005) .......... 12

Chamberlan v. Ford Motor Co.,
ee ee es CO TT BO) occ ccc ccc tees 11

Conboy v. AT&T Corp.,
84 F. Supp. 2d 492 (S.D.N.Y. 2000),
aff’d, 241 F.3d 242 (2d Cir. 2001) ........ 16, 17, 18

Conboy v. AT&T Corp.,
241 Fad 242 (2a Cir 2001) ........... 2, 15, 20, 22

Coopers & Lybrand v. Livesay,
te A UE, gona ee vdeevoebdsscvers 9

In re Delta Air Lines,
ae wae See Cee CA, BOGE) 2 n cic ecw cuces 11, 13

iv

Cited Authorities

Edweords Industries
v. Bell Telephone Company of Nevada,
(, Ry et oe eS 3s eS |, | rr

Eisen v. Carlisle & Jacquelin,
ee Ree NE ok nes hhc e cen tsiew sans

Firestone Tire & Rubber Co. v. Risjord,
are I ii Wed wan scckuk Keds cece

Global Crossing Telecommunications, Inc.
v. Metrophones Telecommunications, Inc.,
ee ES a een wee Chee uetions

Goldstein v. Cox,
Ne ei aw habe a oa bee

Holmes v. Sec. Investor Protect Corp.,
Se ee ED ac andessek Os bcuseae vae

Interstate Commerce Commission
v. United States ex rel. Campbell,
ee os ne ae een

Interstate Commerce Commission
v. Transcon Lines,
ee es ES ce cecceuwsevueseen

Johnson v. Jones,
ee ee ee Do Sow eeu ndbece ms bec eee

Page

Vv

Cited Authorities
Page
Klay v. Humana, Inc.,
382 F.3d 1241 (11th Cir. 2004),
cert. denied, 543 U.S. 1081 (2005) .......... 12

In re Lorazepam & Clorazepate Antitrust Litig.,
St PEER, MEP) oo ccc cece c cece 11

Olden v. LaFarge Corp.,
383 F.3d 495 (6th Cir. 2004),
cert. denied, 545 U.S. 1152 (2005) .......... 12

Regents of University of California
v. Credit Suisse First Boston (USA), Inc.,
482 F.3d 372 (5th Cir. 2007), cert. denied,
a ee Ee 12

Statutes, Rules and Regulations

Federal Communications Act of 1934
(47 U.S.C. § 151 et seq.)

Er passim
Te os Si we aacecs esses 3, 9, 20
CTE a Cea kev en ose cos 20
ka eck eeeecesdeceues 2,16

Federal Rules of Civil Procedure
ESS SE en 2,15
EE passim

vi

Cited Authorities

Page

Jurisdiction and Venue

I i OSGi eke ces web ewes 13
Rules of the Supreme Court of the United States

ee ce sv ebceescewee 3, 15
Truth-in-Billing Requirements
for Common Carriers

eh AE ee 3, 5, 13, 19
Legislative Materials
Beimee Bes BRO, T0-2OOU (19S!) ... 0. ccc cc cccnss 20
Miscellaneous
James Wm. Moore, Moore’s Federal Practice

Ne es ie ed 10

In the Matter of Truth-in-Billing and Billing
Format, First Report and Order and Further
Notice of Proposed Rulemaking, In the
Matter of Truth-In-Billing and Billing
Format, 14 F-C.C.R. 7492 (F-C.C. Apr. 15, 1999)

1

Respondents Barbrasue Beattie and James Sovis
(collectively, “respondents”), plaintiffs below, hereby
oppose the petition for a writ of certiorari. None of the
reasons advanced by Petitioner CenturyTel, Inc.
(“CenturyTel” or “petitioner”), defendant below, support
the Court’s review of the court of appeals’ decision to
affirm, in part, and remand, in part, the district court’s
class certification order.

First, and most importantly, this petition relates to
_ the district court’s interlocutory order granting, in part,
respondents’ motion for class certification. On appeal
pursuant to Fed. R. Civ. P 23(f), the Sixth Circuit held
that the district court acted within its discretion in
certifying a class and remanded the matter for further
proceedings. As such, this appeal of an interlocutory
procedural ruling is not a good vehicle for the Court to
address, as petitioner requests, the nature of the
proofs necessary to establish a claim under the
Federal Communications Act of 1934 (“Communications
Act”), 47 U.S.C. § 151 et seg. As CenturyTel readily
acknowledges in its petition, the district court already
concluded that CenturyTel violated 47 U.S.C. § 201(b)
and “CenturyTel does not here challenge that ruling.”
Pet. 7-8. Before engaging in any further appellate review,
the litigation in the district court should be permitted
to proceed to a final judgment. “[T]his Court above all
others must limit its review of interlocutory orders.”
Goldstein v. Cox, 396 U.S. 471, 478 (1970).

