Dreamscape Design v. Affinity Network Inc ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3035
DREAMSCAPE DESIGN, INC.,
Plaintiff-Appellant,
v.
AFFINITY NETWORK, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District District of Illinois.
No. 02 C 2235—Michael P. McCuskey, Chief Judge.
____________
ARGUED JANUARY 5, 2005—DECIDED JULY 5, 2005
____________
Before KANNE, ROVNER, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Dreamscape Design, Inc., sued
Affinity Network, Inc., alleging state law claims of fraud
and breach of contract relating to the cost of long-distance
telephone services provided by Affinity. The district court
concluded that federal law preempted Dreamscape’s claims
and dismissed the complaint. We affirm.
2 No. 04-3035
I. Background
In September 2002, Dreamscape filed a class action
complaint in Illinois state court, alleging that Affinity vio-
lated the Illinois Consumer Fraud Act (“ICFA”) by making
misrepresentations about its rates for long-distance tele-
phone service. Dreamscape claimed that Affinity fraudu-
lently advertised certain per-minute rates when, in fact, the
rates charged were based upon a wholly different method of
calculation. Specifically, Dreamscape alleges that Affinity
advertised long-distance rates of 5 cents per minute for in-
state service and 8.9 cents per minute for calls from Illinois
to elsewhere in the continental United States. Yet when
Affinity invoiced Dreamscape for services, it billed
by “TCU”1 instead of by the minute. According to
Dreamscape, Affinity’s use of TCU-based charges resulted
in substantially higher long-distance telephone rates than
suggested by the advertisements. Dreamscape attached to
its complaint invoice examples of TCU-based billing that
resulted in charges equal to more than twice what the per-
minute charges would have been. Dreamscape’s complaint
sought award of monetary damages in the amount suffered
by the class, punitive damages, and injunctive relief.
In November 2002, Affinity removed the case to federal
court. Affinity argued that, as an interexchange telephone
communications carrier, it was subject to regulation by the
Federal Communications Commission (“FCC”)—specifically
the so-called “filed tariff2 (or filed rate) doctrine—pursuant
1
A TCU, or “total call unit,” apparently is an abstract measure,
calculated in whole numbers and fractionally in tenths, that
Affinity uses to determine what to charge for its long-distance
services.
2
As discussed in far greater detail infra, a “tariff ” sets forth a
long-distance carrier’s rates and other terms of service. Prior to
August 1, 2001, under the terms of the Federal Communications
(continued...)
No. 04-3035 3
to the Federal Communications Act of 1934 (the “FCA”), as
amended, 47 U.S.C. § 203. Thus, Affinity contended,
Dreamscape’s claims challenged Affinity’s rates, the terms
of which were set forth in its federally mandated tariff filed
with the FCC, so Dreamscape’s claims were necessarily
preempted by federal law.
On March 17, 2003, the district court agreed with Affinity
and denied Dreamscape’s motion to remand, concluding
that the bulk of the claims advanced in Dreamscape’s class
action complaint were indeed related to Affinity’s rates for
long-distance service, thus calling for federal preemption
under the filed rate doctrine. The court also granted Affin-
ity’s motion to compel arbitration in accordance with a
clause in Affinity’s tariff mandating arbitration of disputes.
The arbitrator rendered a decision on April 12, 2004,
concluding that Affinity’s federally filed tariff overrode state
law resolution of Dreamscape’s claims. The arbitrator found
that there was therefore “no remedy for the Plaintiff for any
fraudulent misrepresentations made by the Defendant as
alleged” and dismissed Dreamscape’s claims. But, because
of a recent series of FCC orders calling for “detariffing”
(cancellation of the requirement to file such tariffs with the
FCC) by July 31, 2001, and because it was unclear whether
Dreamscape’s complaint alleged acts taking place after
detariffing, Dreamscape was granted leave to amend its
complaint to clarify the issue.3
2
(...continued)
Act of 1934, carriers were required to file their tariffs with the
FCC, which had the power to modify or even disapprove the tar-
iffs. See Cahnmann v. Sprint Corp., 133 F.3d 484, 487 (7th Cir.
1998). Once the tariffs were filed, the carriers could not deviate
from their terms unless the tariffs were amended, modified, su-
perseded, or disapproved in accordance with FCC rules. See id.3
It is undisputed that prior to August 1, 2001, Affinity charged
Dreamscape in accordance with the terms provided for in its filed
(continued...)
