IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO QWEST CORPORATION , Petitioner,

v. HON. JOHN F. KELLY, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent,

and MARK McMAHON, a single man, on behalf of himself and all others similarly situated, Real Party in Interest. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 2 CA-SA 2002-0046

DEPARTMENT A O P I N I O N

SPECIAL ACTION PR

OCEEDING Pima County Cause No . C20012485 RELIEF DENIED

Fennemore Craig By Timothy Berg, James D. Burgess and Barney M. Holtzman Chandler, Tullar, Udall & Redhair By S. Thomas Chandler and Phoenix Tucson Attorneys for Petitioner2

Law Office of Bruc

e A. Burke By Bruce A. Burke Tucson Attorneys for Real Party in Interest F L Ó R E Z, Judge.

¶1 Real party in interes t Mark McM ahon, on behalf of himself and others similarly situated, filed a putative class action against Qwest Corporation, the petitioner in this special action, alleging Qwest fraudulently and through misrepresentation had sold him a service he did not n eed. McMahon and the class he seeks to represent are residential tenants, as o pposed t o homeowners, who purchased fro m Qwest monthly “insi

de wire” maintenanc

e service for the telephone wire leading from

the Qwest service

outside their respective r

ental units to the t

elephone jacks located on the walls within their units. ¶2 Qwest

moved to dismiss the complaint pursua nt to Rule 12(b)(1) and (b)(6), Ariz. R. Civ. P., 16 A.R.S. , Pt. 1, contending that the Arizona Cor

poration Commission

(Commission) has exclusive jurisdi

ction to determine t

his type of dispute, that the superior co urt lacke d jurisdiction

to hear it, and that McMahon’s complaint failed to state a claim upon which relief could be granted. The respondent judge denied the motion, and Qwest filed this special action to challen ge that

ruling. We are aske

d to consider the sco

pe of the Commission’s exclusive jurisdiction

as well as the juri

sdiction of the supe

rior court to decide c

laims against

a Commissionregulated public utility such as Qwest. We concl

ude that the respondent

judge neither abused his discretion nor exceeded his jurisdiction or legal authority by reject ing Qwest’s argumen

ts that the3

Commission

has exclusive jurisdiction over McMahon’s claims or that the so-called “f iled rate doctrine” bars his claims. SPECIAL ACTION JURISDI CTION ¶3 An

order denying a motion to dismiss is an interlocuto ry, no nappealable order. Nataros v. Superior Court , 113 Ariz. 498, 557 P.2d 1055 (1976). See also Northern Propane Gas Co. v. Kipps , 127 Ariz. 522, 525, 6 22 P.2d 469, 472 (1980) ( “[T]he proper proce dure for appellate review of a motion to dismiss is through a petition for special action.”). Nevertheless,

an appellate court sh

ould accept jurisdi

ction of a special action challenging the denial of a motion to dismiss only in limited circumstances, such as when the issue raised is of statewide importance. See Taylor

v. Jarrett , 191 Ariz. 550, 959 P.2d 807 (App. 1998) (absence of personal jurisdi ction andfact that issue presented was one of first impression and of statewide importance constituted circ umstances providing exception t o general rule that s

pecial action juri

sdiction should not be acceptedto determine propriety of denial of motion to dismiss). Both Qwest and McMahon urge

us to accept jurisdic

tion of this special action, claiming the significant threshold questions raised

are purely legal and of statewide importance. See Vo v. Superior Court , 172 Ariz. 195, 836 P.2d 408 (App. 1992). We agree and therefore accept jurisdiction of this special action. Cf. U.S. West Communications, Inc. v. Arizona Corp. Comm’n , 201 Ariz. 242, 34 P.3d 351 (2001) (finding questions relating to obligations of Com

mission mandated by c

onstitution

to be legal question

s of statewide importance, warranting acceptance of sp ecial action jurisdiction); Arizona Corp. Comm’ n
v. State ex rel. Woods , 171 Ariz. 286, 830 P.2d 807 (1992) (propriety of attorney general’s refusal to certify rules propos

ed by Commission and

issue regarding Commission’s constitutional power to regulate transac

tions between public

service corporati

ons and their affiliates regarded as urgent,1 The record contains inf ormation regarding th

e Commi ssion’s historica l approval of the services, rates, and classifications discussed herein. In 1982, the Co mmission approved of a settlement

between Mountain

States Telephone & Telegr aph Co., Qwest’s c

orporate predecess

or, andvarious other partie

s regarding proposed ra

te increases for i

ntrastate teleph

one service and relatedissues. Ariz. Cor

p. Comm’n Decision No

. 53040 (filed May 21, 198 2). The Commission approved of Mountain States’ offering to customers

“options available

incident to ownershi

p and maintenance of residential and business inside wiring.” Id . at 5. The Commiss ion entered various or ders thereafter approvi ng rates and class

ifications relat

ed to wire maintenan

ce serv ices fo r residential and bu siness customers. See , e.g. , Ariz. Corp. Comm’n Decision No. 59826 (filed September 16, 1996) (authorizi ng r ate in crease for inside wire maintenance p

lan); Ariz. Corp. Comm’n Decision No. 55426 (filed February 12, 1987) (approving “Li nebac ker Plus” optional inside wire maintenance program); Ariz. Cor p. Comm’n Decision No . 55048 (filed May 29, 1986) (approving

ta riff offering enha

nced wire maintena

nce service plan, eliminating servi ce charge when problem related to customer’s defective equipment). 4 purely legal questions of statewide importance, justifying acceptance of Commissi on’s s pecial

a ction petition). But, because we find, as a matter of law, that the respondent judge correctly denied Qwest’s motion to dismiss, we conclude that the respondent judge did not a buse h is discretion or exceed his jurisdiction or legal authority. Ariz. R. P. Special Actions 3, 17B A.R.S. Accordingly, we deny special action relief. Cf

. Uhlig v. Lindberg , 189 Ariz. 480, 943 P.2 d 840 (App. 1997) (accepting sp ecial action juri

sdiction of challe

nge to superior court’ s order reversing city court’s dismissal of criminal charges, but denying relief).

