IN THE SUPREME COURT OF THE STATE OF NEVADA
`
`AT&T, A CORPORATION,
`Appellant,
`vs.
`LAS VEGAS RESERVATION SYSTEMS,
`INC., AND LAS VEGAS RESERVATION
`SYSTEMS, D/B/A FLORIDA
`RESERVATION SYSTEMS,
`Respondents.
`
`No. 32552
`
`FIL E
`JUL 16 2002
`JANETTE PA. BLOOM
`CLERK QE.SUPHEUE CWAT
`By
`
`ORDER DENYING PETITION FOR REHEARING
`AND AMENDING PRIOR ORDER
`
`This is a petition for rehearing of a panel decision that
`
`affirmed in part and reversed in part a final judgment in an action
`
`concerning telecommunications, and remanded for a reallocation of
`
`damages.
`
`LVRS disputes the statement in our order that its
`
`counterclaims related to incomplete calls and the termination of service by
`
`AT&T without notice, are "preempted by federal law because they are
`
`derivative of telephone services which are inherently addressed in AT&T's
`
`applicable schedule. Therefore, they are barred by the filed rate doctrine."
`
`LVRS contends: "The fact that a claim is preempted does not mean it is
`
`barred. The only type of claim that is barred [under the filed rate
`
`doctrine] is a claim of promised preferential treatment," and LVRS's
`
`claims were not seeking preferential treatment. LVRS asserts that the
`
`claims are governed by federal law, in this case AT&T's tariff, which
`
`SUPREME COURT
`OF
`
`NEVADA
`
`(0) 1947A
`
`02-12201
`
`

`
`requires a customer seeking consequential damages to prove willful
`
`misconduct. LVRS argues that it proved AT&T's willful misconduct.
`
`We agree with LVRS's assertion that just because a claim is
`
`preempted under federal law, it is not necessarily barred by the filed rate
`
`doctrine. We conclude, however, that LVRS's state-law tort claims
`
`concerning incomplete calls and service termination are preempted under
`
`federal law. Further, assuming these counterclaims could be construed as
`
`federal claims alleging that AT&T violated the tariff, LVRS did not
`
`establish any violation of the tariff provisions. LVRS was not entitled to
`
`relief on these claims. Accordingly, rehearing is not warranted, and our
`
`prior decision that affirmed the judgment concerning the billing claim,
`
`reversed the judgment concerning the incomplete calls and service
`
`termination claims, and remanded for a proper allocation of damages,
`
`should stand.
`
`Nevertheless, we take this opportunity to clarify and amend
`
`our prior order concerning our decision as to these claims. In particular,
`
`we amend our prior order as follows: First, the first full paragraph on
`
`page six, stating "This view appears to be bolstered by . . . (Footnote
`
`added.)" is deleted. Second, the discussion beginning on page nine with
`
`"As to the other counterclaims . . ." and ending with the last sentence on
`
`page ten, which continues over onto page eleven, stating "Further, AT&T
`
`properly raised the issue of subject matter jurisdiction on appeal ... Swan
`
`v. Swan, 106 Nev. 464, 496, 796 P.2d 221, 224 (1990)," shall be replaced
`
`with the following discussion.
`
`SUPREME COURT
`
`OF
`
`NEVADA
`
`(0) 1947A
`
`2
`
`

`
`As to LVRS's other counterclaims related to incomplete calls
`
`and the termination of service without notice, we conclude that these
`
`claims are preempted under federal law. Several courts have held that
`
`state-law contract and tort claims seeking to enforce a common carrier's
`
`obligations under the tariff are preempted under federal law because they
`
`are grounded upon rights found in the tariff. See, e.g., Ivy Broadcasting
`
`Co. v. American Tel. & Tel. Co., 391 F.2d 486 (2d Cir. 1968); Oh v. AT & T
`
`Corp., 76 F. Supp. 2d 551, 556 (D.N.J. 1999) (holding that customers'
`
`state-law contract and tort claims that are grounded upon rights found in
`
`the tariff arise under federal law); In re Long Distance Telecommunication
`
`Litigation, 639 F. Supp. 305 (E.D. Mich. 1986) (dismissing state-law
`
`contract and tort claims as preempted by the FCA); see also Harbor
`
`Broadcasting, Inc. v. Boundary Waters Broadcasters, Inc., 636 N.W.2d
`
`560, 566 (Minn. Ct. App. 2001) (holding that the FCA impliedly preempts
`
`a state-law claim for tortious interference with business expectancy).
`
`In Ivy Broadcasting Co. v. American Telephone & Telegraph
`
`Co., the Second Circuit held that "questions concerning the duties, charges
`
`and liabilities of telegraph or telephone companies with respect to
`
`interstate communications service are to be governed solely by federal law
`
`and ... the states are precluded from acting in this area." 391 F.2d at
`
`491. Thus, state-law claims to enforce the tariff cannot be maintained.
`
`See Cahnmann v. Sprint Corp., 133 F.3d 484 (7th Cir. 1998) (holding that
`
`a suit to enforce or invalidate a tariff arises only under federal law,
`
`precluding state-law claims). In contrast, some state-law claims are not
`
`SUPREME COURT
`OF
`NEVADA
`
`(0) 1947A
`
`3
`
`:Y. ^r•3,^.
`
`.....¢ z ^"-e't x. M'
`
`_.
`
`_. usa
`
`^...^W+.;yeyscc
`
`