4 No. 04-3035
On April 23, 2004, Dreamscape filed an amended class
action complaint, in which it renewed its earlier ICFA claim
regarding rates charged prior to the detariffing deadline of
August 1, 2001. Significantly, Dreamscape also added a
claim alleging that it and other putative class members
used and were invoiced for Affinity’s services after detar-
iffing. Dreamscape purported to be advancing “only state
law claims, which claims are based on conduct of the
defendant occurring after . . . July 31, 2001, and accordingly
there is no applicable tariff that . . . could possibly preempt
the claims under federal law[,] and no other federal law
question is raised . . . .” Dreamscape also added a claim for
breach of contract, alleging that a contract was formed
between Affinity and Dreamscape (and other putative class
members) upon acceptance of Affinity’s services, and
Affinity breached the contract by charging rates in excess
of the agreed rates “subsequent to July 31, 2001.”
Dreamscape in its amended complaint again sought mone-
tary damages, punitive damages, and injunctive relief.
Affinity filed a motion to dismiss the amended complaint,
arguing that Dreamscape’s claims remained preempted by
federal law. For its part, Dreamscape again filed a motion
to remand the case to state court. On July 12, 2004, the
district court entered an order granting Affinity’s motion to
dismiss and denying Dreamscape’s motion to remand as
moot. The court concluded that, pursuant to this court’s
opinion in Boomer v. AT&T Corp., 309 F.3d 404 (7th Cir.
2002), federal law governs the rates, terms, and conditions
of long-distance service contracts, and state law cannot op-
erate to invalidate these contracts, even after detariffing.
3
(...continued)
tariff. Affinity gave Dreamscape notice that effective August 1,
2001, its services would be provided in accordance with rates,
terms, and conditions contained in a customer service agreement
(“CSA”) that Affinity posted on its website.
No. 04-3035 5
The court found that Dreamscape’s amended complaint
challenged Affinity’s rates for its long-distance service, and
therefore, consistent with Boomer, the court concluded that
the new claims were likewise preempted by federal law. Ac-
cordingly, the court dismissed with prejudice Dreamscape’s
amended complaint.
On appeal, Dreamscape challenges the district court’s
dismissal of its amended complaint based on its interpreta-
tion of Boomer. In the alternative, Dreamscape urges that
we reconsider our preemption holding in Boomer in light of
conflicting Ninth Circuit precedent.
II. Discussion
We review de novo the district court’s order dismissing
Dreamscape’s claims. See Veazey v. Communications &
Cable of Chi., Inc., 194 F.3d 850, 853 (7th Cir. 1999). Before
proceeding to the merits, however, we will briefly recap the
aforementioned filed tariff doctrine and related caselaw.
As we indicated earlier, prior to August 1, 2001, the FCA
required long-distance telecommunications carriers to set
forth the rates and other terms and conditions of their
service in tariffs to be filed with the FCC. 47 U.S.C.
§ 203(a); 47 C.F.R. § 61.1. This regulatory scheme begat the
filed tariff doctrine,4 under which carriers are required to
charge rates and otherwise abide by the terms set forth in
the filed tariffs. AT&T v. Cent. Office Tel., Inc., 524 U.S.
214, 221-23 (1998); Cahnmann v. Sprint Corp., 133 F.3d
484, 487 (7th Cir. 1998). Carriers are specifically prohibited
from deviating from the tariffed rates and are not free to
negotiate different rates with customers. See 47 U.S.C.
4
The FCA’s filed tariff doctrine is derived from, and a close
cousin to, the tariff provisions of the Interstate Commerce Act. See
AT&T v. Cent. Office Tel., Inc., 524 U.S. 214, 222 (1998).
6 No. 04-3035
§ 203(c); see also Metro E. Ctr. for Conditioning & Health v.
Qwest Communications Int’l, Inc., 294 F.3d 924, 925 (7th
Cir. 2002) (“No private agreement can displace a tariff’s
terms.”); Cahnmann, 133 F.3d at 487. The doctrine also
applies to non-rate provisions of a tariff, such as “pro-
visioning of services and billing,” so carriers may not depart
from non-price terms, either. See 47 U.S.C. § 203(c); Cent.
Office Tel., 524 U.S. at 224-25.
