time if you could set seven that would be helpful mandated a reversal of the federal claims in that you can bring a claim for violation of two one in the federal court in the first instance and the district court's decision to the contrary should be reversed as it was and devil i think the question then for this court on the federal claims is whether there is any issue of primary jurisdiction left in the case that could then be decided by the district court the question asked in babel is that being the case the dismissal is inappropriate can the case proceed in this court under the primary jurisdiction theory and i would submit that in this case the factors that applied to the primary jurisdiction theory would support a ruling by this court that any referral to the f c c or any dismissal without prejudice for the purpose of going to the f c c would be improper in that court has before it what it needs to make that decision at this point in time the bottom line is that with the consent decree before the f c c where he considered nine hundred complaints some want to the complaint it bar it it completed its investigation and process on that issue and in exchange for a million dollars from the defendant in this case determined that it would not  there's a good question your honor it's it's rare and there is a dissent in this case by the f c c about the false advertising issues and it's our view that that the interplay between falls over tasing in the tariff in particular makes this unsuited for i think they did in this case does the f t c have any ability to be able to work damages to individual claims not that i'm aware of and is for as i read the decision their consent decree in this case they've decided not to do and suggestion there is federal jurisdiction in the district court order to a seven and that the advertising company in particular along with the other reasons i've given make a referral back to the f c c for any particularly inappropriate in this case and given that we've spent our time with cases that have been filed in two thousand and two now two thousand and six any delay in that process was severely prejudiced plaintiff's i correct in thinking you're incorrect and i mean that it's a real question because i don't know much about this area well i correct in thinking that if the f t c wanted to it could publish regs controlling how telephone companies advertise and if the f c c thinks there's fraud going on in the way telephone companies are selling their services it has the power to do whatever needs to be done through money that fraud i believe that's a correct statement of law i have not researched that to the end in this case the f c c did undertake to do that in the notice of apparent liability which it filed and then in the consent decree determined that it would not pursue that issue in this case  whatever its powers might be in that world we have a definite decision that in this case after looking at nine hundred complaints it is not going to exercise a jurisdiction and there is some question about whether it should in any s tell me tell me if i've got this right a case is so big and complicated that i'm not confident and basically the company here it not exactly violate its tariffs in the plaintiff's view rather what the company did was published a tariff that's totally incomprehensible people get sold a bill of goods have persuaded to switch phone companies without knowing what they're getting into and then they get hammered with much bigger bills than they could reasonably expect that is yes and supply is a claim at this stage although i would say there are some allegations in the complaints that assert that it that they have not properly applied the tariff so for the purpose of this record the question of whether the tariff was properly applied is also before the court i would tell you however that given the difficulty of the of following their terror of i cannot stand here and say with confidence that i could properly calculate today what it would an amount is i think it's practically impossible but to the extent they did charge that not an issue of rounding up like in markets or something of that nature it's just programming their computers to bill it at different rates than what the tariff says at that would be you a good class action and i write yes yes it tariff is determined to be invalid then the charges were not according to a valid tariff so we would end up in the same situation it was like people generally moving companies or railroads or any other carrier for and there is a private cause of action for damages for me with what these claims are i couldn't when i tried to figure out what the state law claims are i thought well in the abstract there certainly could be claims that were preempted because the federal statute doesn't have broad preemption language like the arista statute but i couldn't figure out what they were in this case other than rephrase things of the tariff is incomprehensible and we were tricked into switching carriers no that's not that's that's not quite right your honor the claim that we bring under state law is that the defendants use deceitful advertising and marketing practices to lure us into switching carriers and purchasing their services instead of staying with the carrier we have i think that's a slightly less colloquially phrased version of exactly what i said if it isn't tell me what the differences but maybe i missed what you said but the  here's my problem people theoretically at our have knowledge of the towers they're charged with knowledge of the tower so if somebody says we're going to do all these wonderful things for you in the tariff says here's what we're going to do for you and it doesn't list those wonderful things tough as they can't reasonably relied because supposedly they know what's in the tariff and i'm trying to figure out how the