FACTS AND PROCEDURAL BACK GROUND ¶4 Qwest

is a corporation that does business in Arizona, selling telephone and related services thr oughout the

state. McMahon, a residential tenant, and other residential tenants purch ased from Qwest wire maintenance service for the inside telephone wire of the leased property. 1 McMahon filed a firs t amended complaint

against Qwest in September 2

001, alleging, inter alia, that Qwest had committed consumer fraud by concealing material facts regarding t he tenants’ need for and the value of the wire maintena

nce service (count

one) and by employing5

deceptive practices in

marketing and selling the service to tenants (count two); it had negligently misrepresentedinformation “[i]n t he course of

arranging for and charging” tenants (count three); andit had violated A.R. S. § 40-361 by charging “more than a just and reasonabl

e fee for inside telephone wire maintenance” (count f our). McMahon is seeking damages for Qwest’s alleged tortious conduct

and violation of the Arizona Consumer Fraud Act, A.R.S. §§ 44-1521 throu gh 1534, as well as injunctive relief, requestin g that Qwest be ordered to discontinue its allegedly unlawful practices. ¶5 In

November 2001, Qwest moved to dismiss t he complaint for lack of subject matter jurisdiction and fa ilure to state a cl

aim upon which relief

may be granted, pursu

ant to Rule 12(b)(1) and (b)(6), Ariz. R. Civ. P. Qwest contended that because it is a utility subject generally to regulation by the Com

mission, and becaus

e the wire maintenance plans it hadsold are governed by the Competitive Ex

change and

Network Services Price Cap Tariff, which Qwes t filed with the Com mission

in accordance with A .R.S. § 40-365, the C ommission has exclu

sive and plenary jurisd iction

of all matters rai

sed in the complaint , pursuant to articl e XV, § 3, of the Arizo na Constitution. Qwest asserted at the hearing on its mot

ion that the “[C]om

mission has the authority to determine to whom services can be offered and by whom they are purchased.” ¶6 Qwest

also argued, both in i

ts motion and at the hearing, that the complaint should be dismissed purs

uant to the fi led rate doctrine. That federal doctrine, the adoption of which Arizona courts have not yet c

onsidered, bars an a

ction in a trial cour

t when th at action pertains to a tariff that has been filed with and approved by a regulatory commission. See generally Keogh

v. Chicago & Northwest ern Railway Co ., 260 U.S. 156, 43 S. C t. 47, 67 L. Ed. 183 (19 22) (establishing

filed rate doctrin

e and holding that when Interstate Comme

rce Commi ssion has6

approved railroa

d ra tes and found them reasonable and nondiscriminatory, private shipper may not recover damages for

loss of benefit of l

ower rate it would h

a ve enjoyed but for conspiracy between carriers fixing ra

te; finding carrie

r’s published tarif

f to be the legal rate as between carrier andshipper and that

parties’ rights ca

nnot be varied or enla

rged by contract or tor

t of carrier, or affected by tort of third party); see also American Te l. & Tel. Co. v. Central Office Tel., Inc. , 524 U.S. 214, 118 S. Ct. 1956, 141 L. Ed. 2d 222 (1998) (discussing file

d rate doctrine as ba

r to tort andcontract claims a

rising out of services addressed by tariff on file with Federal Communicat

ions Commission). ¶7 McMahon did not contest th e dismissal of count four of his first amended complaint, alleging Qwest had violated § 40-361 and had charged him “and all others similarly situatedan excessive fee for inside telephon

e wire maintena

nce, which is neither a just nor a reasonable fee.” But McMahon did oppose the motion as to the remaining counts of consumer fraud and negligent misre

presentation, rel

ying on Campbell v. Mountain S tat es Teleph one & Telegraph

Co

. , 120 Ariz. 4 26, 586 P.2d 987 (App. 1978). There, Divisio n One of this court

revers ed the trial court’s gra nt of a motion to dismi

ss and held that tra

ditional claims in

tort or cont ract fall within the general jurisdiction of trial courts, rather than the primary, excl usiv e jurisdiction

of the Commis sion , even though the claims involve a regulated body or enterprise. McMahon

also argued that the

filed rate doctrin

e did not support dismi

ssal of counts one through three. He contended the doctrine has no “place in Arizona law,” urging the respondent judge to reject it and follow other jurisdictions that have done so, suc h as California and Washington. McMahon

also argued that, given the nature of his claims and the purposes of the filed rate doctrine, there is no reason to apply it here to bar the complaint in any event.7

¶8 The respondent judge dismissed count four but, rely ing solely on C ampbell , he denied the motion as to counts one through three. This special action followed. SUBJECT MATTER JURISDI CTION ¶9 In

article XV of the Ar

izona Constitution, its framers “est ablished the Commission

as a separate, popularly-elected branch of stategovernment.” State ex rel. Woods , 171 Ariz. at 290, 830 P.2d at 811. Section 3 of articl e XV specifies the

powers and duties of the Com mission, providing as follows: The Corporation Commiss ion shall have full p

ower to, and shall, prescribe just and r easonable class ifications to be us

ed and just and reasonable rat

es and charges to be

made and

collected, by public servic e corporations within the State for service rendered therein, and make reasonable rules, regulations , and orders, by whichsuch corporations sh all be gov erned in the transaction of business within the

State, and may pres

cribe the forms

of contracts andthe systems of kee

ping accounts to be us

ed by such

corporations in transacting such

business, and make and enforce reasonable rules, regulations, and order s for the convenienc e, comfort, and saf

ety, andthe preservation of

the health, of the employees and patrons of suc hcorporations; Provi ded, that incorporat

ed cities and towns may be autho rized bylaw to exercise supervision over public service corporations doing business therein, including t he regulation of rates and charges to be made and collected by such corporations; Provided further, that cla ssi fications, rates, charges, rules, regulations, orders, and forms or systems prescribed or [made] by said Corpora

tion C ommission may from time to time be amended or repealed by such C

ommission. Section 6 of article XV permits the legislature to “enlarge the powers and extend

the duties of the Corporation

Commission, and . . . [authorize it to] prescribe rules an d regulations to govern proceedings

instituted by and bef

ore it.” Pursuant t

o that authority, the

legislature

has given the Commission

a plethora of additional powers, further expanding its constitutional aut hority. For example, A.R.S. § 40-202(A) authorizes the Commission to “supervise and regulate every public8

service corporation in the state and do all things, whether specifically designated in this titleor in addition thereto, necessa

ry and convenient in the exercise of that power and jurisdiction.” It further provides that the

