                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS                             \

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            JUNE 27, 2008
                             No. 07-12686
                                                          THOMAS K. KAHN
                       ________________________               CLERK

                D. C. Docket No. 06-00445-CV-4-SPM-WCS

RODGER PFEIL,
CAROL PFEIL,


                                                      Plaintiffs-Appellants,

                                  versus

SPRINT NEXTEL CORPORATION,
                                                      Defendant,

EMBARQ FLORIDA, INC., d/b/a Sprint Florida,

                                                      Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      _________________________


                              (June 27, 2008)
Before EDMONDSON, BLACK and FARRIS,* Circuit Judges.

PER CURIAM:

       Rodger and Carol Pfeil brought a putative class action against Embarq,

arguing that it misrepresented the price of its Vacation Rate Service by charging

customers an interstate access surcharge. The district court dismissed the

complaint under the filed rate doctrine, which prohibits customers from

challenging filed tariffs in state or federal court. We affirm.

                                               I

       Sprint Nextel Corporation provides local telephone service to individual

customers and businesses in Florida through Embarq Florida, Inc. d/b/a Sprint

Florida. Embarq offers a product called Vacation Rate Service, which allows

customers with local telephone service in Florida to place their accounts in a

dormant status without terminating their phone service or losing their phone

number. While subscribing to Vacation Rate Service, calls may not be placed to

or from the subscriber’s location. However, “[a]t the request of the subscriber,

inward calls to a station at which service is suspended may be referred to the call




       *
        The Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit Court of
Appeals, sitting by designation.

                                               2
number of another station in the same or a distant exchange.” General Exchange

Tariff, Sec. A2, First Revised Sheet 27, ¶ C.14.a.3.

      This litigation arose because Embarq charges its Vacation Rate Service

subscribers a monthly interstate access surcharge, alternatively known as the “End

User Common Line” and the “Subscriber Line Charge.” On August 25, 2006,

Rodger and Carol Pfeil filed a class action complaint against Sprint and Embarq in

Florida state court, arguing (1) that Embarq did not disclose that Vacation Rate

Service subscribers would be assessed the $6.50 interstate access surcharge and

(2) that the surcharge was not disclosed in its Federal or State tariffs. The Pfeils

asserted claims including breach of contract, fraud, and violation of the Florida

Deceptive and Unfair Trade Practices Act. Embarq removed the action to the

United States District Court for the Northern District of Florida, and the Pfeils

filed an amended complaint in federal court stating the same claims as their

original complaint.

      Embarq moved to dismiss, arguing that the Pfeils’ claims for monetary and

equitable relief were barred under the filed rate doctrine. The district court

granted Embarq’s motion and the Pfeils timely appealed.

                                          II




                                          3
      The district court’s dismissal of a complaint under Rule 12(b)(6) is

reviewed de novo. Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1187

(11th Cir. 2002).

                                           III

      “[T]he filed rate doctrine dictates that the rates a carrier charges its

customers, once filed with and approved by the FCC, become ‘the law’ and

exclusively govern the rights and liabilities of the carrier to the customer.” Hill v.

Bellsouth Telecomm., Inc., 364 F.3d 1308, 1315 (11th Cir. 2004). Under the

doctrine, carriers are forbidden from charging rates other than those set out in the

tariff, and “customers are also charged with notice of the terms and rates set out in

that filed tariff and may not bring an action against a carrier that would invalidate,

alter or add to the terms of the filed tariff.” Id. The doctrine applies to tariffs that

are filed with state or federal agencies. Taffet v. Southern Co., 967 F.2d 1483,

1494 (11th Cir. 1992).

      There is no dispute that the Pfeils’ claims for damages would be barred if

the state or the federal tariff authorized the application of the interstate access

surcharge to vacation service. The Pfeils, however, argue that the terms of the

tariffs do not authorize the application of the surcharge to vacation service. We

reject the argument.

                                           4
                                          A

       The district court based its holding that the filed rate doctrine precluded

recovery solely on language in the state tariff. The Pfeils argue, in response, that

the state tariff expressly prevents the interstate access surcharge from being

applied to vacation service. Neither position is tenable.

