Cir. 2000) and Gilmore v. Southwestern Bell Mobile Sys., Inc., 156
F.Supp.2d 916, 920-24 (N.D. Ill. Aug. 10, 2001).

In Gilmore, the court found plaintiff's claim, i.e. that
plaintiff should not have been required to pay a fee because he did
not agree to the fee, is a challenge of the fee and , therefore,
is preempted by federal law. The court held the FCA preempts the
state and local rate regulation of cellular telephone services. In
finding for preemption, the court recognized the Seventh Circuit’s

w

focus on whether the appropriateness of the amount charged is
necessary to resolving the claim, as well as the recognition that
complaints about quality of service generally constitute complaints
about the rates charged for the services” and whether or not the
claim raised the question of whether the fee was unjust. Gilmore
, 156 F.Supp.2d at 923; see also AT&T v. Central Office Telephone,
524 U.S. 214, 223 (1998); Bastien, 205 F.2d at 987-88.

Here, Fedor, like the plaintiff in Gilmore, challenges the
appropriateness of Cingular’s fees. In order to resolve the claim,
the trier of fact will be required to focus on the appropriateness
of the amount Fedor was charged from January thru April 2001 and
determine whether the fee charged is unjust. As stated above, in
cases where a plaintiff raises this issue, the claim will fall
within the federal jurisdiction of the FCA.

Further, the well-pleaded complaint rule holds a plaintiff,

such as Fedor, is the master of his own complaint and may seek to


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jurisdiction...” Federal Communications Act, 47 U.S.C. § 207
(1934) (citation omitted).

Cingular is a “common carrier” which provides mobile telephone
service. See 47 U.S.C. § 153(10). Further, Congress specifically
provided for state preemption by mandating “no state or local
government shall have any authority to regulate the entry of or the
rates charged by any commercial mobile service or any private
mobile service, except that this paragraph shall not prohibit a
State from regulating the other terms and conditions of commercial
mobile services.” 47 U.S.C. 9332 (c) (3) (a). This section expressly
provides that any claims challenging telecommunications rates are
subject only to federal jurisdiction. Because Fedor is ultimately
challenging Cingular’s rates, the Court must find federal
jurisdiction is appropriate. To decide otherwise would contravene
the FCA. See Id.

Congress has already spoken on the appropriateness of federal

jurisdiction in these matters and the Court is not in a position to

question it. Congress has granted exclusive authority to either a
Commission or the district courts to hear cases such as the present
matter. Indeed, the Supremacy Clause prohibits the Court from
acting contrary to federal law. See Arkansas Louisiana Gas Co. v.
Hall, 453 U.S. 571 (1981) (holding that a filed rate doctrine
forbade a state court from calculating damages in a breach of

contract action); Chicago & North Western Transp. Co. v. Kalo


telecommunications service market. Thus, Cingular argues Fedor’s

complaint is governed by the Federal Communication Act (FCA) and is

completely preempted from state regulation or adjudication.

Cingular is correct and Fedor’s motion to remand is hereby denied.
Analysis

Fedor maintains he has presented a contract and consumer fraud
claim that does not challenge the rates Cingular may charge or its
entry and/or access within the cellular telephone industry. He
contends his complaint raises the issue of “contract violative
accounting practices” and not the reasonableness or appropriateness
of the rates themselves, and thus it is not preempted by federal
law and not removable to this federal district court.
Specifically, Fedor argues he should not have to pay roaming
charges because he did not agree to pay them unless they were
accurately recorded and billed within the appropriate billing
cycle.

The Court finds Fedor’s complaint is indeed a challenge to
Defendant’s roaming charges and the service plans Cingular offers.
Plaintiff is merely attempting to use state law as a cloak for his
attack on Cingular’s rates. Cases that involve the “entry of or
the rates charged by any commercial service or any private mobile
service are the province of federal regulators and courts.”
Federal Communications Act, 47 U.S.C. § 332 (c) (3) (A) (1934); see

also Bastien v. AT&T Wireless Serv., Inc., 205 F.3d 983, 987 (7%


avoid federal jurisdiction by pleading only state law claims.
Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S.
Cal., 463 U.S. 1, 10 (1983); Bastien, 205 F.3d at 987.