Although it may be tempting to view a filed tariff as
simply another contract enforceable under state law, this
court and others have recognized that tariffs are something
more—at least the equivalent of federal regulations or
law—so suits to challenge or invalidate tariffs arise under
federal law. Cahnmann, 133 F.3d at 488-89; see also Qwest,
294 F.3d at 925; accord Hill v. Bellsouth Telecomms., Inc.,
364 F.3d 1308, 1315 (11th Cir. 2004); Bryan v. Bellsouth
Communications, Inc., 377 F.3d 424, 429 (4th Cir. 2004);
ICOM Holding, Inc. v. MCI Worldcom, Inc., 238 F.3d 219,
221 (2d Cir. 2001); MCI Telecomms. Corp. v. Garden State
Inv. Corp., 981 F.2d 385, 387 (8th Cir. 1992). Under the
filed tariff doctrine, courts may not award relief (whether in
the form of damages or restitution) that would have the
effect of imposing any rate other than that reflected in the
filed tariff. See Cahnmann, 133 F.3d at 489. This is so even
if a carrier intentionally misrepresents its rate and a
customer relies on the misrepresentation. See Cent. Office
Tel., 524 U.S. at 222 (holding that the carrier cannot be
held to the promised rate even if it conflicts with the
published tariff).
The courts have enforced the apparent harshness of the
doctrine because rigorous enforcement of filed tariffs serves
Congress’s goals of ensuring uniformity and preventing
unreasonable prices or service discrimination among long-
distance customers. See 47 U.S.C. §§ 201(b), 202(a); see also
Cent. Office Tel., 524 U.S. at 223; Cahnmann, 133 F.3d at
487, 490. Accordingly, pursuant to the filed-tariff doctrine,
No. 04-3035 7
courts have unhesitatingly found that claims purportedly
challenging rates or terms of filed tariffs under state law
were preempted. See, e.g., Cahnmann, 133 F.3d at 489-90;
Bryan, 377 F.3d at 431-32.
The mandatory aspect of the regulatory scheme came to
an end following passage of the Telecommunications Act
of 1996. 47 U.S.C. § 160(a). Under the new legislative
scheme, the FCC was empowered to exempt carriers from
filing tariffs—rates, terms, and conditions of long-distance
service would now be governed by individual contracts
between each carrier and its customers. Pursuant to the act,
the FCC issued a series of orders mandating detariffing,
and as of July 31, 2001, the tariff requirement was canceled
altogether. See Boomer, 309 F.3d at 408-09 (describing
history of detariffing and citing FCC orders).
Our opinion in Boomer addressed the preemption ques-
tion in the wake of detariffing, when the terms of individual
contracts or customer service agreements governed long-
distance service. In Boomer, the plaintiff, an AT&T cus-
tomer, brought a putative class-action suit alleging that
AT&T overcharged customers in violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act. See
Boomer, 309 F.3d at 408. Like Affinity, AT&T notified its
customers that, after detariffing, all of its rates and con-
ditions would be set forth in a customer service agreement.
Id. at 409. AT&T’s CSA included an arbitration clause,
which the plaintiff challenged as unenforceable under
Illinois law. The district court agreed with the plaintiff and
denied AT&T’s motion to compel arbitration.
We reversed the district court’s order, holding that the
plaintiff’s state law challenges to the arbitration clause
were preempted by federal law. Id. at 418. In so doing, we
reaffirmed our Cahnmann holding that, prior to detariffing,
“the [FCA] completely preempted state law challenges to
the terms and conditions contained in a filed tariff.” Id. at
424 (citing Cahnmann, 133 F.3d at 489-90). We also
8 No. 04-3035
concluded, however, that Sections 201 and 202 of the FCA,5
read together, express Congress’s intent that long-distance
customers receive uniform and reasonable rates, terms, and
conditions of service. See Boomer, 309 F.3d at 421-22.
