# Opposition Brief — Contel Cellular Inc. v. Leaf River Valley Cellular Telephone Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0908%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1996 - **Citation:** 516 U.S. 1145 ## Text No. 95-908 sa The Supreme Court of the United States October Term, 1995 € CONTEL CELLULAR INC. AND CONTEL CELLULAR OF ILLINOIS, INC., Petitioners, LEAF RIVER VALLEY CELLULAR TELEPHONE CO., INC. AND CENTRAL CELLULAR TELEPHONES, LTD., Respondents. o—-_- On Petition For A Writ Of Certiorari To The Illinois Appellate Court * RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI e _ Davip F. GRAHAM CarRTER G. PHILLIPs* KATHLEEN L. ROACH Srpcey & AUSTIN STEVEN W. YOUNG 1722 Eye Street, NW SipLey & AUSTIN Washington, DC 20006 One First National Plaza (202) 736-8000 Chicago, Illinois 60603 (312) 853-7000 Attorneys for Respondents * Counsel of record COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED FOR REVIEW 1. ‘“hether this Court has jurissiction to review an interlocutory order of a state appellate court where the matter remains to be tried in the lower state court and no relief has yet been granted, because some of the relief that might be awarded after trial might implicate federal regu- lations. 2. Whether an Illinois state court has the power to adjudicate damage claims under Illinois law for breach of a contract and breach of the fiduciary duty owed by the general partner of an Illinois limited parinership, where the claims pertain to a business that operates under FCC licenses. ii LIST OF AFFILIATED CORPORATIONS Pursuant to Supreme Court Rule 29.6, the following is a list of the parent corporations and non-wholly owned subsidiaries of each respondent: Leaf River Valley Cellular Telephone Co., Inc. (“Leaf River”): Leaf River Telephone Company owns 51% of the stock of Leaf River Cellular. United States Cellular Invest- ment Company of Rockford (“USCIC Rockford”) owns 49% of the stock of Leaf River Cellular. United States Cellular Investment Company (“USCIC”) is the parent corporation of USCIC Rockford. United States Cellular Company (“USCC”), a publicly traded corporation, is the parent corporation of USCIC. Telephone and Data Sys- tems, a publicly traded corporation, owns approximately 80% of the shares of USCC. Leaf River has no non-wholly owned subsidiaries. Central Cellular Telephones, Ltd. (“Central Cellu- lar”): Sharon Telephone Company owns 25.5% of the stock of Central Cellular. Bergen Telephone Company owns 25.5% of the stock of Central Cellular. USCIC Rock- ford owns 49% of the stock of Central Cellular. Central Cellular has no non-wholly owned subsidiaries. iii TABLE OF CONTENTS Page RPUPMPE MUU PRONE 2 occ c cs vtcccccecccccceves i LIST OF AFFILIATED CORPORATIONS............ ii JURISDICTIONAL STATEMENT.................... 1 DRPRU UP EM OVO occ cc cccccvcccececcvccecencs 1 COUNTERSTATEMENT OF THE CASE............ 2 REASONS WHY THE PETITION SHOULD BE A Ser ne ee eee 5 I. THIS COURT LACKS JURISDICTION TO HEAR THE PETITION UNDER 28 U.S.C. § 1257 BECAUSE THE ORDER DENYING PETI- TIONERS’ INTERLOCUTORY APPEAL WAS NOT A FINAL JUDGMENT OR DECREE...... 6 Il. NO QUESTION EXISTS THAT THE COMMUNI- CATIONS ACT EXPRESSLY PRESERVES STATE COURT REMEDIES FOR THE INSTANT CLAIMS FOR BREACH OF CONTRACT AND eT ME cen pavc< stan vwenveencasees 11 A. CONTEL’S PATENTLY IRRELEVANT AUTHORITIES RAISE NO QUESTION FOR Nt i akin bd ov bw the So wn adie ob o6¥ee% 12 B. CONTEL RAISES NO QUESTION APPRO- PRIATE FOR REVIEW BECAUSE THIS COURT’S DECISIONS HAVE CONSIS- TENTLY RECOGNIZED A STATE COURT’S POWER TO ADJUDICATE STATE LAW CLAIMS, EVEN WHERE THEY PERTAIN TO AN FCC LICENSED BUSINESS, AND NO ee MEE cc vu eeccccerstacsscesns 14 TABLE OF CONTENTS - Continued Page C. CONTEL RAISES NO QUESTION FOR REVIEW BECAUSE THE FCC CONSIS- TENTLY AGREES WITH THE INTERPRETA- TION OF THE COMMUNICATIONS ACT ADOPTED BY THE COURTS BELOW....... 16 CONCLUSION ...... 000 eer eeedA econ eesseneteuehers 18 eS—————EeEe Vv TABLE OF AUTHORITIES Page Cases Bradley v. Richmond School Board, 416 U.S. 696 GN 6845 1enet hdd Catan ecb Vib cap ered a Sones 8 Construction Laborers v. Curry, 371 U.S. 542 (1963) .... 