Commission may adopt rules to “[p]rotect the public against deceptive, unfair and abu sive business practice s, practices rel

ated to . . . intrusi

ve and abusive marke

ting, [and] deceptive or untrue advertising practices. ” § 40-2 02(C)(1); see also A.R.S. § 40-246(A) (Commission

has authority to adjudicate consu mer complaints alleging vio lations “of any provi sion of law”). The legisl

aturealso enacted § 40-365, which requires public service corporations, such

as Qwest, to file with the Commission schedules containing rates and charges, rules, regulations, andcontracts that af

fect or relate to rates or services, which the Commission may either reject, approve, or modify. ¶10 Chronicling the history of the pro

visions of Arizona’ s constitution rela ting to the Commission, our supreme court noted i n State ex rel. Woods

that “[t]he framers . . . followed the newest western states in providing a constitutional basis for popular con trol of corporate re

gulation by creating an elect

ed commission with br

oad powers.” 171 Ariz . at 291, 830 P.2d at 812. The court recognized that, ba

sed on the history of i

ts adoption, the framers intended “to provide both effective regulation of

public service corporations and consumer protection against overreaching by those corporations.” Id . at 290, 830 P.2d at 81 1. As the court further not ed, “the Commissio

n has judicial, executive, and legislative po wers. . . . The Commission exercises its executive, administrative

function in adopt

in g rules and regulati

ons, its judicial j

urisdiction in adjud

icating grievances, and its legislative power in ratemaking.” Id. at 291, 830 P.2d at 812. ¶11 Recognizing that the Commission has broad powers with respect to those matters that fall within its constitutionally or legislatively endowed authority, we must determine here the9

breadthof the Commission’s exclusive jurisdiction. And, we must identify those matters o ver whichthe superior court may exercise concurre nt jurisdiction. Im

plicit in the respon

dent judge’s denial of Qwest’s motion to dismiss and

his reliance on Campbell is the finding that t

he superior court had, at the very least , concurrent jurisdic tion with the Commis sion to hear claims of

consumer fraud and negligent misrepresentation. We conclude the respondent judge was correct. ¶12 The Commission has the e xclusive power to exe

rcise the duties given to it in

article XV, § 3. State v. Tucson Gas, Elec. Light and Power Co. , 15 Ariz. 294, 138 P. 781 (191 4). More specifically, i

t “has full and excl

usive power in the fi

eld of prescribing

rates which

cannot be interfered with by the courts, the legislature or the executive branch o f state government.” Morris v. Arizona Corp. Comm’n , 24 Ariz. App. 454, 457, 539 P.2d 928, 931 (1975); see also Southwest

Gas Corp. v. Arizona Corp. Comm’n , 169 Ariz. 279, 283, 818 P.2d 714, 718 (App. 1991) (with respect to ra temaking decision

s that a ffect public servi ces corporations, “the Commission

is given full and exclusive powers to the preclusion of interference by the other branches of government”); Arizona Pub. Serv. Co. v. City of Phoenix , 149 Ariz. 61, 64, 716 P.2d 430, 433 (App. 1986) (“[C] ommission has exclusive ratema

king authority, not to

be invaded by any branch of government.”). Thus, as part of its executive and legisla tive fu nction, the Commission

has the exclusive, plenary authority to d etermine what is just

and reasonable in te

rms of services offered

by a public service corporation and the rates charged for such services. Tucson Elec. Power Co. v. Arizona Corp. Comm’n , 132 Ariz. 240, 645 P.2d 231 (1982). ¶13 As this court statedin S tate ex rel. Corbin v. Arizona Corp. Comm’n , 174 Ariz. 216, 218, 848 P.2d 301, 303 (App. 1992), “[t]he [C]ommission’s power goes beyond strictl y setting rates andextends to enactme nt of the rules and re

gulations that are

reasonably necess

ary2 Sectio n 40- 241 gives the Commiss ion the power to conduc

t investigations a

nd hearings andto inspect the records of a public service corporati

on. Section 40-321 giv

es the Commission the power to oversee a public service corp oration’s business

and ensure that it i

s conducting business in a safe , reasonable, and p roper manner.

10 steps in ratemaking.” In addition to this executive and legislative authority, the Commission has the judicial jurisdiction to hear grievances and consumer complaints. State exrel. Woods ; Southwest

Gas Corp . Not only does the Commission have judicial powers that are “inherent in its responsibility to make those dec isions necessary to regulate public service corporations, pursuant to Article 15, Sect

ion 3, of the Arizona Constitution,” Southwest Gas Corp ., 169 Ariz. at 284, 818 P.2d at 719, a s previously noted, t he legislature has

expanded that author

ity by expressly authorizing it to address consumer complaints, inclu ding those that invol

ve allegations of deceptiv e business and marketing practices. A.R.S. §§ 40-110, 40-202(C). With respect to matters solely and directly in

v olving questions of t

he reasonableness

of services, rate

s, and the classification

of services, the C

ommission’s authori

ty is exclusive and

plenary. See Tucson Elec. Power Co. , 132 Ariz. at 242, 645 P.2d at 233. But, claims such as McMahon’s that are unrelated to or attenuated from those matters over which the Commission has expr ess constitutiona

l or statutory authority do not fall

within the Commissi

on’s exclusive

jurisdiction. Campbell

supports our conclusion. ¶14 The question raised in Campbell was whether the constitution, A .R.S. §§ 40-241 and40-321, 2 or the doctrine of primary jurisdict

ion required the plai

ntiff to present

tort and breach of contract claims a gainst Mountain States Telephone & Telegraph Company (Mountain States) to the Commission

bef ore she could file a

lawsuit alleging t

hose claims in supe

rior court. The plaintiff sought damag es against Mo untain States for breach of contract based on its failure to11

deliver uninterrupted tele phone service, res

ulting in losses of i

ncome and

business. Addition

ally, she alleged Mountain St ates had intentiona

lly refused to provid

e her wi th unintercepted an d uninterrupted telephone service andthat it had intentionally caused her to suffer emotional distress by intercepting and interrupting her telephone service , though it knew or shoul d have known she would suffer such distress as a result. She sought compensatory damages for her loss of income andbusiness, aggrava

tion, mental and physical

suffering, inconve

nience, distress , and

aggravation of physical condition, as well as punitive damages. Lastly, the plaintiff sough t damages resulting from Mountain States’ invasion of her privacy and intrusion into her personal life by moni

toring andintercepting her te

lephone calls and c

onversations. The t

rial court dismiss

ed the complaint

on the groun

d that the plaintiff was required to present her claims to the Commission first, essentially finding that she had failed to exhaust her administrative re medies. Reversing , Division One of this court held tha t the Commission did

not have exclusive, pri mary jurisdi ction of the plaintiff’s tort and breach of contract claims. ¶15 The court in Campbell first dist inguished the doctrine of exhaustion of remedies from the question of jurisdic

tion, pointing out that “‘[t]he exhaustion doctrine is concerned with the timing of judicial r

eview of administra

tive action. ’ The doctr ine applies only when an administrative

agency has original

jurisdi cti on.” 120 Ariz. at 429, 586 P.2d at 990, quoting 3 Kenneth C. D avis, Administrative Law Treatise§ 20.01 at 57 (1958). The court found that because the superior court ha d not been asked to rev iew any action of or decision by the Commission, the exhaustion of remedies doctrine was not relevant. The court then turned to the question of whether the Commi ssion had primary jurisdictio n of the claims all eged in the complaint.12

