FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit
                                    PUBLISH
                                                      September 20, 2010
                 UNITED STATES COURT OF APPEALS
                                                     Elisabeth A. Shumaker
                             TENTH CIRCUIT               Clerk of Court



IN RE: UNIVERSAL SERVICE FUND
TELEPHONE BILLING PRACTICE
LITIGATION.

CLASS PLAINTIFFS,

           Plaintiffs,

CLASS PLAINTIFFS, Thomas F. Cummings;
Roger A. Gerdes; Sterling Beimfohr, doing
business as Sterling Sails,

           Plaintiffs - Appellees
           /Cross-Appellants,
     v.                                       Nos. 09-3059 & 09-3077
AT&T CORPORATION,

           Defendant - Appellant
           /Cross-Appellee,

HARRIS, WILTSHIRE & GRANNIS LLP,

           Respondent,

     and

PAM HATTAWAY, formerly known as Pam
Holloway; GEORGE HATTAWAY; T. J.
ADAMCZYK,

           Objectors.


      APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF KANSAS
                (D.C. NO. 2:02-MD-01468-JWL)
David W. Carpenter (Mark B. Blocker and Michael Doss with him on the briefs),
Sidley Austin LLP, Chicago, IL, for Defendant-Appellant/Cross-Appellee.

Barry Barnett of Susman Godfrey L.L.P., Dallas, TX, and F. Paul Bland, Jr.,
Public Justice, Washington, DC (Warren T. Burns of Susman Godfrey L.L.P.,
Dallas, TX, with them on the briefs), for Plaintiffs-Appellees/Cross-Appellants.


Before MURPHY, HOLMES, Circuit Judges, and POLLAK, * District Judge.


MURPHY, Circuit Judge.


I. Introduction

      This multidistrict litigation involves multiple class action lawsuits arising

from the billing practices of defendant AT&T Corporation. Each class of

plaintiffs challenged the lawfulness of a monthly line-item charge defendant

imposed on its customers to recover contributions to the federal Universal Service

Fund (“USF”) required by 47 U.S.C. § 254. One subclass of plaintiffs,

comprising all residential long-distance customers of AT&T in California,

proceeded to trial and was awarded $16,881,000 in damages. The district court

remitted the verdict to $10,931,000, and awarded prejudgment interest of

$5,546,958.41, for a total award of $16,477,958.41. On appeal, AT&T argues it

is entitled to judgment as a matter of law or a new trial. It alternatively asserts it


      *
      Honorable Louis H. Pollak, U.S. District Court Judge, Eastern District of
Pennsylvania, sitting by designation.

                                          -2-
is entitled to a further remittitur of the jury’s damages award. On cross-appeal,

plaintiffs argue the district court erred in enforcing AT&T’s arbitration clause

against non-California residential plaintiffs and in granting partial summary

judgment on AT&T’s business customers’ breach of contract claims. Exercising

jurisdiction under 28 U.S.C. § 1291 and 9 U.S.C. § 16(a)(3), this court AFFIRMS

the decisions of the district court.

II. Background

      Under the Federal Communications Act of 1934 (“FCA” or “1934 Act”),

telecommunications carriers were required to file with the Federal

Communications Commission (“FCC”) a list of tariffs showing “all charges . . .

and . . . the classifications, practices, and regulations affecting such charges.” 47

U.S.C. § 203(a). The 1934 Act also prohibited carriers from extending rates,

terms, or conditions that differed from their filed tariffs. 47 U.S.C. § 203(c);

AT&T v. Cent. Office Tel., Inc., 

, 222 (1998). The goal of this “filed

rate doctrine” was to ensure uniformity in the rates, terms, and conditions offered

to the purchasers of telecommunications services. Cent. Office 

.

      During the 1970s and 1980s, advances in the telecommunications industry

gradually eroded the utility of the filed rate doctrine. Ting v. AT&T, 

, 1131-32 (9th Cir. 2003). The FCC’s attempts to exempt certain carriers

from the requirements of § 203, however, were invalidated by the Supreme Court.

                                         -3-
MCI Telecomms. Corp. v. AT&T Corp., 

, 225-29, 234 (1994)

(holding § 203(b)(2) gives the FCC authority to modify the 1934 Act’s tariff

filing requirement, but not to eliminate it entirely).

      Congress responded by enacting the Telecommunications Act of 1996

(“1996 Act”), which required the FCC to “forbear from applying” the filed rate

doctrine if it determined application of the doctrine was: (1) “not necessary to

ensure that the charges, practices, classifications, or regulations . . . are just and

reasonable and are not unjustly or unreasonably discriminatory,” (2) “not

necessary for the protection of consumers,” and (3) “consistent with the public

interest.” 47 U.S.C. § 160(a). The FCC subsequently issued a Notice of

Proposed Rulemaking on March 25, 1996, to forbear from applying the tariffing

requirements of § 203 of the 1934 Act. In re Policy & Rules Concerning the

Interstate, Interexchange Marketplace, Notice of Proposed Rulemaking, 11 FCC

Rcd. 7141 (1996). Following a comment period, the FCC issued a series of

detariffing orders, effective August 1, 2001, in which it forbore from enforcing

§ 203 against long-distance carriers. See In re Policy & Rules Concerning the

Interstate, Interexchange Marketplace, Second Order on Reconsideration, 14 FCC

Rcd. 6004 (1999); In re Policy & Rules Concerning the Interstate, Interexchange

Marketplace, Order on Reconsideration, 12 FCC Rcd. 15,014 (1997); In re Policy

& Rules Concerning the Interstate, Interexchange Marketplace, Second Report &

Order, 11 FCC Rcd. 20,730 (1996).

                                           -4-
      The FCC anticipated telecommunications carriers would enter into “short,

standard-form contracts” with their customers setting forth the applicable rates,

terms, and conditions of service which had previously been set out in the filed

tariffs. Second Report & Order, 11 FCC Rcd. 20,730, ¶ 57. The FCC

emphasized carriers would continue to be subject to the substantive prohibitions

against unjust, unreasonable, and discriminatory rates and terms contained in

§§ 201 and 202 of the 1934 Act. Order on Reconsideration, 12 FCC Rcd. 15,014,

¶ 77. Specifically, the FCC’s Order on Reconsideration stated:

      In the Second Report and Order, we stated that our decision to
      forbear from requiring nondominant interexchange carriers to file
      tariffs for interstate, domestic, interexchange services will not affect
      our enforcement of carriers’ obligations under sections 201 and 202
      to charge rates, and impose practices, classifications, and regulations
      that are just and reasonable, and not unjustly or unreasonably
      discriminatory. We therefore agree with AT&T, Sprint, and
      WorldCom that the Communications Act continues to govern
      determinations as to whether rates, terms, and conditions for
      interstate, domestic, interexchange services are just and reasonable,
      and are not unjustly or unreasonably discriminatory. While the
      parties only sought clarification that the Communications Act
      governs the determination as to the lawfulness of rates, terms, and
      conditions, we note that the Communications Act does not govern
      other issues, such as contract formation and breach of contract, that
      arise in a detariffed environment. As stated in the Second Report
      and Order, consumers may have remedies under state consumer
      protection and contract laws as to issues regarding the legal
      relationship between the carrier and customer in a detariffed regime.

      To meet its obligations under the detariffing orders, AT&T mailed

proposed Consumer Services Agreements (“CSAs”) to each of its residential

                                         -5-
customers in June 2001. The CSAs and the accompanying mailings clearly

informed AT&T’s residential customers they could agree to the terms of the CSA

by continuing to use, and pay for, AT&T services. The CSAs provided “[y]ou

agree to pay us for the Services at the prices and charges listed in the AT&T

Service Guides” 1 and that “[y]ou must pay all taxes, fees, surcharges and other

charges that we bill you for the Services.” The CSAs then provided “[t]his

agreement incorporates by reference the prices, charges, terms and conditions

included in the AT&T Service Guides.”

      The Consumer Service Guide described the AT&T Universal Connectivity

Charge (“UCC”) as “a monthly charge to Customers to recover amounts AT&T

must pay into a federal program called the Universal Service Fund.” 2 The

Consumer Service Guide then stated “[t]he Universal Connectivity Charge is

equal to 9.9% of your total billed state-to-state and international charges



      1
       There are two AT&T Service Guides relevant to this appeal: the Consumer
Service Guide and the Business Service Guide.
      2
          The UCC description, in its entirety, read:

      The AT&T Universal Connectivity Charge is a monthly charge to
      Customers to recover amounts AT&T must pay into a federal
      program called the Universal Service Fund (USF). The USF helps
      provide affordable telecommunications services for low-income
      customers and customers in rural areas. It also provides discounts on
      Internet access for eligible schools, libraries and rural health care
      providers. AT&T will revise the Universal Connectivity Charge if
      the method and/or amount of its required contribution to the USF
      changes.

                                           -6-
(excluding taxes).” AT&T issued a new guide in advance of each change to the

UCC rate and always charged its customers exactly the rate listed in that guide.

      The CSAs also contained an arbitration clause with a class action ban. This

provision stated “[t]his section provides for resolution of disputes through final

and binding arbitration before a neutral arbitrator instead of in a court by a judge

or jury or through a class action.” It added “[n]o dispute may be joined with

another lawsuit, or in an arbitration with a dispute of any other person, or

resolved on a class-wide basis.”

      AT&T used a different approach with its business customers, with whom it

entered into individually negotiated agreements. Each agreement incorporated by

reference the terms of AT&T’s Business Service Guide, which contained the

following provision governing regulatory surcharges and miscellaneous charges:

      AT&T may adjust its rates and charges or impose additional rates
      and charges on its Customers in order to recover amounts that it,
      either directly or indirectly, pays to or is required by governmental or
      quasi-governmental authorities to collect from others to support
      statutory or regulatory programs, plus associated administrative
      costs. Examples of such programs include, but are not limited to, the
      Universal Service Fund . . . .

The Business Service Guide then listed the UCC rate applicable to the business

customers’ interstate and international charges.

      This multidistrict litigation originally involved numerous putative class

action lawsuits against, inter alia, AT&T. On March 10, 2003, plaintiffs filed a

second consolidated and amended class action complaint alleging, among other

                                          -7-
things, violations of federal antitrust laws, 47 U.S.C. §§ 201(b) and 202, the New

York and Kansas statutory consumer protection acts, and breach of contract. As

relevant to this appeal, Plaintiff Thomas Cummings, a Pennsylvania resident,

sought to represent a nationwide class of AT&T’s residential customers. Plaintiff

Sterling Beimfohr sought to represent a nationwide class of AT&T’s business

customers.

      In October 2002, AT&T filed a motion to dismiss or compel arbitration of

various claims, including Cummings’s claims. The district court granted AT&T’s

motion to compel arbitration of Cummings’s claims, holding the FCA preempted

the argument that AT&T’s arbitration clause was substantively unconscionable

under state law. The district court also concluded the arbitration clause was not

procedurally unconscionable. The district court, however, permitted AT&T’s

California residential customers’ breach of contract claims to proceed based on

the collateral estoppel effect of Ting v. AT&T, 

(N.D. Cal.

2002), aff’d, 

(9th Cir. 2003).

      In December 2007, AT&T moved for summary judgment on the two

remaining breach of contract claims in the case: (1) a breach of contract claim

brought on behalf of AT&T’s California residential customers; and (2) a breach of

contract claim brought on behalf of AT&T’s business customers. The class

period for these breach of contract claims was August 1, 2001 to March 31, 2003.

The district court granted AT&T’s motion as to the breach of contract claim

                                         -8-
brought on behalf of AT&T’s business customers, but denied it as to the breach of

contract claim brought on behalf of AT&T’s California residential customers.

      A jury trial ensued. The jury found in favor of the California residential

customer plaintiffs on the breach of contract claim and awarded $16.881 million

in damages against AT&T. Both parties filed post-trial motions. The court

denied AT&T’s motion for entry of judgment and for a new trial and granted in

part and denied in part both AT&T’s motion for a remittitur and plaintiffs’ motion

for prejudgment interest. The court reduced the verdict to $10,931,000, and

awarded prejudgment interest of $5,546,958.41, for a total award of

$16,477,958.41. The subclass of California residential customers accepted the

remitted judgment, which the district court promptly entered, and AT&T filed a

timely notice of appeal.

      On appeal, AT&T argues it is entitled to a judgment as a matter of law on

the California residential customers’ breach of contract claims or to a new trial.

In the alternative, AT&T argues it is entitled to further remittitur of the damages

award. On cross-appeal, the plaintiffs argue the district court erred in enforcing

AT&T’s arbitration clause against the non-California residential plaintiffs, and

that it erred in granting summary judgment on AT&T’s business customers’

breach of contract claims.




                                         -9-
III. Analysis

      1.     Preemption

      The district court’s order compelling arbitration is reviewable after final

judgment. 9 U.S.C. § 16(a)(3); Quinn v. CGR, 

, 1466 (10th Cir.