`
`preempted when they are completely unrelated to the tariff. Claims that
`
`involve neither the quality of the common carrier's service nor the
`
`reasonableness of its rates are not preempted under federal law. See
`
`Kellerman v. MCI Telecommunications Corp., 493 N.E.2d 1045, 1051 (Ill.
`
`1986).
`
`Here, unlike the billing counterclaim, the incomplete calls and
`
`service termination counterclaims involve the quality of AT&T's service,
`
`which is inherently governed by the tariff. LVRS's pleading referenced an
`
`"agreement," and alleged that AT&T breached its duty to provide proper
`
`service. These claims were clearly governed by the tariff and arose only
`
`under federal law.
`
`To the extent that LVRS sought to enforce AT&T's obligations
`
`under the tariff, it could have brought a federal claim under the tariff. See
`
`47 U.S.C. §§ 201-207 (1994); see also Cahnmann, 133 F.3d at 490.1 LVRS
`
`contends that it did assert its claims for incomplete calls and service
`
`termination under federal law by seeking damages under AT&T's tariff,
`
`which allows an award of consequential damages if AT&T committed
`
`'Even if LVRS's counterclaims alleged that AT&T violated the FCA
`or the tariff, it is questionable whether such an action could be maintained
`in state court. See 47 U.S.C. § 207 (1994) (providing that a person
`claiming to be damaged by a common carrier may either make a complaint
`to the CC or bring a suit for damages in federal district court); compare
`US Sprint Communications Co. v. Computer Generation, Inc., 401
`573 (Ga. Ct. App. 1991) (holding that § 207 allowed concurrent state court
`jurisdiction over a customer's claims under the FCA), with AT & T Corp. v.
`Coeur D'Alene Tribe, 283 F.3d 1156 (9th Cir. 2002) (stating that § 207
`establishes exclusive jurisdiction in the FCC and federal district courts
`and leaves no room for adjudication in tribal or state court).
`
`SUPREME COURT
`
`OF
`NEVADA
`
`(0) 1947A
`
`M
`
`0
`
`4
`
`M
`
`

`
`willful misconduct. Specifically, the portion of the tariff limiting AT&T's
`
`liability for damages provides:
`
`The Company's liability, if any, for its willful
`misconduct is not limited by this tariff. With
`respect to any other claim or suit, by a Customer
`or by any other, for damages associated with the
`installation, provision, termination, maintenance,
`repair or restoration of WATS, and subject to the
`provisions
`of B.
`the
`through G.
`following,
`Company's liability, if any, shall not exceed the
`amount equal to the monthly recurring charge
`provided for under this tariff for Custom 800
`Services or, in the case of AT&T 800 Service and
`AT&T WATS, the monthly charge for access lines
`therewith.
`
`LVRS argues that in order to recover consequential damages under the
`
`tariff, it needed to prove only that AT&T engaged in willful misconduct.
`
`LVRS's argument is unpersuasive. In order to seek relief
`
`through the tariff's willful misconduct provision, LVRS first had to prove
`
`that AT&T violated or breached its duties under the tariff. The willful
`
`misconduct provision does not create a separate cause of action. It merely
`
`removes the limitation on damages LVRS may recover under the tariff to
`
`the extent that AT&T engaged in willful misconduct when violating the
`
`tariff' s provisions . Thus, if LVRS' s counterclaims for incomplete calls and
`
`service termination were brought under the tariff, as LVRS maintains,
`
`then LVRS had the burden of demonstrating that AT&T violated the
`
`tariff's provisions concerning the provisioning and termination of service.
`
`Only then could LVRS obtain consequential damages if it proved that the
`
`SUPREME COURT
`OF
`
`NEVADA
`
`(0) 1947A
`
`5
`
`

