CELLPHONE FEE TERMINATION CASES Part-II

CELLPHONE FEE TERMINATION CASES







Filed 3/3/11








CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

CELLPHONE FEE TERMINATION CASES.	A124077 A124095 A125311 (Alameda County Super. Ct. No. RG03121510, JCCP No. 4332)

STORY CONTINUE FROM PART I….


a. Factual Issues
As we have discussed, Sprint's position is that this court should review the trial court's rejection of the preemption defense de novo.[1] It is clear that the trial court considered the question of federal preemption here as a mixed issue of law and fact. So do we.
We first observe that while the FCC has still to address the ETF question, it has suggested that the issue of rate preemption under section 332(c)(3)(A) is, at least to some degree, fact intensive. (Wireless Consumers, supra, 15 F.C.C.R. at ¶ 39.) While concluding that there is â€