Second, the conduct that resulted in this litigation
is unlikely to reoccur. Petitioner is a telephone service
provider that systematically billed its customers for an
optional inside wire maintenance plan (called

2

“WireWatch”) under the description “Non-Regulated
Services.” The Federal Communications Commission
(“FCC”) has made it clear that “a charge described by
what it is not” is “inherently ambiguous and does not
disclose sufficient information.” In the Matter of Truth-
in-Billing and Billing Format, First Report and Order
and Further Notice of Proposed Rulemaking, In the
Matter of Truth-In-Billing and Billing Format,
14 F.C.C.R. 7492, at 7518 (F.C.C. Apr. 15, 1999).
Petitioner itself purportedly ceased its practice of billing
for Wire Watch as “Non-Regulated Services” in January
2002. Given the clarity of the FCC’s position on the
specific challenged practice, it is unlikely that any
telecommunications company would use similar billing
language today. Therefore, a ruling by this Court on class
certification issues is unlikely to have a material impact
on any telecommunication industry billing practices
taking place now or in the future.

Third, there is no conflict among the circuits.
Petitioner’s contention that the Sixth Circuit’s decision
is in conflict with Conboy v. AT&T Corp., 241 F.3d 242
(2d Cir. 2001), is specious. Conboy was filed as a class
action, including claims for violation of Section 222 of
the Communications Act, 47 U.S.C. § 222, but class
certification was never addressed. The case was instead
dismissed pursuant to Fed. R. Civ. PR. 12(b)(6) for failure
to state a claim. Thus, Conboy involved an appeal from
a final judgment that was subjected to de novo review
by the Second Circuit. The Sixth Circuit’s decision
below, in contrast, held that the district court did not
abuse its discretion in certifying a class for truth-in-
billing claims pursuant to Section 201(b).

3

Finally, respondents respectfully submit that the
Sixth Circuit’s interpretation of Section 206 of the
Communications Act, 47 U.S.C. § 206, was correct and
appropriate. Even if the Sixth Circuit had misapplied
the statute in the class context, however, any further
appellate proceedings should await a final judgment on
the merits. See Sup. Ct. R. 10.

These considerations all weigh against further
appellate review of the district court’s interlocutory
order by this Court.

COUNTERSTATEMENT OF THE CASE

On October 28, 2002, respondents commenced this
action against CenturyTel after discovering that they
and other CenturyTel telephone customers had been
unlawfully billed, and had paid such unlawfully billed
charges, for WireWatch. Respondents allege that
CenturyTel’s systematic practice of billing customers a
small monthly fee for WireWatch under the label
“Non-Regulated Services” constituted “unjust and
unreasonable” billing practices in violation of Section
201(b) of the Communications Act, 47 U.S.C. § 201(b),
and the FCC’s related truth-in-billing and Billing Format
regulations, 47 C.F-R. § 64.2401.!

Beginning in at least 1994, CenturyTel’s telephone
billings to respondents and other residential telephone
customers included a monthly charge, generally ranging

1. Respondents allege additional federal and state law
claims that are not at issue in connection with this petition.

4

from $0.50 to $0.99, described in a line item on the bills
as “Non-Regulated Services.” As reflected in an excerpt
from one of respondent Beattie’s telephone bills, these
charges were presented by CenturyTel in the following
manner:

MONTHLY SERVICE DETAIL
LOCAL SERVICE IN
ADVANCE FROM

XXX TO XXX .$ 15.55
SUBSCRIBER LINE
CHARGE - INTER 3.50
SUBSCRIBER LINE
CHARGE - INTRA 3.50
NON-REGULATED SERVICES 99
OTHER CHARGES 07
MONTHLY SERVICE AMOUNT
FOR XXX-XXX-XXXX 23.61
TOTAL MONTHLY SERVICE
AMOUNT 23.61
FEDERAL TAX .68
STATE TAX 1.41
911 EMERGENCY SYSTEM .23
911 OPERATIONAL SYSTEM 2.01
TOTAL OF TAXES 4.33
TOTAL CenturyTel 27.94

(Emphasis added.)