10 Cooperative Comm. v. AT&T Corp., 867 F. Supp. Sane Mek SPU OPE ese cigecscccebluciee ew 16 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) ..9, 10 FCC v. Pottsville Broadcasting Co., 309 U.S. 134 oe ee ey PET oT rey hae ae oe aeeee 14 Flynt v. Ohio, 451 U.S. 619 (1981) ..............00.. 11 Houston v. Moore, 3 Wheat. 433 (1818)................ 7 In re Applications of Decatur Telecasting, Inc., 7 FCC PN NE CHIN hs. ne viv ep eche edness ieee 17 In re Applications of KQED, Inc., 6 FCC Red. 598 Gee Eck senicwcesets Hastsers ied ae 17 In re Application of Rodney A. McDaniel, 4 FCC Rcd. SIEM CPR: cdies kd wineede 1604) ele, 17 In re Application of Wind N’ Sea FM Limited Partner- UD, F Was MU. Be Te ov hvoe ous kc cekaeess, 17 In the Matter of Applications of Centel Corp., 8 FCC TOs. DE RENE aoa ecab ade kiccdaddane ester te. 16 Interstate Circuit, Inc. v. Dallas, 390 U.S. 676 (1968) ..... 1 KVHP TV Partners, Ltd. v. Channel 12 of Beaumont, Inc., 874 F. Supp. 756 (E.D. Tex. 1995) ............ 16 Market Street Ry. v. Railroad Commission, 324 U.S. Pa LOE on hese vedas ee rnney nel eekeealeseenee 7 vi TABLE OF AUTHORITIES - Continued Page North Dakota Pharmacy Board v. Snyder's Stores, 414 US. 156 (1907S) .nccccccvevecavtcneesetedssceuaneewe 7 O'Dell v. Espinoza, 456 U.S. 430 (1982).............66. 7 Radio Station WOW uv. Johnson, 326 U.S. 120 (1945) . .passim Regents of the University System of Georgia v. Carroll, SOO U.S. TRG CROCE v vccvccccesacitssbenenncheverts 15 San Diego Gas & Elec. Co. v. City of San Diego, 450 We GES COPED ov cvcccccesvexcenunuauyumeeuuered 7,8 United Tel. Co. of Carolinas, Inc. v. FCC, 559 F.2d 720 CEPA GOR SIUT a oc vk ivesevuscoessuvacheeesieeeeee 15 STATUTES ge 8 Be ee re ere ee 13 BIE ame BPP a AR oy 1, 6,7 OF UDR. © GA, 60 ve dhceNanwveueesueeieeieeeee passim OTHER AUTHORITY wupemn Comet Take 80. vic vcecccsuscvvessercistee 11 erento we, RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI Respondents Leaf River Valley Cellular Telephone Company, Inc. (“Leaf River”) and Central Cellular Tele- phones, Ltd. (“Central Cellular”) respectfully request that this Court deny the Petition for Writ of Certiorari filed by petitioners Contel Cellular Inc. and Contel Cellular of Illinois, Inc. (collectively “Contel”) seeking review of the decision of the Illinois Appellate Court.’ + JURISDICTIONAL STATEMENT This Court lacks jurisdiction to hear the Petition under 28 U.S.C. § 1257 because the order denying peti- tioners’ interlocutory appeal was not a final judgment or decree. STATUTES INVOLVED 28 U.S.C. § 1257: State Courts; certiorari (a) Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme * Contel erroneously states that the Illinois Supreme Court’s order should be reviewable under § 1257. (Pet. at 1.) Because the Illinois Supreme Court merely declined to review the decision of the Appellate Court, the decision of the Appellate Court (if considered final) would be the one reviewable by this Court. See Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 678 n.1 (1968). Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States. 47 U.S.C. § 414: Exclusiveness of chapter. Nothing in this chapter contained shall in any way abridge or alter the remedies now exist- ing at common law or by statute, but the provi- sions of this chapter are in addition to such remedies. COUNTERSTATEMENT OF THE CASE An examination of the proceedings below reveals that Contel’s petition improperly seeks review of a nonfi- nal order. Contel filed a motion to dismiss the complaints filed against it by Leaf River and Central Cellular in the Illinois circuit court. On October 12, 1994, the circuit court denied Contel’s motion to dismiss. On December 14, 1994, the circuit court denied Contel’s motion for a finding that a question of law existed appropriate for interlocutory appeal under III. S.Ct. Rule 308. Contel nev- ertheless perfected an appeal under Ill. S.Ct. Rule 307, by characterizing its motion to dismiss as also a motion for a stay. On March 21, 1995, the Illinois Appellate Court affirmed the order denying Contel’s motion to dismiss. a ee The court did not address what relief would be appropri- ate upon a final judgment, but held only that no impedi- ments existed to the trial court’s jurisdiction. (See Pet. at A16.) On October 4, 1995, the Illinois Supreme