ILLINOIS MAN'S CELL-PHONE SUIT ISN'T PREEMPTED, COURT RULES.

An Illinois man suing a cell-phone company over extra charges may have his lawsuit heard in state court, where he wanted it in the first place, the Seventh U.S. Circuit Court of Appeals ruled Jan. 22.

"Because the claims were properly before the state court and are not preempted" by the Federal Communications Act, Judge Ilana Diamond Rover wrote for the three-judge panel in James J. Fedor v. Cingular Wireless Corp. (02-3332), the case is to be remanded.

Fedor filed a proposed class action in Illinois court under state law, alleging that Cingular improperly billed minutes incurred in one month to billing periods in other months, causing him to exceed the fixed-rate minutes set forth in his contract and thus pay more.

Cingular removed the case to federal court, where a judge ruled Fedor's claim was preempted by the federal law.

Fedor appealed and prevailed.

There is no dispute that his lawsuit on its face presents only state-law claims, Rovner noted, but it must be examined under the "well-pleaded complaint" doctrine - which allows federal courts to hear claims that are really based on federal law even though the lawyers drafted them so they don't appear to be so grounded. She said it passed scrutiny.

The federal law deals with reasonableness of rates, she wrote.

"A state court analyzing this claim would need to refer to the rates in assessing damages, but would never examine the reasonableness of those rates," Rovner said.

"In other words, these claims address not the rates themselves, but the conduct of Cingular in failing to adhere to these rates. That is precisely the type of state law contract and tort claims that are preserved for the states under [the Federal Communications Act] as the 'terms and conditions' of commercial mobile services."