5

In May 2001, CenturyTel increased the charge for
WireWatch to $3.95, which it continued to bill under the
line item description “Non-Regulated Services.” It was
not until January 2002 that CenturyTel reorganized its
billing format and changed the line item description to
reflect that the billed charges were actually for “Inside
Wire Maint. Plan.” It was this change in CenturyTel’s
billing format and description that finally allowed
consumers to recognize that the charge for “Non-
Regulated Services” was actually a charge for
WireWatch. In their complaint, respondents allege that:
(1) by billing for WireWatch along side customers’
regulated telephone transmission charges; (2) by billing
for WireWatch under the description “Non-Regulated
Services” and under the heading “Monthly Service
Detail;” and (3) by keeping the monthly fee relatively
low (.e., $0.50 to $3.95), CenturyTel engaged in “unjust
and unreasonable” billing practices in violation of Section
201(b) of the Communications Act and 47 C.F.R.
§ 64.2401.

Respondents moved for class certification.
On March 10, 2006, the district court denied the request
to certify a mandatory class under Fed. R. Civ. P 23(b)(1)
and (b)(2), but certified an opt-out class under
Rule 23(b)(3), albeit with a substantially narrowed class
definition and limited to the unlawful billing claim. App.
44a-57a.’?

2. The district court defined the class as: “All persons who
have paid CenturyTel, Inc. for charges for an inside wire
maintenance insurance program described in CenturyTel’s
residential telephone bills as “Non-Regulated Services” during
the period beginning October 29, 2000, or such earlier period if

(Cont'd)

6

The district court also granted respondents’ motion
for partial judgment on the pleadings, concluding that,
“based on the allegations and admissions in the
pleadings” (including CenturyTel’s answer),
CenturyTel’s practice of billing charges for WireWatch
under the description “Non-Regulated Services” was
an unjust and unreasonable billing practice that violated
47 U.S.C. § 201(b), as a matter of law. App. 57a-63a.
Petitioner has not sought to appeal the district court’s
ruling that CenturyTel is liable under the
Communications Act to persons who paid for WireWatch
pursuant to such unlawful billings.

On May 2, 2006, the Sixth Circuit granted
CenturyTel’s Fed. R. Civ. P 23(f) petition for leave to
bring an interlocutory appeal of the class certification
order. On December 18, 2007, the Sixth Circuit upheld
class treatment for respondents’ unlawful billing claims
under the Communications Act. App. la. The court
stated, in part, as follows:

[U]nder § 206, Plaintiffs-Appellees must
establish that each class member was injured
by CenturyTel’s violation of § 201(b).
47 U.S.C. § 206 (stating that a “common
carrier shall be liable to the person or persons

(Cont’d)

the charges were not know(n] or reasonably could [not] have
been known by October 29, 2000; but excluding CenturyTel; its
subsidiaries, affiliates, officers and directors; any entity in
which CenturyTel has a controlling interest; and the legal
representatives, heirs, successors and assigns of any such
excluded party.” App. 66a.

7

injured” by its unlawful practice). This can
be done by showing that each class member
paid for WireWatch during the period when
the service was billed under the misleading
description. Before the district court,
CenturyTel admitted that “it did send some
bills to customers that contained this
language,” Beattie, 234 F.R.D. at 173, and an
inventory of CenturyTel’s billing records
could disclose which customers paid their bills
in full, which would include a payment for fees
associated with WireWatch. On appeal, .
CenturyTel argues that “only those customers
who can establish that they did not want or
request the WireWatch service can establish
CenturyTel’s liability. ...” (Appellant’s Br. 40.)

CenturyTel is incorrect. Under § 206,
CenturyTel is liable if it violated § 201(b),
which makes it unlawful for CenturyTe: to bill
for a service under a misleading description,
even where the customer requested the
service. See 47 C.F-R. § 64.2401(b) (“The
description must be sufficiently clear in
presentation and specific enough in content
so that customers can accurately assess that
the services for which they are billed
correspond to those that they have requested
and received... .”). True, each class member
will have to show that she did not enroll in
WireWatch, but that is relevant, as the district
court concluded, to the issue of damages and
not liability. Thus, Plaintiffs-Appellees should
be able to establish liability for the class as a

8

whole because the misleading description used
by CenturyTel violated § 201(b), and class
members were injured by that violation when
they paid their telephone bill, which included
a charge for WireWatch under a misleading
description (a §$ 206 violation).