Court denied Contel’s Petition for Leave to Appeal the inter- locutory order of the Appellate Court, remanding the cases for trial on the merits. No final judgment or decree has been entered in these cases by any lower court. Rather, the cases have been proceeding in the circuit court. Moreover, the complexion of the cases - and of the issues Contel seeks to have this Court review — has already changed during the course of these further pro- ceedings. For example, the complaints Contel attaches to its Petition and refers to throughout were in fact mooted by amended complaints filed on August 17, 1995 that altered the prayers for relief, e.g., by dropping any request for injunctive relief. If this Court determines to examine the merits of Contel’s petition, Contel’s statement of the case describes most of the facts leading up to this litigation, but contains some material deficiencies regarding the background of the primary legal issue decided below — whether an Illi- nois state court has the power to decide claims for breach of a contract governed by Illinois law and for breach of the fiduciary duties owed under Illinois law by the gen- eral partner of an Illinois limited partnership. Leaf River and Central Cellular filed these consoli- dated actions seeking relief for a breach of contractual and fiduciary obligations owed to them and the Rockford ee MSA Limited Partnership (the “Partnership”). The Part- nership provides cellular telephone service in and around Rockford, Illinois under an FCC license. Plaintiffs con- tend that Contel, the general partner of the Partnership, breached its obligations under the Partnership Agree- ment and its fiduciary duties by misappropriating for itself the opportunity to provide cellular service in Illi- nois RSA 1, a cellular market adjoining Rockford. Accord- ingly, Leaf River and Central Cellular seek money damages for the value of the lost business opportunity Contel misappropriated. Contrary to Contel’s representations in its petition, (see Pet. at 14, 15, 17), Leaf River and Central Cellular have repeatedly and consistently explained that they do not seek “ownership” or “control” of the FCC license that Contel obtained for itself, nor do they seek a “transfer” of the FCC license for Illinois RSA 1. (See App. Order, Pet. at A15.) Plaintiffs have not requested specific performance of Contel’s obligation to pursue the RSA 1 license on behalf of the Partnership and its partners, but, as the Appellate Court recognized, seek substitutional relief instead, in the form of money damages: Plaintiffs . . . have not asked the trial court to transfer control of the license. They seek only compensatory damages from defendants for their offenses as general partners, specifically | (1) seizing a partnership opportunity for them- selves and (2) breach of the provision of the partnership agreement which requires that if the general partner applies for a license to serve another service area, the application shall be on behalf of the partnership. (Id.) In fact, to make clear that they seek damages as opposed to any ownership or control over the FCC license, since the time of the Appellate Court’s decision Leaf River and Central Cellu.ar amended their com- plaints to eliminate the request for relief that sought to require Contel to share all benefits from its interest in Illinois RSA 1 - an important fact that Contel neglects to mention. (See Pet. at 13.) Contel also fails to mention the primary request for relief in both the original and amended complaints, namely, “compensatory damages in an amount to be determined at trial.” (Pet. at A28, A39.) REASONS WHY THE PETITION SHOULD BE DENIED Contel’s petition should be denied because no final judgment or decree has been entered, concerning the “transfer” or “ownership” of an FCC license or otherwise. Indeed, Contel casts its entire argument hypothetically, in order to discuss the federal questions that it believes would arise “if the state court were to grant” certain relief. (Pet. at 14) (emphasis supplied). Further, one of the two forms of relief Contel believes would offend federal law has already been removed from the case by virtue of subsequent proceedings. Plaintiffs’ remaining requests for relief have