1987). This court reviews the order compelling arbitration de novo applying the

same legal standard employed by the district court. Armijo v. Prudential Ins. Co.

of Am., 

, 796 (10th Cir. 1995).

      The non-California residential plaintiffs argue the district court erred in

concluding §§ 201 and 202 of the FCA preempt their state-law claims that the

arbitration clauses in the CSAs should not be enforced due to their substantive

unconscionability. Federal preemption power is derived from the Supremacy

Clause in Article VI of the United States Constitution. Choate v. Champion

Home Builders Co., 

, 791 (10th Cir. 2000). Federal law preempts

state law in three circumstances: (1) where a statute has an express preemption

provision, (2) where Congress intends federal law to “occupy the field,” and (3)

“to the extent of any [state-law] conflict with a federal statute.” Crosby v. Nat’l

Foreign Trade Council, 

, 372 (2000) (quotation omitted). The

ultimate touchstone of the preemption analysis is congressional intent. Cipollone

v. Liggett Group, Inc., 

, 516 (1992). Because §§ 201 and 202 of the

FCA do not contain an express preemption provision, only field and conflict

preemption are at issue in this case.

                                        -10-
              a.   Field Preemption

      AT&T contends the uniformity principle embodied in §§ 201 and 202 of the

FCA sufficiently occupies the field to preempt all state-law regulation of long-

distance contracts. See 

(stating field preemption

occurs when “federal law so thoroughly occupies a legislative field as to make

reasonable the inference that Congress left no room for the states to supplement

it” (quotations omitted)). The FCC’s detariffing orders, however, explicitly

contemplate a role for state law in the deregulated long-distance market. See

Order on Reconsideration, 12 FCC Rcd. 15,014, at ¶ 77 (“[C]onsumers may have

remedies under state consumer protection and contract laws as to issues regarding

the legal relationship between the carrier and customer in a detariffed regime.”).

Accordingly, because state law expressly supplements federal law in the

regulation of interstate telecommunications carriers, field preemption does not

apply. See also 

(“[F]ield preemption is not an issue

because state law unquestionably plays a role in the regulation of long distance

contracts.”); Boomer v. AT&T Corp., 404, 424 (7th Cir. 2002) (indicating field

preemption likely no longer applies after detariffing but not expressly resolving

the issue).

              b.   Conflict Preemption

      Plaintiffs argue the district court erred in concluding the non-California

residential plaintiffs’ substantive unconscionability claims were preempted

                                        -11-
because they conflict with the uniformity principle incorporated in §§ 201 and

202 of the FCA. Conflict preemption occurs “where it is impossible for a private

party to comply with both state and federal requirements, or where state law

stands as an obstacle to the accomplishment and execution of the full purposes

and objectives of Congress.” 

(quotation omitted); see

also Mount Olivet Cemetery Ass’n v. Salt Lake City, 

, 489 (10th Cir.

1998) (“Conflict preemption requires that the state or local action be a material

impediment to the federal action, or thwart[] the federal policy in a material

way.”).

      There is a circuit split on whether the uniformity principle embodied in

§§ 201 and 202 of the FCA has preemptive force in the wake of the FCC’s

detariffing orders. In Boomer, the Seventh Circuit held §§ 201 and 202 of the

FCA preempt state substantive unconscionability challenges to the CSA’s

arbitration 

. Boomer reasoned §§ 201 and 202, “read

together, demonstrate a congressional intent that individual long-distance

customers throughout the United States receive uniform rates, terms and

conditions of service.” 

at this conclusion, Boomer noted § 203,

which the FCC forbore from applying after passage of the 1996 Act, “merely

served as a mechanism by which the FCC could assure compliance with the

standards set forth in Sections 201 and 202,” and that the goals of prohibiting and

punishing unequal rates and preventing discrimination embodied in those sections

                                         -12-
survived detariffing. 

(“[E]ven though the FCC no longer mandates the

filing of tariffs, the congressional objective of providing uniform rates, terms and

conditions remains, as does the federal prohibition on terms and conditions which

are unjust or unreasonable.”). As a result, the Seventh Circuit concluded

“[a]llowing state law challenges to the validity of the terms and conditions

contained in long-distance contracts . . . results in the very discrimination

Congress sought to prevent” and, therefore, concluded such state law challenges

were preempted. 

      Shortly after Boomer was decided, the Ninth Circuit reached the opposite

result in 

. Ting held California’s unconscionability law did

not “stand[] as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress in enacting §§ 201(b) and 202(a) of the

[FCA].” 

(quotation omitted). Unlike Boomer, Ting believed § 203 to

be the “heart of the common-carrier section of the Communications Act.” 

(quotation omitted); 

(“[I]n authorizing the FCC to forbear from

enforcing the tariff filing requirement, Congress not only removed its chosen

means of enforcing §§ 201 and 202, it removed the heart of the 1934 Act.”

(quotations omitted)). Without § 203, Ting held the remaining provisions of the

FCA lacked preemptive force because they “contain[ed] substantive standards that

are enforceable only if they have an enforcement vehicle, such as the filing

requirement.” 

The Ting decision then turned to congressional intent

                                         -13-
underlying the 1996 Act, and held Congress intended a “competition based

regime” in which “state law protections are no longer excluded as they once were

under the express terms of the filed rate doctrine.” 

(“[W]hereas Congress previously required tariffs to ensure strict uniformity with

§§ 201 and 202’s standards, Congress now relies on competition to ensure a more

market-oriented (and less collusive) level of compliance with §§ 201 and 202.”).

Ting therefore concluded there was no conflict between the remaining sections of

the FCA and California’s unconscionability law. 

3



      3
        After the Ninth Circuit decided Ting, the Seventh Circuit reaffirmed its
position in Dreamscape Design, Inc. v. Affinity Network, Inc., 

(7th
Cir. 2005) (“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 invalidate the terms or
conditions of long-distance contracts after detariffing.”). Several state courts
have followed the Seventh Circuit’s approach. See World-Link, Inc. v.
Mezun.com, Inc., 

, 653 (N.Y. Sup. Ct. 2006) (“[B]ecause
entitling Mezun to receive different rates, terms, and conditions of service from
World-Link’s other customers creates an obvious obstacle to the accomplishment
of equality and uniformity of rates and terms of service, Mezun’s common law
defenses of waiver and equitable estoppel are preempted by sections 201 and 202
of the Communications Act.”); Ramette v. AT&T Corp., 

, 514 (Ill.
App. Ct. 2004) (“We agree with Boomer . . . that the congressional objective of
achieving uniformity in rates, terms, and conditions of service survived
detariffing. Allowing state challenges would impede the congressional objective
of achieving uniformity in telecommunication services.”); Field v. AT&T Corp.,
No. CV030827266S, 

, at *2 (Conn. Sup. Ct. Mar. 12, 2004)
(“Boomer . . . seem[s] to be more persuasive concerning the federal preemption
arguments . . . .”). At least one state court has sided with Ting. See McKee v.
AT&T Corp., 

, 855 (Wash. 2008) (“We agree with the Ninth Circuit
that reliance on sections 201 and 202 for federal preemption is untenable.”).

                                         -14-
      This court agrees with the Seventh Circuit’s determination in Boomer that

the uniformity principle embodied in §§ 201 and 202 of the FCA survived

detariffing and preempts state law challenges to the reasonableness of the rates,

terms, and conditions of service provided by telecommunications carriers.

Section 201(b) of the FCA provides: “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) of the FCA provides:

      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 indirectly, 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 particular person, class of persons, or locality to any
      undue or unreasonable prejudice or disadvantage.

47 U.S.C. § 202(a). These sections “demonstrate a congressional intent that

individual long-distance customers throughout the United States receive uniform

rates, terms and conditions of service.” 

; see also Cent.

Office 

(“It is that antidiscriminatory policy which lies at the

heart of the common-carrier section of the Communications Act.”) (quotation

omitted). Applying the laws of all fifty states to AT&T’s interstate long-distance

service contracts would impede this Congressional objective of achieving


                                         -15-
uniformity in the rates, terms and conditions of such services. See 

-19 (noting that allowing such challenges would result in “patchwork

contracts” and “conflict[] with Section 202’s prohibition on providing advantages

or preferences to customers based on their ‘locality’”).

      This conclusion is not altered by the fact that pre-detariffing cases focus

predominantly on § 203’s filed-rate doctrine rather than the uniformity principle

embodied in §§ 201 and 202. See, e.g., Cent. Office 

(focusing exclusively on the preemptive effect of § 203); MCI Telecomms. Corp.

v. AT&T, 

, 220, 229 (1994) (referring to the tariff-filing requirement

as the “heart” and “centerpiece” of the 1934 Act); ICOM Holding, Inc. v. MCI

Worldcom, Inc., 

, 221-23 (2d Cir. 2001) (holding the filed-rate

doctrine barred state-law claims pertaining to the price, service, provisioning, and

billing of telecommunications services). Not surprisingly, cases brought after

detariffing focus solely on the uniformity principle of §§ 201 and 202. See, e.g.,

Orloff v. FCC, 

, 420 (D.C. Cir. 2003) (holding that post-detariffing,

the legality of a telecommunications carrier’s terms of service “depends not on

the company’s designation as a common carrier, but on § 202 (and § 201)”). 4

      4
        Pre-1934 cases decided under the Interstate Commerce Act (ICA) support
the conclusion that the preemptive force of the language of §§ 201 and 202 was
not tethered to § 203. The 1934 Act was modeled after the ICA, see AT&T v.
Cent. Office Tel., Inc., 

, 222 (1998); MCI Telecomms. Corp. v. FCC,

, 38 (D.C. Cir. 1990), and §§ 201 and 202 carried forward the
substantive requirements of §§ 1-3 of the ICA. See H.R. Rep. No. 73-1850, at 4
                                                                     (continued...)

                                        -16-
      That the uniformity principle survived detariffing is also evidenced by the

language of the 1996 Act which obligated the FCC to forebear from enforcing

aspects of the 1934 Act. The 1996 Act did not allow the FCC to forebear from

applying provisions of the 1934 Act as it saw fit. Rather, the 1996 Act limited

the FCC’s forbearance authority to provisions which were “not necessary to

ensure that the charges, practices, classifications, or regulations . . . are just and

reasonable and are not unjustly or unreasonably discriminatory,” “not necessary

for the protection of consumers,” and “consistent with the public interest.” 47

U.S.C. § 160(a). These requirements explicitly ensured the uniformity goals of

§§ 201 and 202 would remain, even in the event the FCC determined the then-


      4
        (...continued)
(1934) (noting the 1934 Act copied those sections of the ICA verbatim “to
preserve the value of court and commission interpretation” of those provisions);
see also Ivy Broad. Co. v. AT&T Co., 

, 490-91 (2d Cir. 1968)
(“Since the Communications Act and the 1910 amendment to the Interstate
Commerce Act were intended to achieve the same objectives with regard to
communications carriers, cases decided prior to 1934 under the Interstate
Commerce Act retain their importance for purposes of determining the scope of
the Communications Act of 1934.”). Decisions from this period support the
notion that a federal uniformity requirement has preemptive effect even in the
absence of a tariff filing requirement. See, e.g., W. Union Tel. Co. v. Esteve Bros.
& Co., 

, 573 (1921) (holding state-law challenges to limitation of
liability clauses are barred due to the preemptive effect of “the requirement of
equality and uniformity of rates laid down in § 3 of the [ICA]”); Postal Tel.-
Cable Co. v. Warren-Godwin Lumber Co., 

, 31 (1919) (holding §§ 1-3
of the ICA barred a state-law challenge to a provision in a telegraph company’s
contract because it would “wholly destro[y]” the “purpose” of the ICA if “the
validity of contracts made by telegraph companies as to their interstate commerce
business continued to be subjected to the control of divergent and conflicting
local laws”).

                                          -17-
existing means of achieving this uniformity, § 203’s filed-rate doctrine, was no

longer the preferred mechanism for accomplishing this goal. See Second Report

& Order, 11 FCC Rcd. 20,730, ¶ 27 (concluding “our decision to forbear from

requiring nondominant interexchange carriers to file tariffs for interstate,

domestic, interexchange services will not affect such carriers obligations under

Sections 201 and 202 to charge rates, and to impose practices, classifications and

regulations, that are just and reasonable and not unjustly or unreasonably

discriminatory”); Order on Reconsideration, 12 FCC Rcd. 15,014 , ¶ 75 (same).

      The precise scope of the uniformity principle set out in §§ 201 and 202,

however, is more difficult to ascertain than the scope of the filed-rate doctrine,

which was “strict[ly]” applied and operated “harsh[ly] in some circumstances.”