App. 23a-24a (emphasis added).

The litigation in the district court has continued
throughout the interlocutory appeal process and
remains active today. On June 7, 2006, the district court
denied petitioner’s emergency motion to stay
proceedings pending the decision by the Sixth Circuit.
Thereafter, the parties continued with discovery, and
multiple discovery motions were filed and resolved by
the district court.

On June 18, 2008, the Sixth Circuit denied
petitioner’s Motion for Stay of Mandate Pending Filing
of a Petition for a Writ of Certiorari. The district court
has since complied with the Sixth Circuit’s directive to
address on remand the possible certification of
respondents’ remaining state law claim by denying,
without prejudice and with leave to re-file, respondents’
request to certify the class with respect to claims for
unjust enrichment. The parties continue to engage in
discovery, with deposition discovery commencing in late
October 2008.

9
REASONS FOR DENYING THE PETITION

The petition advances no compelling reason that
warrants review of the Sixth Circuit’s decision below.
This appeal concerns an interlocutory order, reviewed
by the Sixth Circuit under an abuse of discretion
standard, that involves underlying factual conduct that
is unlikely to reoccur. There is no conflict among circuits
in need of resolution. And even if the Sixth Circuit had
misapplied Section 206 (respondents respectfully submit
that it did not), any further appellate review should
await a final judgment on the merits.

I. THIS COURT RARELY REVIEWS INTER-
LOCUTORY RULINGS.

This appeal of an interlocutory, procedural order
does not present a good opportunity for the Court to
address the nature of tise proofs necessary to establish
a claim under Section 206 of the Communications Act.
Class certification rulings are “inherently interlocutory,”
Coopers & Lybrand v. Livesay, 437 U.S. 463, 470 (1978),
and this Court has historically been reluctant to review
interlocutory orders. See Goldstein v. Cox, 396 U.S. 471,
478 (1970) (“[T]his Court above all others must limit its
review of interlocutory orders.”); Brotherhood of
Locomotive Firemen & Enginemen v. Bangor &
Aroostook A. R. Co., 389 U.S. 327, 328 (1967) (per curiam)
(“[Blecause the Court of Appeals remanded the case, it
is not yet ripe for review of an interlocutory order.”). As
the Court explained in Firestone Tire & Rubber Co. v.

10

Risjord, 449 U.S. 368 (1981), the “final judgment rule”
serves several salutary purposes:

It emphasizes the deference that appellate
courts owe to the trial judge as the individual
initially called upon to decide the many
questions of law and fact that occur in the
course of a trial. Permitting piecemeal appeals
would undermine the independence of the
district judge, as well as the special role that
individual plays in our judicial system. In
addition, the rule is in accordance with the
sensible policy of avoid[ing] the obstruction
to just claims that would come from
permitting the harassment and cost of a
succession of separate appeals from the
various rulings to which a litigation may give
rise, from its initiation to entry of judgment.
The rule also serves the important purpose
of promoting efficient judicial administration.

Id., at 374 (citations and internal quotation marks
omitted).*

3. See also Johnson v. Jones, 515 U.S. 304, 309 (1995)
(An interlocutory appeal threatens “delay, adding costs and
diminishing coherence. It also risks additional, and unnecessary,
appellate court work either when it presents appellate courts
with less developed records or when it brings them appeals
that, had the trial simply proceeded, would have turned out to
be unnecessary.”) (citations omitted); 19 James Wm. Moore,
Moore’s Federal Practice § 201.10[1] (3d ed. 2008) (“The

(Cont'd)

11

In 1998, the Court promulgated Fed. R. Civ. P 23(f)
as a narrow exception to the general rule against
piecemeal appeals. See In ve Delta Air Lines, 310 F.3d
953, 959 (6th Cir. 2002) (“[T]he Rule 23(f) appeal is never
to be routine.”); Chamberlan v. Ford Motor Co., 402 F.3d
952, 955 (9th Cir. 2005) (“We begin with the premise that
Rule 23(f) review should be a rare occurrence.”).
In particular, there is a short time limit—10 days—
within which the aggrieved party can ask the court of
appeals to exercise its discretion. See Fed. R. Civ. P 23
advisory committee’s note, 1998 Amendments,
Subdivision (f) (“The 10-day period for seeking
permission to appeal is designed to reduce the risk that
attempted appeals will disrupt continuing
proceedings.”); In re Lorazepam & Clorazepate
Antitrust Litig., 289 F.3d 98, 105 (D.D.C. 2002) (“Delay
caused by interlocutory appeals under Rule 23(f) may
be less of a concern because filing a petition does not
automatically stay the litigation”) (citation omitted). In
exercising their discretion, courts of appeals have
remained cognizant of the fact that “[t]hese appeals add
to the heavy workload of appellate courts, require
consideration of issues that may become moot, and
undermine the district court’s ability to manage the class
action.” Chamberlan, 402 F.3d at 959.