not yet been granted or denied, rendering Contel’s petition premature. Even if this Court were to consider the merits of Contel’s petition, no reason to grant certiorari is pre- sented. Contel claims that the Illinois Appellate Court erred by relying on Section 414 of the Federal Communi- cations Act and holding that these private disputes could proceed in Illinois state court. Section 414 is clear, how- ever, and has been consistently applied the way the Illi- nois Appellate Court did were. The bulk of Contel’s petition simply recites patently irrelevant FCC regula- tions and asserts that their potential application to the particular facts of this action should be deemed “impor- tant.” By failing to cite any decisions by any court agree- ing with its position, however, Contel has raised no conflict of authority requiring review. Moreover, no ques- tion of law exists that has not been settled by this Court, nor has one been decided in a way that conflicts with the decisions of this Court. Indeed, Contel simply attempts to avoid this Court’s well-established precedent. Finally, even the FCC, whose policy Contel claims needs protect- ing, has consistently repudiated Contel’s position. In short, this purely private dispute raises no questions of general importance appropriate for review. I. THIS COURT LACKS JURISDICTION TO HEAR THE PETITION UNDER 28 U.S.C. § 1257 BECAUSE THE ORDER DENYING PETITIONERS’ INTER- LOCUTORY APPEAL WAS NOT A FINAL JUDG- MENT OR DECREE. This Court lacks jurisdiction to hear Contel’s petition because no final judgment or decree has been entered in these cases. Contel does not even address this threshold issue in its petition, instead launching into arguments which, by their contingent nature, demonstrate that no review should take place at this time. The petition attacks a lower state court’s interlocutory order affirming the denial of Contel’s motion to dismiss. This Court’s review of state court decisions is limited, however, to “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had.” 28 U.S.C. § 1257. Therefore, the general rule is that the state court judg- ment “must... be final as an effective determination of the litigation and not of merely interlocutory or inter- mediate steps therein. It must be the final word of a final court.” Market Street Ry. v. Railroad Commission, 324 U.S. 548, 551 (1945). If acts remain to be performed on remand that are not merely ministerial, and that might them- selves create a federal question, the judgment is normally deemed nonfinal and nonreviewable. Houston v. Moore, 3 Wheat. 433, 434 (1818); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 632-33 (1981); O'Dell v. Espinoza, 456 U.S. 430 (1982). Here, the Appellate Court's interlocu- tory order remanded these cases for trial in the circuit court on the merits. Thus, under the literal terms of § 1257, such an order is not reviewable. The finality requirement of § 1257 serves several important policies: “(1) it avoids piecemeal review by federal courts of state court decisions; (2) it avoids giving advisory opinions in cases where there may be no real ‘case’ or ‘controversy’ in the sense of Art. III; (3) it limits federal review of state court determinations of federal constitutional issues to leave at a minimum federal intru- sion in state affairs.” North Dakota Pharmacy Board v. Snyder's Stores, 414 U.S. 156, 159 (1973). Granting Contel’s petition would offend all of these principles. First, Contel seeks piecemeal review of an interlocutory order denying its motion to dismiss complaints - which have since already been amended. Any ensuing final disposition by the trial court will likely beget further appeals by one or both sides, which may in turn present reviewable federal issues. More problematic, however, is that Contel’s petition seeks an advisory opinion on the relevance and applica- tion of FCC regulations to forms of relief that have not yet been ordered, including one request for relief — the injunction to share benefits — that has already been elimi- nated from the case as a result of plaintiffs’ amendment of their complaints. In fact, Contel prefaces its entire argument on a contingency, “if the state court were to grant the requested relief.” (Pet. at 