state walk into any different well the say on claims are different because we're not seeking we're not challenging anything in the tariff we're not or alter the remedies now existing at common law or by statute and that savings clause has to preserve something under state law it's here it doesn't matter what happens in a case ey for fraud preserved or is it defeated because people are trying to with knowledge of the terror well the way the courts have come down on this question is that you know clearly if somebody is trying to enforce  enforce the promise that was made inconsistent with the tariff that's a challenge to the terror and that arises under federal law creates federal question jurisdiction and is preempted by federal law but if somebody is trying is is argued is claiming that the  hypothetical suit for damages for the two sent to france and that is clearly preempted and it also clearly creates federal jurisdiction but winick when it went to a consumer claims that they were two tenth's multiplied by all the millions of minutes you're saying that's preempted and it gets dismissed under central office and the other circuit court cases that the parties have cited but the the the the difference here is that i mean when you're when you're seeking damages under years when you're stating a claim against a carrier the only reason measured damages is put us back where we were it's essentially like a rescission of contract that means the way we've articulated it is that and it's undisputed it was agreed to by the defendants and by the court was  that the rates the the rates we were paying our previous carrier would be we would be restored to those rates by virtue of the damage award so damages would cause a change in the rate you know you directly addressed this issue of well what is the savings clause if the savings cause doesn't mean that you can challenge the terms of the tariff or you know it's it's now it's a breach of contract claim like in that case where you're saying you promised me one thing now you're tariffs as another if  you can't do that then what can you do and what the seventh circuit said the proper operation of the savings clause is demonstrated in the six circuits decision and in re health long distance telephone litigation and in that case you have a non disclosure claim with the seventh circuit called simple fraud and in that case you have a state law claim that is not interfered with by the does not interfere with the tariff it doesn't call for an noting the common distinction for non disclosure cases and the six circuits decision that was cited in common and saying that's not the case here because here dreamscape the plaintiff is seeking to enforce the rate that was promised whereas in those other cases the measure of damages was measured by rescission by going back to what the the plaintiff was paying in their preferred to the previous carrier that would be ok but that's not the case here because this pla not thinking that that your honour's that is the only way that this savings clause can be given any meaning whatsoever under the f d a is to preserve something of that nature  oil from the law firm of kelly dr warren on behalf of the defendant pallies i'll address the federal issues first in the order that they were presented the fact of the matter is is that nobody argues that there is a private right of action under case and the brown case from the circuit what is not allowed is what the f d a claims here seek which is to go in and challenge the terms of the tariff and seek damages because of what is in that  i understand it just a little bit differently they're not challenging the tariff and west can charge whatever they want their arguing is is that they were induced to change carriers because you have misrepresented what your tariff actually yes well i would  better rate within the west it's just a few guys lied to me anyway well your honor i draw a distinction i think what counts was addressing she was state law claims not the f c a claims the federal communication act claims here do challenge the terms of the tariff they go directly to the heart of the t they contend that it's confusing it's misleading they want the court the district court to take the tariff and actually judge whether or not it meets the standards of the federal communications act and we have argued and i don't think there is a case this was filed yes you see we don't like the terms of it we think it's unfair and we want you to award us damages based upon your view of whether or not this despair or not that is clearly not allowed there is not a case out there that provides that diable which was recently cited and it submitted to the court yesterday by the appellants is a is a case under two seventy six of the federal communications act that has to do with pay phone service providers under the act pay phone service providers finally in one thousand nine hundred got the right to receive reimbursement for dial around calls when you when you use your eight hundred numbers that are putting a coin in the phone and so to seventy six said these pay phone service providers should be pay and then there was a rule making and the rule making is that they should be paid well they weren't getting paid so they sued and there was a there was a question before the ninth circuit can they sue for this and recover of damages and a claim that sought here tell me if i've got this right i think what you just said covers my hypothetical where the tower says four cents a minute and the company programs its computers to charge  you're saying in that case there is a federal private right of action for the two cents no your honor there is not because the presumed knowledge doctrine and i understand that you know this is a harsh doctrine cents you're absolutely right that that claim that there is a private right of action for that claim there