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The Honorable Joan N. Ericksen, United States District Judge for the District

of Minnesota, adopting the Report and Recommendation of the Honorable Jeanne J.

Graham, United States Magistrate Judge for the District of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-2212

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Patricia Crumley, on behalf of

herself and all others similarly

situated,

Appellant,

v.

Time Warner Cable, Inc., a

Division of Time Warner

Entertainment Company, Inc.,

Appellee.

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Appeal from the United States

District Court for the

District of Minnesota.

 [PUBLISHED]

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Submitted: February 13, 2009

 Filed: February 25, 2009

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Before WOLLMAN, HANSEN, and BYE, Circuit Judges. 

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PER CURIAM.

Patricia Crumley appeals the district court's1

 dismissal of this putative class

action suit against Time Warner Cable, Inc. (Time Warner), in which she claims that
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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, subd. 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 doctrine. 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 that Time Warner overcharged or double

billed its customers in Minneapolis, Minnesota, 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 first 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 Communications 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 social contract allowed Time Warner 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 alleges 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 incorporate a network upgrade fee into its basic cable

rate, but that it relied on the same upgrade required by the social contract to justify the

network upgrade fee. Crumley sought a declaratory 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 regulation of cable rates as long as the

cable system is subject to effective competition, as determined by the FCC. See 47

U.S.C. § 543(a)(1). However, "any cable system that does not face 'effective
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competition,' as defined in the Act, is subject to 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 vests regulatory authority over such

cable systems in local franchising authorities (LFAs), see 47 U.S.C. § 543(a)(2)(A),

and grants oversight authority to the FCC, see id. § 543(a)(6). LFAs may only

regulate cable rates to the extent provided in the Cable Act. See id. § 543(a)(1) ("Any

franchising authority may regulate the rates for the provision of cable service, . . . but

only to the extent provided under this section."). 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 that this regulatory regime applies to the

provision of cable service at issue here. 

The LFA for Time Warner's Minneapolis cable system is the City of

Minneapolis. According to Crumley's complaint, Time Warner filed a Form 1235

with the City of Minneapolis on October 2, 2001, adding a network upgrade surcharge

to its regulated service rates for basic cable service, without having completed the

required upgrades to support the upgrade surcharge. 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 regulated entity from charging a rate for its

services other than the rate on file with the appropriate regulatory 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 interpreting 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. See Firstcom, Inc. v. Qwest Corp., No. 07-3548, 2009 WL 291064, *7 (8th

Cir. Feb. 9, 2009) (applying filed rate doctrine to a challenge 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
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primary jurisdiction over reasonableness of rates and the need to insure that regulated

companies charge only those rates of which 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 competition" 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 the complaint, Time Warner would not be

allowed to charge the allegedly unlawful upgrade fee, which, according to Crumley's

complaint, was incorporated into its basic 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 that 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. See Am. Tel. & Tel. Co. v. Cent. Office Tel.,

Inc., 524 U.S. 214, 222 (1998) ("[E]ven if a carrier intentionally misrepresents its rate

and a customer relies on the misrepresentation, the carrier cannot be held to the

promised rate if it conflicts with the published tariff."); Firstcom, 2009 WL 291064,

at *8 ("[T]o the extent Firstcom seeks recovery for a price discount it was allegedly

entitled to [under claims of promissory estoppel and fraud], its claims are barred by

the filed rate doctrine."). In Firstcom, we rejected a fraud exception to the filed rate

doctrine and declined to follow a Ninth Circuit case that "held that the filed rate

doctrine did not preclude a fraud claim provided 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 (9th Cir. 2007)).

This case is directly governed by the filed rate doctrine because, if allowed to proceed,

"the court's decision will [impact] . . . agency . . . rate determinations." H.J. Inc., 954

F.2d at 489 (dismissing a RICO claim under the filed rate doctrine). 
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The district court's judgment granting Time Warner's motion to dismiss is

affirmed.

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