14) (emphasis sup- plied). Although Contel claims that if the trial court were to grant the injunction which plaintiffs no longer seek or an accounting, such an order would violate federal law (Pet. at 13, 17, 22), nowhere does Contel show how grant- ing the primary claim for compensatory damages would implicate federal law. Since no court has determined which, if any, form of relief ought to be awarded against Contel, the petition is hopelessly premature. See San Diego Gas & Elec. Co., 450 U.S. at 633 (declining review where no final decision on the propriety of all possible remedies). Finally, Contel’s petition would also cause fed- eral intrusion in the State of Illinois’ affairs, by interrupt- ing the state court’s adjudication of claims for breaches of Illinois laws. See Radio Station WOW uv. Johnson, 326 U.S. 120, 124 (1945) (the finality prerequisite “derives added force when the jurisdiction of this Court is invoked to upset the decision of a State court”). Although this Court may apply a “pragmatic” inter- pretation of the finality requirement in exceptional cir- cumstances where a case is not literally concluded, see Bradley v. Richmond School Board, 416 U.S. 696, 722-23 n.28 (1974), none of those circumstances exists here. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), this Court delineated four narrow categories where review of state decisions prior to final disposition of a case may be appropriate. The first category is “where for one reason or another the federal issue is conclusive or the outcome of proceedings preordained.” Id. at 479. This exception does not apply here because neither the outcome of a trial on the merits, nor the proper form of relief to be granted, was decided or preordained by the interlocutory order. The second exception to the finality rule concerns situations “in which the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings.” Id. at 480. The Court gave as an example Radio Station WOW, Inc., where review was granted to an order of the Nebraska Supreme Court finding fraud and directing the transfer of the properties of a federally licensed radio station. By contrast, the instant interlocu- tory order did not adjudicate the merits of the claims or direct a transfer of a licensed facility. Contel simply claims that such a transfer order, if one were to be issued, would cause a “collision” with federal law. (Pet. at 17, 19.) Given that Leaf River and Central Cellular do not even seek any transfer, however, Contel’s inchoate fear of a collision does not warrant this Court’s immediate inter- vention. The third exception to the finality requirement may occur “where the federal claim has been finally decided, with further proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the 10 case.” Id. at 481. This category applies to cases where, if the petitioner were to lose on the merits, “governing state law would not permit him again to present his federal claims for review.” Id. Such an exception again is inap- posite because upon a final judgment and grant of any relief, Contel would have an opportunity to raise on appeal any appropriate federal defense to such an award. The final exception to finality under Cox Broadcasting Corp. is “where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecess- ary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action” and where “a refusal immediately to review the state-court decision might seriously erode federal policy.” Id. at 482-3. To define this narrow category, the Court cited Construction Laborers v. Curry, 371 U.S. 542 (1963), which reviewed the grant of a temporary injunction enjoining a union from picketing even though the National Labor Relations Board had exclusive jurisdiction over the claim. Jurisdiction in Curry also rested on the ground that the union had no defense to a permanent injunction other than its federal one that had already been decided. 