jurisdiction to hear the case. See Bastien, 205 F.3d 987.

The Bastien decision “provides district courts in the Seventh Circuit two points of guidance
in determining whether federal jurisdiction” exists in complaints involving wireless telephone
service. See Alport v. Sprint Corp., 2003 WL 22872134 (N.D. Hl. Dec. 4, 2003) (Alport). The
district court must look beyond the state causes of action and determine what would be the practical
effect of granting relief. Second, federal preemption of wireless telephone service provider’s “rates”
encompasses a much broader area of conduct than simply how much money a provider charges for
services. See Alport, 2003 WL 22872134 at * 3.

The courts in this district have applied Bastien when determining if a case was properly
removed to federal court. In Gilmore v. Southwestern Bell Mobile Sys., 156 F. Supp. 2d 916 (N.D.
Ill. 2001) (Gilmore), the court found that the plaintiff's allegation that the defendant breached its
contract with plaintiff by adding a fee to his monthly fee was a challenge to the appropriateness of
the added fee and, therefore, a rate challenge that fell within federal jurisdiction. See Gilmore,
156 F. Supp. 2d at 924. Plaintiff's unjust enrichment claim was also found to be a challenge to the
rate because it raised the question of whether the fee was unjust. See Gilmore, 156 F. Supp. 2d at
925. However, plaintiff's fraud claim, based on plaintiff's allegation that the defendant added the
fee in an attempt to hide the increase in charges, was not a challenge to the rate and was not
preempted by Section 332(c)(3). See Gilmore, 156 F. Supp. 2d at 924-25. Similarly, a plaintiff's
challenge to a wireless provider’s billing practice for roaming charges was found to be preempted
because, in order to resolve the claim, the trier of fact would have to focus on the appropriateness
of the amount defendant charged and whether that amount was unjust. See Fedor v. Cingular

Wireless Corp., 2001 WL 1465813 (N.D. Ill. Nov. 15, 2001).



a court determines whether a federal question exists by examining the face of the plaintiff's “well-
pleaded” complaint. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The plaintiffis the
master of her own complaint and may seek to avoid federal court jurisdiction by pleading only state
law claims. See Franchise Tax Bd. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S.
1, 10 (1983). However, when a complaint can be fairly read to state a federal question, the defendant
may remove the case to federal court. See 28 U.S.C. § 1441; Bastien v. AT & T Wireless Serv., Inc.,
205 F.3d 983, 986 (7th Cir. 2000) (Bastien). In some instances, Congress has completely preempted
a particular area where there is no room for any state regulation and the complaint is “necessarily
federal in character.” See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987).

The Federal Communications Act of 1934, applicable to the instant case, provides, in
pertinent part, that “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. § 332(c)(3)(A). The FCA also contains a savings clause that provides
that the FCA does not abridge or alter remedies that existed at common law or by statute. See 47
US.C. § 414.

The Seventh Circuit considered these two statutory provisions and the complete preemption
doctrine in Bastien. The Court found that “there can be no doubt that Congress intended complete
preemption” by enacting 47 U.S.C. § 332(c)(3), and a plaintiff cannot “use the ‘well-pleaded
complaint’ rule to shield himself from federal court jurisdiction ... if his complaint in fact challenges
rates or market entry.” Bastien, 205 F.3d at 986-87. Accordingly, if a case involves the entry of or

the rates charged by any mobile service, complete preemption applies; and the federal court has



On the other hand, plaintiff's claim of fraud, breach of an implied warranty of fitness for a
particular purpose, and breach ofan express warranty, based on alleged misrepresentation conceming
the use ofa timer within a wireless telephone, were not preempted by Section 332(c)(3) because the
trier of fact would not have to determine whether the rate was unreasonably, unjustly applied or
inappropriate in any way. See Rosenberg v. Nextel Comm., Inc., 2001 WL 1491501 (N.D. Ill.
Nov. 21, 2001).

In Alport, the plaintiff brought a four-count complaint against Sprint Corporation based on
Sprint’s adding a “Federal E911" charge (fee) on his monthly bill. The plaintiff alleged fraud, breach
of contract, unjust enrichment, and sought an accounting for this improperly added charge. The
Alport court found that removal was proper, stating, “Given Bastien’s mandate that the FCA
preempts a wide variety of state law challenges to wireless service billing practices, we find Alport’s
complaint concerning the propriety of the Federal E911 surcharge to be a rate challenge that fits
squarely within the scope of federal jurisdiction.” See Alport, 2003 WL 22872134 at *4.

As in Alport, Franczyk alleges fraud, breach of contract, unjust enrichment, and seeks an
accounting for an alleged improperly added fee to her monthly bill. Looking past the form and
language of the Complaint, the significant issue involved is the validity and legitimacy of the
Fictitious Fee. Such issue is a rate challenge that is within the scope of this Court’s jurisdiction. See
Bastien, 205 F.3d at 986-87; Gilmore, 156 F. Supp. 2d at 924-25; Alport, 2003 WL 22872134

at * 4. Accordingly, Plaintiff's Motion to Remand is denied.'

'Franczyk cites numerous cases supporting her position that have found disagreement
with the Bastien ruling. However, the authority that governs this Court’s application of the law
is the Seventh Circuit. This means that Bastien is controlling, even if the case may be subject to
disagreement with other jurisdictions’ interpretations of the FCA and the complete preemption
doctrine.