However, the artful pleading doctrine is a corollary to this
rule and states when the Court may fairly read a complaint as
presenting a federal question, the defendant may remove the case to
federal court. Bastien , 205 F.3d at 988; Burda v. M. Ecker Co.,
954 F.2d 434, 438 (7 Cir. 1992). In Burda, the Seventh Circuit
held a plaintiff may “not frame his action under state law and omit
federal questions”. Burda, 954 F.2d at 958. Therefore, a federal
court may look beyond the face of the complaint to determine
whether “a plaintiff has artfully pleaded his suit so as to couch
a federal claim in terms of state law.” Id. Where the claim can be
viewed as “artful pleading,” the Court may conclude the plaintiff's
claim arose under federal law and subsequently remove it. Id.; see
also Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987); Gen.
Elec. Corp.v. Marilyn Shidle, No. 01 C 1662, 2001 LEXIS 9394, at
*10 (N.D. Ill. June 27, 2001).

Here, Fedor’s complaint can be fairly read as an attempt to
cast a federal question into a state claim. His complaint states
Cingular’s practice of billing roaming calls to a later billing
period resulted in “charges to customers which should not have been
incurred based on the service package plans purchased by said

customers and under which said calls and the time related to


Brick & Tile Co., 450 U.S. 311 (1981) (state law could not be used
to impose requirements on railroad carriers after Congress had
already enacted the Interstate Commerce Act in order to establish
uniformity in that area of the law); and Mo. Pacific R.R. Co. v.
Stroud, 267 U.S. 404 (1925) (holding that there cannot be divided
authority over interstate commerce and that the acts of Congress on
the subject are supreme and exclusive).
Fees and Costs

Since Defendant has presented a “substantial jurisdictional
question” regarding federal preemption, the Court declines to
exercise its discretion to impose fees and expenses on Defendant.
See Castellanos v. U.S. Long Distance Corp., 928 F.Supp. 753, 757
(N.D. Tll. 1996) and Turner v. Bell Fed. Sav. & Loan Ass'n, 490 F.
Supp. 104, 105 (N.D. Ill. 1980). Defendant made its claim of
federal preemption with good faith, asserted on a sound basis, and
it does not appear frivolous. Further, Defendant has prevailed on
the above motion, so the Court finds awarding Plaintiff costs would
be inappropriate.

CONCLUSION

For the above reasons, Plaintiff's motion to remand is DENIED.
Each party is responsible for its own costs incurred in bringing
forward and answering this motion.

tarts orem 5, 200 Poy. Mb)
DATED: November 9, 2001 CH? :

WILLIAM 6,/HIBBLER, DISTRICT JUDGE

8


‘Minute Order Form (06/97)

United States District Court, Northern District of Hlinois

Name of Assigned Jud illi i Sitting Judge if Other
mor Magistrate Judge William J. Hibbler than Assigned Judge
CASE NUMBER 01 C 6849 DATE 11/09/01
CASE Fedor v. Cingular Wireless
TITLE

nature of the motion being presented.]

{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

MOTION:
Plaintiff's Motion to Remand (#7-1)
DOCKET ENTRY:
(1) a Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due.
(3) Oo Answer brief to motion due___. Reply to answer brief due__
4) a Ruling/Hearingon___setfor__— sat
(5) Oo Status hearing [held/continued to] [set for/re-set for] on__ set for ___ at
(6) Oo Pretrial conference [held/continued to} {set for/re-set for] on setfor ss at_
) Oo Trial [set for/re-set for]on__at
(8) oO [Bench/Jury trial] [Hearing] held/continued to __at
(9) oO This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to]
OFRCP4(m) General Rule 21 OFRCP41(a)(1) 0 FRCP41(a)(2).
(10) @ [Other docket entry] Plaintiffs Motion to Remand (#7-1) is DENIED.

qi) Om

[For further detail see order on the reverse side of the original minute order.]