Section 203, which required the filing of tariffs, was simply
the express means of effectuating Congress’s intent, which
remained unchanged despite the passage of the
Telecommunications Act of 1996 and the onset of detarif-
fing. See id. (“[D]etariffing does not alter the fundamental
design of the [FCA], nor modify Congress’s objective of uni-
formity in terms and conditions for all localities.”). We also
noted that although the FCC was authorized to dispense
with the tariff-filing requirement, it must first ensure that,
consistent with Congress’s intent, a tariff would “not [be]
necessary to ensure that the charges, practices, classifi-
cations, or regulations . . . are just and reasonable and are
not unjustly or unreasonably discriminatory.” Id. at 421(quoting 47 U.S.C. § 160(a)(1)). Moreover, we recognized
5
Section 201(b) states:
All charges, practices, classifications, and regulations for and
in connection with such communication service, shall be just
and reasonable, and any such charge, practice, classification,
or regulation that is unjust or unreasonable is declared to be
unlawful[.]
47 U.S.C. § 201(b). Section 202(a) states:
It shall be unlawful for any common carrier to make any
unjust or unreasonable discrimination in charges, practices,
classifications, regulations, facilities, or services for or in
connection with like communication service, directly or indi-
rectly, by any means or device, or to make or give any undue
or unreasonable preference or advantage to any particular
person, class of persons, or locality or to subject any particu-
lar person, class of persons, or locality to any undue or un-
reasonable prejudice or disadvantage.
47 U.S.C. § 202(a).
No. 04-3035 9
that even the FCC understood that detariffing “did not
affect [FCC] enforcement of carriers’ obligations under
[S]ections 201 and 202[,]” which expressed Congress’s in-
tent. Id. at 422 (citation omitted). Thus, the FCA continues
to provide federal remedies for customers seeking to chal-
lenge the justness and reasonableness of long-distance
charges and practices. 47 U.S.C. §§ 207, 208; see also
Boomer, 309 F.3d at 422.
We therefore opined in Boomer that allowing a state
law challenge to AT&T’s CSA “would result in customers
receiving different terms based on their locality[,]” and
could thwart Congress’s intent by “creat[ing] a labyrinth of
rates, terms and conditions.” 309 F.3d at 418, 420. We
concluded that state law “cannot operate to invalidate the
rates, terms or conditions of a long-distance service con-
tract[,]” even after detariffing. Id. at 424. The Boomer
plaintiff’s challenge to the validity of AT&T’s arbitration
clause amounted to a challenge of AT&T’s contract and,
necessarily, the contract’s rates, terms and conditions. In
sum, we determined that “[a]llowing [such a] state law
challenge[ ] to the validity of the terms and conditions
contained in [AT&T’s] long-distance contract[ ] . . . [would]
result[ ] in the very discrimination Congress sought to
prevent.” Id. at 423.
Turning to the merits in the present case, it is undisputed
that Affinity provided its services in accordance with its
filed tariff, and then, after detariffing, in accordance with
the terms of its CSA. The critical question in this case is
whether Dreamscape’s claims are federally preempted as a
matter of law even after detariffing—a result seemingly
required by our holding in Boomer. Dreamscape neverthe-
less does its level best to avoid application of Boomer by
steadfastly insisting that its amended complaint in no way
challenges Affinity’s rates or filed tariff and therefore does
not invoke the filed tariff doctrine. According to
Dreamscape, Affinity engaged in pre-tariff (or pre-contract)
fraud by inducing Dreamscape to purchase long-distance
10 No. 04-3035
services that were not billed in accordance with the rates
advertised in 1999, and Affinity is therefore liable under
Illinois law. Dreamscape claims to have sustained damages
for the alleged fraud after July 31, 2000, when the tariff
was no longer in effect and Affinity’s rates were thereafter
delineated in its CSA.
Perhaps recognizing the uphill battle it faces with respect
to Boomer and other preemption caselaw, Dreamscape
styles this appeal as a simple dispute over the proper in-
terpretation of its amended complaint—under the well-
pleaded complaint doctrine, Dreamscape advanced only
state law claims that did not challenge Affinity’s rates, and
thus federal law is not implicated at all. Dreamscape
therefore argues that Boomer is not relevant to the present
case. But even if Boomer applies, Dreamscape asks that we
reconsider Boomer’s preemption holding in light of contrary
reasoning in Ting v. AT&T, 319 F.3d 1126 (9th Cir. 2003).
As for its breach of contract claim, Dreamscape candidly
conceded at argument that the claim necessarily challenged
the rates contained in Affinity’s filed tariff, but nevertheless
suggests that the claim is not necessarily preempted if we
favor Ting over Boomer or otherwise resolve the apparent
conflict between the two cases.