371 U.S. at 542. By contrast, no relief has been granted in these cases, and Contel’s arguments merely address a portion of the relief that might be awarded. Further, no important federal interests will be eroded by permitting the Illinois state court to determine the state law claims for breach of contract and fiduciary duty and to determine what relief, if any, is permissible | 11 and appropriate. See Flynt v. Ohio, 451 U.S. 619, 622 (declining review where delay until a final judgment would not seriously erode federal policy). Rather, the important federal interest here is to avoid creating any false “conflict between the courts of two different govern- ments,” an interest which is most effectively promoted by denying Contel’s premature petition for review of an interlocutory state court order. Radio Station WOW, 326 U.S. at 124. Il. NO QUESTION EXISTS THAT THE COMMUNI- CATIONS ACT EXPRESSLY PRESERVES STATE COURT REMEDIES FOR THE INSTANT CLAIMS FOR BREACH OF CONTRACT AND FIDUCIARY DUTY. Contel’s apparent basis for requesting review of the lower state court decision is that the Illinois Appellate Court relied too “heavily” on Section 414 of the Commu- nications Act in holding that these disputes should pro- ceed in the state trial court. (Pet. at 14.)2 Contel has failed, however, to raise any question, let alone one deserving of certiorari, about the language of § 414 of the Communica- tions Act in relation to these garden-variety breach of contract and fiduciary duty actions. The express language 2 This type of argument, that a misapplication of law occurred, is in itself a weak basis for seeking review. See S.Ct. R. 10 (“A petition for a writ of certiorari is rarely granted when the asserted error consists of . . . the misapplication of a properly stated rule of law.”) 12 of the Communications Act provides the best reason that Contel’s claim of preemption is unfounded: Nothing in this Act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies. 47 U.S.C. § 414. Thus, Contel’s claim that “the relief requested” by Leaf River and Central Cellular has some- how been preempted flies in the face of Congress’s express preservation of common law and statutory remedies, of which compensatory damages is the most obvious example. A. CONTEL’S PATENTLY IRRELEVANT AUTHORITIES RAISE NO QUESTION FOR | REVIEW. | Glossing over the express savings provision of Sec- tion 414, Contel cites a series of FCC regulations and decisions that are not only prematurely raised, (see Sec- tion I, supra), but also irrelevant. Contel argues that Leaf River and Central Cellular seek to share “control over” or “ownership in” the Illinois RSA 1 FCC license. (Pet. at 14, 15.) From this presumption, Contel argues that because such a result would violate FCC regulations under the particular facts of these cases, the claims against Contel must be preempted. In order to make this argument, however, Contel persists in an intentional misunder- standing of plaintiffs’ original complaints and ignores plaintiffs’ amended complaints. Plaintiffs do not request transfer of, an ownership interest in, or control over, Contel’s FCC license. Rather, as plaintiffs have repeatedly 7 Ne RE I NNT 13 explained to defendants, as they expressly advised the courts below, as the Appellate Court recognized (see p. 4 supra), and as plaintiffs have made explicit by amending their complaints, plaintiffs seek only money damages for Contel’s breaches of common law contract and fiduciary obligations, in an amount equal to the value of the inter- est which Contel obtained by breaching its duties with regard to the business opportunity in Illinois RSA 1. The series of statutes and regulations cited by Contel never were intended to address such a purely private dispute, and have never been so applied. Thus, Contel’s citation of 47 C.F.R. § 22.942 (Pet. at 15), which prohibits a party from holding an “ownership interest” in both licenses for one cellular market, is irrele- vant because respondents seek no such interest. Likewise, Contel’s citation of Section 310 of the Communications Act (Pet. at 17), which requires an application to the FCC before “transfers of control” of an FCC license, is equally beside the point because plaintiffs seek no such transfer. Finally, Contel’s citation of Section 332 of the Communi- cations Act (Pet. at 18-19), pertaining to “entry regula- tion,” remains a non sequitur. As the Illinois Appellate Court recognized, by no stretch of language, or imagina- tion, do Leaf River and Central Cellular seek for the state of Illinois “to regulate the entry of or the rates charged by any commercial mobile service.” (Pet. at A16-17). At bot- tom, Contel simply presents no decision by any court, or by the FCC, applying these regulations and provisions to a common law claim, to a request for money damages, or to any question of federal preemption. 