                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 24 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

NATHAN RIENSCHE, individually and                No. 09-35987
on behalf of all the members of the class of
persons similarly situated,                      D.C. No. 2:06-cv-01325-TSZ

              Plaintiff - Appellant,

  v.

CINGULAR WIRELESS, LLC, a
Delaware limited liability company doing
business as Cingular Wireless; et al.,

              Defendants - Appellees.



JARED PECK,                                      No. 09-36113

              Plaintiff,                         D.C. No. 2:09-cv-00106-TSZ

  and
                                                 MEMORANDUM*
JAMES BOWDEN, a Washington
resident, individually and on behalf of all
the members of the class of persons
similarly situated,

              Plaintiff - Appellant,

  v.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
AT&T MOBILITY, LLC, a Delaware
limited liability company doing business
as Cingular Wireless, AKA Cingular
Wireless, LLC; et al.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                     for the Western District of Washington
                 Thomas S. Zilly, Senior District Judge, Presiding

                             Submitted May 7, 2012**
                               Seattle, Washington

Before: FISHER, N.R. SMITH, and MURGUIA, Circuit Judges.

      Plaintiffs Riensche and Bowden (hereinafter referred to collectively as

“Plaintiffs”) are named plaintiffs in separate putative class action lawsuits, which

were combined for this appeal. Plaintiffs appeal the district court’s grant of

summary judgment in favor of Cingular Wireless, LLC (“Cingular”). We certified

to the Washington Supreme Court the question of whether Section 82.04.500 of the

Washington Revised Code allows a seller to recoup its business and occupation



        **
             Case No. 09-35987 was argued and submitted on July 13, 2010. On
July 19, 2010, it was withdrawn from submission, pending final submission of
briefing in Case No. 09-36113. The panel unanimously concluded Case No. 09-
36113 was suitable for decision without oral argument, see Fed. R. App. P.
34(a)(2), and both cases were ordered submitted as of May 7, 2012.
                                          2
(“B&O”) tax by collecting a surcharge from consumers in addition to the monthly

service fee. The Washington Supreme Court accepted the question and held that a

business was not allowed to pass along the tax as a separate surcharge in addition

to the sales price; any taxes must be incorporated into the final sales price. In the

consolidated appeal before us, Cingular now argues that the Washington Supreme

Court’s decision is preempted by federal law, and even if it is not, that Plaintiffs

have no remedy for Cingular’s violation of Section 82.04.500. We have

jurisdiction under 28 U.S.C. § 1291. Based on the Washington Supreme Court’s

decision, we reverse the ruling of the district court.

      1. Section 82.04.500 of Washington’s Revised Code is not preempted by

Section 332(c)(3)(A) of the Federal Communications Act (FCA). Section

332(c)(3)(A) of the FCA states that “no State or local government shall have any

authority to regulate the entry of or the rates charged by any commercial mobile

service or any private mobile service[.]” 47 U.S.C. § 332(c)(3)(A). However, this

restraint “shall not prohibit a State from regulating the other terms and conditions

of commercial mobile services.” Id. In Peck v. Cingular Wireless, LLC, 535 F.3d

1053, 1057-58 (9th Cir. 2008), we held that Section 82.04.500 of Washington’s

Revised Code regulates an other term or condition rather than a rate because it

“simply structures the contract’s negotiation and disclosure, mandating that


                                           3
businesses quote all prices inclusive of Washington’s B & O Tax.” That result

governs this case. Because Section 82.04.500 of Washington’s Revised Code

regulates an other term and condition, it is not preempted under the FCA.

       2. Plaintiffs are entitled to recover under Washington’s Consumer

Protection Act (CPA). The CPA allows a consumer to recover in a private right of

action if the party can show that a business has: 1) engaged in an unfair or

deceptive act or practice; 2) in trade or commerce; 3) involving a public interest; 4)

causing injury to the plaintiff, plaintiff’s business, or plaintiff’s property; and 5) a

causal link exists between the unfair or deceptive practice and the plaintiff’s injury.

Indoor Billboard/Washington, Inc. v. Integra Telecom of Wash., Inc., 170 P.3d 10,

17 (Wash. 2007) (en banc). The only two prongs disputed in this appeal are the

first and last.

       To prove an unfair or deceptive act under the CPA, “[n]either intent to

deceive nor actual deception is required.” Dwyer v. J.I. Kislak Mortg. Corp., 13

P.3d 240, 243 (Wash. Ct. App. 2000). Instead, the act “need only have ‘the

capacity to deceive a substantial portion of the public.’” Indoor

Billboard/Washington, Inc., 170 P.3d at 18 (citing Hangman Ridge Training

Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 535 (1986) (en banc)). The

presence of Cingular’s line-item surcharge on customer bills had the capacity to


                                            4
deceive a substantial portion of the public into thinking that the surcharge was

legally permissible or even mandated by the government. See id. at 19 (“The use

of the term PICC had the capacity to deceive a substantial portion of the public into

thinking the surcharge was FCC regulated and required.”).

      Causation is also met in this case. But for Cingular’s line-item surcharge,

Plaintiffs would not have paid the additional amount covering the B&O tax. Thus,

causation is satisfied. See Panag v. Farmers Ins. Co. of Wash., 204 P.3d 885, 902

(Wash. 2009) (en banc). Because we find that Plaintiffs have demonstrated an

unfair or deceptive act or practice and causation as a matter of law, we REVERSE

and REMAND this claim to the district court for further proceedings consistent

with this order.1

      3. We decline Plaintiffs’ request to remand the case to state court because

we find that the notice of removal was timely filed within thirty days of the filing

of the amended complaint, which is the date Cingular could have first ascertained

that the case had become removable. See 28 U.S.C. § 1446(b)(3).




      1
        As an alternative to recovering damages under the CPA, Plaintiffs argue
they are entitled to relief under an implied right of action, the doctrine of unjust
enrichment, or Washington’s Uniform Declaratory Judgment Act. Bowden Supp.
Br. 2; Riensche Supp. Br. 2. Because we reverse on Plaintiffs’ CPA claim, we do
not address these other arguments.
                                          5
      4. We also decline to reassign the case on remand to a different district

judge, because Plaintiffs have not shown that Judge Zilly would have substantial

difficulty in setting aside previously-expressed views found to be erroneous. See

Living Designs, Inc. v. E.I. Dupont de Nemours and Co., 431 F.3d 353, 372 (9th

Cir. 2005). Moreover, reassignment is not necessary to preserve the interest of

justice, and reassignment would entail a substantial waste of judicial resources.

See id. at 372-73.

      REVERSED AND REMANDED.




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