       The state tariff states that:

       The monthly charge for residence and business access lien services will be
       billed at the following % of the tariff rate, excluding taxes and surcharges
       e.g. [Subscriber Line Charge], 911 and USF.
              a) Residence/Business Access Line only[:] 50%.

General Exchange Tariff, Section A2, First Revised Sheet 28 ¶ C.14.b.1. The

Pfeils argue that the use of the word “excluding” indicates that the Subscriber Line

Charge is excluded from the vacation service recipient’s bill. This reading is

contrary to the plain language of the provision. As the district court correctly

concluded, this provision does not mean that all taxes and surcharges are excluded

from the vacation rate. Rather, it means that the vacation rate is calculated by

halving the base monthly charge. Appropriate taxes and surcharges are then added

to that half.

       The district court erred, however, in assuming that the interstate access

surcharge should be added back to the vacation rate. The provision does not



                                           5
indicate which taxes and surcharges to add back. To answer this question, we

must look to the federal tariff.

                                           B

      The federal tariff authorizes Embarq to charge a monthly $6.50 interstate

access surcharge on “[e]nd users who obtain local exchange service from the

Telephone Company under its general and/or local exchange tariffs.” Tariff

F.C.C. No. 1, ¶4, 4.7. Embarq’s General Exchange Tariff for the State of Florida

defines “local exchange service” as “[t]he general telephone service, provided

under a specified schedule of rates, which allows a subscriber to originate and

receive calls from his/her telephone line through facilities provided for local

intercommunication to other telephone lines within a specified area without

payment of toll charges.” General Exchange Tariff, Sec. A1, Second Revised

Sheet 19. Though the language used is not precise, Vacation Rate Service

constitutes “local exchange service” under the tariffs. Vacation Rate Service

reserves the local facilities for subscribers; reserves for subscribers the right to, at

a future date, use their phone number to originate and receive calls; and enables

subscribers to have calls placed to their line “referred” to them at another number.

      This result is consistent with the purpose of the surcharge. The interstate

access surcharge was established by the FCC to recover the cost of maintaining

                                            6
the “local loop,” the physical infrastructure that connects an end user to the

telephone carrier’s network. See In the Matter of Access Charge Reform, 15

F.C.C.R. 12962, 12970 (F.C.C. 2000). Vacation Rate Service subscribers are

paying for the carrier to reserve their line, and it is consistent with the purpose of

the tariff for subscribers to pay to maintain the local loop. See Coca-Cola Co. v.

Atchison, Topeka & Santa Fe Ry. Co., 608 F.2d 213, 220 (5th Cir. 1979) (“[A]n

interpretation that is reasonable and consistent with the purpose of the tariff is

preferred.”).1

                                             IV

       The Pfeils also argue that the district court erred by dismissing their

requests for injunctive and declaratory relief. We reject this argument. All but

one of the Pfeils’ requests for equitable relief would effectively excuse them from

paying the interstate access surcharge. This result is forbidden by the filed rate

doctrine. Hill, 364 F.3d at 1315.

       The Pfeils’ remaining request, that Embarq be required to include the

interstate access surcharge in their advertised price pursuant to the Florida

Deceptive and Unfair Trade Practices Act, is also barred. To establish a violation



       1
        In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), we adopted as binding
precedents all decisions of the former Fifth Circuit issued before October 1, 1981.

                                              7
of the FDUTPA, the plaintiff must show that “the practice was likely to deceive a

consumer acting reasonably in the same circumstances.” State v. Wyndham Int’l,

Inc., 869 So. 2d 592, 598 (Fla. App. 2004). Under the filed rate doctrine,

“customers are . . . charged with notice of the terms and rates set out in that filed

tariff . . . .” Hill, 364 F.3d at 1315. A reasonable consumer would be charged

with knowledge of the filed tariff. The Pfeils cannot demonstrate a FDUTPA

violation. See Marcus v. AT&T Corp., 138 F.3d 46, 63 (2d Cir. 1998).

      AFFIRMED.




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