14 B. CONTEL RAISES NO QUESTION APPROPRI- ATE FOR REVIEW BECAUSE THIS COURT’S DECISIONS HAVE CONSISTENTLY RECOG- NIZED A STATE COURT’S POWER TO ADJU- DICATE STATE LAW CLAIMS, EVEN WHERE THEY PERTAIN TO AN FCC LICENSED BUSI- NESS, AND NO CONFLICT EXISTS. Contel fails to present any conflict between lower court decisions or those of this Court warranting cer- tiorari. This Court recognized the respective spheres of jurisdiction of the FCC and state courts in Radio Station WOW v. Johnson, 326 U.S. 120 (1945). In that decision, the | plaintiff sued in state court to have a lease and assign- | ment of an FCC license set aside for fraud. 326 U.S. at 121. The Nebraska Supreme Court ordered that the lease and license be set aside, and ordered an accounting of the station’s revenue by the lessee. Id. at 122. This Court permitted the accounting to proceed in the state court, and further held “[w]Je have no doubt of the power of the Nebraska court to adjudicate, and conclusively, the claim of fraud in the transfer of the station ... and upon finding fraud to direct a reconveyance of the lease to the [plaintiff].” Id. at 131. The Court explained, “[t]he ‘public interest’ with which the Commission is charged is that involved in granting licenses. Safeguarding of that inter- est can hardly imply that the interest of the States in | enforcing their own laws against fraud have been nulli- fied insofar as licensed facilities may be the instruments of fraud.” Id. See also FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1939) (“The Communications Act is not designed primarily as a new code for the adjustment of conflicting private rights through adjudication”). To the a een, 15 same effect, in Regents of the University System of Georgia v. Carroll, 338 U.S. 586 (1950), this Court determined that a state court had the power to award damages for breach of contract even where performance under the contract would have violated FCC policy. The Court stated, “[w]e do not read the Communications Act to give authority to the Commission to determine the validity of contracts between licensees and others.” Id. at 602. Similarly, the defense of legal impossibility was summarily disposed as “a matter of state law.” Id. at 594. These decisions firmly support the exercise of jurisdiction by an Illinois court in enforcing Illinois laws against breach of contract and breach of fiduciary duty. Contel fails to mention Radio Station WOW or Regents until the penultimate page of its petition, and then only to waffle between: (a) weakly distinguishing them as involving a radio station instead of a rural cellular telephone license, and (b) suggesting that they are somehow wrong for “today’s environment.” (Pet. at 23.) Neither assertion merits this Court’s review. Further, the Communications Act has also been con- sistently construed by the lower courts the way the Illi- nois courts did here — as preserving private, independent state law claims among licensees for the courts, not for the FCC. See, e.g., United Tel. Co. of Carolinas, Inc. v. FCC, 559 F.2d 720, 723 (D.C. Cir. 1977) (affirming an FCC decision not to adjudicate a dispute among joint ven- turers, “the Communications Act . . . should not be turned into a mechanism whereby participants in a joint communications project can force the Federal Communi- cations Commission to arbitrate contractual disputes over the division of residual revenues from their joint venture. The purpose of the Act is to protect the public interest 16 rather than to provide a forum for the settlement of private disputes”); KVHP TV Partners, Ltd. v. Channel 12 of Beaumont, Inc., 874 F. Supp. 756, 762 (E.D. Tex. 1995) (section 414 “expressly preserves state causes of action for breaches of duties that are not created by the Commu- nications Act”). Thus, by literally applying Section 414, the Illinois Appellate Court broke no new ground. C. CONTEL RAISES NO QUESTION FOR REVIEW BECAUSE THE FCC CONSISTENTLY