Cent. Office 

(quotation omitted); 

(noting that

under the filed-rate doctrine, “even 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”). For example, in Orloff,

the D.C. Circuit held certain differences in rates, such as those which result from

a phone carrier reaching different terms of service with similarly situated

customers on the basis of market “haggling,” do not run afoul of §§ 201 or 

. Similarly, in Panatronic, USA v. AT&T Corp., the Ninth Circuit

held a “temporary price difference” caused by a delay in imposing a UCC charge

did not constitute unreasonable discrimination in violation of § 202(a). 287 F.3d

                                          -18-
840, 844 (9th Cir. 2002) (“A difference in price is not unreasonable if there is a

neutral, rational basis underlying [the disparity].” (quotation omitted)). FCC

orders similarly reflect a trend towards greater tolerance of certain differences in

the rates charged by telecommunications providers. See, e.g., In re Digital

Cellular, Inc., 20 FCC Rcd. 8723, ¶ 15 (2005) (holding it is reasonable for a

phone carrier to offer service on different terms to materially different

companies); In re Bruce Gilmore, 20 FCC Rcd. 15,079, ¶ 26 (2005) (holding it is

reasonable for a phone carrier to negotiate better deals with some customers than

others, so long as there is no market failure that prevents customers from

switching carriers if they are dissatisfied).

      In light of the uncertainty regarding the scope of §§ 201 and 202 in a

detariffed marketplace, AT&T filed a petition with the FCC requesting it “clarify

that federal, and not state, law governs the determination as to whether a

nondominant interexchange carrier’s rates, terms, and conditions . . . are lawful.”

Order on Reconsideration, 12 FCC Rcd. 15,014, ¶ 76. In response, the FCC

ordered that §§ 201 and 202 of the Communications Act “continue[d] to govern

determinations as to whether rates, terms, and conditions for interstate, domestic,

interexchange services are just and reasonable, and are not unjustly or

unreasonably discriminatory.” 

¶ 77. The FCC also concluded that

“the Communications Act does not govern other issues, such as contract

formation and breach of contract, that arise in a detariffed environment,” and that

                                          -19-
“consumers may have remedies under state consumer protection and contract laws

as to issues regarding the legal relationship between the carrier and customer in a

detariffed regime.” 

conclusion that state law is preempted is not necessarily

entitled to deference. Wyeth v. Levine, 

, 1201 (2009) (“While

agencies have no special authority to pronounce on pre-emption absent delegation

by Congress, they do have a unique understanding of the statutes they administer

and an attendant ability to make informed determinations about how state

requirements may pose an obstacle to the accomplishment and execution of the

full purposes and objectives of Congress.” (quotation omitted)); see also Geier v.

American Honda Motor Co., 

, 883 (2000) (according “some weight”

to an agency’s interpretation of the preemptive effect of a statute); Medtronic,

Inc. v. Lohr, 

, 505-06 (1996) (Breyer, J., concurring) (“[I]n the

absence of a clear congressional command as to pre-emption, courts may infer

that the relevant administrative agency possesses a degree of leeway to determine

which rules, regulations, or other administrative actions will have pre-emptive

effect.” ). The Wyeth decision made clear “[t]he weight we accord the agency’s

explanation of state law’s impact on the federal scheme depends on its

thoroughness, consistency, and 

.

      In applying this standard, Wyeth looked to whether the agency’s preemption

determination was consistent with the positions it took in the past and whether its

                                        -20-
rulemaking process was procedurally sound. 

Wyeth concluded the

FDA’s preemption position did not merit deference for two reasons. 

First, it noted the FDA’s notice of proposed rulemaking was completely at odds

with its finalized rule. 

(highlighting “[t]he agency’s views on state

law are inherently suspect in light of this procedural failure”). Second, the Court

discredited the FDA’s position on preemption because it represented a reversal of

“the FDA’s own longstanding position without providing a reasoned explanation,

including any discussion of how state law has interfered with the FDA’s

regulation of drug labeling during decades of coexistence.” 

actions in the present case are distinguishable from the FDA’s

in Wyeth. This court is not aware of any procedural errors committed by the FCC

in promulgating the detariffing orders, and, although the FCC’s ultimate

preemption position represented a departure from the one it advanced in a prior

detariffing order, the FCC’s ultimate position is consistent with its longstanding

policy of interpreting §§ 201 and 202 of the FCA (and similarly worded

provisions of the ICA) as ensuring the uniformity of rates, terms, and conditions

provided by interstate telecommunications carriers. Accordingly, this court

concludes the FCC’s position that the FCA continues to preempt state law

challenges to “the rates, terms, and conditions for interstate, domestic,

interexchange services” but not others, such as “contract formation and breach of

contract” merits deference. Order on Reconsideration, 12 FCC Rcd. 15,014, ¶ 77.

                                         -21-
      The FCC’s notice of proposed rulemaking requested commenters to

consider the effect of §§ 201 and 202 in the detariffed marketplace. 11 FCC Rcd.

7141, ¶¶ 94-96. The FCC’s initial response to this question was clear: “in the

absence of tariffs, consumers will be able to pursue remedies under state

consumer protection and contract laws in a manner currently precluded by the

‘filed-rate’ doctrine.” Second Report and Order, 11 FCC Rcd. 20,730, ¶ 38; see

also 

(“[W]hen interstate, domestic, interexchange services are completely

detariffed, consumers will be able to take advantage of remedies provided by state

consumer protection laws and contract law against abusive practices.”); 

(“In the absence of such tariffs, consumers will not only have our complaint

process, but will also be able to pursue remedies under state consumer protection

and contract laws.”). As noted, however, the FCC clarified its position in a

subsequent order, explaining that while the terms and conditions of long-distance

service contracts are still governed by the FCA, other aspects of the carriers’

conduct are subject to other federal and state law. Order on Reconsideration, 12

FCC Rcd. 15,014, ¶ 77. Thus, unlike the regulation in Wyeth, there were no

procedural failures during the FCC’s promulgation of the detariffing orders that

render the FCC’s preemption position “inherently 

.

      The FCC’s ultimate preemption position nevertheless represented a

departure from the position initially taken in its Second Report and Order. The

FCC’s clarification, unlike the FDA’s abrupt reversal in Wyeth, however, is

                                         -22-
reasonable in light of the uncertainty regarding the scope of the uniformity

principle embodied in §§ 201 and 202 in the detariffed marketplace. The FCC’s

ultimate position is consistent with the FCA’s overarching goal of prohibiting

state-by-state variations in the rates, terms, and conditions of interstate

telecommunications services. As noted, this uniformity goal is reflected in the

language of §§ 201 and 202 of the 1934 Act as well as in the limits the 1996 Act

placed on the FCC’s authority to forebear from applying sections of the 1934 Act.

The continuing validity of this uniformity principle is underscored by judicial and

agency interpretations of §§ 201 and 202 rendered both before and after

detariffing. See, e.g., Global Crossing Telecomm., Inc. v. Metrophones

Telecomms., Inc., 

, 55 (2007) (interpreting § 201(b)’s reasonableness

requirement post-detariffing); 

(interpreting §§ 201 and

202 post-detariffing); Nader v. FCC, 

, 201 (D.C. Cir. 1975)

(interpreting § 202’s non-discrimination requirement pre-detariffing); Digital

Cellular, 20 FCC Rcd. 8723, ¶¶ 14-15 (interpreting §§ 201 and 202 post-

detariffing); In re RCA Am. Commc’ns, Inc., 84 F.C.C.2d 353, ¶ 8 (1980)

(interpreting the reasonableness requirement of § 201 pre-detariffing); see also

Postal Tel.-Cable Co. v. Warren-Godwin Lumber Co., 

, 31 (1919)

(holding the uniformity requirements of the ICA barred state-law challenges to a

provision in a telegraph company’s contract). Accordingly, although detariffing

ended the strict uniformity imposed by § 203’s filed-rate doctrine, it did not

                                          -23-
lessen the preemptive force of the uniformity requirements that remained in §§

201 and 202. The district court’s deferral to the FCC’s order, and its resulting

determination that the FCA preempted the non-California residential plaintiffs’

substantive unconscionability claims, but not their procedural unconscionability

claims, is therefore correct. On appeal, the plaintiffs do not challenge the district

court’s conclusion that the CSAs’ arbitration clauses were procedurally

conscionable under New York state law. Accordingly, the district court did not

err in enforcing those arbitration clauses against the non-California residential

plaintiffs.

       2.     Business Customers’ Breach of Contract Claims

       This court reviews the district court’s order granting AT&T summary

judgment on the business customers’ breach of contract claims de novo applying

the same legal standard as the district court. Union Standard Ins. Co. v. Hobbs

Rental Corp., 

, 952 (10th Cir. 2009). The business customer

plaintiffs alleged AT&T breached its contracts by charging them for

administrative expenses that were not associated with the collection of the UCC.

In granting AT&T’s motion, the district court correctly decided the plaintiffs

failed to raise a genuine issue of material fact.

       The relevant provision in AT&T’s Business Service Guide allowed AT&T

to collect the amounts it paid into the USF “plus associated administrative costs.”

The Business Service Guide also listed the UCC rate applicable to the business

                                         -24-
customers’ interstate and international charges. The business customers argue

AT&T calculated the amount of administrative costs it billed on costs other than

those “associated” with the collection and payment of USF expenses.

Specifically, the plaintiffs point to AT&T’s Undisputed Fact No. 44, which

described its method of calculating administrative expenses:

      The ABS administrative expense estimates (sometimes referred to as
      “overheads”) were calculated by taking actual administrative
      expenses “for all business services,” dividing it “by the underlying
      revenues” to obtain an administrative expense “percentage of total
      revenues,” and multiplying that administrative-expense percentage by
      the total billed USF revenues.

These rates ranged from 9.97% to 10.97% of the UCC, which in turn amounted to

approximately 1.0% of a customer’s total interstate and international phone

charges. On April 1, 2003, after the close of the class period, AT&T’s method of

billing for the administrative expenses associated with the UCC changed. This

change came shortly after an FCC order required the carriers separately disclose

to their customers any administrative expenses associated with the UCC charge.

In re Federal-State Joint Board on Universal Service, CC Docket Nos. 96-45, 98-

171, 92-237, 99-200, 95-116, 98-170, Report & Order & Second Further Notice

of Proposed Rulemaking, 17 FCC Rcd. 24,952, ¶ 48 (2002). This new, separately

listed Administrative Expense Fee was 0.74% of a customer’s total interstate and

international phone charges during its first year in existence, and 0.88% during its

second.


                                        -25-
      The plaintiffs argue AT&T’s method of calculating UCC administrative

expenses was flawed because it made no attempt to quantify and assess the actual

costs “associated” with administering the USF. Plaintiffs contend this fact alone

precluded summary judgment because AT&T’s expenses for “all business

services” were not associated with the collection and payment of the USF. The

undisputed fact cited by the plaintiffs does not establish a triable issue on whether

AT&T recovered administrative expenses not associated with the USF. It stated

only that the total administrative expenses recovered through the UCC were

calculated by determining the administrative expenses associated with each dollar

of revenue from “all business services” and then “multiplying” that percentage

figure by the “billed USF revenues.” There is no evidence this method could

have resulted in an over-recovery of administrative expenses associated with the

USF. In particular, there is no evidence the administrative tasks and expenses

associated with billing and collecting the UCC were less cost sensitive than those

associated with billing and collecting other revenues for business services.

      The business customer plaintiffs next contend the undisputed fact that the

percentage rate AT&T charged was lower after the FCC’s April 1, 2003 rule

change created a triable issue as to whether AT&T overcharged its business

customers during the class period. This argument also fails. Plaintiffs fail to

point to any evidence indicating AT&T’s method of calculating the UCC

administrative charge changed when the FCC’s listing requirement was imposed.

                                         -26-
Nor do they point to evidence indicating the fluctuations in the administrative

charges associated with the UCC trended differently from those associated with

other aspects of AT&T’s operations. Evidence of a reduction in the

administrative charge from 1.0% to 0.74%, and subsequent increase to 0.88%,

standing alone, does not create a genuine issue of material fact as to whether

AT&T charged its business customers for administrative costs not associated with

the USF prior to the FCC’s order. Accordingly, the district court’s dismissal of

the business customers’ breach of contract claim was proper.

      3.     California Residential Customers Breach of Contract Claims

      The district court denied AT&T’s motion for summary judgment with

respect to the breach of contract claims brought by the California residential

customers. AT&T renewed its summary judgment motion with respect to the

residential customers claims, and the district court similarly denied the renewed

motion. After the jury found in favor of the California residential customers at

trial, AT&T filed a motion for judgment as a matter of law and a motion for a

new trial, both of which the district court denied. The district court’s

interpretation of the CSA, including its determination that the CSA was

unambiguous, is reviewed de novo. Level 3 Commc’ns, LLC v. Liebert Corp., 

, 1154-55 (10th Cir. 2008). The district court’s jury instructions are

reviewed de novo to determine whether, as a whole, they “correctly stated the

governing law and provided the jury with an ample understanding of the issues

                                        -27-
and applicable standards.” O’Tool v. Genmar Holdings, Inc., 

,

1198 (10th Cir. 2004). The parties agree the contract claims are governed by

New York law.