¶16 The cour t stated: “[t]he doctrine of primary j

urisdiction determ

ines whether the court or the agency should make the initial decision in a particular case.” Campbell , 120 Ariz. at 429, 586 P.2d at 990. The doctrine “is a discretionary rule created by the courts to effectuate the efficient handling of cases in specialized areas where agency expertise may be useful.” Id . at 430, 586 P.2d at 991. The co urt explained that the p

urpose of the doctrine is to provide guidance to a court in determini

ng whether to “refra

in from exercising i

ts jurisdiction until after an administrative

agency has determi

ned some question

or some aspect of so

me question arising

in the proceeding before the court.” Id . at 429, 586 P.2d at 99 0, quoting

Davis, supra , § 19.01 at 3-5 (footnotes omitte

d). The court add

ed, “‘[t]h e doctrine of primary jurisdiction is not an inflexible mandate but rather is predicated on an attitude of judicial self-restraint, and is generally applied when the court believes that considerations of policy recommend that the i ssuebe left to the administrative ag

ency for initial de

termination.’” 120

Ariz. at 430-31, 586 P .2d at 991-92, quoting Greeves v. Idaho Te l. Co. , 499 P.2d 1256, 1258 (Idaho 1972). ¶17 In

determining whether

the Commission had pr imary jurisdi

cti on in Campbell , Divisi on One examined the pla

intiff’s claims

in light of the follo

wing test articula

ted by the Supreme Court in Far East Conference v. United States , 342 U.S. 570 , 574-75, 72 S. Ct. 492, 494, 96 L. Ed. 576, 582 (1952):

[I]n cases raising issues of fact not within the conventi o nal experience of judges or cases r equiring the exerci

se of administrative

discretion, agencies create d by Congress for regulating

the subject matter should not be passedover. This is so even though the

facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in t he regulation of business entrusted to a particular agency are secured, and the limited functions of review

by the judiciary are mo

re rationally exerc

ised,13 by preliminary r

esort for ascertaining a nd interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insi ght gained through experience, and by more flexible procedure. ¶18 In Campbell , the court rejecte d Mou ntain States’ contention that the plaintiff’s cl aims, “though nominally soun ding in contract and t

ort, really concer

ned the adequacy of appellees’ services as public service corporations,” and were, therefore, within the Commission’s exclusive jurisdiction. 120 Ariz. at 428-29, 586 P.2d at 989- 90. The court acknowl

edged the Commission

has broad constitutional power to regulate public service corporations, noting article XV, § 3, of the Constitution gives the Commission the a uthority to regulate

rates and charges, and that article XV, § 4, gives i t the power to conduct he arings and investig

ate grievances an

d complaints. The court noted, too, that the legislature had enlarged the constitutionally granted powers of the Comm

ission , such as, for example, giving it the power to address “‘insufficient’ practices.” 120 Ariz. at

431, 586 P.2d at 992, quoting A.R.S. § 40-203; see also A.R.S. § 40-241 (giving the Commission power to inve s tigate claims and inspect the records of public service corporations); § 40-202(A) (providing Commission with power to supervise and regulate public service corp ora tions); § 40-110 (es tablishing consume

r services secti

on for the purpose of receiving and investigating consumer complaints and providing public with information). But the court concluded nevertheless that the superior co urt had jurisdiction

and had erred by dismissing the complaint. The

court stated: In this case, appellees have consistently argued that appellant’s complaint is conce rned only wi

th t he technical manner andmeans of providing telephone service. W e re appellees’ contentions

supported by the complaint, we would have no trouble in affirming dismiss

al of the complaint

on the ground of primary jurisdiction

since questions in

volving only the manner

and means of14 providingteleph

one se rvice raise “iss

ues of fact not with

in the con ventional experience of judges,” Far East Conference, supra , 342 U.S. at 574, 72 S.Ct. at 494, but within the

duties and expertise of the Corporation Co

mmission. Des pite appellees’ contentions, however, appellant’s complaint deals wi

th much more than the me re manner and means of providing telephone

service. As our summary of the c omplaint above indicates, appel

lant has proffered

three claims in tort—fo r tortiousinterference with telephone service , intentional infl iction of emotional distress, and invasio n of pr ivacy—and one claim for breach of contract. Obviously, each of these claims is elementally based on the manner and metho d of prov id ing service, and other matters wi thin the particular e xpertise of the Corp

oration Commission. However, the claims’ most impor

tant aspects invol

ve facts and theories of tort and contract far afield of the Commission’s areaof expertis e and statutory responsibility. Indeed, appellant’s tort and contract claim

s arethe type of

traditional claims with which our trial courts of general jurisdiction are most familiar and capable of dealing. 120 Ariz. at 431-32, 58

6 P.2d at 992-93. ¶19 Thus, even though the plaint iff’s claims in Campbell

involved the adequac

y and method of telephone service, those issues w ere not predominant. The court noted, too, that the plaintiff was “not seeking injunctive relief to establish broad public doctrines, or rights to service

or levels of service.” 120 Ariz. at 432, 586 P.2d at 993. Rather, the plai ntiff had raised “relatively simple tort and cont ract issues revol

ving around a ce ntral inquiry: whether, under traditional judicial principles, appellees committed a civil wrong against appellant.” Id. The court concluded that the Commission did not have exclusive jurisdiction over such claims. Id

