1 The Honorable Joan N. Ericksen, United St ates District Judge for the District of Minnesota, adopting the Report and Reco mmendation of the Honorable Jeanne J. Graham, United States Magistrate Judge for the District of Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________ No. 08-2212

________________ Patricia Crumle y, on behalf of herself and all others similarly situated, Appellant,

v. Time Warner Cable, Inc., a Division of Time Warner Entertainment Company, Inc., Appellee. * * * * * * * * * * * * * Appeal from the United States District Court for the District of Minnesota. [PUBLISHED]

________________ Submitted: February 13, 2009 Filed: February 25, 2009

________________ Before WOLLMAN, HANSEN, and BYE, Circuit Judges.

________________ PER CURIAM. Patricia Crumley appeals the district court's 1 dismissal of this putative class action suit against Time Warner Cable, Inc. (Time Warner), in which she claims that-2- Time Warner overcharged its customers for cable television services. Crumley sought damages for unjust enrichment and for violating the Minnesota Prevention of Consumer Fraud Act, Minn. Stat. § 325F.69, s ubd. 1. The district court dismissed the suit under Federal Rule of Civil Procedure 12( b)(6), concluding that the claims were barred by the filed rate doc trine. Reviewing the district court's dismissal de novo , see Saunders v. Farmers Ins. Exch. , 537 F.3d 961, 963 (8th Cir. 2008) (standard of review), we affirm. In her complaint, Crumley alleges th at Time Warner overcharged or double billed its customers in Minneapolis, Minneso ta, for network upgrades that it made to its cable systems. According to Crumley, Time Warner recovered its costs for the upgrade from its customers twice. The firs t recovery came when Time Warner added a surcharge to its customers' bills pursuant to a "social contract" that Time Warner had entered into with the Federal Communi cations Commission (FCC) in 1995. Under the social contract, Time Warner agreed to make extensive upgrades–to the tune of $4 billion–to its cable systems to provide its customers with expanded capacity for additional television networks and channels as well as advanced telecommunications services. In return, the soci al contract allowed Time Warn er to charge its customers a surcharge of up to $180 each over a five-year period between 1996 and 2000 to cover the cost of the upgrade. Crumley a lleges that Time Warner then charged its customers a second time for the same upgrades in 2001 by filing an FCC "Form 1235" with the City of Minneapolis to incorpor ate a network upgrade fee into its basic cable rate, but that it relied on the same upgrade required by the soci al contract to justify the network upgrade fee. Crumley sought a decl aratory judgment that Time Warner's use of Form 1235 to recover costs already recovered pursuant to the social contract "was fraudulent and unlawful" (Appellant's App. at 22), and she sought damages. The Cable Act of 1992 precludes the regul ation of cable rates as long as the cable system is subject to effective comp etition, as determined by the FCC. See47 U.S.C. § 543(a)(1). Howe ver, "any cable system that does not face 'effective-3- competition,' as defined in the Act, is subjectto rate regulation." Time Warner Entm't Co. v. F.C.C. , 56 F.3d 151, 162 (D.C. Cir. 1995) (citing 47 U.S.C. § 543(a)(2)), cert. denied , 516 U.S. 1112 (1996). The Cable Act ve sts regulatory authority over such cable systems in local franchising authorities (LFAs), see47 U.S.C. § 543(a)(2)(A), and grants oversight authority to the FCC, seeid. § 543(a)(6). LFAs may only regulate cable rates to the extent provided in the Cable Act. Seeid. § 543(a)(1) ("Any franchising authority may regulate the rates fo r the provision of cable service, . . . but only to the extent provided under this secti on."). The rates for basic cable service must be reasonable, id. § 543(b)(1), and are subject to regulations issued by the FCC, id. § 543(b)(2). The parties do not contest th at this regulatory regime applies to the provision of cable service at issue here. The LFA for Time Warner's Minneapo lis cable system is the City of Minneapolis. According to Crumley's co mplaint, Time Warner filed a Form 1235 with the City of Minneapolis on October 2, 2001, adding a netw ork upgrade surcharge to its regulated service rates for basic cab le service, without having completed the required upgrades to support the upgrade surc harge. The upgrade surcharge went into effect when the City of Minneapolis failed to take action on Time Warner's Form 1235. The "filed rate doctrine" forbids a regul ated entity from charging a rate for its services other than the rate on file with the appropriate re gulatory authority. Ark. La. Gas Co. v. Hall , 453 U.S. 571, 577 (1981). While "[ t]he filed rate doctrine has its origins in [Supreme] Court[] cases interp reting the Interstate Commerce Act, [the doctrine] has been extended across the spectrum of regulated utilities." Id. (internal citations omitted). The filed rate doctrine also applies to rates filed with state agencies. SeeFirstcom, Inc. v. Qwest Corp. , No. 07-3548, 2009 WL 291064, *7 (8th Cir. Feb. 9, 2009) (applying f iled rate doctrine to a cha llenge to a telecommunications interconnection agreement filed with a state public utilities commission). The purposes of the filed rate doctrine, which include the "preservation of the agency's-4- primary jurisdiction over reasonableness of rates and the need to insure that regulated companies charge only those rates of whic h the agency has been made cognizant," Ark. La. Gas Co. , 453 U.S. at 577-78, apply equally to the regulation of rates for cable service in areas lacking "effective comp etition" as controlled by the Cable Act. Crumley's attempts to characterize her complaint as one challenging Time Warner's actions as fraudulent do not change the fact that what she challenges is the rate on file with the City of Minneapolis . If Crumley's suit was successful, and she received the damages remedy she seeks in th e complaint, Time Warner would not be allowed to charge the allegedly unlawful upgrade fee, which, according to Crumley's complaint, was incorporated into its ba sic cable fee on file with the City of Minneapolis when it filed Form 1235. This is directly contrary to the filed rate doctrine, which "'prohibits a party from recovering damages measured by comparing the filed rate and the rate th at might have been approved absent the conduct in issue.'" Firstcom , 2009 WL 291064, at *7 (quoting H.J . Inc. v. Nw. Bell Tel. Co. , 954 F.2d 485, 488 (8th Cir.), cert. denied , 504 U.S. 957 (1992)). That Crumley's claim involves allegations of fraud is of no moment. SeeAm. Tel. & Tel. Co. v. Cent. Office Tel., Inc. , 524 U.S. 214, 222 (1998) ("[E]ven if a carri er intentionally misrepresents its rate and a customer relies on the misrepresentation, the carrier cannot be held to the promised rate if it conflicts w ith the published tariff."); Firstcom , 2009 WL 291064, at *8 ("[T]o the extent Firstcom seeks rec overy for a price discount it was allegedly entitled to [under claims of promissory es toppel and fraud], its claims are barred by the filed rate doctrine."). In Firstcom , we rejected a fraud ex ception to the filed rate doctrine and declined to follow a Ninth Ci rcuit case that "held that the filed rate doctrine did not preclude a fraud claim provi ded that the damages could be proved without attacking the filed rate." Firstcom , 2009 WL 291064, at *7-8 (disagreeing with In re NOS Commc'ns MDL No. 1357 , 495 F.3d 1052, 1060 (9 th Cir. 2007)). This case is directly governed by the filed rate doctrine because, if allowed to proceed, "the court's decision will [impact] . . . agen cy . . . rate determinations." H.J. Inc. , 954 F.2d at 489 (dismissing a RICO claim under the filed rate doctrine).-5- The district court's judgment granting Time Warner's motion to dismiss is affirmed.

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