A. Fraud
We first consider Dreamscape’s assertion that the well-
pleaded complaint doctrine saves its fraud claims from
preemption. Under this doctrine, “whether a case is one
arising under the Constitution or a law or treaty of the
United States . . . must be determined from what necessar-
ily appears in the plaintiff’s [complaint] . . ., unaided by
anything alleged in anticipation or avoidance of defenses
which it is thought the defendant may interpose.” City of
Chicago v. Comcast Cable Holdings, 384 F.3d 901, 904 (7th
Cir. 2004) (quoting Taylor v. Anderson, 234 U.S. 74, 75-76
(1914)).
No. 04-3035 11
Dreamscape argues that the doctrine, as employed in our
recent Comcast opinion, applies here, and we should reach
the same result. We disagree. Comcast had nothing to do
with long-distance services or filed tariffs or rates regarding
such service. Instead, at issue in that case was 47 U.S.C.
§ 542, which governs franchise fees relating to cable
operators. We concluded that the plaintiff’s claims did not
present a federal question because Congress did not intend
§ 542 “to override state law, let alone to deny states all
power in the field.” Id. at 905. Indeed, it was clear that
Congress left to the states “most questions about the regu-
lation and taxation of cable TV franchises.” Id. Therefore,
because Congress had not indicated its intent that federal
law preempt state regulation of such franchises, the Comcast
defendants’ efforts to raise a § 542(b) federal defense to the
plaintiff’s action could not invoke federal jurisdiction over
the city’s state law claims. See id. We concluded that, pur-
suant to the well-pleaded complaint doctrine, the city
pleaded only state-law claims that did not implicate federal
law, so it was necessary to remand the action to state court.
See id.
Comcast is readily distinguishable from the present case,
however. In contrast to § 542, there is no question that
Congress intended the FCA to displace state law with re-
spect to long-distance telephone service terms and condi-
tions. See Boomer, 309 F.3d at 423. The only question here
is whether such preemption survived detariffing, which we
answered in the affirmative in Boomer. Comcast says
nothing about that issue, so Dreamscape cannot simply
invoke the well-pleaded complaint doctrine, as applied in
Comcast, to save its claims from preemption here.6
6
For similar reasons, our opinion in Fedor v. Cingular Wireless
Corp., 355 F.3d 1069 (7th Cir. 2004), does not help Dreamscape.
That case dealt with a completely different provision of the FCA,
(continued...)
12 No. 04-3035
A better case for Dreamcast is In re Long Distance
Telecommunications Litigation, 831 F.2d 627 (6th Cir. 1987)
(“Long Distance Litigation”), which was decided prior to
detariffing. In Long Distance Litigation, AT&T was alleged
to have fraudulently advertised that its rates were lower
than competitors’ rates but hid the fact that it actually
charged for uncompleted phone calls. 831 F.2d at 628.
Among other claims, the plaintiffs filed various state law
claims for fraud and deceit, and the Sixth Circuit held that
the district court erroneously found these claims preempted
by the FCA. Id. at 633-34. The court determined that the
plaintiffs’ claims did not relate to long-distance rates or
service, but simply sought damages for AT&T’s failure to
disclose its practice of billing for uncompleted calls. See id.
at 634. The court concluded, however, that if the case had
related to such rates or service, preemption would be likely.
See id.In the present case, Affinity is alleged to have fraudu-
lently advertised that it billed at per-minute rates, when in
fact it billed by TCU. In certain respects, as Dreamscape
alleges, Affinity’s alleged fraud is facially difficult to
distinguish from AT&T’s. So it is helpful to look not only to
the nature of the claims advanced, but also to the relief
sought in order to determine whether the claims intrude
upon the areas of communications law expressly reserved
to the FCC’s purview. See Bastien v. AT&T Wireless Servs.,
Inc., 205 F.3d 983, 989 (7th Cir. 2000). If, for example, the
6
(...continued)
47 U.S.C. § 332(c)(3)(A), which governs mobile communications
and specifically reserves to the states the right to regulate non-
rate “terms and conditions of commercial mobile services.” Id.
at 1071. The plaintiff ’s claim did not challenge Cingular’s rates or
their reasonableness, nor did it challenge market entry as defined
in § 332. See Fedor, 355 F.3d at 1074. Preemption was therefore
not appropriate under § 332. See id. at 1074-75.