`
`violation constituted willful misconduct.
`
`In other words, without a
`
`violation of the tariff, the willful misconduct provision did not apply.
`
`On appeal, LVRS identifies no trial evidence establishing that
`
`AT&T violated any specific terms of the tariff concerning AT&T's duties
`
`as to the provisioning and termination of service. LVRS argues that it
`
`presented ample evidence to the jury that the incomplete calls problem
`
`and the termination of service without notice resulted from AT&T's willful
`
`misconduct. LVRS points to evidence that AT&T willfully refused to make
`
`an effort to correct the incomplete call problems after promising to do so,
`
`and terminated LVRS's service without notice after promising not to do so.
`
`But LVRS introduced no evidence connecting these promises to AT&T's
`
`obligations under the tariff concerning the provisioning and termination of
`
`service.
`
`Further, our independent review of the record before us
`
`reveals no substantial evidence that AT&T violated any provision of the
`
`tariffs requirements concerning incomplete calls and service termination.
`
`See Prabhu v. Levine, 112 Nev. 1538, 1543, 930 P.2d 103, 107 (1996)
`
`(stating that the jury's findings will be upheld if supported by substantial
`
`evidence). In particular, LVRS introduced no evidence of what the tariff
`
`provided as to AT&T's obligation in correcting incomplete calls and
`
`providing notice before terminating service.2
`
`2While it appears that the liability portion of the tariff concerning
`willful misconduct was introduced at trial, the parties maintain that the
`entire tariff was not produced.
`
`SUPREME COURT
`OF
`
`NEVADA
`
`(0) 1947A
`
`6
`
`

`
`It appears that LVRS introduced no evidence at trial of the
`
`tariffs requirements concerning the provisioning and termination of
`
`service because it took the position that the tariff did not apply. At the
`
`time of trial, LVRS pursued what appeared to be viable state-law claims
`
`concerning the provisioning and termination of service under the Ninth
`
`Circuit's decision in Central Office Telephone v. American Telephone and
`
`Telegraph Co., 108 F.3d 981, 990 (9th Cir. 1997), rev'd, 524 U.S. 214
`
`(1998).
`
`In that case, the Ninth Circuit held the filed rate doctrine
`
`inapplicable to claims involving billing and the provisioning of service. In
`
`essence, LVRS's position below was that it did not have to prove AT&T's
`
`liability in accordance with the tariff. After trial, however, the United
`
`States Supreme Court reversed the Ninth Circuit's decision in Central
`
`Office Telephone, and held that , the filed rate doctrine barred claims
`
`concerning billing and the provisioning of services, as those subjects are
`
`covered by the tariff. See 524 U.S. at 223-26. Consequently, LVRS was
`
`relegated to its current position that it did assert its claims under federal
`
`law by seeking damages under the tariff. But because claims for breach of
`
`the tariff would require evidence of what the tariff provided concerning
`
`the provisioning and termination of service, the result was a fatal lack of
`
`evidence showing any violation of the tariff.
`
`Based on our conclusion that LVRS failed to establish that
`
`AT&T violated the tariff, we need not decide whether LVRS's claims are
`
`barred by the filed rate doctrine. However, to the extent that LVRS's
`
`claims seek to enforce promises that impose on AT&T greater duties than
`
`SUPREME COURT
`
`OF
`
`NEVADA
`
`(0) (947A
`
`II
`
`7
`
`M
`
`

`
`those defined in the tariff, the claims would be barred under the filed rate
`
`doctrine, even if AT&T's actions constituted willful misconduct.
`
`See
`
`Central Office Telephone, 524 U.S. at 228.
`
`Accordingly, we conclude that LVRS's counterclaims for
`
`incomplete calls and service termination without notice are preempted
`
`under federal law. Even assuming that these claims asserted a violation
`
`of the tariff under federal law, LVRS failed to establish that AT&T
`
`violated the tariff provisions. Thus, these counterclaims necessarily fail.
`
`It is so ORDERED.
`
`J
`
`J.
`
`&CLV<_
`Becker
`
`cc:
`
`Hon. Jack Lehman, District Judge
`Blalock & Associates
`Lionel Sawyer & Collins/Las Vegas
`Marquis & Aurbach
`Clark County-Clerk
`
`SUPREME COURT
`
`OF
`
`NEVADA
`
`(0) 1947A
`
`8
`
`