No notices required, advised in open court.

No noti ired,
lo notices required. number of notices.

a | Notices mailed by judge's staff:

Notified counsel by telephone. WO}

Docketing to mail notices. Any

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

JHC

Date/time received in
central Clerk's Office

ailing deputy initials



charges thereto would have been without extra charge.” (Pl. Compl.
at 96.) The Court has already stated Fedor is challenging the
appropriateness of the roaming fee; thus, the artful pleading
doctrine allows for federal preemption.

Further, the Court notes Fedor’s complaint fails to offer
specific or detailed support to his allegations of breach of
contract, consumer fraud, and misrepresentation. In Bastien, where
the plaintiff also did not offer concrete details in its complaint,
the Seventh Circuit found broad allegations of misconduct are
insufficient to “earn the plaintiff the protection of the well-
pleaded complaint rule.” Bastien, 205 F.3d at 990. Accordingly,
the Court will not depart from Bastien on this matter.

Finally, the Court must also consider whether Congress has
completely preempted a particular area, such that any “civil
complaint raising this select group of claims is necessarily
federal in character”, since Congress may have already acted in
such a manner as to bar state interference. Metro. Life Ins., 481
U.S. at 63. Congress has clearly mandated federal preemption in an
area such as telecommunications, specifically the cellular
telephone industry. The Federal Communications Act states in
relevant part: “Any person claiming to be damaged by any common
carrier subject to the provisions of this Act may either make
complaint to the Commission as hereinafter provided for, or may

bring suit..in any district court of the United States of competent


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAMES J. FEDOR, JR. and
on behalf of others
similarly situated
Plaintiff,

CASE NO. 01 C 6849

v.

JUDGE WILLIAM J. HIBBLER

CINGULAR WIRELESS CORPORATION
Defendant.

wevvvvevvs

MEMORANDUM AND ORDER

The Court has before it Plaintiff’s Motion to Remand its
complaint claiming a breach of contract and fraud. The Court has
examined the submissions by both parties and finds Plaintiff’s
complaint is a challenge to rates charged by Defendant, a
nationwide cellular telephone company and, therefore, is governed
by federal law. Federal jurisdiction is proper and the case will
remain in the U.S. District Court for further proceedings.

Background

Plaintiff James J. Fedor, Jr. (“Fedor”) was a Cingular
Wireless customer. He contracted with Defendant Cingular Wireless
Corporation (“Cingluar”) for a cellular telephone service plan that
provided a fixed rate for a certain number of airtime minutes each
month. Any minutes used in excess of the plan would be charged to
Fedor’s account accordingly.

In July 2001, Fedor filed a complaint against Cingular in

state court. The complaint stated Cingular was not billing roaming

1


calls properly and accused the company of accumulating, holding,
and charging calls to later billing periods. Fedor claims this
practice enabled Cingular to charge customers for airtime which
should “not have been incurred based on the service package plans
purchased by said customers and under which said calls and the time
and related charges thereto would have been without extra charge.”
(Pl. Compl. at 46.)

Fedor alleges he was charged from January through April of
2001 for calls which should have been billed during the month in
which they were made, but which were shifted to subsequent months
because of Cingular’s billing practices. He maintains this
shifting resulted in Cingular collecting monies for calls Cingular
would normally not be entitled to if the calls were billed in a
timelier manner. Fedor’s state court complaint pleaded both
individual and class action claims for a breach of contract,
breach of the covenant of good faith and fair dealing, consumer
fraud, and unjust enrichment.

Cingular removed the state court claim to federal court
pursuant to 28 U.S.C. § 1441 (b), which permits removal of “any
civil action of which the district courts have original
jurisdiction founded on a claim or right arising under the
Constitution, treaties, or laws of the United States.” Cingular
asserts Fedor’s claims are a challenge to rates charged by the

company and/or it’s ability to enter into a nationwide cellular