is so there could be a federal plan to action for the two cents yes you could go in and say your tariff doesn't so you can charge me six cents and you charge me six cents so you're actually there cannot be a private right of action for the two cents obtained by fraud because had in common law you'd say there's no reasonable reliance because they reasonable reliance i think exactly exactly and just by you to get to your point about the restitution issue and that was actually brought up by the seventh circuit in dream in dreamscape i argue that case and it the interesting thing about that is first of all there is it's not a restitution theory that these plaintiffs can proceed upon because a restitution theory requires restoration to the status quo on pay so what would be required is that they would have to seek a claim where they said are measure of them edges is the rate that we thought we were getting minus the value of the service you provided to us because you have to restore the parties to the status quo on pay so in that situation the court would be  would actually have to do some rate setting because the court in order to have a proper damage claim would have to value and unless the service in order to figure out how to restore the parties this that is go on if i understood it if you before well your i think quite frankly the claim the entire claim regardless of the measure of damages is actually barred under both the non just the ship belittle and the nondiscrimination strand of the doctor and because ultimately no matter how you slice it the court is going to have to engage in rate setting at some point in time that they're going to get or they're going to get a rate different than the rate that n o s has in its published tariff you might mean that at some point you might you might wan of what is being done not just the title of how the damage claim is styled in effect no matter what happens that customer gets a different rate than the rate in adolescence published power and that is violates the  on the merits we could test if there was any i understand this leading statements but for example they have made much of the notice of apparent liability before the f c c there were complaints made by customers the f c c undertook to look at it and interesting lead the c did not say total call units are per se illegal get mad here they said we've looked at your advertising we've looked at your solicitation materials we want them to be better so we have put into a consent decree improved our solicitation with cereals and agreed upon an amount to pay no admission of liability now each of those customers was i believe all of those nine hundred complaints were informal complaints there were letters and the like they were free to file a formal complaint go before the now by the commissioner was concerned about this jurisdictional divide over advertising in the telecommunications industry because the f c c has such broad authority in the telecommunications industry that the and give them a rate different than the non litigating cost i wonder if i've been confused now by some of your answers to church by b c question so i thought it was clear that if the telephone company has a published tariff and it plainly says four cents a minute and they just flat out why the plaintiffs most intentional willful fraudulent lies and they say it's only going to be two cents a minute that these documents that have special names not justice be able presume knowledge and so forth no discrimination i mean the customer has no remedy polite i believe you are they could bring a complaint before the f c c complaining about the practice that that is indicated not just the sheer belittle they could not get their two cents well i don't honestly i don't know what remedy now let me ask you about something else let's suppose hypothetically that the tariff really is incomprehensible it combines the used of poorly defined terms of art and agreed the asians in such a as to be indeterminant careful examination would not yield one unambiguous rate for a particular type of call   believe there are cases where complaints are made about when to go to enough trouble because you're mad about the eighteen dollars you can get the f t c to take some kind of administrative action guess it won't get you were eighteen dollars well what happens as i understand  the f c c is they when they can suspend the tower they can then institute proceedings and i believe that their view is if the parish is suspended we can award damages for the period from the suspension of the tariff going forward because we're not engaging  retroactive rate making we've suspended the tariff you don't have a rate on file but there is a tremendous weight as there is a tremendous lack of the f c c does not like to engage in retroactive rate making they they don't do it they don't even do it when complaints are made the fact of the matter is as low as most regulated industries the f c c has the as the jurisdiction to look at the tariff they could knock it out of the box when it's filed ok you've taken me far enough i understand what you said it's very clear now let me ask you my next question as far as i can tell the law is clear there is no money remedy for fraud and by a long distance telephone carrier i'm trying to figure out what's left of the savings clause which is just the opposite it's just the opposite of a preemption clause like in a written it says nothing in this chapter or bridge used remedies that common law or by statute and the provisions of this chapter in addition to such remedies at so it saves them all instead of have preempting them what's left if there is just no money remedy for fraud well this was addressed by the central office case the first in the central office case that is that it  couldn't act to save otherwise preempted claims because otherwise for fourteen would kill