Petition for Writ of Certiorari — Nokia, Inc. v. Naquin
Supreme Court brief2005
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Text
xi
Cited Authorities
Linited States v. Locke,
529 US. 89 (2000)... oe cece cece eee.
Louisiana Public Service Commission v. FCC,
Be ae ee ee ec ddvcduvccevétcosnace
Medtronic, Inc. v. Lohr,
SURG GOIN oividc cv ccvcctsaco sine.
NBC v. United States,
319 U.S. 190 (1943) ....... 0... cee ee eee.
New York v. FERC,
50S UG. 2 OGD... occ ccccvcccecccceces:
Pinney v. Nokia, Inc.,
402 F.3d 430 (4th Cir. 2004) .............
Linited States v. Shimer,
367 US. 374 (1961)... 6... cece cc eeeeees
Sprietsma v. Mercury Marine,
507 UG. G8 CIBUID «occ ccceccccocccscces:
Ting v. AT&T Corp.,
319 F.3d 1126 (2003) .. 22.0... cc cece eees
In re Wireless Litigation,
170 F. Supp. 2d 1356 (J. P.M. L. 2001) .....
TTT passim
pound 18
veces 22
TrTT 26
13
xii
Cited Authorities
Page
In re Wireless Telephone Radio Frequency Emissions
Products Liability Litigation,
286 F. Supp. 26 4746 (B0GZ) on. ccc cccccccccces 1,14
In re Wireless Telephone Radio Frequency Emissions
Products Liability Litigation,
248 F. Supp. 2d 452 (2003) .............0005. passim
DOCKETED CASES
Farina v. Nokia, Inc.,
No. 01-2477 (E.D. Pa. filed May 18,2001) ........ 12
Gilliam v. Nokia, Inc.,
No. 01-4275 (S.D.N.Y filed May 18, 2001) ........ 12
Gimpelson v. Nokia, Inc.,
No. 01-1615 (N.D. Ga. filed June 20, 2001) ........ 12
Pinney v. Nokia, Inc.,
No. 01-1456 (D. Md. filed May 18, 2001) ......... 12
CONSTITUTION AND STATUTES
Sree GEE BE. VE vctcccccccccevccscctosesooes 18
BS Cae POSED cevdescéeveccucnscotiacceness 12
Pe BESO cece ctecececvcavestvbeswcosves 1
EG GGG 6 bc os ve ccdcccceccucescess 9
Ge BG hed ccacecsevcovesacereses 12
SI CRIN iio von dinddecetncnkeascees 9
Xili
Cited Authorities
Page
GF Waa OE. wecddcepecvrewesces sénugedeaee 27
GF Pas ED Kb 44 be conecees des cuoccedawees 5
PURE GRE... iesvdesisneiee nee 2,5,9
CPUGL. SOUMIGUMAD «i- cc scccsccesecces 4, 8, 25, 26
47 U.S.C. § 332(c)(7)(B)(II]) ... 0... ccc ec cee eeeees 27
Pub. L. No. 104-204, § 704(b), 110 Stat 56 (1996) ..... 10
Pub. L. No. 193-66, § 6002(b), 107 Stat. 312 (1993) ... 8
Radio Act of 1927 § 1, 44 Stat. 1162 (1927) ......... 5
Radio Act of 1927 § 4(b), 44 Stat. 1162 (1927) ....... 5
FEDERAL REGULATIONS
Paci Nk eperroererrr 11
WOR GRID 56s icacddeisccosstenee 11, 20
CORO oo sinc esséinsdciventedci ne 11, 20
47 C.F.R.§ 20.18 ....... oni ddeaat le tae 17
PEDRO oo ic leccsecathtoveencces 29
OCHS SMM .F 6cioscicckdenee 12
xiv
Cited Authorities
Page
ADMINISTRATIVE MATERIALS
An Inquiry into the Use of the Bands 825-845 MHz
and 870-890 MHz for Cellular Communications
Systems,
EP CREEED covcccvcesscccevcccscoes 7
An Inquiry into the Use of the Bands 825-845 MHz
and 870-890 MHz for Cellular Communications
Systems,
PCP CREEED voccceccecesccccescosecs 7-8, 19
An Inquiry Relative to the Future Use of
Frequency Band 806-960 MHz,
TC CRITED occcvecccccccccescvocees 7
Biological Effects of Radiofrequency Radiation,
ei oP EPOED cccccccceccccecccces: 9
Guidelines for Evaluating the Environmental Effects
of Radiofrequency Radiation,
DE ME EROTED coco Vecsccccedcocecees 9, 10
Guidelines for Evaluating the Effects of
Radiofrequency Radiation,
i Me CROOOD cocccccccccccccces 10, 11, 12
Guidelines for Evaluating the Environmental Effects
of Radiofrequency Radiation,
Ds EEEPEENUOE) cocccccccccecccescoes 11
Improving Public Safety Communications in the
800 MHz Band,
19 F.C.C.R. 14969 (2004) 2.0... cece eee eeeeees 17
XU
Cited Authorities
Petition on Behalf of the State of Hawaii, Public
Utility Commission, for Authority to Extend
Its Rate Regulation of Commercial Mobile
Radio Services in the State of Hawaii,
IO PLR, FROG cccccccvececccscvcvess
Petition on Behalf of the State of Connecticut,
WRC, FORD GED cccccvcoccccevecccesns
FCC/OET,
Questions and Answers about Biological Effects
and Potential Hazards of RF Electromagnetic Fields,
Bulletin 56 (Aug. 1999), available at
http:/ / www.fcc.gov/ Bureaus/Engineering ...