      AT&T asserts that, as a matter of law, it could not have breached its

obligations under the CSA because it always charged the UCC percentage

specified in the applicable Consumer Service Guide. The proper interpretation

and effect of the description of the UCC provided in the Consumer Service Guide

is central to the resolution of AT&T’s claim on appeal. That description reads:

“The AT&T Universal Connectivity Charge is a monthly charge to Customers to

recover amounts AT&T must pay into a federal program called the Universal

Service Fund (USF).” The district court determined this description

unambiguously allowed AT&T to recover amounts AT&T must pay into the USF,

and no more.

      First, AT&T asserts that the “Description” sections of the Consumer

Service Guides were not incorporated into the CSAs. AT&T is incorrect. The

relevant language of the CSAs state:

      “AT&T Service Guides” contain the specific prices and charges,
      service descriptions and other terms and conditions not set forth here
      that apply to each of your Services. . . . THIS AGREEMENT
      INCORPORATES BY REFERENCE THE PRICES, CHARGES,
      TERMS AND CONDITIONS INCLUDED IN THE AT&T SERVICE
      GUIDES.




                                        -28-
The CSAs then repeatedly make reference to “the incorporated AT&T Service

Guides.” The passage from the CSAs quoted above unambiguously incorporates

the description of the UCC. The absence of the word “descriptions” from the

capitalized sentence does not prevent the incorporation of the “Description”

sections of the Service Guides. To the contrary, the use of the word “other” in

the first sentence indicates the descriptions are in fact considered part of the terms

and conditions that govern the contractual relationship. 5 Furthermore, the

description of the UCC provided by the Service Guides contains a promise to set

the UCC rate by reference to AT&T’s own USF payments. This term is

unambiguously incorporated into the CSAs by the CSAs’ incorporation provision.

      Second, AT&T argues that the promise is unenforceable due to its location

in a “description” section of the contract. For support, AT&T cites Phillips v.

AIG, Inc., in which a district court refused to interpret a general description of the

interest rate in an annuity contract as containing a separate, enforceable promise.

, 695 (S.D.N.Y. 2007). Phillips’s rejection of the plaintiff’s

argument was based upon the content, not location of the provision. 

language at issue “standing alone, merely explains that interest rates quoted


      5
       The passage’s reference to “service descriptions,” as opposed to “fee
descriptions” or “charge descriptions” does not introduce any ambiguity into the
incorporation provision. Rather, the incorporation of the “prices, charges, terms
and conditions included in the AT&T service guides” unambiguously incorporates
the language of the UCC description which permitted AT&T to collect only those
amounts “AT&T must pay into [the USF].”

                                         -29-
elsewhere in the Annuity Contracts are ‘effective annual interest rates’ and does

not make any independent promise about what those interest rates are”). The

remaining cases cited by AT&T all address the effect of language found in

introductory recital clauses such as “Purpose” and “Whereas” clauses. United

States v. Hamdi, 

, 123 (2d Cir. 2005) (construing prefatory language

of a plea agreement); Aramony v. United Way of Am., 

, 413 (2d Cir.

2001) (holding “because the plan specifies with such clarity which tax provisions

are to be taken into account, we find it unreasonable to treat the imprecision of

the general purpose clause as overriding the specificity of the detailed

computation clauses”); Genovese Drug Stores, Inc. v. Conn. Packing Co., 

, 291 (2d Cir. 1984) (holding “an expression of intent in a ‘whereas’

clause of an agreement between two parties may be useful as an aid in construing

the rights and obligations created by the agreement, but it cannot create any right

beyond those arising from the operative terms of the document”); Jones Apparel

Group, Inc. v. Polo Ralph Lauren Corp., 

, 410 (N.Y. App. Div.

2005) (holding “[s]ince the contract is unambiguous on its face, there is no need

to refer to its recitals”); Trump Vill. Section 3, Inc. v. N. Y. State Hous. Fin.

Agency, 

, 38 (N.Y. App. Div. 2002) (same).

      According to AT&T, the difference between such recital clauses and the

“Description” sections of the Consumer Service Guides is irrelevant under New

York law. See Sengillo v. Valeo Electrical Systems, Inc., 

,

                                          -30-
312 (W.D.N.Y. 2008). The Sengillo case, however, merely stands for the

proposition that “introductory recitals which serve no operative purpose”

generally do not contain “enforceable contractual term[s]” regardless of how they

are named. 

In contrast, the “Description” sections of the AT&T

Service Guides were incorporated into the CSAs for the purpose, according to the

CSA language itself, of providing the “the specific prices and charges, service

descriptions and other terms and conditions not set forth here that apply to each

of your Services.” Rather than introduce terms more fully set forth in other

sections of an operative agreement, the Service Guides provided the operative

terms and conditions that were binding upon the parties and not set forth

elsewhere in their agreements. Furthermore, unlike the introductory language at

issue in the cases cited by AT&T, the description of the UCC in the Service

Guides makes an independent promise as to the nature of that charge. It

unequivocally states that the UCC “is a monthly charge to Customers to recover

amounts AT&T must pay” into the USF. 6 None of the authorities cited by AT&T

support invalidating this promise simply because it is located in a “description”

section of an expressly incorporated service guide.



      6
        AT&T also contracted for the right, stated in the final sentence of the
Service Guides “Description” of the UCC, to revise its UCC rate if “the amount
of its required contribution to the USF changes.” This language further
underscores the notion that AT&T was required to tether the UCC rate to the
amount it was required to pay into the USF.

                                        -31-
      Third, AT&T argues the description of the UCC cannot constitute a

separate and independent promise under New York law because it merely explains

what the UCC charge is without imposing any separate obligation on AT&T.

Under New York law, “[a] promise is a manifestation of intention to act or refrain

from acting in a specified way, so made as to justify a promisee in understanding

that a commitment has been made.” Merritt Hill Vineyards, Inc. v. Windy Heights

Vineyard, Inc., 

, 1081 (N.Y. 1984) (quotation omitted). This

means that a contract contains “any promises which a reasonable person in the

position of the promisee would be justified in understanding were included.”

Sutton v. East River Savs. Bank, 

, 1078 (N.Y. 1982) (quotations

omitted). As a result, words such as “agree,” “will,” or “shall,” are not required

to form a promise under New York law. See 

account “not merely

literal language, but whatever may be reasonably implied therefrom”). 7

      7
        The cases cited by the dissent, Merritt Hill Vineyards, Inc. v. Windy
Heights Vineyards, Inc., 

(N.Y. 1984) and United States v.
Hamdi, 

(2d Cir. 2005) do not support the proposition that particular
promissory phrases are required to form a binding promise. Merritt Hill
addressed the question of whether a provision in a real estate contract was a
condition or a 

. The provision at issue required
the seller to produce a title insurance policy and mortgage confirmation at
closing. The court concluded it was a condition, in part because it was found
under the heading “Conditions Precedent to Purchaser’s Obligation to Close,” and
in part because “[n]o words of promise were used.” 

the question of whether the phrase, “The defendant’s
sentence is governed by the United States Sentencing Guidelines,” constituted a
waiver of the defendant’s right to seek a 

. Because
Hamdi involved the construction of a waiver found in a plea agreement, the court
                                                                        (continued...)

                                         -32-
      A reasonable promissee would certainly read the phrase, “The AT&T

Universal Connectivity Charge is a monthly charge to Customers to recover

amounts AT&T must pay into the [USF]” as a promise that AT&T would charge a

UCC in the amount it must pay into the USF and no more. Accordingly, the

phrase constitutes a valid promise under New York law.

      Fourth, AT&T argues the district court impermissibly added language and

terms to the agreements between the parties. AT&T’s argument centers around

the district court’s conclusion “as a matter of law that the contract unambiguously

provides that AT&T could ‘recover amounts AT&T must pay’ into the USF

program, and no more,” as well as its decision to imply AT&T had an obligation

to balance the UCC amounts it recovered with the amounts it was required to pay

over a reasonable period of time.

      Under New York law, it is well settled that courts “may not by construction

add or excise terms, nor distort the meaning of those used and thereby make a

new contract for the parties under the guise of interpreting the writing.” Bailey v.

      7
        (...continued)
interpreted the language “narrowly” against the government due to the “special
due process concerns for fairness and the adequacy of procedural safeguards.” 

(quotations omitted). Nevertheless, the court observed that the phrase
in question, read in isolation, “could be read as a covenant to which Hamdi
agreed,” but it declined to do so based on the context in which the phrase
appeared. 

(noting also that to the extent the phrase was ambiguous,
“well-settled principles of construction of plea agreements [required resolution
of] this ambiguity in [the defendant’s] favor”). Accordingly, neither Merritt Hill
nor Hamdi support the proposition that only provisions featuring the words
“agree,” “will,” or “shall” constitute promises.

                                        -33-
Fish & Neave, 

, 959 (N.Y. 2007) (quotation omitted). However, it

is equally well-settled that “[b]efore rejecting an agreement as indefinite, a court

must be satisfied that the agreement cannot be rendered reasonably certain by

reference to an extrinsic standard that make its meaning clear.” Cobble Hill

Nursing Home, Inc. v. Henry & Warren Corp., 

, 206 (N.Y. 1989).

“The conclusion that a party’s promise should be ignored as meaningless is at

best a last resort.” 

      The district court did not add a term to the CSAs by ruling AT&T could

“recover amounts AT&T must pay” into the USF program, “and no more.”

Rather, adding “and no more” merely emphasized the operative promise which

governs the contractual relationship between AT&T and its customers. As

previously discussed, that promise was that AT&T would collect via the UCC

charge those amounts “it must pay” into the USF. Thus, the district court’s

addition of the phrase “and no more” merely emphasized the reality of what the

parties had already agreed to. Interpreting the contract to allow AT&T to recover

amounts in addition to “what it must pay into [the USF],” by contrast, involves a

distortion of the contract’s meaning not permissible under New York law.

Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P., 

, 363

(N.Y. 2009).

      Further, the district court did not err in implying a reasonable time period

into the CSAs. Under New York law, “[w]hen a contract does not specify time of

                                          -34-
performance, the law implies a reasonable time.” Savasta v. 470 Newport

Assocs., 

, 1172 (N.Y. 1993). “What constitutes a reasonable

time for performance depends upon the facts and circumstances of the particular

case.” 

see also Haines v. City of New York, 

, 822-23

(N.Y. 1977) (“In the absence of an express term fixing the duration of a contract,

the courts may inquire into the intent of the parties and supply the missing term if

a duration may be fairly and reasonably fixed by the surrounding circumstances

and the parties’ intent.”). The district court properly determined the contract to

be sufficiently definite to require AT&T to calibrate its UCC collections to match

its required USF payments over a reasonable period of time. Accordingly, AT&T

could breach its promise by repeatedly overcollecting UCC charges without

timely issuing refunds or revising its UCC rate to compensate for its overbilling.

      Fifth, AT&T argues the district court’s reading of the CSA allows the

general description of the UCC to improperly override the specific UCC rates

listed in the incorporated Service Guides. This is not the case. Under New York

law, “a contract should be construed so as to give full meaning and effect to all of

its provisions.” Duane Reade, Inc. v. Cardtronics, LP, 

, 19 (N.Y.

App. Div. 2008). The provisions at issue impose separate obligations that can be

read to give full meaning and effect to both. In the first promise, AT&T agreed to

limit its UCC collections to amounts it was required to pay into the USF, and

provided a mechanism for changing this rate. In the second promise, AT&T

                                         -35-
agreed to assess the UCC at a specific percentage. It is perfectly reasonable for

the CSAs to include an obligation regarding how the UCC rate is set separate

from an obligation to charge the stated rate. The second promise does not pertain

to the permissible scope of UCC collections; rather, it only defines the

mechanism for collecting funds for a particular period. Accordingly, the district

court’s reading did not allow general language of the CSAs to impermissibly

override specific language. Rather, its reading properly gave full meaning and

effect to both portions of the contract. 8

      Finally, AT&T argues the California residential plaintiffs’ construction of

the contracts renders them absurd. AT&T correctly notes that under New York

law, “[a] contract should not be interpreted to produce a result that is absurd,

commercially unreasonable, or contrary to the reasonable expectations of the

parties.” Lipper Holdings LLC v. Trident Holdings, LLC, 

, 562

(N.Y. App. Div. 2003) (citations omitted); accord Fresh Del Monte Produce N.V.

v. Eastbrook Caribe A.V.V., 

, 164 (N.Y. App. Div. 2007).

These cases, however, do not support excising an agreed upon promise merely


      8
        Allowing the promise to charge a particular percentage to override the
promise to only charge the amounts AT&T “must pay” effectively writes the
latter promise out of the contract. Certainly, the chosen rate would nevertheless
also need to comply with the “just and reasonable” requirement found in 47
U.S.C. § 201(b). In this case, § 201(b) does not preempt the California residential
plaintiffs’ additional state-law claims due to the collateral estoppel effect of Ting
v. AT&T, 

(N.D. Cal. 2002), aff’d, 

(9th Cir.
2003).