the act that would it would kill itself i believe it is justice scalia in this concurrence who posits the hypothetical so a carrier has a relationship with the customer and then not anything to do with what's in the what's in the file power goes out to the cut to one of the customers customers and the things the customer says they're offer terrible service there they're rotten don't use them and there's a defamation at claim brought that would not be preempted importantly here because the council that address the state law claims i think and i think you'd be nice if you saved a little time  plaintiff's counsel has of judge conman's argument judge can and did have some state fraud act claims and at the end of his opinion he indicated if the state fraud act claim is really just a breach of contract claim by another name it that in this case fraud is just another name for breach of contract that i was in last case in this case well pozner says in this case right so he's not saying in all cases right but i but when you when you talk about what these plaintiffs are looking for here for example in page two of their opening brief plaintiff's note the fisher sound travel and national few foods allege state law claims regarding the rates and services offered by  s it's very clear that what's happening here is no matter how you slice it they want to different rate they receive telecommunications services at x rate they want they won't really want to get it at y rate that's a contract i mean they're saying there was fraud in the inducement as judged by be indicated but but what they're really what you're really looking at is a customer carrier relationship with a component and it of a payment of money they paid a certain amount of money in that customer carrier relationship are you saying that there's no state fraud claim that's going to survive in this case or in conman from conman's discussion i don't believe that there is a state law case for money jet damages that can survive the  mean for fraud even for fraud and the basis of that is the case you rely on most for that well certainly we rely on the markets case we rely on con men and i believe i think it is maybe even  e that there are there is no general fraud exception to the filed tariff doctor i mean the thing about relying on common is it wasn't like the crowd hypo that i gave you in time and they advertised three fridays to any country in the world and the tariff really provided for free friday calls to any country in the world and the customers got free friday calls to any country in the world then the company f so the people now are not getting what they were promised but they are getting exactly what the this if the fraud was in charging them something different from the power of then it would be preserved under common i don't believe so your honor i think that at the end of the day if you look at every one of these cases including in central office the whole argument that the plaintiffs posit is i was told that i didn't get x at all what you're saying is that in common they said any fraud case ends up like a contract case exactly and the reason that is that is that true with with the fraud state fraud case they just want to just set aside everything ricin the entire relationship i believe so your honor because plaintiffs have done because they wanted different rate they are not as i said before seeking classic rescission which is you give me everything back i paid and i'll give you the value of the service on some  so restored to the status quo on pay that's not in any of the complaints it's not a claim for relief that's been sought what they have done is they want to affirm the relationship and then say as my measure of damages i want my old carriers rate that customer carrier relationship below the core of the relationship between the parties i signed up i get service i pay you or rate there is no claim that speaks them managed to adjust the terms of that relationship climbing towards the definitions like something that goes beyond the quintessential customer carrier relationship the customer being required to pay money the carrier being required to provide a telecommunications service the carrier goes outside that relationship and takes some adverse action against the customer such as defamation that would survive and i believe that that's the example that was used so there you know it's not to say that the f c a would define every aspect of every every time you had a relationship you call that don't you just look at the effect of whatever the challenge is and see whether the effect is to challenge the tamworth that is exactly correct it is the effect of the remedy sought once you see that the effect of the remedy you sought is to adjust the rate that the customer paid or the other that wise to the terms of service when the carrier in the customer that claim is barred by the file what if it's not an attempt to challenge the test the what is the effect of that the effect of that is that customer pays less than the filed rate no matter what anybody says at the end of the day once you were just out the rate they were charged under the tariff minus the amount they were covered you have a new are on the federal claim so i just want to be very clear that i believe gavel does exactly what counsel says that it does not do and it says that you have a private client for right of action from two zero seven two to apply it to a one claim for violation of two a one under the act and it says page ten eighty six this is so even though the lawsuit in effect challenges the tariffs on file between one thousand nine hundred seven and two thousand and two and if successful would result in babel paying an amount for public access time services different from that provided in the tariffs and that's exactly what we do here in the supreme court case of the ninth circuit relied on