. ¶20 Qwest

contends the

respondent judge “misread” Campbell , insisting that the case “does not deal with the scope o f the e xclusive and plenary jurisdiction of the Commission.” Qwest asserts that in Campbell

the court addressed the issue of primary jurisdiction, pointing out,15

as we have , that it is discretionary. Qwest maintains that Campbell is distinguishable not only because it involved issues o ver which the Commis sion and the superior court had nonexclusi

ve jurisdiction, but because the nature of the claims in that case, in contrast to the claims here, brought the case outside the exclusive jurisdiction of the Commission. We disagree. ¶21 Although

it is true that the c

ourt in Campbell

repeatedly referr

ed to the issue as one of primary jurisdiction, the court ultimately concluded that, given the nature of the plaintiff’s claims, it would not “apply the discretionar y do ctrine of primary jurisdiction so as to vest exclusivepri mary jurisdiction in the Corporation Commission.” 120 Ariz. at 432, 586 P.2d at 993. Additionally, here , as in Campbell , questions concerni ng the charge

for, nature, and quality of the services Qwest sold “are not [the] predominant” issues. Id. The only count directly related to the reasonableness of the fee charged for the wire mainte nance s ervice was dismissed. With respect to the claims for co nsumer fraud, a sta

tutorily defined tor

t, and negligent misrepresentati

on, a traditional, com

mon law tort, the rea

sonableness of the

fee charged and the quality or nature of the service sold is wholly irrelevant or, at m ost, entirely att

enuated from the predominant issues. ¶22 Indeed, Qwest conce des in its special action petition tha

t “[t]he gravamen of [McMahon’s] claims is that Qwest is selling an inside wire maintenance service that it should not be allowed to sell to residential tenants because it is of no value to them.” It summarily concludes, however, that “[s]uch a claim fa lls within the excl usive jurisdiction

of the Commission to

make classification

s concerning the customers to whom a se rvice can be sold and to determine a reasonable rate for the servic e.” But the factual alle

gations in McMahon’s

complaint

and the very nature of consumer fraud and

negligent misrepre

sentation claims

make it clear that

the claims have3 The tariff distingu is hes between complex and noncomplex wiring. “Complex Premises Wire” is defined as “[w] iring and jacks on a premises that is associated with customer-provided equipment

such as Multiline Telephone Systems, PBXSystems, Multifunc tion Systems, LAN a

nd dataequipment . . . .” “Noncomplex Premises Wire” is defined as “[w]iring and jack s on the customer’s side of the

Network Interface that doe

s not terminate in c

ustomer-provided equ

ipment described under Complex Premises Wire.” Other examples of c lassifications

include the

different services offered for the two primary classifications of business and residencemaintenance plans. Within the residence classification, however, there is no distinction be tween tenants and homeowners. The only mention of such a dis tinction is for business customers; the tariff provides aservice solution f

or a “Building

Owner/Tenant,” that provides multiple lines at specified monthly rates, depending upon the number of lines. 16 little, if anything, to do wit h classificatio

ns of customers and a

ssessment of the r

easonableness of the rate for that service. McMahon alleged, for examp

le, that Qwest com

mitted consumer fra

ud, violating the Arizona Consumer Fraud Act, §§ 44-1521 through 1534, by withh olding and concealing

material facts “ regarding the value o f the service in li

ght of thefrequency with which inside telephone wire maintenance or repair is actual ly need ed.” McMahon also alleged that Qwest had concealed from t

enants the fact th

at “by l aw the tenant’s landl ord is responsible f

or maintaining

the tenant’s inside telephone wire,” thereby engaging in deceptive practices. Finally, McMahon

alleged Qwest had “neg ligently misrepresented th[e] service ” by concealing infor mation and deceptively mar

keting a product the t

enants did not need. ¶23 The only information in the record with which we have been provided p ertaining to classification

of services is the

information in the

Competitive Exchange and Network Services Price Cap Tariff, which

distinguishes busi

ness from resident

ial custom

e rs, providing differ

ent service plans for each cla ssification and

price structures that vary with the kind of service. 3 The classificati on s recognized in the ta riff differentia

te between servic

es provided to busine

sses and4 We note that here, unli ke in Campbell , two of the c laim s, though sounding in to rt, are statute based: counts one and two for consumer frau d, pursuant to A.R.S. §§ 44-1521 thr ough 1534. 17 residences. Nothing in McMahon’s complaint even remotely relates to this classification system or challenges it in any respect. ¶24 Thus, even though the Commission may well have the c onstitutional or statutory authority to address and order redress for McMahon’s claims, that does not mean its jurisdiction of such claims is exc

lusive and that the

superior court

does not have, at the

very least, concur

rent jurisdicti on. Nor do es the fact that McMahon is seeking injunctive relief establish, as Qwest contends, that the Commission has exclusive jurisdicti on of Mc Mahon’s claims. Mc Mahon alleged that the injuries he and other tenants ha

d suffered were lik

ely to re cur in the absence of a court order enjoini

ng Qwest from continui

ng its unlawful pract

ices, asking the

court to “grant appropriate injunctive relief.” This is not the kin d of inj unctive relief concerning broad public policy the court in

Campbell

suggested might pla

ce an issue square

ly within the primary , exclusive jurisdiction of the

Commission. ¶25 We conclude that the respondent judge’s r

eliance on Campbell

was not misplaced. As in Campbell , McMah on’ s complaint raises claims that revolv

e “around a central i

nquiry: whether, under tradi

tional jud icial principles , [Qwest] committ ed a civil wrong agai

nst [the tenants].” 4 120 Ariz. a t 432 , 586 P.2d at 993. Like wise, as in Campbell , “these issues predominate, [therefore] it is clearly not essential for the courts to ‘refrain from exercising (t

heir) jurisdicti on

until after’ the s

pecialized admini

strative agency ‘h

as determined some

question or

some aspect of some question arising in the proceeding before the court.’” Id. , quoting Davis,18

supra , § 19.01 at 3. Based on Campbell , as well as the other authorities discussed herein regarding the Commission’s constitutional and statutory authority, the allegations in McMahon’s complaint, and the nature of his claims against Qwest, the respondent judge did not err in denying Qwest’s motion to dismiss fo r lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Ariz. R. Civ. P. THE FILED RATE DOCTRINE ¶26 Qwest

contends, alternatively, that even if the superior court has subject matter jurisdiction

of McMahon’s complaint, the re spondent judge erred in any event by denying its motion to dismiss the complaint, arguing McMahon’s claims are barred by the filed rate doctrine. Although the respondent judge

made no specific f

indings of

fact or conclusions

of law related to this affirmative defe

nse, it rejected i

t implicitly by denyi

ng the motion to dismiss after the argument was made both in the motion itself and at the h

earing. Again we

disagree with Qwest and find the responde

nt judge did not err. ¶27 The filed rate doctrin e appears to have ha

d its inception in Ke ogh v. Chicago & Northwestern Railway Co. See also Kansas City Southern R.R. v. Carl , 227 U.S. 639, 33 S. Ct. 391, 57 L. Ed. 683 (1918) (di scussing tariff filed with