(Cont’d)

purposes of the final judgment rule are to avoid piecemeal
litigation, to promote judicial efficiency, and to defer to the
decisions of the trial court. Unfettered interlocutory appeals
would disrupt both the trial and appellate processes.”).

12

Despite an avalanche of Rule 23(f) applications over
the past decade, petitioner has not cited — and
respondents have not located — a single instance where
the Court has accepted review of such an appeal.’ The
petition also fails to raise a serious question concerning
generally applicable Rule 23 standards that might
warrant review by this Court. Compare Amchem
Products, Inc. v. Windsor, 521 U.S. 591, 619 (1997) (the
Court “granted review to decide the role settlement may
play, under existing Rule 23, in determining the
propriety of class certification.”).®

Instead, petitioner asks this Court to address the
injury and causation requirements of Section 206, but a
Rule 23(f) appeal is not a good vehicle for the Court to
consider the substantive scope and parameters of
underlying claims that are not yet the subject of a final
judgment. Petitioner notes that the district court
“determined that CenturyTel’s billing description for
WireWatch as Non-Regulated Services violated
47 U.S.C. § 201(b). App. 67a. CenturyTel does not here
challenge that ruling.” Pet. 7-8. Petitioner does not
challenge that ruling because it cannot challenge that
ruling; it is not the subject of a final judgment, nor has

4. See, e.g., Regents of University of California v. Credit
Suisse First Boston (USA), Inc., 482 F.3d 372 (5th Cin 2007),
cert. denied, U.S.__,1288S. Ct. 1120 (2008); Olden v. LaF arge
Corp., 383 F.3d 495 (6th Cir. 2004), cert. denied, 545 U.S. 1152
(2005); Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004),
cert. denied, 543 U.S. 1081 (2005); Carnegie v. Household Intern.,
Inc., 376 F.3d 656 (7th Cir. 2004), cert. denied, 543 U.S. 1051 (2005).

5. Amchem arose prior to promulgation of Rule 23(f) and
involved an appeal from a final judgment.

13

it been certified for interlocutory appeal pursuant to
28 U.S.C. § 1292(b).

The Court should not expend its limited resources
interpreting the nature and scope of a statutory claim
in circumstances where the Court is not required to
reach the merits of the claim. See Delta Airlines, 310
F.3d at 960 (“The Rule 23(f) appeal should not become a
vehicle for early review of a legal theory that underlies
the merits of a class action’). As this is also one of the
rare cases where review of an interlocutory class
certification order has been allowed, four federal judges
(7.e., the district judge and a unanimous panel of the
Sixth Circuit) have now weighed in on the propriety of
class certification. That is sufficient interlocutory review
at this time. Further appellate review, if any, should
follow a final judgment in the ordinary course.

Il. THE UNDERLYING FACTUAL EVENTS ARE
UNLIKELY TO REOCCUR.

In addition to the interlocutory nature of this
appeal, this case is not a good vehicle for further
addressing, or offering advance guidance on,
telecommunication industry billing practices.
In adopting the truth-in-billing regulation (47 C.E.R.
§ 64.2401), the FCC has already explained:

We contemplate that sufficient descriptions
will convey enough information to enable a
customer reasonably to identify and to
understand the service for which the
customer is being charged. Conversely,
descriptions that convey ambiguous or vague

14

information, such as, for example, charges
identified as “miscellaneous,” would not
conform to our guideline. Similarly, in our
view, a charge described by what it is not,
such as, for example “service not regulated
by the Public Service Commission” is
inherently ambiguous and does not disclose
sufficient information. There is no way for
a consumer to discern from this description
that the charge refers to, for example, inside
wiring maintenance insurance.