                                             -36-
because it imposes an inconvenient burden on one of the parties; rather, they

address true absurdities. See, e.g., Fleischman v. Furgueson, 

, 402

(N.Y. 1918) (refusing to construe an ambiguous separation agreement to give the

surviving husband greater access to the wife’s property than he would have had

“if they had lived happily together”); Fresh Del Monte 

(holding that an indemnification provision making a party liable for a

company’s “decline in value” did not encompass unrealized losses, such as a

transitory decline in stock price); 

(limiting general

partner’s discretion to revalue limited partners’ capital accounts to prevent, inter

alia, general partner from being permitted to retain incentive compensation based

on phantom profits); Tougher Heating & Plumbing Co., Inc. v. State, 

, 289 (N.Y. App. Div. 1979) (declining the invitation to interpret an

ambiguous labor cost saving provision in a construction contract to allow the

contractor to recover $100,000 if they performed the contract at a savings of

$100,000, but only $500 if they performed at a savings of $101,000).

      In the present case, AT&T alleges that it was difficult for it to predict the

amounts it must pay to the USF due to the methodology used to calculate its

contribution level. Certainly, this made it virtually impossible for AT&T to

charge exactly the correct amount each billing cycle. AT&T could, however,

implement a mechanism to allow it to calibrate its charges over several billing




                                         -37-
cycles 9 to prevent repeated overbilling. 10 The fact that the lag between the

calculation and the billing of the USF forced AT&T to charge its customers a

higher percentage rate than the USF percentage rate does not render absurd

AT&T’s promise to charge a UCC in the amount it must pay. Finally, that AT&T

was not required to recover the exact amount of its USF contributions is a non

sequitur. As noted above, in addition to fulfilling its federal obligations under 47

U.S.C. § 201(b), AT&T promised its customers to charge a UCC only in the

amount it must pay into the USF. This left AT&T with the option of either

undercollecting the UCC or overcollecting the UCC and instituting a mechanism

to calibrate its collections to match its required USF payments over a reasonable

period of time. The difficulty AT&T experienced in fulfilling its contractual

obligation does not render the underlying promise unreasonable or absurd. For all

of the foregoing reasons, this court affirms the district court’s denial of AT&T’s

motion for judgment as a matter of law. 11



      9
          The dissent refers to such mechanisms as “true-up” mechanisms.
      10
        As noted by the dissent, AT&T knew how to implement provisions to
provide refunds for overcharged services. AT&T’s unilateral failure to
implement a similar mechanism to prevent overcollection of UCC does not render
the proposition of implementing one absurd or commercially unreasonable.
      11
        This court need not address AT&T’s argument that the district court’s
reading of the contract improperly converted the CSA from an individual contract
with individual subscribers into a classwide undertaking because AT&T forfeited
this argument by failing to raise it below. Rosewood Servs., Inc. v. Sunflower
Diversified Servs., Inc., 

, 1167 (10th Cir. 2005).

                                         -38-
      AT&T’s alternative argument, that it is entitled to a new trial on plaintiffs’

breach of contract claim, is similarly premised on the district court’s conclusion

that the CSA unambiguously required AT&T to set its UCC so as to “‘recover

amounts AT&T must pay’ into the USF program, and no more.” The district

court gave the following jury instruction:

      AT&T’s contract with . . . plaintiffs permitted AT&T to impose a
      monthly USF charge on its customers to recover amounts AT&T was
      required to pay into the federal USF program. Thus, if you find that
      AT&T actually imposed charges greater than that necessary to
      recover amounts AT&T was required to pay into the federal USF
      program, you will find that AT&T breached its contract with the
      subclass of plaintiffs.

AT&T argues that even if this court rejects its argument that, as a matter of law,

the CSAs did not create an enforceable promise to match the UCC charge with

AT&T’s USF expenditures, the district court nevertheless should have regarded

the CSAs as ambiguous and left the issue for the jury.

      Under New York law, a contract’s meaning can be determined as a matter

of law only when the relevant contract language is “wholly unambiguous” and

conveys a “definite meaning.” Topps Co. v. Cadbury Stani S.A.I.C., 

,

68 (2d Cir. 2008). Ambiguity, in this context, hinges on whether “the agreement

on its face is reasonably susceptible of more than one interpretation.” Chimart

Assocs. v. Paul, 

, 233 (N.Y. 1986); see also Palmieri v. Allstate

Ins. Co., 

, 191 (2d Cir. 2006) (“Ambiguous language is that which is

capable of more than one meaning when viewed objectively by a reasonably

                                        -39-
intelligent person who has examined the context of the entire integrated

agreement and who is cognizant of the customs, practices, usages and terminology

as generally understood in the particular trade or business.” (quotation omitted)).

      The district court’s jury instruction on the residential plaintiffs’ breach of

contract claim “correctly stated the governing law and provided the jury with an

ample understanding of the issues and applicable standards.” 

. The CSAs, and the incorporated Service Guides, unambiguously required

AT&T to set the UCC charge at the amount AT&T “must pay” into the federal

USF program. This language is not reasonably susceptible to more than one

interpretation. Accordingly, AT&T is not entitled to a new trial on the residential

customers’ breach of contract claim.

      4.     Remittitur

      AT&T seeks to amend the judgment, pursuant to Fed. R. Civ. P. 59(e), to

effect a further remittitur or reduction of the damages awarded to the residential

customer plaintiffs by the jury on the claim for breach of contract. A district

court’s denial of a motion for remittitur is reviewed for an abuse of discretion.

Gasperini v. Center for Humanities, Inc., 

, 434-35 (1996). When a

state’s substantive law governs a claim for relief, “state law provides the

appropriate rules of decision for the district court to determine whether the

verdict was excessive.” Century 21 Real Estate Corp. v. Meraj. Int’l Inv. Corp.,

, 1281 (10th Cir. 2003). Under New York law, a court will only

                                         -40-
disturb a jury’s damages award if “the jury could not have reached its verdict on

any fair interpretation of the evidence,” Medco Plumbing, Inc. v. Sparrow Constr.

Corp., 

, 732 (N.Y. App. Div. 2005), or if the award is not

“within reasonable bounds and supported by the evidence,” Carpenter v.

Weichert, 

, 194 (N.Y. App. Div. 1976).

      The jury was given the following instruction on the measure of damages for

the breach of contract claim:

             The measure of damages for a breach of contract is the amount
      that will compensate plaintiffs for the loss caused by the breach. In
      this case, if you find for the subclass of plaintiffs on their claim for
      breach of contract, the proper measure of damages is the amount by
      which the USF charges collected by AT&T from its California
      residential customers exceeded the amount AT&T was required to
      pay into the Universal Service Fund for those customers.

AT&T argues the jury failed to follow this instruction in calculating damages

because it did not include a $5,190,000 payment it made into the USF in 2005 for

liabilities incurred during the class period.

      This payment became necessary because AT&T refused to pay USF

contributions on revenue earned from prepaid calling cards for several years and

accordingly did not collect USF contributions from its prepaid calling card

customers. In 2005, the FCC ordered AT&T to contribute to the USF on the basis

of prepaid calling card revenue, including revenues earned from preceding

periods. In re AT&T Corp. Petition for Declaratory Ruling Regarding Enhanced

Prepaid Calling Card Services, 20 FCC Rcd. 4826, ¶ 31 (2005). AT&T argues

                                          -41-
these USF payments based on prepaid calling cards sold to California customers

during the class period, totaling $5,190,000, should have been included in the

figure for AT&T’s USF payments for purpose of the damages calculation under

the court’s instruction.

      The district court rejected this argument, noting the evidence at trial

supported the jury’s damage calculation. First, the plaintiffs’ expert, Dr. Simon

Wilkie, testified he did not include the additional payment made in 2005 in his

calculations because the expense was incurred long after the plaintiffs had been

assessed the UCC charges at issue in this class action. AT&T’s expert, Dr.

Langenfeld, had no problem with Dr. Wilkie’s refusal to take the calling card

adjustment into account for the purpose of calculating anti-trust damages.

Finally, Ellen Reid, AT&T’s director of strategic pricing, also testified the calling

card expenses were omitted because “[i]t wasn’t considered in the period when

we were calculating the rates because we assumed at that point that they were

enhanced services and they were not to be assessed USF revenue.” Reid then

testified that the AT&T exhibit which omitted prepaid calling card expenses was

her “best judgment of the fairest and most accurate way to look at AT&T’s USF

collections versus expenses for its residential customers in the period 1998 to

March 31, 2003.”

      The propriety of the jury’s determination is also bolstered by the district

court’s interpretation of the CSAs as requiring AT&T’s UCC collections from

                                         -42-
residential long-distance customers to match up with its USF payments for that

group of customers. 12 The prepaid calling cards at issue “allow[ed] purchasers to

make long-distance telephone calls without subscribing to a long-distance service

or using a credit card” by providing a consumer the option of purchasing a “fixed

number of minutes at a fixed price.” AT&T Co. v. FCC, 

, 330 (D.C.

Cir. 2006). AT&T distributed these prepaid cards through “large retail outlets

such as Wal-Mart and other third party distributors.” 

On appeal,

AT&T points to no evidence which suggests its failure to impose a UCC charge

on its prepaid calling card customers could fairly be compensated by

overcharging its residential customers. Accordingly, the jury’s decision to

exclude prepaid calling card expenses from its damage analysis is amply

supported and constitutes a “fair interpretation of the evidence.” Medco

. Thus, the district court did not abuse its

discretion in denying AT&T’s motion for remittitur related to the prepaid calling

card expenses.




      12
        The district court reasoned this term could properly be supplied to the
contract for two reasons. First, the evidence indicated “AT&T had separate UCC
rates for its business and residential long-distance customers and that AT&T
attempted to set each rate by reference to its USF payments for that particular
group.” Second, the district court found further support in the FCC’s order that
“mandated that carriers not shift more than an equitable share of USF
contributions to any customer group or group of customers.” AT&T did not
challenge this aspect of the district court’s order on appeal.

                                       -43-
IV. Conclusion

         For the foregoing reasons, this court AFFIRMS the decisions of the district

court.




                                         -44-
09-3059 & 09-3077, Universal Service Fund Telephone Billing Practices
Litigation v. AT&T Corp.

HOLMES, Circuit Judge, concurring in part and dissenting in part.


      I write separately to take issue with the majority’s analysis of the breach-

of-contract claim of the California residential consumers. See Maj. Op. at 27–38.

Specifically, I believe that a straightforward interpretation of the AT&T

Consumer Service Agreement (“CSA”) and AT&T Service Guide (“CSG”)

ineluctably dictates the conclusion that the California residential consumers

agreed to pay the specific Universal Connectivity Charge (“UCC”) listed in the

Rates and Charges section of the CSG. Although the majority concludes that

AT&T hamstrung the applicability of this specific UCC with a generalized

statement of purpose in a preliminary section of the CSG, I find that the CSA and

CSG are not properly susceptible to that interpretation.

      Based on my interpretation of the CSA and CSG, I would remand this

matter to the district court and direct it to enter judgment in favor of AT&T as a

matter of law on the California residential consumers’ breach-of-contract claim. I

thus would not reach the district court’s disposition of the motion for a new trial,

or the motion for remittitur. I concur with the majority’s conclusions regarding

preemption and the breach-of-contract claim of the business consumers.
I.    Judgment as a Matter of Law

      We should reverse the denial of AT&T’s motion for judgment as a matter

of law on the breach-of-contract claim of the California residential consumers

because (1) a plain-meaning interpretation of the CSA and CSG shows that the

California residential consumers agreed to pay the specific UCC listed in the

Rates and Charges section of the CSG; (2) the Description section contains no

separate and independent promise regarding the amount of the UCC; and (3) even

if the Description section were to contain such a promise, the majority’s decision

still would miss the mark because it conflicts with basic principles of contractual

interpretation.

      A.     Standard of Review

      “We review de novo the denial of a motion for judgment as a matter of

law.” Hysten v. Burlington N. Santa Fe Ry. Co., 

, 1269 (10th Cir.

2008). In conducting this review, we will reverse the district court “only if the

evidence points but one way and is susceptible to no reasonable inferences

supporting the party opposing the motion.” M.D. Mark, Inc. v. Kerr-McGee

Corp., 

, 761 (10th Cir. 2009) (internal quotation marks omitted). “A

party is entitled to judgment as a matter of law only if all of the evidence, viewed

in the light most favorable to the non-moving party, reveals no legally sufficient

evidentiary basis to find for the non-moving party.” Burrell v. Armijo, 

, 832 (10th Cir. 2010). Contract interpretation is a question of law, which we

                                         -2-
also review de novo. See Level 3 Commc’ns, LLC v. Liebert Corp., 

, 1154 (10th Cir. 2008). New York law governs the interpretation of the

CSA and CSG. Aplt. App. at 1653 (“This Agreement will be governed by the law

of the State of New York, without regard to its choice of law rules . . . .”).