in devil is the reader case and it's stated there and then reader which was an i c c case applying similar standards is said respondents contend that the doctrine of primary jurisdiction requires petitioners initially to present their an reasonable rate claims to the i c c rather than to a court that reflects a mistaken understanding of primary jurisdiction counsel i'm with you frankly on all the abstract statements and i'm still having trouble with the concrete let me explain what i mean if the telephone company truck runs over my dog i think i can recover damages for killing my dog even though the net effect is that i paid the telephone company less when you consider what they pay me for the dog than their published tariff as it's a totally independent tort and that even though it means i pay the phone company less than the tariff in our overall relationship i win but i can't figure out what your claim is other than the tariff is incomprehensible we were fooled into agreeing to it and that we should subscriber charges terms of common usage and the point is to have the court here interpret the tariff as you would any contract what are the expectations of the parties in the m c i case the expectations were the parties were such that plain language to consider that in the first instance and let us make that case in court and when we make that case then you will understand it better because we'll have a set of facts to bring back to you and the rule that the court applied here dismissing what the case s it's set out in very abstract terms that my complaints tell me exactly what the case is our case it's that the tariff is unreasonable because it uses terms that are commonly understood by uses of the service cents per minute and cents per minute of usage in a way that's inconsistent with the expectations of those parties and it does that in order to apply a rate that is higher than what those customers would expect typical contract analysis and the tariff is designed to do that and in that sense it's unjust and unreasonable which violates section to say that power says you charge will be three cents a minute and then in another provision of the published power if it says the word minute is used in this tower through means thirty seconds right a minute not three for what normal humans would regard as the minute people with spoke english because tower plainly says add that they're using the word minute to mean thirty seconds than the f c c approve that nobody file the time we had ministry of challenges that well the f c c approval means nothing because it's on a it's on a quick approval process and according to the f c c it can it examines the reasonableness at any time that it challenges race so the fact that it got filed means nothing the fact that it takes a term that's commonly understood and uses it in a different way is exactly what how prince says is makes it in an invalid term of the  response to your question judge wallace he said that conman subject supports that comment does not support that it said the opposite comment says that there is a fraud claim that you can bring against a carrier for no misrepresentation and he and judge posner called it simple fraud any refer to the sixth circuit decision that embrace that that approach he found in common it's page forty eight and that's small sliver that the cases that these circuit cases have permitted to be embraced by the by the congress is very broadly worded savings cost and counsel for now although i'm still looking at page forty eight be interpreted to destroy itself and that's what would happen and then it goes on to say well it must mean something and the sense beginning such a procedure bypassing the f c c cannot have been the sort of thing intended by the savings provision the proper operation of which is illustrated by in re long distance telecommunications litigation a thirty one second six twenty seven at six thirty three to thirty four involved ralph nader's claim that he got bumped and he should have been told that he would get bumped and the supreme court said that's not doesn't have to do you know disclosure claims don't have to don't threaten to uniformity or implicate expertise of an agency and this distinction between how you're measuring damages and has said you know if the plaintiff is not is seeking benefit of the bargain damages then that challenges the terms of the tariff but if not then it doesn't  entail in terms of a remedy because this happened in one thousand nine hundred nine and they've you know wrestled with this these companies for several months or years and finally got rid of them and you know that's where we are today but and i  think the damages for precision would be as as discussed that they would be measured by where we would have been if we hadn't been misled i think you know get damaged it's research and you get damages for breach of contract and the contract is the tariff you get damages for fraud  again i have to return to my confession and that i do not know exactly what the rent how rescission remedy what it looks like in practice but i thought that's what we were looking for and i thought that's what the seventh circuit said we're talking about here that claims in central office that we're actually made in central office and in conn we're qualitatively different than the claims being made here in the sense that those people were seeking the benefit of the bargain the promise made and that's what the court said was not permissible under the council tried to make a distinction between some sort of tort that you might have against your carrier that has nothing to do with the rates you pay and the torts that have some bearing on rates and i would submit that that's really unrealistic and not of not a plausible reading of what congress intended when they wrote the savings clause which says this shall not abridge in any way