Cellular Provider Billing for Non-Communication Time Case Law
The court in DeCastro v. AWACS, Inc. (D.N.J. 1996) 935 F. Supp. 541, in dealing with contentions involving billing for noncommunication time and for rounding up identical to those made in In re Comcast Cellular Telecom. Litigation (E.D.Pa. 1996), stated that these contentions "challenge the fairness of a billing practice, not the rates themselves." (DeCastro, supra, 935 F. Supp. at p. 552.)
This statement, however, holds little persuasive force here. First, it was made in passing without analysis.
Second, it was made in the context of considering whether section 332(c)(3)(A) "completely" preempted--rather than "ordinarily" preempted--state law, a much higher standard to satisfy. (See DeCastro, supra, 935 F.Supp at pp. 552, 555; Sanderson, supra, 958 F. Supp. at p. 957.)
And third, and most significantly, DeCastro suggested that federal law may apply, in an ordinary preemptive way, if resolution of the plaintiffs' challenges required a court to assess the reasonableness of these billing practices. (See DeCastro, supra, 935 F. Supp. at pp. 550-552, 555; see also Comcast Cellular, supra, 949 F. Supp. at p. 1200 citing DeCastro in support of its analysis.)
In the end, the gravamen of plaintiffs' complaint, as they themselves allege, is that defendants' actions have resulted "in subscribers, including plaintiffs, being overcharged for service."
From this description, it is clear that plaintiffs challenge the rates charged by defendants. If the states could still regulate in the context presented by plaintiffs here, that would undermine the 1993 amendment to section 332(c)(3)(A), and that statute would not have "dramatically revised the regulation of the wireless telecommunications industry." (Conn. Dept. of Public Utility Cont. v. F.C.C., supra, 78 F.3d at p. 845; see also Kennedy & Purcell, Section 332, supra, 50 Fed. Comm. L.J. at pp. 559-562.)