      B.     Plain Meaning

      Under New York law, we must interpret a contract in accordance with the

intent of the parties. See Greenfield v. Philles Records, Inc., 

, 170

(N.Y. 2002). “[A] written agreement that is complete, clear and unambiguous on

its face must be enforced according to the plain meaning of its terms.” IDT Corp.

v. Tyco Grp., S.A.R.L., 

, 916 (N.Y. 2009) (internal quotation

marks omitted). “An agreement is unambiguous when its words have a definite

and precise meaning, unattended by danger of misconception in the purport of the

contract itself, and concerning which there is no reasonable basis for a difference

of opinion.” Vintage, LLC v. Laws Constr. Corp., 

, 343 (N.Y.

2009) (internal quotation marks omitted) (brackets omitted).

      In this action, the plain meaning of the CSA provides that the California

residential consumers agreed to pay the specific UCC charge listed in the Rates

and Charges section of the CSG. This plain meaning is evident from (1) the

preamble to the CSA; (2) the general section on charges and payment; and (3) the

section on taxes and other charges.




                                          -3-
             1.     Preamble

      In the preamble to the CSA, the California residential consumers “agree[d]

to the prices, charges, terms and conditions in this agreement.” Aplt. App. at

1649 (capitalization omitted). Because the CSA “incorporates by reference the

prices[] [and] charges . . . in the [CSGs],” 1 

it includes

the specific rates and charges listed in the CSG governing the UCC. This CSG, in

turn, provides that the UCC is equal to a specific percentage of a consumer’s total

interstate and international charges. 2 See, e.g., 

(“The Universal

Connectivity Charge is equal to 9.9% of your total billed state-to-state and

international charges (excluding taxes).”).

             2.     General Charges and Payment

      Under section 1(a) of the CSA, the California residential consumers

“agree[d] to pay [AT&T] for the Services at the prices and charges listed in the

AT&T Service Guides.” 

Even though the UCC does not appear to

meet the definition of a “Service” under the CSA, 3 it does qualify as a “price and

      1
            Neither party disputes that the CSA incorporates by reference the
UCC rates and charges listed in the CSG. The parties do disagree on whether the
CSA incorporates by reference the Description section of the CSG; this issue is
addressed infra Part I.C.1.
      2
            This specific percentage fluctuated over the course of the relevant
time period. See, e.g., Aplt. App. at 856 (9.9% on August 1, 2001); 

(11.5% on January 1, 2002); 

(11% on July 1, 2002).
      3
             The CSA defines the term “Service” to mean “state-to-state and
international consumer telecommunications services” and identifies some of these
                                                                    (continued...)
                                      -4-
charge” for a “Service” that the California residential consumers received.

Therefore, section 1(a) still required the California residential consumers to pay

the specified UCC. Section 1(a) specifically notes that “[t]he prices and charges

for the Services may also include, for example, monthly fees, monthly minimums,

or connection charges.” 

1(a) does not list the UCC as an

example of these “prices and charges,” the common denominator of the listed

examples is that they all consist of fees and charges associated with the provision

of interstate and international telecommunications services. The UCC fits within

this set of examples because it is a monthly charge that is calculated using the

total billed amount of a consumer’s interstate and international traffic. Thus, the

California residential consumers were required to pay the UCC in the amount

specified in the CSG (which the CSA incorporated).

             3.    Taxes and Other Charges

      Under section 1(e) of the CSA, California residential consumers “must pay

all taxes, fees, surcharges and other charges that [AT&T] bill[s] [them] for the

Services.” 

As 

, the UCC is a fee or charge that

AT&T imposes on consumers in connection with their use of interstate and

international telecommunications services. Neither party disputes that “AT&T at


      3
        (...continued)
service types as “direct-dialed from home, operator-assisted, [and] calling card
calls.” Aplt. App. at 1649. By contrast, the UCC is a price (i.e., fee) or charge
associated with interstate and international telecommunications services and,
therefore, is unlike the other “Services” under the CSA.
                                          -5-
all times charged its residential customers precisely the percentage listed in the

[CSG].” 

      Although section 1(e) also provides that “[t]axes and surcharges will be in

the amounts that federal, state and local authorities require us to bill you,” 

this provision does not support the majority’s contention that AT&T may

not charge consumers more than the amount it is required to contribute to the

Universal Service Fund (“USF”). First, this sentence does not apply to the UCC

because, as the district court recognized, the UCC is not a tax or a surcharge. 4

See 

(holding, as a matter of law, that the CSA is “unambiguous that the

UCC is not a ‘surcharge’ that is subject to the limitation set forth in . . . § 1(e)”);

see also Federal-State Joint Bd. on Universal Serv., CC Docket No. 96-45, Report

and Order, 12 FCC Rcd. 8776, 9211-12 ¶ 855 (1997) [hereinafter Report and

Order] (stating that the FCC “believe[s] that it would be misleading for a carrier

to characterize its [universal service] contribution as a surcharge” because

“carriers retain the flexibility to structure their recovery of the costs of universal



      4
               AT&T comes perilously close to conceding that the UCC is a tax.
Throughout its briefs, AT&T refers to the universal service payment as a “tax”
that it passes through to its consumers. Although AT&T repeatedly uses the word
“tax,” it initially places that word in quotation marks. Aplt. Opening Br. at 5
(stating that the UCC is a charge that it “imposed on its residential customers so
that they . . . would pay an equitable share of a ‘tax’ that the Federal
Communications Commission (‘FCC’) had required all long distance telephone
companies to pay in order to support ‘universal [telephone] service’” (brackets in
original)). This appears to indicate that AT&T employed this misnomer in an
attempt to describe the complexities of USF contribution in common parlance.
                                          -6-
service in many ways”) ; cf. Tex. Office of Pub. Util. Counsel v. FCC, 

, 427 (5th Cir. 1999) (finding, in dicta, that universal service contributions are

not a tax) (citing Rural Tel. Coal. v. FCC, 

, 1314 (D.C. Cir. 1988)).

      Second, even if the UCC were a tax or a surcharge, it would not be subject

to this provision because the federal authorities do not require AT&T to bill

consumers for the UCC. See Report and Order, 12 FCC Rcd. at 9199 ¶ 829

(“[C]arriers will be permitted, but not required, to pass through their contributions

to their interstate access and interexchange customers.”); see also Boomer v.

AT&T Corp., 

, 411 n.1 (7th Cir. 2002) (“[C]arriers may charge

consumers to recover the cost of [universal service] contributions.” (emphasis

added)).

      Thus, under the plain language of the CSA and CSG, AT&T has not

breached its contract because it charged the California residential consumers the

specific UCC listed in the Rates and Charges section of the CSG. 5 See Aplt. App.


      5
             The California residential consumers have not alleged that AT&T
charged them anything other than the UCC listed in the CSG. Plaintiffs instead
complain that this interpretation of the CSA “would . . . hold that AT&T’s
customers agreed to a contract under which AT&T could charge any amount it
chose for any purpose while still describing the assessment as a UCC charge.”
Aplee. Opening Br. at 50–51; accord 

This argument reflects a
fundamental misunderstanding of the laws and regulations governing the USF
mechanism. At all times relevant to this action, nothing in the statute or
regulations prohibited AT&T from marking up the USF line item above the
relevant contribution amount. See Federal-State Joint Bd. on Universal Serv.,
Report and Order and Second Further Notice of Proposed Rulemaking, 17 FCC
Rcd. 24952, 24978 ¶¶ 49, 51 (2002) [hereinafter Report and Order II] (noting that
                                                                          (continued...)
                                         -7-
at 772 (“It is undisputed that AT&T charged its residential customers precisely

the percentage listed in the [CSG].”); 

(same).

      C.     Description Section

      The majority’s interpretive analysis is misguided: it effectively

circumvents the plain meaning of the CSA and CSG. In particular, when

interpreting the CSG, the majority places an unnatural emphasis on a general

statement of purpose in the introductory Description section instead of simply

applying the specific UCC listed in the Rates and Charges section.

      The Description section provides as follows:

             The AT&T Universal Connectivity Charge is a monthly charge to

             Customers to recover amounts AT&T must pay into a federal

             program called the Universal Service Fund (USF). The USF

             helps provide affordable telecommunications services for low-

             income customers and customers in rural areas. It also provides

             discounts on Internet access for eligible schools, libraries and




             (...continued)
“carriers may not mark up federal universal service line-item charges above the
relevant contribution factor” once the new universal service contribution
methodology takes effect on April 1, 2003, which was after the times relevant
here). Of course, AT&T did not have free reign to charge any amount because
the UCC must be “just and reasonable.” 47 U.S.C. § 201(b) (providing that “[a]ll
charges . . . for and in connection with such communication service[] shall be just
and reasonable”). AT&T also “may not shift more than an equitable share of [its]
contributions to any customer or group of customers.” Report and Order, 12 FCC
Rcd. at 9199 ¶ 829.
                                             -8-
            rural health care providers. AT&T will revise the Universal

            Connectivity Charge if the method and/or amount of its required

            contribution to the USF changes.

(emphasis added). The majority follows the district court in

interpreting the first sentence of this Description section as a promise by AT&T

to recover no more than the amount of its USF contribution from its residential

consumers. See Maj. Op. at 33–34; see also Aplt. App. at 1607 (interpreting this

sentence “unambiguously [to] provide[] that AT&T could ‘recover amounts that

AT&T must pay’ into the USF program, and no more”).

            1.     Incorporation by Reference

      As an initial matter, the CSA incorporates by reference the Description

section of the CSG. In pertinent part, the CSA provides that

            “AT&T Service Guides” contain the specific prices and
            charges, service descriptions and other terms and
            conditions not set forth here that apply to each of your
            Services. . . . THIS AGREEMENT INCORPORATES BY
            REFERENCE THE PRICES, CHARGES, TERMS AND
            CONDITIONS INCLUDED IN THE AT&T SERVICE
            GUIDES.

Aplt. App. at 1649.

      Although AT&T insists that the CSA does not incorporate the

Description section, I agree with the majority that this argument is

unpersuasive. There are several reasons. First, the incorporation clause


                                        -9-
specifically includes “terms and conditions” of the CSG. 

AT&T correctly notes that the CSG has a specific subsection entitled

“Terms and Conditions,” the CSA broadly construes the phrase “terms and

conditions.” The CSA notes that the CSG “contain[s] the specific prices and

charges, service descriptions and other terms and conditions.” 

This provision implicitly suggests that the phrase “terms and

conditions” encompasses more than the expressly designated “terms and

conditions” and extends to include descriptive language as well. Second,

the merger clause provides that the CSA “incorporates by reference the

AT&T Service Guides,” without carving out any particular portions of the

CSG. 

Third, the CSA incorporates by reference the Description

section because the CSG must be interpreted as a whole, including the

descriptions of any terms, under basic principles of contractual

interpretation. See IDT 

; see also Restatement

(Second) of Contracts § 202(2) (1981); 11 Samuel Williston & Richard A.

Lord, A Treatise on the Law of Contracts § 32:5 (4th ed. 1999 & Supp.

2010); 5 Margaret N. Kniffin, Corbin on Contracts § 24.21 (Rev. ed. 1998).

Fourth, the CSG itself provides that “AT&T Service Guides are . . . part of

the AT&T Consumer Services Agreement.” Aplt. App. at 1665, 1666.

Finally, AT&T conceded that the CSA incorporated the CSG by reference at

oral argument and before the district court.


                                        -10-
             2.     Prefatory Language

      Even though the CSA incorporated the CSG’s Description section by

reference, the majority’s interpretation is untenable because the first

sentence of the Description section is unenforceable prefatory language.

Under New York law, prefatory language to a contract is not part of the

operative agreement. See, e.g., Burr v. Am. Spiral Spring Butt Co., 

, 178 (1880) (“Recitals in a contract are not strictly any part of the

contract . . . .”); Jones Apparel Group, Inc. v. Polo Ralph Lauren Corp., 

, 410 (N.Y. App. Div. 2005) (“[R]ecitals . . . are not part of the

operative agreement.”); Ross v. Ross, 

, 882 (N.Y. App. Div.

1931) (“The recitals in a contract form no part thereof . . . .”), aff’d sub

nom., Hutchison v. Ross, 

(N.Y. 1933). Courts have treated

clauses that are analogous to the Description language at issue here as the

functional equivalents of recitals. See, e.g., United States v. Hamdi, 

, 123 (2d Cir. 2005) (Sotomayor, J.) (finding that the introductory

section of a plea agreement was a “general prefatory statement,” even

though it used a promissory phrase); Olander v. State Farm Mut. Auto. Ins.