In the Matter of Truth-in-Billing and Billing Format,
First Report and Order and Further Notice of Proposed
Rulemaking, In the Matter of Truth-In-Billing and
Billing Format, 14 F.C.C.R. 7492, at 7517-18 (F.C.C. Apr.
15, 1999) (emphasis added).

Petitioner’s practice of billing for WireWatch as
“Non-Regulated Services” utilized billing language
remarkably similar to FCC’s example of an inadequate
billing description. See App. 43—44a (district court noted
the “uncanny overlay of the example given by the agency
and the facts of this case”). Petitioner itself maintains
that it ceased the challenged practice in January 2002,
and it is unlikely that telecommunication companies
today would employ billing descriptions that are in open
defiance of the FCC’s admonition. Therefore, a decision
by this Court addressing the underlying facts likely
would not have a material impact on current or future
telecommunication industry billing practices.

ee:

15

Ill. THE SIXTH CIRCUIT RULING IS NOT IN
CONFLICT WITH THE RULINGS OF
ANOTHER CIRCUIT.

As the Court of last resort, certiorari may be
especially appropriate when “a United States court of
appeals has entered a decision in conflict with the
decision of another United States court of appeals on
the same important matter.” Sup. Ct. R. 10(a). In a
specious effort to invoke this consideration, petitioner
asserts that the Sixth Circuit’s decision conflicts with
the decision in Conboy v. AT&T Corp., 241 F.3d 242 (2d
Cir. 2001). Pet. 25-29.

Petitioner mischaracterizes Conboy as holding that
“liability could not be proven on a class-wide basis.”
Pet. 25. While Conboy was filed as a class action, the
issue of class certification was never reached. Instead,
the district court dismissed the case pursuant to
Fed. R. Civ. P. 12(b)(6), and the Second Circuit affirmed.
Thus, Conboy was an appeal from a final judgment that

~ was subjected to de novo review. 241 F\3d at 246. Even

if petitioner’s contentions concerning Conboy’s
interpretation of the Communications Act were
substantively correct, such a holding on the merits could
not be “in conflict” with a decision upholding a district
court’s exercise of discretion in certifying a class. See
App. 8a-9a (“The district court maintains substantial
discretion in determining whether to certify a class, as
it possesses the inherent power to manage and control
its own pending litigation.”) (citation omitted). Indeed,
the Sixth Circuit did not find it necessary to even
mention Conboy (which is not surprising since Conboy

16

has nothing to do with class certification).® Class
certification is a procedural matter and Rule 23 does
not give “a court any authority to conduct a preliminary
inquiry into the merits of a suit in order to determine
whether it may be maintained as a class action.” Hisen
v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974).’

In any event, nothing in the Sixth Circuit’s opinion
suggests a conflict with Conboy. There, consumers
alieged that AT&T, their long-distance telephone carrier,
unlawfully disseminated proprietary customer
information in violation of Section 222 of the
Communication Act, 47 U.S.C. § 222. In order to
establish a claim for damages, plaintiffs first argued that
“they have paid AT&T a monthly fee to keep their
names, address, and telephone number unlisted.”
Conboy v. AT&T Corp., 84 F. Supp. 2d 492, 498-99
(S.D.N.Y. 2000). Second, plaintiffs argued that “they
have paid AT&T for telephone services which include
the privacy protections of the Telecommunications Act.”
Id. at 499. According to plaintiffs, the actions of AT&T
deprived them of the value of both of these payments.

The first argument failed because, “as AT&T
correctly points out, the fee for non-published service
to which plaintiffs refer, is paid to Bell Atlantic, and not

6. Tellingly, petititoner’s opening brief to the Sixth Circuit
relegated its discussion of Conboy to single footnote.

7. For example, if the district court in Conboy had
addressed and granted class certification (which it did not)
before AT&T prevailed on the merits, procedurally AT&T
would have prevailed against a class, rather than just the named
plaintiffs.

17

AT&T.” 84 F. Supp. 2d at 499. Bell Atlantic was not a
defendant. “[PJlaintiffs cannot use their payment to Bell
Atlantic for ‘non-published service’ as the basis for their
claim for damages against AT&T, because these
payments represent the value of Bell Atlantic’s
compliance—not AT&T’s compliance—with the terms
of the ‘non-published service’ agreement.” 241 F.3d at
249. The second argument failed because “plaintiffs did
not make monthly payments to AT&T for compliance
with the Telecommunications Act; rather, they paid
AT&T for long-distance telephone service, which they
received.” 241 F.3d at 250. In AT&T’s bill, “every penny
paid to AT&T is accounted for, either in the form of
itemized charges, surcharges, or taxes.” Jd. Finally, the
Second Circuit upheld the district court’s rejection of
the alternative argument that damages for “emotional
distress and mental anguish” could simply be presumed.
241 F'3d at 250-51; 84 F. Supp. 2d at 499 n. 3.