regulatory commiss

ion and prevention of discrimination

among customers by mon opolistic transpor

tation and communications companies). The plaintiff in Keogh had filed an action in federal distric

t court alleging tha

t the defendant shippingcarrier had conspired with other carriers to f

ix freight transportation rat

es in violation of federal antitrust laws and that he had been forced to pay higher, unreasonable rates as a consequence of that conspiracy. The Court held that b ecause the rate t

he defendant had charged the plaintiff had been filed with and approved by the Interstate Commerce Commission (ICC) , the19

district court should have dismissed the complaint for failure to stat e a cla im upon which relief could be granted. The Cour t reasoned that by appr

oving and fixing the ra

te, the IC C had determined the rat e was reas onable and nondiscri minatory; its deci

sion was dispositi

ve of the issues raised in the lawsu it, notwithstandin

g the allegations t

hat the filed rate was the product of

aconspiracy to inflate prices . The Court held that courts sho

uld not be permitted t

o question and change approved rates because it could result in th e charging of differ

ent rates to member

s of the

sameclass of

rate payers. The Court added that if the judiciary were allowed to decide whether

arate was reasonable and nondiscriminatory, it would “reconstitut[e] the whole rate structure for many articles moving in a n important section

of the country.” 260 U.S. at 164, 43 S. C t. at 50, 67 L. Ed. at 188. ¶28 About

thirty years later, in Montana-Dakota Utilities Co. v. Northwestern Public Service Co. , 341 U.S. 246, 71 S. Ct. 692, 95 L. Ed. 912 (1951), the Court again applied the filed rate doctrine, rejecti

ng a challenge to el

ectricity rates t

hat had been app roved by the ICC,

n otwithstanding

the plaintiff’s allegations that rates were unreasonably high as a result of a fraudulent

agreement between

directorates of tw

o companies. The Cou

rt explained that it

was not forcourts to determine

what is a reasonabl

e rate for utiliti

es, and that the pla

intiff had raise d a nonjusticiable issue that was more appropriately presented to and determined by the ICC. ¶29 The Cour t refine d the filed rate doc trine in Arkansas Louisiana Gas Co. v. Hall (“ARKLA”) , 453 U.S. 571, 101 S. Ct. 2925, 69 L. Ed. 2d 856 (1981). It held that the doct rine barred an ac tion b y the Arkansas Louis iana Gas Company aga

inst the defendant

for breach of contract, which sought to enforce the defendant’s agreement to pay the gas company a higher rate forgas if the defendan

t were to purchase it from another company for an amount that exceeded20

the rate the two had agre ed upon in their contra

ct. Quoting the deci

sion of the Court of

Appeals forthe District of Col

umbia, the Court

identified one of th

e “‘consideration

s underlying the

[filed rate] doctrine [as] . . . p reservation of the a gency’s primary juri

sdiction over reaso

nableness of rates and the need to insure that regulated companies charge only those rates of which the agency has been made cognizant.’” Id . at 577-78, 101 S. Ct. at 2930, 69 L. Ed. 2d at 864

. The Court regarded t

he doctrine

as a means of prese

rving uniformity in ra

tes charged. But, perhaps more importantly, the C ourt viewed the doctrine as a means of avoiding discrimination among rate payers. The Court refused t o enforce the rate a

greed to by the

parties because it differed from the rate that had been filed with and approved by the ICC. ¶30 These and other authorities identify two underlying purposes of and motivations for the filed rate doctrin

e: prevention of pr

ice discrimination amo

ng rate payers, ref

erred to as the antidiscriminati

on strand, and preservatio n of the role of regulato

ry agencies in deci

ding reasonable rates for public utilities and services, or th e nonjusticiability strand. See , e.g. , Maislin Indus. U.S. v . Primary Steel, Inc. , 497 U.S. 116, 110 S. Ct . 2759, 111 L. Ed. 2d 94 ( 1990) (involving

a ntid iscrimination strand; dismissing claim based on allegation that defendant had quoted plaintiff lower rate, which plaintiff sought to enforce, rather than filed rate); Square D Co.

v. Niagara Frontier Tariff Bureau, Inc. , 476 U.S. 409, 106 S. Ct . 1922, 90 L. Ed. 2d 413 (1986) (involving

nonjusticiability strand; the court refused to determine lower rate by taking into account defendants’ alleged wrongful inflation of rate through antitrust violation). ¶31 As the Second Circuit Court of Appe

als noted in Wegoland Ltd. v. NYNEX Corp ., 27 F.3d 17, 20-21 (2d Cir. 1994):21 The [filed rate] doctrine is designed to insulate fr om challenge the f iled rate deemed reasonable by the regulatory agency. Congress andstate legislatu

res establish reg

ulatory agencies in

part to ensure that rates charged by gen

erally monopolistic

andoligo polistic industries are r easona

ble. This regime protects consumers while fostering stability. The re

gulatory agencies a

re deeply familiar with the wor kings of the regulated industry and utilize this special expertise in evaluating the re asonableness of

rat es. The agencies’ experience and i n vestigative capacity make them well-equipped to discern from an entity’s sub

missions what cost

s are reasonable a

nd in turn what rates are reasonable in light of these costs. If courts were

licensed to enter this process under the guise of ferreting out

fraud in the

rate-making process, they would unduly subvert the regul ating agencies’ a uthority and thereby un

dermine the stability of the system. For on ly by determini

ng what would be a reasonable rate absent

the fraud could a court determi

ne the extent of the damages. And it

is this judicial determination of a reasonable rate that the filed rate doctrine forbids. ¶32 Qwest

relies extensive

ly on Wegoland for the proposition th a t, althoug h at its inception the filed rate doct

rine was a federal

doctrine based on fe

deral tariffs and

the powers of federal regulatory agencies, it should be adopted in this state. Indeed, the district court, which court’s decision the Second Circuit affirmed

with approval, had st

ated, “[a]lthough Keogh pertained to federal regulation, Keogh ’s rationale applies equally strongly where state law creates

astate agency and statutory scheme pursuant to which the state agencies determine reasonable rates.” Wegoland

v. NYNEX Corp. , 806 F. Supp. 1112, 1116 (S.D.N.Y. 1992), aff’d , 27 F.3d 17; see also H.J. Inc. v. Northweste rn Bell Tel. Co. , 954 F.2d 485 (8th Cir. 1992) (finding no

reason to distinguish between rates promulgated by state and federal agencies); Taffet v. Southern Co. , 967 F.2d 1483, 1494 (11th Cir. 1992) (finding that when leg islature ha s given power to administrative

agency to determine reaso nableness of rate , consumer may not as sert another rate

as the legal rate under filed rate doctrine, “which . . . applies with equal force to preclu de5 See , e.g. , Emperor Clock Co., Inc. v. American Tel. & Tel. Corp. , 727 So. 2d 41 (Ala.