No. 04-3035 13
Long Distance Litigation plaintiffs sought rescission of the
contract because of AT&T’s failure to disclose its billing
practices, we agree that preemption would be improper in
that case. After all, such a claim arguably would not seek
relief that would alter or affect AT&T’s rates, terms, or
conditions of service—the sort of requested relief that even
the Long Distance Litigation court recognized as likely to
bring a claim within the bounds of federal jurisdiction. 831
F.2d at 634 (citation omitted).
The precise relief sought by the Long Distance Litigation
plaintiffs is not readily discernible, but it is clear, as we
determined in Cahnmann, that the adjudication of those
plaintiffs’ claims would not have required determining the
validity of AT&T’s tariff. See Cahnmann, 133 F.3d at 488.
This stands in stark contrast to Dreamscape’s claims in the
present case—no matter how Dreamscape attempts to
characterize them—so even Long Distance Litigation cannot
save Dreamscape. Dreamscape does not seek rescission of
the contract, but instead seeks monetary damages for what
it claims to have overspent for long-distance service as a
result of Affinity’s alleged fraud—in other words, payment
of the difference between what Affinity advertised and what
Affinity’s tariff or CSA provided for. We do not see how a
court could possibly grant that form of relief without
invalidating the contracted rates at issue, as delineated
first in the filed tariff and then under the CSA. Payment of
such damages would effectively grant a lower rate to
Dreamscape than to other customers not included in the
putative class and would require the court to determine a
“reasonable” rate. Cf. Bryan, 377 F.3d at 431. Likewise, the
special or punitive damages Dreamscape seeks would
amount to a retroactive rate change as well. To grant any
of this requested relief would be squarely at odds with both
the filed tariff doctrine and our holding in Boomer.
As we noted in Boomer, with the passage of the
Telecommunications Act of 1996, it is clear that Congress
14 No. 04-3035
envisioned some role for state law after detariffing, so fed-
eral law no longer completely preempts the entire field.
Boomer, 309 F.3d at 424. With respect to long-distance
service contracts, however, we expressly held (and reaffirm
now) that state law cannot operate to invalidate the terms
and conditions of such contracts. Because Dreamscape’s
claim seeks relief that would in effect do just that, we fail
to see how Dreamscape’s claims are not preempted in the
same way the Boomer plaintiff’s claims were. In short, we
agree with the district court’s conclusion that even after
amending its complaint, Dreamscape’s claims and the relief
it sought primarily concern the rates Affinity has charged
for its long-distance service and should be preempted.
Nevertheless, Dreamscape argues that it only challenges
Affinity’s pre-contract promises, not the rates or other
terms of Affinity’s tariff or CSA. According to Dreamscape,
“[i]t matters not whether [Affinity] was selling cars or fruit
or refrigerators or long-distance service. The ICFA requires
that [Affinity’s] advertising and solicitations be truthful.”
Dreamscape’s blithe assertion notwithstanding, it does
matter in this case what sort of goods or services Affinity
sells, because that is precisely the point of Boomer and
other cases exploring the bounds of preemption. In this
instance, Congress has clearly indicated its goal of ensuring
uniform and reasonable rates for long-distance ser-
vice—thus calling for preemption in this area, if not the
unrelated types of commerce Dreamscape lists.
Although Dreamscape argues that Affinity’s actions
amounted to simple fraud, we find that its fraud claims are
really no different than a breach of contract claim (notwith-
standing that it advances such a claim under a separate
count, as discussed below), in terms of the relief it seeks.
See Cahnmann, 133 F.3d at 490. As we indicated above, the
relief Dreamscape seeks is impossible to grant without
effectively invalidating Affinity’s contractual rates, terms,
or conditions. See Boomer, 309 F.3d at 423; cf. ICOM, 238
No. 04-3035 15
F.3d at 222-23. The substance of Affinity’s contractual
provisions cannot be severed from the alleged fraud that
induced Dreamscape into purchasing Affinity’s long-dis-
tance services to begin with. Cf. Cahnmann, 133 F.3d at
489 (noting that if the parties’ contract had included a
provision entirely unrelated to the tariff in which the
defendant promised “to sell the plaintiff a bushel of Ugli
fruit at market price,” such a promise might be severable
from the defendant’s filed tariff and thus actionable under
state law). Affinity’s alleged fraud pertained to something,
after all, and that “something” is set forth within Affinity’s
filed tariff and CSA, which detail the rates, terms, and
conditions of which Dreamscape ultimately complains.