As the discussion above demonstrates, the key
problem for the Conboy plaintiffs was that they could
not point to a separate line item in their telephone bills
reflecting a charge from AT&T for its compliance with
privacy requirements. The plaintiffs therefore had to
either (1) characterize payments to Bell Atlantic as
payment for something that they were deprived of by
AT&T, or (2) characterize payments to AT&T as
consideration for a Telecommunications Act compliance
component, notwithstanding the lawful description of
the charges. Respondents here need not engage in such
machinations because there is (1) a separate line item
charge for “Non-Regulated Services” in their bills,
(2) that caused them to pay a specific amount of money,
(3) to petitioner. The allegation of specific economic

18

damages suffered as a consequence of petitioner’s
violation of the Communications Act is also
distinguishable from the “‘presumed damages’ for
emotional distress and mental anguish” (241 F.3d at 249)
alleged and rejected in Conboy. All class members here
incurred economic injury when they paid CenturyTel
for the WireWatch unlawfully billed as “Non-Regulated
Services.”

Accordingly, there is no evident conflict among
circuits necessitating immediate resolution by this
Court. Petitioner’s argument merely stretches some of
the reasoning in Conboy in an attempt to support its
already twice-rejected contentions, which is insufficient
grounds to warrant further review.

IV. THE SIXTH CIRCUIT CORRECTLY HELD
THAT THE DISTRICT COURT ACTED WITHIN
ITS DISCRETION.

Finally, to the extent it may be relevant to this
Court’s consideration of the petition, respondents
respectfully submit that the Sixth Circuit’s inquiry into
Section 206 requirements is entirely correct. See App.
23a-24a. Even if the Sixth Circuit had misapplied the
statute in these circumstances, however, “[a] petition
for a writ of certiorari is rarely granted when the
asserted error consists of erroneous factual findings or
the misapplication of a properly stated rule of law.”
Sup. Ct. R. 10.

There is clearly a causal link between the Section
201(b) violation and consumers’ payments to CenturyTel
of the amounts so billed for “Non-Regulated Services.”

19

As the Sixth Circuit correctly recognized, the FCC
enacted a regulation intended to confirm the meaning
of Section 201(b) “so that customers can accurately
assess that the services for which they are billed
correspond to those that they have requested and
received, and that the costs assessed for those services
conform to their understanding of the price charged.”
App. 2la (quoting 47 C.F.R. § 64.2401(b)). When
petitioner failed to provide a proper description of its
WireWatch charge in its bills, consumers were, at a
minimum, unlawfully deprived of the opportunity to:
(1) object to the charge as unauthorized and/or withhold
payment; (2) cancel the service; or (3) take advantage
of the service by making a claim. Payments by
consumers of the amounts unlawfully billed for
“Non-Regulated Services” are the natural consequences
of the billing violation, rendering such payments an
injury under Section 206. Cf Edwards Industries v. Bell
Telephone Company of Nevada, 74 F-C.C. 2d 322, 328
117 (FCC 1979) (“We believe that the damages claimed
by Complainants could be expenses that would flow
under these circumstances as natural consequences
from the violations which have been alleged and, as such,
are recoverable under Section 206 of the Act.”).

Petitioner’s reliance on the Court’s interpretation
of causation under RICO, sheds little, if any, light on
the proper causation analysis of the Communications
Act. Pet. 17-18.2 The Court has recognized that the

8. Petitioner asserts that “Section 206, and the Court’s
decision in Holmes [v. Sec. Investor Protect Corp., 503 U.S. 258
(1992)], clearly require proof of causation, which the Sixth
Circuit wholly ignored in its assessment of the class certification
(Cont'd)

20

federal statute most analogous to the Communications
Act is the Interstate Commerce Act (“ICA”). Global
Crossing Telecommunications, Inc. v. Metrophones
Telecommunications, Inc., 550 U.S. 45, 127 S.Ct. 1513,
1517 (2007).° Courts have therefore held that decisions
construing the ICA are persuasive in establishing the
meaning of the Communications Act. Conboy, 241 F.3d
at 250 (“Sections 206 [and] 207 [of the Communications
Act]... are the present law in sections 8 [and] 9... of
the Interstate Commerce Act... .”) (quoting H.R. Rep.
No. 73-1850, at 6 (1934)).