AGREES WITH THE INTERPRETATION OF THE COMMUNICATIONS ACT ADOPTED BY THE COURTS BELOW. Notably, Contel also fails to present any true conflict between the lower court order and decisions of the FCC, citing no FCC decisions that purport to adjudicate claims such as the ones made here. In fact, an examination of FCC decisional law reveals that the FCC refuses to become involved in private matters such as this, instead referring them back to the courts — even where questions arise regarding control of cellular licenses. See, e.g., In the 3 Contel errs in suggesting that OBRA’s amendment to the Communications Act somehow trumps the savings clause of section 414, which Congress left untouched. (Pet. at 18-19.) The lower court properly refused to infer that such oblique language on “entry regulation” evinces a legislative intent to override the express savings clause preserved in the Act. (Pet. at A16-17.) See also Cooperative Comm. v. AT&T Corp., 867 F. Supp. 1511, 1516 (D. Utah 1994) (post-OBRA, holding that “inclusion of the [section 414] savings clause clearly indicates Congress’ intent that independent state law causes of action , such as interference with contract or unfair competition, not be subsumed by the Act, but remain as separate causes of action”). 17 Matter of Applications of Centel Corp., 8 FCC Red. 1829, 1831 (1993) (refusing to consider a claim that transfer of control of a cellular license would violate the parties’ partnership agreements, “[t]he Commission has repeat- edly stated that it is not the proper forum for the resolu- tion of private contractual disputes, noting that these matters are appropriately left to the courts or to other fora that have the jurisdiction to resolve them”); In re Applications of Decatur Telecasting, Inc., 7 FCC Red. 8622, 8624 (1992) (same); In re Application of Rodney A. McDaniel, 4 FCC Red. 1736 (1989) (“any harm which [petitioner] might suffer from the transaction can be satis- fied by money damages pursuant to local judicial deter- mination. Thus, our action does not in any way prejudice any remedy to which a court may ultimately determine MC is entitled”) (emphasis supplied, citations omitted); In re Applications of Wind N’ Sea FM Limited Partnership, 7 FCC Red. 2293, 2294 n.5 (1992) (“[t]he Commission has long held that it has neither the authority nor the machinery to adjudicate alleged claims arising out of private contrac- tual agreements”); In re Applications of KQED, Inc., 6 FCC Red. 625, 626 (1991) (same). Finally, consistent with this policy it is worth noting here that the FCC has never held that the mere award of compensatory damages consti- tutes an ownership interest or control over an FCC license.* * Moreover, even if, arguendo, the relief ultimately awarded in this litigation does involve matters touching on an interest of the FCC, the court could at that time simply fashion an appropriate remedy. See Radio Station WOW, 326 U.S. at 132 (“State power is amply respected if it is qualified merely to the extent of requiring it to withhold execution of that portion of its 18 Thus, not even the FCC agrees with Contei’s position that the claims in this case should not be adjudicated by the Illinois courts, but would refuse to resolve this pri- vate dispute concerning the interpretation of a contract or fiduciary duties or to award damages for the breach of such duties. In sum, the overwhelming weight of author- ity, all of which Conte] fails to address in its petition, agrees that these actions belong where they are now: awaiting trial on the merits in Illinois state court. + CONCLUSION The petition for a writ of certiorari should be denied. Respectfully Submitted, Davip F. GRAHAM Carter G. PHILurs* KATHLEEN L. ROACH Srptey & AUSTIN SteveN W. YOUNG 1722 Eye Street, NW Siptey & AUSTIN Washington, DC 20006 One First National Plaza (202) 736-8000 Chicago, Illinois 60603 (312) 853-7000 Attorneys for Respondents * Counsel of record decree requiring retransfer of the physical properties until steps are ordered to be taken, with all deliberate speed, to enable the Commission to deal with new applications in connection with the station”). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0908%3A2. Public record. Not legal advice.