Therefore, it is the artful pleading doctrine, not the well-
pleaded complaint doctrine, that properly guides interpreta-
tion of Dreamscape’s amended complaint. See Bastien, 205
F.3d at 986 (“It is true that a plaintiff is . . . master of his
own complaint and may seek to avoid federal jurisdiction by
pleading only state law claims, . . . but when that com-
plaint, fairly read, states a federal question, the defendant
may remove the case to federal court.”) (internal citations
omitted). Dreamscape seeks to convince us that its fraud
claims do not touch upon Affinity’s rates and, as the
Cahnmann plaintiff did, “emphatically disclaims any
intention of prosecuting a federal claim.” Cahnmann, 133
F.3d at 489.
We are just as unpersuaded here as we were in
Cahnmann, however. Our interpretation of Dreamscape’s
complaint and conclusion arise from an “uncontroversial
application of the artful pleading doctrine.” Id. at 490 (quo-
tation marks omitted). Pursuant to Boomer and related
caselaw, we conclude that Dreamscape’s fraud claims are
federally preempted and were properly removed to federal
court. See Boomer, 309 F.3d at 423; see also Cahnmann, 133
F.3d at 490 (“If a claim can arise only under federal law,
16 No. 04-3035
because federal law has extinguished the state law basis
under which it might otherwise arise, the case is removable
to federal court even if the plaintiff sedulously avoids
mention of federal law in his complaint.”); see also Bastien,
205 F.3d at 986 (“[I]n some instances, Congress has so
completely preempted a particular area that . . . removal is
proper despite the well-pleaded complaint rule.”) (citations
omitted).
B. Breach of Contract
Dreamscape’s remaining claim alleges that Affinity
breached its contract. But Dreamscape candidly concedes
(as it must) that this claim necessarily challenges Affinity’s
rates and terms as set forth in its tariff and CSA and thus
cannot survive unless we “revisit” Boomer—by “revisit,” we
assume that Dreamscape is asking that we either distin-
guish Boomer or set it aside in favor of the Ninth Circuit’s
Ting decision. We see no way, however, to distinguish
Boomer and, further, reaffirm it because our analysis in
Boomer remains sound.
We are unpersuaded by Ting. Contrary to Boomer, the
Ninth Circuit held that federal preemption under the filed
tariff doctrine did not survive detariffing. Ting, 319 F.3d at
1135. In fact, the court expressly rejected Boomer’s pre-
emption analysis, concluding that, in the detariffed envi-
ronment, state laws did not obstruct Congress’s intent with
respect to the FCA. See id. The Ninth Circuit concluded
that, with the passage of the Telecommunications Act of
1996, Congress intended state contract and consumer
protection laws to play a role in governing the carrier-
consumer relationship after detariffing, and preemption did
not survive the passage of the act. See id. at 1144. The court
believed that Congress intended the goals expressed in
Sections 201 and 202 to be enforced by application of state
No. 04-3035 17
law. See id. at 1144-45. Therefore, the Ninth Circuit held,
the plaintiffs could challenge the carrier’s CSA under
California state law.
We disagree with this interpretation. For the reasons
we discussed at length in Boomer, we do not see how
Congress’s clearly expressed intent regarding uniformity
and reasonableness of rates, as demonstrated in
Sections 201 and 202 of the FCA, can be squared with
Ting’s apparent conclusion that state contract law can in-
validate the terms or conditions of long-distance contracts
after detariffing. See Boomer, 309 F.3d at 417-23. Indeed, in
Boomer we rejected the very district court opinion that Ting
affirmed. See id. at 422. As indicated in Boomer and in this
opinion, we conclude that even after detariffing, state law
cannot operate to invalidate the rates, terms, or conditions
of a long-distance service contract (which is precisely what
Dreamscape’s amended complaint seeks, whether it admits
it or not) because such a result would be contrary to Con-
gress’s intent as expressed in Sections 201 and 202.
Dreamscape’s claims are preempted by federal law,
and removal of Dreamscape’s action and dismissal of its
amended complaint were appropriate.
III. Conclusion
For the reasons given, we AFFIRM the order of the district
court dismissing Dreamscape’s amended complaint.
18 No. 04-3035
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-5-05