In Interstate Commerce Commission v. Transcon
Lines, 513 U.S. 138 (1995), for example, the Court
upheld the ICC’s authority to enjoin the collection of
liquidated damages for, among other things, failure to
include in billing documents the notice language
required by regulation. See 513 U.S. at 145 (“To the
extent the ICC seeks to enjoin collection of liquidated
damages as a remedy for Transcon’s lack of notification
in the original bills, see 49 C.F.R. § 1320.3(c) (1992), and
nonissuance of revised bills within 90 days, see

(Cont'd)

criteria.” Pet. 18. The Sixth Circuit was not alone in ignoring
Holmes; petitioner never referred to the decision in either of
its briefs on appeal! or at oral argument. In any event, the Sixth
Circuit did expressly consider causation. See App. 23a-24a.

9. See Global Crossing, 127 S. Ct. at 1517 (“The relevant
sections (in both statutes) .. . authorize an injured person to
recover ‘damages’ for an ‘unlawful’ charge or practice .. .”)
(citations omitted).

21
§ 1320.2(g)(2)(vi), this remedy too is appropriate.”).

First, its remedy appears to the ICC, and to
us, necessary to the effective enforcement of
its regulations. Were we to disallow the
injunction, respondents and other trustees of
bankrupt carriers would be immune, in effect,
from enforcement of the credit regulations

Second, . . . the requirements for notice of
liquidated damages are to protect shippers
from the imposition of penalties without
warning. When a carrier fails to provide
notice, it is an appropriate remedy for the
ICC to bar collection of the liquidated
damages, for the remedy serves the
regulations’ intended beneficiaries.

513 U.S. at 146-47 (citations omitted; emphasis added).
The only charge there that could not be collected was
the undisclosed charge for liquidated damages, the filed
rate for shipping remained enforceable. Jd. at 148.

Here, because the truth-in-billing requirements are
intended to protect consumers (just like the
requirement of notice of liquidated damages in Transcon
was to protect the shippers), the telecommunications
provider — not the consumer — bears the burdens of
the violation. If petitioner is permitted to shift the
burden of its billing violation onto its customers —

22

e.g., by requiring each customer to individually prove
he or she did not understand the unlawfully described
charge — the truth-in-billing requirements would be
meaningless and unenforceable. Cf Interstate Commerce
Commission v. United States ex rel. Campbell, 289 U.S.
385, 390 (1933) (“The carrier ought not to be allowed to
retain his illegal profit, and the only one who can take it
from him is the one that alone was in relation with him,
and from whom the carrier took the sum.”) (citation
omitted) (cited in Conboy, 241 F.3d at 250).

Petitioner may, indeed, be entitled to seek a credit
or a set-off for various considerations. For example, the
district court’s order indicated that questions of
damages in this case “can be addressed later in the
proceedings by means of a special master, representative
trials, or other means.” App. 56a; cf Barnes v. Illinois
Bell Tel. Co., 1 F-C.C. 2d 1247 91 42 (FCC 1965) (“Although
the amount of damages need not be established with
precise mathematical accuracy, it must be shown with
reasonable certainty and by the best means possible
under the circumstances.”).

These are important issues that the district judge
will have to address as the case progresses toward
conclusion. In an appeal following a final judgment,
appellate courts will know exactly how the district court
handied these issues. Considerations of judicial
efficiency, therefore, weigh heavily in favor of allowing
this case to progress to a final judgment before
expending any further appellate resources.

23
CONCLUSION

For the reasons set forth above, the petition for a
writ of certiorari should be denied.

Respectfully submitted,

ELwoop S. SIMON

Counsel of Record

JOHN P ZUCCARINI

Ecwoop S. Simon & Assoc. PC.
355 S. Old Woodward Ave.
Suite 250

Birmingham, MI 48009

(248) 646-9730

PaTRICK E. CAFFERTY
CaFFERTY FAUCHER LLP
101 N. Main Street
Suite 450.

Ann Arbor, MI 48104
(734) 769-2144

Counsel for Respondents

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0724%3A2. Public record. Not legal advice.