`
`MAUPIN, C.J., concurring:
`
`I write separately to comment upon the scope of proceedings
`
`on remand.
`
`The district court signed the following order denying post-trial
`
`motions for judgment notwithstanding the verdict, to alter or amend
`
`judgment, for relief from judgment, for rehearing, and for new trial:
`
`[AT&T] having filed the above-referenced
`post-trial motion[s] and good cause appearing
`therefor,
`
`IT IS HEREBY ORDERED that all of the
`foregoing motions be, and the same hereby are,
`denied. The basis for this denial is as follows:
`AT&T's reliance on AT&T v. Central Office
`Telephone, Inc., [524 U.S. 214 (1998)] is misplaced
`in that the case is factually distinguishable from
`the matter at hand. Unlike the respondent in
`Central Office Telephone, Las Vegas Reservation
`Systems' ("LVRS") claims in this case were not
`based on promised services beyond those specified
`in the tariff, but rather on AT&T's willful
`misconduct, as found by the jury, in distributing
`Defendant's trade secrets to its competitors via
`monthly statements and reports. LVRS's claims
`are not even related to the underlying purpose of
`the filed-rate doctrine, which is to prevent the
`exercise of discriminatory preferences in the
`communications industry.
`Furthermore, unlike
`the respondent in Central Office Telephone,
`LRVS's tort claim was not derivative of any
`contract claim.
`
`This order seemingly avoids the application of the Supreme
`
`Court decision in Central Telephone by characterizing the entire claim for
`
`damages as having been based solely on the billing claim, not the
`
`incomplete calls or termination claims. However, because the jury
`
`rendered a general damage verdict on all three claims, and in light of our
`
`SUPREME COURT
`
`OF
`
`NEVADA
`
`(0) 1947A
`
`

`
`ruling with regard to the latter two claims, we have ordered further
`
`proceedings on remand to determine how much of the damages proved
`
`relate to the billing claim. Thus, the order of remand in this case
`
`impliedly overturns the language of the district court's order that restricts
`
`the claim for damages to the billing claim
`
`.'
`
`;;^e 117
`Maupin
`
`J.
`
`'LVRS did not contend on appeal that the damages awarded were
`restricted to the billing claim, which we have determined was not barred
`under the filed rate doctrine. Rather, LVRS defended the total award
`below on the grounds that none of the three claims offended the filed rate
`doctrine.
`
`SUPREME COURT
`
`OF
`
`NEVADA
`
`(0) 1947A
`
`2
`
`

`
`IN THE SUPREME COURT OF THE STATE OF NEVADA
`
`No. 32552
`
`AT&T, A CORPORATION,
`
`Appellant,
`
`vs.
`
`LAS VEGAS RESERVATION SYSTEMS,
`INC.; AND LAS VEGAS RESERVATION
`SYSTEMS, D/B/A FLORIDA RESERVATION
`SYSTEMS,
`
`AUG 10 2000
`JANE TTE M BLOOM
`4E5K-qF SQPREME FOURI
`
`Respondents.
`
`ORDER AFFIRMING IN PART, REVERSING IN PART AND REMANDING
`
`This is an appeal from a final judgment and post-
`
`judgment
`
`order
`
`in
`
`an
`
`action
`
`regarding
`
`telecommunication
`
`services.
`
`Respondents, Las Vegas Reservation Systems, Inc. and
`
`Las
`
`Vegas
`
`Reservations Systems,
`
`D/B/A
`
`Florida
`
`Reservation
`
`Systems (collectively referred to as "LVRS"), booked hotel
`
`reservations in Las Vegas for tourists using toll-free 1-800
`
`numbers.
`
`AT&T was the 1-800 provider for LVRS.
`
`During the
`
`course of AT&T's relationship with LVRS, AT&T merged LVRS's
`
`bill with the bill of LVRS's business competitor, Central
`
`Reservation Systems ("CRS"), and sent the entire bill to CRS.
`
`This billing merger took place over a period of approximately
`
`four months and resulted in the failure of LVRS to receive its
`
`billing for that time frame.
`
`LVRS contends that the merging of its bills with
`
`those
`
`of
`
`CRS
`
`resulted
`
`in
`
`the
`
`release
`
`of
`
`confidential
`
`proprietary information, which CRS was then able to utilize to
`
`profit and damage LVRS's business.
`
`LVRS also contends that
`
`AT&T's failure to provide monthly billing statements deprived
`
`LVRS of vital ongoing marketing information.
`
`Aside from the
`
`billing problem, LVRS also experienced technical problems with
`
`Q,^ o^ ^t(o 1O2.
`9C-
`
`,-q% 11
`
`tin - i-J^AR5
`
`