FCC/FDA,
Market Sense, Cell Phones: Facts, Fiction, Frequency,
available at www.fcc.gov/cgb/cell-phone ......
FCC/FDA,
Cell Phone Facts: Consumer Information on Wireless
Phones, available at http:/ / www.fda.gov/
cellphones/qa.html#6a ............6.0000005
LEGISLATIVE MATERIALS
H. R. Rep. No. 103-111 (1993) .......... 0.00000.
H. R. Rep. No. 104-204 (1995)... 22... .. eee euees
Page
24
xvi
Cited Authorities
Page
MISCELLANEOUS
Authorization of Aynicus Participation by the
FCC in Support of Rehearing and Rehearing
En Banc, Pinney v. Nokia, Inc., No. 03-1433
Gols Cie. AME. Th, AUS) occccccccccccsescceces 16
Brief of the Responden:ts in Opposition, Citizens
for the Appropriate Placement of Telecommunications
Facilities v. FCC,
Nos. 00-393, 00-407, 00-417, 00-427
RE SED 0 60 bbe uaa Vests peceees cuss 11, 21
Dale N. Hatfield,
A Report on Technical and Operational issues
Impacting the Provision of Enhanced 911 Services
(Nov. 2002), available at http:/ / gullfoss2.
fec.gov/ prod/ecfs/retrieve.cgi?native
_or_pdf=pdf&id_document=6513296239 ...... 23
First Supplemental and Amending Class Action
Complaint, Naquin v. Nokia Mobile Phones,
Inc., No. 00-2023
(E.D. La. Apr. 20, 2001) ...........04.. 13, 15, 24
Order of the United States Court of Appeals for
the Fourth Circuit Denying Petition for
Rehearing, Pinney v. Nokia, Inc., No. 03-1433
C6Gs Cis, Re. TR, SOGED cvccevescscsceccedseve 1, 16
Theodore S. Rappaport,
Wireless Communications - Principles and
PRE GSE wh eb cencccdbsccccecccestvces 7, 28, 29
William C.Y. Lee,
Mobile Communications Engineering (1982) ...... 6
xvii
TABLE OF APPENDICES
Appendix A — Opinion Of The United States Court
Of Appeals For The Fourth Circuit Filed March
DE END Vaevvblecdevusey kone ¥veNnbas Seeeeaes la
Appendix B — Memorandum And Order Of The
United States District Court For The District Of.