Minute Order Form (06/97)
.

United States District Court, Northern District of Illinois

jal Jud Sitting Juc oO
vee Magistrate Jude John W. Darrah ‘han designed Judge
CASE NUMBER 03 C 6473 DATE 1/20/2004
CASE Franczyk vs. Cingular Wireless LLC
TITLE

[In the following box (a) indicate the panty filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented]

MOTION:
DOCKET ENTRY:
(69) QO Filed motion of [ use listing in “Motion” box above.]
Q a2 Brief in support of motion due
(3) Oo Answer brief to motion due___. Reply to answer brief due_____.
(4) a Ruling/Hearing on __ set for at
(5) oO Status hearing(held/continued to] [set for/re-set for]on___set for at
(6) ao Pretrial conference[held/continued to] [set for/re-set for] on set for at.
(7) o Trial[set for/re-set for] on at
(8) im [Bench/Jury trial] [Hearing] held/continuedto__—_at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (CLocal Rule 41.1 OFRCP4i(aX1) O FRCP41(a)(2).
do «of [Other docket entry] Defendant’s motion to stay the proceedings is entered and briefed as follows:

plaintiff's response by 2/3/04, defendant’s reply by 2/10/04. Status hearing set for 3/2/04. For the reasons
stated in the attached memorandum opinion and order, plaintiff’s motion to remand [5-1] and plaintiff's

motion for costs and fees is denied. Enter Memorandum Opinion and Order.

dl) gf (For further detail see order attached to the original minute order.]
No notices required, advised in open court. | Document
5 A ; Number
No notices required. umber of notices i
Notices mailed by judge’s staff. AN 21 2004
. Al
Notified counsel by telephone. Ite docketed
a | Docketing to mail notices.
Mail AO 450 form, Yoitian
Copy to judge/magistrate judge.
dase mailed notice
courtroom
MF deputy's
initials f= -
“Datesinie foceived in-{ ; ;
central Clerk's Office sailing deputy iia



Franczyk also seeks costs and fees, arguing that Cingular’s bases for removal were contrary
to well-settled law. In light of the above findings, Franczyk’s argument is without merit; and costs
and fees are denied.

For the reasons stated above, Plaintiff's Motion to Remand is denied. Plaintiff's request for

costs and fees is also denied.

Dated: 3o 2 oof



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
sogmunemranmgsot gE
, 004
Plaintiff, ) No. 03 C 6473
v. ) Judge John W. Darrah
CINGULAR WIRELESS, LLC, }
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Anne Franczyk, filed a class action suit in state court against Defendant, Cingular
Wireless, alleging “failure to honor its contractual obligations and its deceptive billing practices” as
to its Regulatory Cost Recovery Fee. Cingular subsequently removed the case to this Court.
Presently before the Court is Franczyk’s Motion to Remand.

In August 2003, Franczyk filed suit against Cingular in the Circuit Court of Cook County,
Illinois. Count] of Franczyk’s Complaint alleges that Cingular’s policies and practices in connection
with the Fictitious Fee violate the Illinois Consumer Fraud and Deceptive Business Practices Act.
Count II alleges that Cingular breached its contract with Franczyk by unilaterally increasing
Franczyk’s monthly rate via the Fictitious Fee. Count II alleges a claim of unjust enrichment by
Cingular via the Fictitious Fee. Count IV seeks an accounting for all expenses incurred in
connection with the government-mandated initiatives to which the Fictitious Fee purportedly relates,
all funds received and retained through cost-recovery mechanisms permitted under law, and all

revenues generated by the Fictitious Fee.

\2



A reading of Franczyk’s Complaint supports the following summary of the alleged operative
conduct of the parties,

Cingular entered into an agreement with Franczyk whereby it agreed to provide wireless
phone service based upon an agreed-upon monthly rate. Under the agreement, Cingular was
prohibited from unilaterally increasing the agreed-upon monthly rate. In addition to the monthy rate,
Cingular could charge legitimate, government-mandated taxes, fees, and surcharges on a monthly
basis in connection with wireless phone services. Cingular and Franczyk entered into such an
agreement whereby Cingular promised to provide wireless phone services for the rate of $19.99 per
month plus any legitimate government-mandated taxes, fees, and surcharges.

In May 2003, Cingular began billing Franczyk for a “Fictitious Cost Recovery Fee” of $0.60.
Cingular disguised the Fictitious Fee as a government-mandated tax or fee by burying it in a list of
government-mandated taxes, fees, and surcharges. The Fictitious Fee that appears on Franczyk’s
monthly bill is not a government-mandated tax, fee, or surcharge. Instead, the Fictitious Fee is an
improper attempt by Cingular to pass on its cost of doing business as a government-regulated
wireless carrier and an improper unilateral change in the contract between Cingular and Franezyk.

In September 2003, Cingular removed the instant suit to this Court on the grounds of
complete preemption, substantial federal questions, and the artful pleading doctrine. Franczyk seeks
to have the cause remanded to state court, arguing that removal was improper under all three
grounds.

Removal to federal court is proper if the federal court would have had jurisdiction over the
case when originally filed. 28 U.S.C. § 1441. Federal question jurisdiction exists over cases that

“arise under the Constitution, laws or treaties of the United States.” 28 U.S.C. § 1331. Generally,