`
`the services provided by AT&T, which included a high number of
`
`incomplete calls.'
`
`Approximately fifteen months after these problems
`
`arose , AT&T cancelled LVRS' s service and sued LVRS based on
`
`LVRS's
`
`failure
`
`to
`
`pay
`
`its
`
`billing
`
`statements.
`
`LVRS
`
`counterclaimed,
`
`seeking damages for AT&T's alleged improper
`
`termination of LVRS' s service , AT&T's failure to correct the
`
`problems that resulted in incomplete calls, and AT&T's alleged
`
`intentional breach of its duty of care to LVRS as manifested
`
`by AT&T' s merging of LVRS's and CRS's bills.
`
`The matter proceeded to trial and both parties
`
`prevailed on their respective claims.
`
`AT& T
`
`was
`
`awarded
`
`$94,785.00 against LVRS, and LVRS was awarded $500,000.00 on
`
`its counterclaims.
`
`LVRS was also awarded prejudgment interest
`
`and court costs in the amount of $126,057.93, for a total net
`
`award to LVRS in the amount of $531,272.93.
`
`Subsequent to trial, the United States Supreme Court
`
`reversed a Ninth Circuit
`
`case
`
`upon which LVRS relied to
`
`sustain its counterclaims against AT&T.
`
`AT&T now appeals,
`
`asserting that the judgment in favor of LVRS was incorrect as
`
`a matter of law. AT&T also contends that the damage award in
`
`favor of LVRS was not supported by substantial evidence of
`
`causation and that the district court erred in failing to
`
`instruct
`
`the
`
`jury
`
`that
`
`it
`
`could
`
`not
`
`award
`
`damages
`
`for
`
`emotional distress.
`
`We address each of these contentions
`
`separately below.2
`
`AT&T is a "common carrier" under 47 U.S.C. § 153
`
`(10)
`
`(Supp. 1999).
`
`Therefore, AT&T is subject to Title II of
`
`the Federal Communications Act ("FCA").
`
`Section 203 of the
`
`'LVRS defines incomplete calls as calls where the caller
`receives a busy tone or where the line continually rings.
`
`2On appeal, neither party takes issue with the award of
`$94,785.00 in favor of AT&T.
`
`2
`
`

`
`FCA requires all common carriers to file "schedules," also
`
`referred to as "tariffs," with the Federal Communications
`
`Commission ("FCC").
`
`These schedules list all of the common
`
`carrier's
`
`charges
`
`for
`
`services
`
`and
`
`all
`
`classifications,
`
`practices
`
`and
`
`regulations
`
`that
`
`affect
`
`the
`
`charges.
`
`The
`
`schedule forms the basis of any agreement for services between
`
`a common carrier and another party.
`
`See Cahnmann v. Sprint
`
`Corp., 133 F. 3d 484, 487 (7th Cir. 1998).
`
`Deviation from the
`
`schedule is not permitted.
`
`Id.
`
`Thus,
`
`even if a common
`
`carrier intentionally misrepresents its rates and a customer
`
`relies on the misrepresentation, the common carrier cannot be
`
`held to a promised rate if it conflicts with the applicable
`
`schedule.
`
`See American Telephone and Telegraph Co. v. Central
`
`Office Telephone, Inc., 524 U.S. 214, 222 (1998).
`
`This scheduled format provides the foundation for
`
`what is called the "filed rate doctrine." The purpose of the
`
`filed rate doctrine is two-fold: to preserve the FCC's primary
`
`jurisdiction in the area of telecommunications and to ensure
`
`nondiscriminatory and reasonable rate setting.
`
`Id.
`
`(citing
`
`Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 577-78
`
`(1981)); see also Fax Telecommunicaciones, Inc. v. AT&T, 138
`
`F.3d 479, 489 (2d Cir. 1998); Gelb v. AT&T, 813 F. Supp. 1022,
`
`1027 (S.D.N.Y. 1993); Day v. AT&T Corp., 74 Cal. Rptr. 2d 55,
`
`62 (Ct. App. 1998).
`
`In American Telephone & Telegraph Co. v. Central
`
`Office Telephone, Inc., 108 F.3d 981 (9th Cir. 1997), rev'd,
`
`524 U.S. 214 (1998), the United States Court of Appeals for
`
`the Ninth Circuit determined that the filed rate doctrine was
`
`inapplicable to a billing and provisioning claim brought under
`
`state law theories of contract and tort because the billing
`
`option chosen by the plaintiff in that case was not covered by
`
`the applicable schedule.
`
`Central Office Telephone, 108 F.3d
`
`(O)-M1B92
`
`3
`
`