Co., 

, 811 (8th Cir. 2003) (finding that hortatory language in

the preamble to an agreement was effectively a recital); Aramony v. United

Way of Am., 

, 413 (2d Cir. 2001) (finding that a “Purpose of

the Plan” provision of a contract “is analogous . . . to a contract’s ‘whereas’


                                         -11-
clause”); Devan Motors of Fairfield, Inc. v. Infiniti Div. of Nissan N. Am.,

Inc., 

, 313 (D. Conn. 2008) (“The description of a

contract’s purposes is analogous to a ‘whereas’ clause.”); Sengillo v. Valeo

Elec. Sys., Inc., 

, 312 (W.D.N.Y. 2008) (noting that,

under New York law, a clause “which is functionally a recital does not, ‘by

any other name,’ or even in the absence of a clarifying heading, comprise an

enforceable contractual term”), aff’d, 328 F. App’x 39 (2d Cir. 2009).

      The enforceability of prefatory language depends on whether it serves

an operative purpose. In general, prefatory language merely provides

context to explain the purpose of the agreement. See, e.g., 

(stating that recitals “at most indicate . . . the purposes and motives

of the parties”); see also Black’s Law Dictionary 1385 (9th ed. 2009)

(defining the term “recital,” or “whereas clause,” to mean “[a] preliminary

statement in a contract . . . explaining the reasons for entering into it or the

background of the transaction, or showing the existence of particular facts”).

“Although a statement in a ‘whereas’ clause may be useful in interpreting an

ambiguous operative clause in a contract, it cannot create any right beyond

those arising from the operative terms of the document.” Grand Manor

Health Related Facility, Inc. v. Hamilton Equities, Inc., 

,

256 (N.Y. App. Div. 2009); see Trump Vill. Section 3, Inc. v. N.Y. State

Hous. Fin. Agency, 

, 38 (N.Y. App. Div. 2002) (holding


                                          -12-
that the recital clause did not “impose contractual obligations . . . beyond

those specifically set forth in the contract”); Musman v. Modern Deb, Inc.,

, 26 (N.Y. App. Div. 1977) (“Where a recital clause and an

operative clause are inconsistent, the operative clause if unambiguous,

should prevail.”).

      In this action, the first sentence of the Description section is prefatory

language to the specific terms of the CSG. The majority insists that this

sentence is an operative contract term. See Maj. Op. at 30–33. However,

this sentence merely defines the UCC as “a monthly charge to Customers to

recover amounts AT&T must pay into a federal program called the

Universal Service Fund (USF).” Aplt. App. at 1665. This sentence explains

that the purpose of the UCC is to enable AT&T to recover its USF

contributions through the specific amounts collected under the Rates and

Charges section of the CSG. It has no operative contractual effect.

             3.      No Promise

      The first sentence of the Description section also contains no evidence

of a promise. Under New York law, “[a] promise is ‘a manifestation of

intention to act or refrain from acting in a specified way, so made as to

justify a promisee in understanding that a commitment has been made.’”

Merritt Hill Vineyards, Inc. v. Windy Heights Vineyards, Inc., 460 N.E.2d




                                         -13-
1077, 1081 (N.Y. 1984) (quoting Restatement (Second) of Contracts § 2(1)

(1981)).

      In this action, the first sentence of the Description section is not a

promise for at least three reasons. 6 First, this sentence does not express a

manifestation of AT&T’s intent to act in a specified way. The first sentence

provides that the UCC “is a monthly charge to Customers to recover

amounts AT&T must pay into a federal program called the Universal

Service Fund (USF).” Aplt. App. at 1665. As 

Part I.C.2,


      6
               AT&T also argues that the Description section is not a promise
because “the description was . . . required by the FCC’s regulations.” Aplt.
Opening Br. at 33 (arguing that the FCC’s regulations “mandate that all telephone
charges . . . ‘be accompanied’ by a ‘plain language description of the service or
services rendered’”); accord 

39; Aplt. Reply Br. at 9. This argument is
not entirely accurate. At all times relevant to this class action, the FCC required
“[c]harges contained on telephone bills [to] be accompanied by a brief, clear,
non-misleading, plain language description of the service or services rendered.”
47 C.F.R. § 64.2401(b) (emphasis added); see Report and Order, 12 FCC Rcd. at
9212 ¶ 855 (“[I]f [universal service] contributors . . . choose to pass through part
of their contributions and to specify that fact on customers’ bills, contributors
must be careful to convey information in a manner . . . that accurately describes
the nature of the charge.” (emphasis added)). But the truth-in-billing requirement
applies only to customer bills and not to service agreements.

      Even though the truth-in-billing requirement does not apply to service
agreements, this argument supports my interpretation of the CSA and CSG.
Courts have found that declarative statements are not promises when they respond
to suggestions of governmental entities. Cf. 

. The
Description section is just that type of language because—although not required
by the FCC—it responds to the FCC’s concern that telecommunications providers
accurately describe their charges to consumers. Report and Order, 12 FCC Rcd.
at 9211 ¶ 855 (indicating that consumers should receive “complete information
regarding the nature of the universal service contribution”).

                                         -14-
this sentence is merely a declarative statement explaining the nature and

purpose of the UCC. See 

. This sentence also

contains no indication that AT&T would limit its recovery to the USF

contributions attributable to residential consumers, would recover USF

contributions only for a particular time period, would not overcollect its

USF contribution in any given period of time, or would refund any

overcollections. In short, this sentence lacks the specificity to constitute a

promise.

      Second, this sentence lacks any promissory language directed to the

California residential consumers. See Merritt Hill 

(stating that contractual language was not a promise because “[n]o

words of promise [we]re employed”); see also 

(finding that the preliminary language in a plea agreement was not a

promise, even though it used the word “agree,” because the following

numbered paragraphs contained “specific covenants and promises prefaced

by . . . promissory phrases”). In particular, the first sentence of the

Description section contains no words, such as “agree,” “will,” or “shall,”

which are evident in other promises in the CSA and CSG. 7 See, e.g., Aplt.

App. at 1649 (“You agree to pay us for the Services at the prices and


      7
            Although the first sentence does note that AT&T “must pay” the
USF, Aplt. App. at 1665, this promise is not directed at the California residential
consumers.
                                       -15-
charges listed in the AT&T Service Guides.”). Although the specific UCC

in the Rates and Charges section likewise lacks any promissory language,

the CSA uses promissory language that encompasses the specific UCC. See

(“You must pay all . . . charges that we bill you for the Services .

. . .”). In the absence of such promissory language, the first sentence of the

Description section is not a promise.

      Third, the context of the Description section confirms that the first

sentence is not a promise. For example, the second and third sentences

further describe the nature and purpose of the USF. 

(“The USF

helps provide affordable telecommunications services for low-income

customers and customers in rural areas. It also provides discounts on

Internet access for eligible schools, libraries and rural health care

providers.”). This background information identifies the programs and

beneficiaries of universal service support. The California residential

consumers even concede that these two sentences are not independent

promises.

      Although the majority believes that the final sentence undermines the

argument that the first sentence is not a promise, Maj. Op. at 31 n.6, the

final sentence actually supports the notion that the first sentence is prefatory

language. In the final sentence, AT&T provides that it “will revise the

Universal Connectivity Charge if the method and/or amount of its required


                                         -16-
contribution to the USF changes.” Aplt. App. at 1665. Assuming,

arguendo, that this sentence constitutes a promise because of its use of the

word “will,” it only highlights the absence of such promissory language in

the first sentence.

      Based on this interpretation, the first sentence of the Description

section is not an enforceable provision of the contract because it creates no

rights beyond the operative terms of the CSA and CSG. Thus, because the

California residential consumers may not base their breach-of-contract claim

on prefatory language, this claim fails as a matter of law.

      D.     Basic Principles of Contractual Interpretation

      Even assuming, arguendo, that the first sentence of the Description

section constitutes a promise to recover the amount AT&T must pay to the

USF, the majority’s interpretation of the CSA and CSG is still flawed. In

particular, the majority’s decision conflicts with basic principles of

contractual interpretation because it (1) fails to give specific terms greater

weight than general language, (2) adds terms to the description of the UCC,

and (3) reaches a conclusion that is absurd, commercially unreasonable, and

contrary to reasonable expectations. 8

      8
             We need not reach AT&T’s argument that the district court erred by
converting the CSA from an individual agreement with each residential consumer
into an agreement with a class of residential consumers. Although AT&T
advanced the same general theory in its motions for judgment as a matter of law
before the district court, Aplt. App. at 1202 (challenging “plaintiffs’ attempt to
                                                                        (continued...)
                                         -17-
             1.    Specific Contractual Terms

      Under New York law, a basic principle of contractual interpretation is

that specific terms override general language. See, e.g., Bowmer v. Bowmer,

, 762 (N.Y. 1980); accord John Hancock Mut. Life Ins. Co.

v. Carolina Power & Light Co., 

, 669 n.8 (2d Cir. 1983) (“New

York law recognizes that definitive, particularized contract language takes

precedence over expressions of intent that are general, summary, or

preliminary.”); see also Restatement (Second) of Contracts § 203 (1981)

(“In the interpretation of a promise or agreement or a term thereof, . . .

specific terms and exact terms are given greater weight than general

language.”). If the general and specific provisions are inconsistent, “the

specific provision controls.” Muzak Corp. v. Hotel Taft Corp., 

, 690 (N.Y. 1956); accord Aguirre v. City of New York, 

, 598 (N.Y. App. Div. 1995); see also 11 Williston & Lord, supra,

§ 32:10 (“Where general and specific clauses conflict, the specific clause

governs the meaning of the contract.”); 5 Kniffin, supra, § 24.23 (“If the

apparent inconsistency is between a clause that is general and broadly

inclusive in nature and one that is more limited and specific in its coverage,

      8
        (...continued)
transform an individual obligation . . . into a promise about AT&T’s aggregate
collection efforts”); 

(same), its appeal focuses on new arguments.
Thus, I agree with the majority that AT&T forfeited this issue by failing to raise
it before the district court. See Maj. Op. at 38 n.11.

                                        -18-
the more specific term should usually be held to prevail over the more

general term.”); cf. Israel v. Chabra, 

, 380 n.3 (N.Y. 2009)

(noting that “‘the more specific clause controls the more general,’” if the

contractual provisions are irreconcilable) (quoting 11 Williston & Lord,

supra, § 32:15).

      In this action, the specific terms of the Rates and Charges section

override the general language of the Description section. The Rates and

Charges section prescribes that the UCC is a specific percentage of the

consumer’s interstate and international bill. See, e.g., Aplt. App. at 1666.

By contrast, to the extent the Description section is a promise, it uses

general language to limit the UCC to the amount that AT&T must pay into

the USF. 

. Although the sections address the same subject

matter, viz., the amount of the UCC rate, they are inconsistent because they

provide different methodologies to calculate the UCC. Thus, the specific

terms of the Rates and Charges section trump the broad language of the

Description section.

      The majority claims that it has not violated this principle because its

interpretation reconciles these two sections. Maj. Op. at 35–36. Under New

York law, we must interpret a contract “so as to give full meaning and effect

to the material provisions.” Excess Ins. Co. v. Factory Mut. Ins. Co., 

, 771 (N.Y. 2004); accord Beal Savings Bank v. Sommer, 865


                                         -19-
N.E.2d 1210, 1213 (N.Y. 2007) (“A reading of the contract should not

render any portion meaningless.”); see also Restatement (Second) of

Contracts § 203(a) (“[A]n interpretation which gives a reasonable, lawful,

and effective meaning to all the terms is preferred to an interpretation which

leaves a part unreasonable, unlawful, or of no effect.”). The majority

interprets the Description section to require AT&T to “limit its UCC

collections to amounts it was required to pay into the USF” and to

“provide[] a mechanism for changing this rate.” Maj. Op. at 35. On the

other hand, the majority interprets the Rates and Charges section simply to

“define[] the mechanism for collecting funds.” 

Thus, the majority

concludes that these two sections are not irreconcilable because they impose

separate obligations.

      The majority errs because, in “giv[ing] full meaning and effect” to all

of the provisions, it fails to give the specific term greater weight than the

general language. Under New York law, if the specific and general

provisions of a contract are reconcilable, “the specific provisions tend to

restrict the general.” 

; accord Muzak 

(holding that the specific provision trumped the general

provision, even in the absence of any inconsistency between those

provisions); accord 

–14; see OBG Tech. Servs.,

Inc. v. Northrup Grumman Space & Mission Sys. Corp., 503 F. Supp. 2d


                                          -20-
490, 515 (D. Conn. 2007) (applying New York law); see also 11 Williston &

Lord, supra, § 32:10 (“Even absent a true conflict, specific words will limit

the meaning of general words if it appears from the whole agreement that

the parties’ purpose was directed solely toward the matter to which the

specific words or clause relate.”). In direct contrast to this basic principle,

the majority seeks to harmonize these provisions by giving greater weight to

the general language and finding that AT&T would be in breach of the

CSA, even though it charged the specific UCC listed in the CSG. 9

             2.     Added Terms

      Under New York law, “courts may not by construction add or excise

terms, nor distort the meaning of those used and thereby make a new

contract for the parties under the guise of interpreting the writing.”

Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P., 

, 307 (N.Y. 2009) (internal quotation marks omitted). “[C]ourts should

      9
             A more logical interpretation of the CSG would be to recognize that
the specific UCC in the Rates and Charges section restricts or qualifies the
meaning of any general promises in the Description section. See 

. This interpretation would give effect to AT&T’s specific promise
to charge a UCC based on a certain percentage of the consumer’s total interstate
and international bill. This interpretation also would give effect to AT&T’s
general promise in the Description section (assuming that it can be viewed as
such) because it (1) would qualify the promise to collect only those amounts
AT&T contributes to the USF by requiring only that AT&T attempt to balance the
UCC collections against its USF contributions; and (2) would enable AT&T to
amend the UCC calculation methodology, which is necessary to ensure that it
collects enough to pay the fluctuating USF contribution and complies with the
requirement to impose “just and reasonable” charges under 47 U.S.C. § 201(b).

                                          -21-
be extremely reluctant to interpret an agreement as impliedly stating

something which the parties have neglected to specifically include.”

Vermont Teddy Bear Co. v. 538 Madison Realty Co., 

, 879

(N.Y. 2004) (internal quotation marks omitted).

      In this action, the district court improperly added material terms to

the description of the UCC that altered the agreement of the parties. First,

the district court concluded “as a matter of law that the contract

unambiguously provides that AT&T could recover amounts AT&T must pay

into the USF program, and no more.” Aplt. App. at 1607 (emphasis added)

(internal quotation marks omitted). The district court indisputably added the

phrase “and no more” when interpreting the CSA and the CSG. Although

the majority claims that this phrase “merely emphasized the operative

promise” to “collect via the UCC charge those amounts ‘it must pay’ into

the USF,” Maj. Op. at 34, this addition artificially eliminated AT&T’s

flexibility under § 201(b) to collect a reasonable amount—an amount that

could be more or less than its USF contribution in any given time period. A

concession of this magnitude would certainly have produced more fanfare

than is evident from the first sentence of the Description section.

      Second, the district court implied that AT&T had promised to balance

the UCC amounts it recovered with the amounts it was required to pay “over

a reasonable period of time.” Aplt. App. at 1614. The district court claimed


                                         -22-
that it could imply a reasonable time of performance because “not all terms

of a contract need be fixed with absolute certainty.” 

(quoting

Express Indus. & Terminal Corp. v. New York State Dep’t of Transp., 

, 1053 (N.Y. 1999)). The district court interpreted this

“reasonable period of time” to consist of “a period of many billing cycles.” 10

      Under New York law, in certain situations, courts may supply a

reasonable term to a contract. “What constitutes a reasonable time . . .

depends upon the facts and circumstances of the particular case.” Savasta v.

470 Newport Assocs., 

, 1172 (N.Y. 1993). Courts typically

supply a reasonable time period if the contractual performance was

inordinately delayed or the purpose of the contract suggests a reasonable

time frame. See, e.g., 

(holding that a twenty-two month

delay in providing notice of the termination of the partnership was

unreasonable); Haines v. City of New York, 

, 822–23 (N.Y.

      10
             Nothing in the CSA or surrounding circumstances indicates that the
parties agreed to a term of “many billing cycles,” as opposed to some other period
of time. In fact, the California residential consumers admit that “a[ny] defined
period” could potentially constitute a reasonable period. Aplee. Opening Br. at
59. This ambiguity demonstrates that the parties never agreed on a particular
time period over which to balance the collected UCC with AT&T’s USF
contributions. See Restatement (Second) of Contracts § 204 cmt. c (1981)
(“Where there is tacit agreement or a common tacit assumption or where a term
can be supplied by logical deduction from agreed terms and the circumstances,
interpretation may be enough. But interpretation may result in the conclusion that
there was in fact no agreement on a particular point, and that conclusion should
be accepted . . . .”).
                                         -23-
1977) (viewing the surrounding circumstances, in a case involving the

maintenance of a sewage disposal facility, and inferring that a reasonable

period of time was the length of time that the city needed or desired the

water treated at that facility). It is patent that neither circumstance is

present here: there is no issue of inordinate delay and the overarching

telephone-service purpose of the contracts tells us nothing about the

possible nature of any reasonable period for effecting a “true-up” of UCC

charges—why “many billing cycles,” as opposed to a day, week, month,

quarter, year, or the duration of an individual consumer’s contract? And, on

this record, I can discern no reason why it would be appropriate to move

beyond these typical scenarios where the courts have employed reasonable-

time-period inferences. Therefore even assuming, arguendo, that AT&T had

promised to balance the UCC amounts it recovered with its USF

contributions, the district court erred by reading into the contracts a

reasonable time period by which AT&T was obliged to effectuate that

balancing.

             3.     Absurd Results

      “A contract should not be interpreted to produce a result that is

absurd, commercially unreasonable[,] or contrary to the reasonable

expectations of the parties.” Lipper Holdings, LLC v. Trident Holdings,

LLC, 

, 562 (N.Y. App. Div. 2003) (citations omitted);


                                          -24-
accord Fresh Del Monte Produce N.V. v. Eastbrook Caribe A.V.V., 

, 164 (N.Y. App. Div. 2007) (“[A] ‘strange, unnatural and

unreasonable reading of the contract’ should be avoided.”) (citation omitted)

(quoting Fleischmann v. Furgueson, 

, 402 (N.Y. 1918)).

      In this action, the majority interpreted the first sentence of the

Description section as a promise to “‘recover amounts AT&T must pay’ into

the USF program, and no more.” See, e.g., Maj. Op. at 33. This

interpretation would lead to absurd results because AT&T could not

reasonably set a UCC that would recover the exact amount of its USF

contribution, given the fluctuations inherent in the calculation of its

contribution based on historical revenues. See Report and Order II, 17 FCC

Rcd. at 24969 ¶ 30 (noting that, during the relevant time period,

“contributions [we]re assessed on revenues from six months prior”); see

also Aplt. Br. at 13 (stating that in light of the operative contribution

methodology AT&T “would need to charge its customers a USF percentage

rate that (on average) was significantly higher than the contribution factor in

order to recover the amount of the tax [i.e., the USF contribution]”

(emphasis omitted) (citing Aplt. App. at 757)).

      Although the district court suggested that AT&T could refund excess

UCC collections or undercollect the UCC from its consumers, neither of

these alternatives was reasonably contemplated by the parties in the CSA or


                                          -25-
the CSG. To the contrary, other provisions of the CSA and CSG

specifically grant consumers a credit allowance for interrupted service,

indicating that AT&T knew how to provide refunds for overcharged services

and did not intend to do so here. See Aplt. App. at 866, 1652. The absence

of a “true-up” mechanism or similar provision in the CSG likewise suggests

that AT&T assumed no obligation to refund any alleged overpayments of the

UCC. Furthermore, the district court’s proposal that AT&T habitually

undercollect the UCC is unreasonable. As 

note 5, AT&T

was under no regulatory obligation to recover the exact amount of its USF

contributions, “and no more,” because the FCC merely prohibits

telecommunications providers from assessing “unreasonable and unjust”

charges and from “shift[ing] more than an equitable share of USF

contributions to any customer or group of customers.” Thus, the majority’s

interpretation would not yield a commercially reasonable result or a result

that complies with the reasonable expectations of the parties.

II.   Conclusion

      For the aforementioned reasons, I respectfully concur in part and

dissent in part. I concur as to the majority’s conclusions regarding

preemption and the business consumers’ breach-of-contract claim. I am

constrained to dissent, however, as to the majority’s conclusions regarding

the California residential consumers’ breach-of-contract claim. Based on


                                        -26-
my interpretation of the CSA and the CSG, I find no evidence or reasonable

inference showing that AT&T breached the contract by imposing the UCC

on the California residential consumers. Based on these conclusions, I

would remand this matter to the district court and direct it to enter judgment

in favor of AT&T as a matter of law on the California residential

consumers’ breach-of-contract claim.




                                        -27-
09-3059 & 09-3077, Universal Service Fund Telephone Billing Practices
Litigation v. AT&T Corp.

POLLAK, District Judge, dissenting in part.

      I dissent in part because I cannot conclude, as the court does, that the

Federal Communications Act (FCA) contains a preemptive uniformity

principle that could apply to a detarriffed market. The court acknowledges

that “ [t]he precise scope of the uniformity principle set out in §§ 201 and

202, however, is more difficult to ascertain than the scope of the filed-rate

doctrine . . . .” There is a reason that the scope of the doctrine cannot be

ascertained. Detariffed markets are inherently disuniform. In such an

environment, a “uniformity principle” is inherently unworkable.

      The precedents that the court invokes to corroborate its interpretation

of the FCA focused on the fact that, despite the absence of tariffs, carriers

could only charge a single lawful rate, even if that rate was not published

via tariff. See W. Union Tel. Co. v. Esteve Bros. & Co., 

, 573

(1921) (“Since any deviation from the lawful rate would involve either an

undue preference or an unjust discrimination, a rate lawfully established

must apply equally to all, whether there is knowledge of it or not.”); cf.

Postal Tel.-Cable Co. v. Warren-Godwin Lumber Co., 

, 31

(1919) (relying on field preemption to prevent application of state law,

whereas the majority here relies on conflict preemption).
      In the current regulatory environment, charging different rates to

customers may be lawful so long as such rates are not unreasonably

discriminatory. The FCC has abandoned any interpretation of §§ 201 and

202 that would mandate a single lawful rate, as the cases the court relies

upon conclude. See Orloff v. FCC, 

, 420 (D.C. Cir. 2003)

(“Orloff is therefore not entitled to prevail merely by showing that she did

not receive all the sales concessions Verizon gave to some other customers -

that, in other words, Verizon engaged in discrimination. Verizon may still

show that the difference in treatment was reasonable.”). The FCC has not

only abandoned the tariff requirement of § 203, but also the requirement of

§ 1-3 of the Interstate Commerce Act mandating uniformity via a single

lawful rate.

      In a detarriffed environment telecom companies must instead (1)

avoid charging rates that are “unjust or unreasonable” and (2) not engage in

“unreasonable discrimination.” Under the court’s reasoning, §§ 201’s and

202’s uniformity principle should require a single lawful rate. However,

there is no reason to limit this principle to policing the conduct of state

governments, as the cases cited by the court have applied it to private

entities as well. To do otherwise implies that the actions of numerous

telecom companies entering into different terms in order to maximize profit

does not result in disuniformity, but that the efforts of fifty state

                                           -2-
governments to protect consumers located within their borders constitutes

unreasonable discrimination that must be stopped in the name of uniformity

of already disuniform rates. Such a result shows the dissonance needed to

come to the conclusion that any uniformity principle remains.

      Lastly, the uniformity principle cannot be derived from FCC

regulations. The court derives more from the FCC’s order on

reconsideration than is clear from the text of the order. The court assumes

that the FCC was stating its position on preemption under the FCA.

However, the order on reconsideration might described, at best, as nebulous

in regard to the extent of preemption. In response to a question about

preemption, the FCC stated that “the Communications Act continues to

govern determinations as to whether rates, terms, and conditions for

interstate, domestic, interexchange services are just and reasonable, and are

not unjustly or unreasonably discriminatory.” 12 FCC Rcd. 15014, 15056

(F.C.C. 1997) . In that very same paragraph the order states that “[a]s stated

in the Second Report and Order, consumers may have remedies under state

consumer protection and contract laws as to issues regarding the legal

relationship between the carrier and customer in a detariffed regime.” 

the same document, the FCC further states “[w]e also observed

that eliminating the ability of carriers to invoke the ‘filed-rate’ doctrine

benefits consumers by creating a legal relationship that more closely

                                          -3-
resembles the legal relationship between service providers and customers in

an unregulated environment.” 

There is no dispute that the

FCA governs, but federal law can apply without displacing state law, as is

the normal situation in an environment without tariffing. In my view, the

FCC has been manifestly ambiguous as to the extent of preemption.

      Even if the FCC’s recital is read as concluding that state law is

preempted, for that conclusion to merit a measure of deference it is not

enough that the FCC’s mode of arriving at its decision was, as the court

suggests, free of “procedural errors.” There is a further requirement. The

Supreme Court has been at pains to point out that “[t]he weight we accord

the agency’s explanation of state law’s impact on the federal scheme

depends on its thoroughness, consistency, and persuasiveness.” Wyeth v.

Levine, 

, 1201 (2009). I do not find the brief statement in

the order on reconsideration to be thorough, consistent, or persuasive, given

that the FCC has abandoned uniform rates in favor of enforcing an

“unreasonable discrimination” requirement.




                                         -4-