1998); Cullum v. Seagull Mid-South, Inc. , 907 S.W.2d 741 (Ark. 1995); Day v. Ameri can Te l. & Tel. Corp. , 74 Cal. Rptr. 2d 55 (Ct. App. 1998); P ublic Serv. Co. of Colo. v. The Public Utilities Comm’n of Colo. , 644 P.2d 933 (Colo. 1982); Watergate East, Inc. v. D.C. Pub. Serv. Comm’n , 662 A.2d 881 (D.C. 1995); Horwitz v. Bankers Life and Cas. Co. , 745 N.E.2d 591 (Ill. App. Ct. 2001); but see United States Gas Co. v. Illinois Commerce Comm’n , 64 3 N. E.2d 719 (Ill. 1994); Teleconnect Co. v. U.S. West Communications, Inc. , 508 N.W.2d 644 (Iowa 1993); Amundson

& Assocs. Art Studio, Ltd. v. National Council on Compensation Ins., Inc. , 988 P.2d 1208 (Kan. Ct. App. 1999); Bauer v. Southwes tern Bell Tel. Co. , 958 S.W.2d 568 (Ct. A pp. 1997); In re System 99 , 847 P.2d 741 (Nev. 1993); Porr v. NYNEX Corp. , 230 A.2d 564 (N.Y. App. Div. 1997); Lupton v. Blue Cross and Blue Shield of North Caroli

na, 533 S.E.2d 270 (N.C. Ct. App. 2000); Southwestern Bell Tel. Co. v. Metro-Link Telecom, Inc. , 919 S.W.2d 687 (Tex. App. 1996); Hardy v. Claircom Communications Group, Inc. , 937 P.2d 1128 ( Wash. C t. App. 1997). Some of these case s aredistinguishable by the fact that the y involved federal re

gulatory agencies. See , e.g. , Day (Federal Communications Commission); U til ities Comm’n of Colo. (Federal Energy Regulatory Commission); Hardy(Federal Communications Commission). 22 recovery under RICO whether the rate at issue has been set by a state rate-making authori

ty or a federal one”). Qwest also cites cases from a number of state courts adopting the doctrine. 5 ¶33 Among the cases u pon which Qwest relies is Sun City Taxpayers’ Association v. Citizens Utiliti

es Co. , 847 F. Supp. 281 (D.Conn. 1994), aff’d , 45 F.3d 58 (2d Cir. 1995) . As Qwest correctly points out, the Second Circuit C our t of Appeals approved the district court’s conclusion

that Arizona’s cons

titution, which gives the Commi ssion exclusive au

thority to set the rates of public utilities, essentially codifies the filed rate doctrine. But Sun City is afederal case by a circuit court different from the one that serves Arizona. Furthermore, like the other authorities that Qwest relies upon a nd that we discuss below, Sun City is distinguishable; there,

un like here, the plaintiff was challenging Commission-approved utility rates, claiming the rates

were approve d because of the subm ission of false in

formation. Again, Mc

Mahon is not challenging the reasonableness of the approved fees or classification.23

¶34 Although

thereis ample authority in favor of adopting the

filed rate doctrin

e, there is persuasive

authority to the contrary. See , e.g. , Pink Dot Inc. v. Tel eport Communications Group , 107 Cal. Rptr. 2d 392 (Ct. App. 2001); Spielholz v. Superior Co urt , 104 Cal. Rptr. 2d 197 (Ct. App. 2001); see also United States Gas Co. v. Illinois Commerce Comm’n , 643 N.E.2d 719 (Ill. 1994) (holding that when federal statu tory scheme does not occupy field, filed rate doctrine does not apply); Tenore v. American Tel. & Tel. Wireless Servs. , 962 P.2d 104 (Wash. 1998) (distinguishing Hardyv. Claircom Communications Group, Inc. , 937 P.2d 1128 (Wash. Ct. App. 1997) and finding file d rate doctrin e not implicated in a ction for fraud and de

ceptive practices). Moreover, we find it s ignificant that in Campbell , Mountain States apparently did not raise, and the court did not m en tion, the filed rat e doctrine after th

oroughly discussing t

he Commission’s jurisdiction and fi nding the jud iciary does have the authority to address and is capable of

resolving traditional tort and breach of contract claims, even if one of the parties is a regulated utility. ¶35 We need not determine, however, whether Ari zona should adopt this

federal do ctrine and apply it when a stat e regulatory agency i

s involved because, even if it were to be adopted, it would not bar McMahon’s claims. See Satellite Sys., Inc. v. Birch Telecom of Okla., Inc. , 51 P.3d 585 (Okla. 2002) (refusing to decide

whether to adopt state version of federal filed rate doctrine for tariff

s filed with the Okl

ahoma Corporation Com mission but finding that even if doctrine were to be adopted, it could not bar claim for common law fraud). The respondent trial judge did not err by denying Qwest’s motion to dismiss McMahon’s complaint based on the failure to st ate a claim upon which relief may be granted, given the nature of the allegations i n McMahon’s complaint.24

¶36 Neither the antidiscrimination nor the nonjusticiability strand of the filed rate doctrine is implicated by McMahon’s claims. First, t he antidiscrimina

tion strand

is not implicated. There is no claim, direct or otherwise, that Qwest has charged rates in a discriminatory manner

or given preferential treatment t o diffe rent classes of consumers. Nor has one consumer been given a privilege or other benefit that another has not received. See, e.g., American Tel. & Tel. Co. v. Central Office