`
`at 990.
`
`The United States Supreme Court, however, reversed
`
`the
`
`Ninth
`
`Circuit,
`
`holding
`
`that
`
`rates
`
`cannot
`
`exist
`
`in
`
`isolation.
`
`See Central Office Telephone, 524 U.S. at 223.
`
`According
`
`to
`
`the
`
`United
`
`States
`
`Supreme
`
`Court,
`
`even
`
`provisioning
`
`and
`
`billing
`
`are
`
`covered
`
`by
`
`the
`
`filed
`
`rate
`
`doctrine because "[a]ny claim for excessive rates can be
`
`couched as a claim for inadequate services and vice versa."
`
`Id.
`
`The Supreme Court observed that a carrier could defeat
`
`the premise of the filed rate doctrine by providing additional
`
`services at no additional charge.
`
`Therefore,
`
`the Supreme
`
`Court concluded that billing is inherently related to the
`
`scope of the filed rate doctrine because billing provides the
`
`basis
`
`for
`
`the
`
`classifications,
`
`practices,
`
`and
`
`regulations
`
`affecting charges.
`
`Id. (citing 47 U.S.C. § 203(a)).
`
`Here, at the trial level, AT&T asserted that it had
`
`special protection against the counterclaims brought by LVRS
`
`based on the filed rate doctrine.
`
`Accordingly, AT&T asserted
`
`that it could not be liable for consequential damages related
`
`to
`
`its
`
`service
`
`unless
`
`AT&T
`
`was
`
`found guilty of willful
`
`misconduct pursuant to AT&T's filed schedule.
`
`LVRS however,
`
`asserted that AT&T's position was explicitly rejected by the
`
`United States Court of Appeals for the Ninth Circuit in
`
`American
`
`Telephone
`
`&
`
`Telegraph
`
`Co.
`
`V.
`
`Central
`
`Office
`
`Telephone,
`
`Inc.,
`
`108 F.3d 981 (9th Cir. 1997), which was
`
`presumptively valid at the time that the parties' dispute was
`
`litigated, because the problems at issue did not involve rate
`
`or
`
`rate
`
`setting.
`
`Accordingly,
`
`LVRS maintained that its
`
`counterclaims were not covered by the filed rate doctrine.
`
`As noted, both parties prevailed on their claims at
`
`trial.
`
`However,
`
`given that Central Office Telephone was
`
`reversed by the United States Supreme Court, AT&T filed a
`
`motion for judgment notwithstanding the verdict, to alter or
`
`(0)4892
`
`4
`
`

`
`amend the judgment or relief from judgment, for rehearing, and
`
`for a new trial based on the Supreme Court's ruling.
`
`The district court denied AT&T's motion on the basis
`
`that
`
`the
`
`matters
`
`were
`
`factually
`
`distinguishable.
`
`Specifically, the district court determined that unlike the
`
`respondent in Central Office Telephone, LVRS's counterclaims
`
`were not based on promised services beyond those specified in
`
`the
`
`applicable
`
`schedule,
`
`but
`
`rather
`
`on
`
`AT&T's
`
`willful
`
`misconduct in distributing LVRS's trade secrets to LVRS's
`
`competitor.
`
`The district court further found that LVRS's
`
`counterclaims were not related to the underlying purpose of
`
`the filed rate doctrine, which is to prevent discriminatory
`
`preferences in the communications industry, and that, unlike
`
`the respondent in Central Office Telephone, LVRS's tort claim
`
`was not derivative of any contract claim.
`
`DISCUSSION
`
`The issue of whether state law claims related to
`
`telecommunications are completely preempted by federal law
`
`pursuant to the filed rate doctrine has been contested in the
`
`federal courts for many years.
`
`As provided by the United
`
`States District Court for the District of New Jersey, "the
`
`jurisprudence regarding the continued existence of state law
`
`claims in the face of the FCA is complex." Oh v. AT&T, 76 F.
`
`Supp. 2d 551, 554 (D.N.J. 1999).
`
`Recent cases, however, make it clear that a claim
`
`will arise from federal law when it concerns any rights
`
`derived from a schedule (or tariff) itself.
`
`See id. at 555
`
`(citing MCI Telecommunications Corp. v. Teleconcepts, Inc., 71
`
`F.3d 1086, 1093-96 (3d Cir. 1995)); see also Duggal v. Future
`
`Telecom, Inc., No. B125295, 2000 WL 696065, at *9 (Cal. Ct.
`
`App. 2 Dist. May 31, 2000) (holding that claims asserted under
`
`state law, but which arise from a filed schedule, are barred
`
`(0)4892
`
`5
`
`

`
`by the filed rate doctrine); Cahnmann v. Sprint Corporation,
`
`133
`
`F.3d
`
`484,
`
`488
`
`(7th
`
`Cir.
`
`1998)
`
`(holding
`
`that
`
`FCA
`
`extinguishes the right to bring state law claims when the
`
`effect of the suit would be to challenge a tariff).
`
`§ 20
`
`f the FCA, which states:
`
`9(9
`
`Any
`
`person claiming to be damag
`y
`subject
`the
`carrier
`on
`any
`ither make
`f this chapter ma
`provisions
`as
`ommission
`the
`a
`complaint
`to
`or may bring
`r,
`hereinafter provi
`of the damages for
`suit for the reco
`may be liable
`n carrie
`which such co
`_chapter, in
`under the
`visions of thi
`ates of
`any di
`ict court of the United
`os son
`Wd-tent jurisdiction; but such
`co
`all not have the right to pursue bo
`such remedies.3
`
`d
`
`(Feet eto
`
`This does not mean that federal law preempts all
`
`state claims.
`
`See Fax Telecommunicaciones Inc. v. AT&T, 138
`
`F.3d 479, 486 (2d Cir. 1998) (quoting Marcus v. AT&T, 138 F.3d
`
`46, 54 (2d Cir. 1998)) (holding that "'federal common law does
`
`not completely preempt state law claims in the area of
`
`telecommunicationsf").
`
`For example, the United States Court
`
`of Appeals for the Second Circuit has held that, just because
`
`an appellant's claims concern rates and billing practices of a
`
`carrier, such claims do not afford a basis for removal to
`
`federal court.
`
`Id.
`
`(citing Metropolitan Life Ins. Co. v.
`
`Taylor, 481 U.S. 58, 66 (1987) (recognizing an analysis of
`
`manifested Congressional intent when questioning preemption).
`
`The United States Court of Appeals for the Fifth Circuit also
`
`3Contrary to LVRS's contention that a state claim may be
`pursued based on the usage of the word "may," a plain reading
`of
`this provision indicates that only two remedies are
`available and that a litigant may choose from one of the two.
`See Union Plaza Hotel v. Jackson, 101 Nev. 733, 736, 709 P.2d
`1020, 1022 (1985) (holding that when a statute is clear on its
`face, the court is not empowered to go beyond the face of the
`statute to lend it a construction contrary to its clear
`meaning).
`
`(o)A892
`
`6
`
`

`
`distinguishes
`
`claims
`
`regarding
`
`the
`
`provision
`
`of
`
`services
`
`covered by a schedule and those outside the scope of a
`
`schedule and not derivative of any phone services. See Access
`
`Telecom,
`
`Inc.
`
`v.
`
`MCI,
`
`197 F. 3d 694, 711 (5th Cir. 1999).
`
`Additionally, Bauchelle v. AT&T, 989 F. Supp. 636, 643 (D.N.J.
`
`1997), holds that not all claims that implicate the practice
`
`of a regulated common carrier are governed by federal law.
`
`As an alternative analysis, several other courts
`
`have looked to the saving clause of the FCA for guidance on
`
`the
`
`question
`
`of
`
`whether
`
`telecommunications
`
`claims
`
`are
`
`completely preempted.
`
`These courts have concluded that state
`
`law
`
`remedies
`
`that
`
`do
`
`not
`
`interfere
`
`with
`
`the
`
`federal
`
`government's authority over interstate telephone charges or
`
`services, and which do not otherwise conflict with an express
`
`provision of the FCA, are preserved by the saving clause.4
`
`See In Re Long Distance Telecommunications Litigation v. ITT-
`
`US Transmission, 831 F.2d 627, 634 (6th Cir. 1987) (holding
`
`that the saving clause applies to state law claims that are
`
`not
`
`inconsistent,
`
`and which can co-exist with the FCA);
`
`Kellerman v. MCI Telecommunications Corp., 493 N.E.2d 1045,
`
`1051, cert. denied, 479 U.S. 949 (1986); see also Cooperative
`
`Communications Inc. v. AT&T, 867 F. Supp. 1511, 1516 (D. Utah
`
`1994) (holding that independent state claims not arising under
`
`the FCA may stand based on the saving clause of the FCA).
`
`The limited issue presented by the parties on appeal
`
`is whether the district court's order should stand based on
`
`the United States Supreme Court's holding in Central Office
`
`4The saving clause provides: "Nothing in this chapter
`contained shall in any way abridge or alter the remedies now
`existing at common law or by statute, but the provisions of
`47 U.S.C. §
`this chapter are in addition to such remedies."
`414 (1982).
`
`7
`
`