Te l., In c .; Marcus v. American Tel. & Tel. Corp ., 138 F.3d 46 (2d Cir. 1998). McMahon and the putative class members are all tenants; all were allegedly sold the same wire maintenance servi

ce for the same

rate. Neither the r

ate nor the quality of

the service is at t

he heart of McMahon’s complaint. Rather, it is the very fact that Qwest sold to the tenants, through allegedly fr audulen t and deceptive prac tices and materia

l misrepresentat

ions of fact, a wir

e maintenance servi

ce that Qwest knew o

r should have known tena nts did not need. ¶37 Nor do McMahon’s claims implicat e the nonjusticiability strand of the filed rate doctrine. Again, the claims relate to the marketing and s elling of a product to

consumers

that they may not have needed; the claims have nothing to do with the reasonableness of the rate charged forthe serv ices, the kinds of services offered and sold, or the classification of consumers. Nothing in the record permits us to conc lude that , by approving the Compe titive Exchange an

d Network Services Price C

ap Tariff on July 30, 2001, and subseque nt c hanges in prices and services, the Commission also approved, implicitly or oth erwis e, the sale of wire maintenance service plans to tenants who did not need them . Indeed, as previously stat ed, tenants are not distinguished from other residents, and therefore, such a classification was not even arguably part

o f the tariff that was submitted and approved. There is no appreciable danger here that b y allowing the respondent

judge to pr oceed with the underl ying lawsuit we will

be sanctioning25

judicial intervention in the r ate-making

process, a matter solely wit hin the discretion a

nd judgment of the Commission. See Marcus , 138 F.3d at 58 (nonjusticiability strand of filed rate doctrine is designed to keep courts out of the rate-making process). ¶38 As the court stated in H.J. , it is not the conduct of the defendant that controls “whether the filed rate doct rine applies. Rath

er, the focus

for determining whether the filed rate doctrine applies is the impact the court’s decision will have on agency proced ures and rate determinations.” 954 F.2d at 489. Permitting McMahon’s claims to proceed, particularly in the absence of theone claim

that did challenge t

he reasonableness

of the rates, will

have no effect on the Commission’s abil

ity to set rates in

t he telecomm

unications industry. In this respect McMahon’s claims are simil ar to those of the plaintiffs in Day v. American Telephone & Telegraph

Co. , 74 Cal. Rptr. 2d 55 (Ct. App. 1998), a case that Qwest cites as an example of a state court that has adopt

ed the filed rate do

ctrine. There, th

e court distinguished clai

ms involving unfair business practices and deceptive advertising in the saleof prepaid telephone c

ards from a challenge to the rate approved by and filed with the Federal Communications Comm ission. The rate included the

practice of rounding up to the nearest minute for time expended with the use of the card. The court found that because the plaintiff was neither seeking monetary relief nor a rate different from the approved rat

e, but was asking ins

tead tha t the cou rt enjoin misleadi ng or deceptive practices, the c

laims were not barre

d by the filed rate do

ctrine. Similarl

y, McMahon is challenging allege

dly deceptive and fr

audulent sales and

marketing pr

actices, not the rate charged to tenants for the wire maintenance service. ¶39 We find distinguishabl e other authorities

Qwest relies on as

its primary support

for the pro position that claims such as those raised here are barred by the filed rate doctrine. In26

Central Office T elephone , for example, the S upreme Court reverse

d the Ninth Circuit C

ourt of Appeals and held that the fil ed rate doctrin e barred the plainti ff’s state clai

ms for breach of contract and inter ference w ith contracts. Ce ntral Office Tel

ephone (COT) had fi

led an action against AT&T, arguing that the latter hadpromised to deliver s ervices and provide b

illing options to it in a ddition to those that were part of the tar

iff approved by the Fe

deral Communicatio

ns Commission

under the Communicat

ions Act of 1934. The C ourt held that the rate f

iled was the only lawful rate that could be charged, even assuming that the carrier had intentionally misrepresent

ed its rate and that COT had relied on those misrepresentations. Because Central OfficeTelephone

involved service an

d billing, which were

part of the

services package

approved of by the regulatory agency, the nondiscrimination strand of the filed rate doctrine was clearly implicated. To permit a carrier to provide services

that di ffered among customers, ba sed on a private agreement giving one greater privileges than others, would sanction disc riminatory

rates. ¶40 Wegola nd , too, is distinguishable . Finding barred commo n law causes of act

ion forfraud, negligent misrepresentation, as well as claims for RICO violations, the Second Circuit Court of Appeals approved the district court’s dismissal of the plaintiff’s complaint. The plaintiff alleged that the defendant s had provided consume

rs with misleading financial information in order to support inflated rates the defendants h ad requested, and as a consequenc e, rate payers and regulatory

agencies had been misled into believing that higher rates were justified. But again, at issue in Wegoland

was the reasonable

ness of rates appro

ved by the regulatory a

gency. Although the court acknowledged the res

ult was harsh, it ma

de clear that once a

rate is filed and

approved, it “is per se reasonable and unassailable in judicial proceedings brought by ratepayers.” 27 F.3d at 18. The court rejected the plaintiff’s request to make an exception for fraud. Again, McMahon27

is not challenging the r

easonableness of

the rates or the qual

ity of the service or the c

lassification of the services, either directly or indirectly. The nonjusticiabil ity strand of the

filed rate doctrin

e is not implicated here, as it was in Wegoland

. ¶41 Likewise, ARKLA is distinguishable from this case because it involve d an attempt to avoid payment of an approved rate. There, the plaintiff had alleged that certain rates had been approved because of fraud perpetrated upon the regulatory commission. So, too, is Marcus distinguishable. There, AT&T custom ers had sued the comp

any alleging that it fraudulently had concealedthe practice of bil ling for residentia

l services by roundin

g up time used to the next full minute. The complaint

alleged deceptive

acts and practice

s, false adverti

sing, fraud and deceit, negligent misrepresentati

on, breach of warrant

y, and unjust enrichment. And, unlike the plaintiff in Day , the AT&T customers in Marcus were seeking moneta

ry relief. The

Second Circuit Cour

t of Appeals found these

claimsbarred by the filed rate doctrine because the practices complained of had been part

of the rate package

submitted to and appr

oved by the Federal Communi cations Commission. The court held that t he filed rate doctrin

e applied “strict

ly to prevent a plaint

iff from bringing a cause of acti on eve n in the face of appa rent inequities whe

never either the

no ndiscrimination

strand or the nonjusticiability strand underlying the doctrine is implicat ed b y the cause of action the plaintiff seeks to pursue.” Marcus , 138 F.3d at 59. Accordingly, even if

we were to adopt the fil

ed rate doctrine her

e, neither of its s

trands compels or justifies dismissal of McMahon’s complaint.28 CONCLUSION ¶42 The respondent judge did not err in denying Qwest’s motion to dismiss McMahon’s complaint pursuant to either Ru

le 12(b)(1) or (b)(

6). Although we

accept jurisdiction of Qwest’s speci al action, we conclude that the respondent judge did not abuse his discretion or exceed his jurisdiction or legal authority, and therefore, we deny relief.

____________________________ __________ M. JAN FLÓREZ, Judge CONCURRING:

____________________________ ____________ J. WILLIAM BRAMMER , JR., Presiding J udge

____________________________ ____________ JOHN PELANDER, Judge