`
`Telephone.5
`
`In essence, Central Office Telephone mirrors the
`
`above conclusions of the federal courts, and clarifies them by
`
`recognizing billing practices as a reflection of provided
`
`services, thus allowing a billing and provisioning claim to
`
`fall within the confines of the filed rate doctrine.
`
`This
`
`case,
`
`however,
`
`is
`
`distinguishable,
`
`as
`
`the billing problem
`
`complained of is not related to AT&T's product services, but
`
`is instead a merging of competitors' bills by AT&T, an
`
`incident that in no way relates to the services presumably
`
`articulated in AT&T's schedule.6
`
`Accordingly,
`
`we conclude that LVRS's counterclaim
`
`regarding the billing problem is not completely preempted by
`
`federal law pursuant to the filed rate doctrine because it
`
`concerns an action by AT&T that is outside the scope of the
`
`applicable schedule and not derivative of any phone services.
`
`See Access Telecom, 197 F.3d at 711.
`
`Additionally,, the
`
`original purpose of the filed rate doctrine was "to prevent
`
`the utility or carrier from discriminating in price or service
`
`among its customers."
`
`Cahnmann v. Sprint Corporation, 133
`
`5AT&T raises this issue by purporting to appeal from the
`district court's post-judgment order denying AT&T's motion for
`judgment notwithstanding the verdict, to alter or amend the
`judgment, for relief from judgment for rehearing, and for a
`new trial.
`AT&T is precluded from appealing the district
`court's denial of AT&T's motion for judgment notwithstanding
`the verdict and AT&T's motion to alter or amend the judgment.
`Uniroyal Goodrich Tire Co. v. Mercer, 111 Nev. 318, 320 n.l,
`890 P.2d 785, 790 n.l (1995).
`AT&T may appeal the district
`court's denial of AT&T's motion for a new trial and AT&T's
`motion for relief from judgment filed pursuant to NRCP 60(b).
`However, in its briefs, AT&T fails to specifically address the
`district court's denial of its motion for relief from judgment
`and motion for a new trial.
`See SIIS v. Buckley, 100 Nev.
`376, 382, 682 P.2d 1387, 1390 (1984) (holding that this court
`need not consider conclusory arguments which fail to address
`the issues in the case). However, because the issue raised by
`AT&T on appeal is one of subject matter jurisdiction that can
`be addressed at any time by motion of either party, or sua
`sponte by the court, we will address the jurisdiction issue.
`Swan v. Swan, 106 Nev. 464, 496, 796 P.2d 221, 224 (1990).
`
`6Neither party has provided this court, nor the district
`court, with a complete copy of the applicable schedule.
`
`8
`
`

`
`F.3d 484, 487 (7th Cir. 1998). The billing complaint brought
`
`forth by LVRS is wholly independent of the purpose of the
`
`filed
`
`rate
`
`doctrine
`
`and
`
`having
`
`allowed
`
`the
`
`billing
`
`counterclaim to proceed in state court did not have the effect
`
`of altering the uniformity of service standards provided by
`
`common carriers.
`
`Therefore, judgment on the claim relating to
`
`the merging of LVRS's bill with those of CRS shall be upheld
`
`as a state claim.
`
`Although
`
`the
`
`Central
`
`Office
`
`Telephone
`
`majority
`
`opinion does not explicitly support this conclusion, Chief
`
`Justice Rehnquist, in concurrence, observed that the "filed
`
`rate doctrine's purpose is to ensure that the filed rates are
`
`the exclusive source of the terms and conditions by which the
`
`common carrier provides to its customers the services covered
`
`by the tariff.
`
`It does not serve as a shield against all
`
`actions based on state law."
`
`Central Office Telephone, 524
`
`U.S. at 230-31.
`
`As to the eta cou a claimss related to ;Lnr-Qmp1Qt--
`
`ca
`
`s and the termination of service by AT&T without notic
`
`LVRS,
`
`conclude that these claims are preempted by ederal
`
`law because they are derivative of telephone se ices which
`
`are
`
`inherently
`
`addressed
`
`in
`
`AT&T's
`
`appl' able
`
`schedule.
`
`Therefore, they are arred by the file rate doctrine.
`
`See
`
`Central Office Telephpfie ,
`
`the Supreme',-,Court ruled that the
`
`filed rate doctr' e preempts claims concer 'ng services that
`
`are offered); Oh v. AT&T, 76 F. Supp. 2d. 551 D.N.J. 1999)-
`
`(holding
`
`hat where the thrust of a claim is the fai ure of a
`
`par
`
`to live up to its tariff obligations, state law c ims
`
`rise
`
`under
`
`federal
`
`law);
`
`see
`
`also
`
`Telecom Internationa
`
`101-4892
`
`9
`
`

`
`"the complete preempti
`manifes
`ss
`has
`clearly
`w claims in a particular f
`6, 54 (2d Cir. 1998) . To da
`preemption doctrine has been 1
`by the United States Supreme
`bor Management Relations Act by a
`mployer under a collective bargainin
`ht by a beneficiary under the Employmen
`nce Security Act; and certain Indian gra
`believe that our holding in this matter
`with the limited scope of the complete p
`e as we recognize the continued existence of
`claims due to the FCA's saving clause.
`See
`tor Service Providers of America ,
`6 F.C.C.R. 4475,
`1)
`(holding