Maryland Filed March 5, 2003 ................ 5la
Appendix C — Memorandum And Order Of The
United States District Court For The District Of
Maryland Filed June 21, 2002 ................ 77a
Appendix D — Order Of The United States Court
Of Appeals For The Fourth Circuit Denying
Petition For Rehearing Filed April 12, 2005 .... 130a
Appendix E — Article VI Cl. 2 Of The Constitution
Cie Bee COT UND oc vevaccucnpevctnebeenes 134a
Appendix F — Public Law 104-104 Section 704 ... 135a
Appendix G — 47U.S.C.§ 152 ..........).0005. 136a
Appendix H — 47 U.S.C. § 301 .............008, 138a
Appendin 5 — GF UDC. GAS ..cccssccccesvenss 140a
Appendix J — 47 U.S.C. § 332 cde veeedesctueee ea 149a
Appendix K — 47 U.S.C. § 414 .......... ccc euee l6la
Appendix L — 21 U.S.C. § 36011 ..... 1... ee eee 162a
Appendix M — 47 C.F.R.§ 1.1307 ............... 165a
xviii
Table of Appendices
Page
Appendix N — 47 C.F.R.§ 2.803 ............4... 169a
Appendix O — 47 C.F.R.§ 2.1093 ........-.6605. 176a
Appendix P — 47 C.F.R.§ 22.927 ...........44:. 181la
Appendix Q — 47 C.F.R.§ 24.51 ...........0055. 182a
Appendix R — Authorization of Amicus
Participation By The FCC In Support Of
Rehearing And Rehearing En Bane Dated April
Bp a cvvabascucvassdececdoutaesépevannes 184a
Appendix S — First Supplemental And Amending
Class Action Complaint Filed April 20,2001 ... 185a
1
OPINIONS BELOW
The Fourth Circuit's decision is reported at 402 F.3d
430, and reprinted in the Appendix (“App.”) at 1a-50a. The
district court’s decision granting petitioners’ motion to
dismiss is reported at248 F. Supp. 2d 452, and reprinted at
App. 51a-76a. The district court’s decision denying
respondents’ motion to remand is reported at 216
F. Supp. 2d 474, and reprinted at App. 77a-129a.
JURISDICTION
The Fourth Circuit rendered its decision on March 16,
2005, App. 3a, and denied a timely petition for rehearing
on April 12, 2005. App. 130a. On July 8, 2005, the Chief
Justice extended petitioners’ time to file this petition up to
and including August 10, 2005. This Court has jurisdiction
under 28 U.S.C. § 1254.
PERTINENT CONSTITUTIONAL, STATUTORY
AND REGULATORY PROVISIONS
The pertinent constitutional, statutory, and regulatory
provisions are set forth in the Appendix, App. 134a-183a.
INTRODUCTION AND SUMMARY OF REASONS
FOR GRANTING THE PETI .ON
This case is about the proper balance between federal
and state authority over a critical channel of interstate _
communication and commerce—the modern wireless
telephone network.’ For almost a century, the Federal
' In the proceedings below, this case was consolidated with four similar
cases, and the Fourth Circuit's decision was thus rendered sub nom Pinney
v. Nokia, Inc., 402 F.3d 430 (4th Cir. 2005). The Fourth Circuit’s opinion in
Pinney embodiés two judgrients—a finding of a lack of federal subject
matter jurisdiction in four of the consolidated cases, and a holding on the
merits as to the defense of federal preemption in the fifth case, where federal
jurisdiction was not at issue. This petition concerns only the fifth case,
Naquin v. Nokia, Inc., and seeks review of the Fourth Circuit's reversal of
the district court's dismissal with prejudice of the Naquin complaint on
federal preemption grounds. See pp. 14-16, infra.
2
Government — to the exclusion of the States — has exercised
plenary control over the design and operational standards
that govern every form of interstate communication by
radio. As this Court recognized more than 70 years ago:
“No state lines divide the radio waves, and national
regulation is not only appropriate but essential to the
efficient use of radio facilities.” Fed. Radio Comm'n v. Nelson
Bros. Bond & Mortgage Co., 289 U.S. 266, 279 (1933). The
Communications Act acknowledges this need for uniform,
national standards by granting the FCC broad power over
all technical aspects of radio communications, including
spectrum licensing, frequency assig.“:nent, signal strength,
resolution of interference issues, and the “kind of apparatus
to be used” for all forms of wireless communication. 47
U.S.C. § 303.
Pursuant to this statutory mandate, the FCC has
established detailed standards governing RF emissions by
all fixed and portable wireless transmitters, including
wireless telephones. After extensive rulemaking
proceedings that included contributions and approval from
the Food and Drug Administration (“FDA”), the
Environmental Protection Agency (“EPA”), and the
Occupational Safety and Health Administration (“OSHA”),
the Commission arrived at a comprehensive set of pre-
market testing standards, maximum RF emission levels, and
equipment authorization procedures for all wireless
telephones sold or leased in the United States. These
regulations strike a balance between two competing
national priorities— public health and safety on the one
hand, and reliable and efficient interstate wireless
communications on the other.
A divided panel of the Fourth Circuit has now rendered
meaningless the careful balance achieved in the federal RF
regulations. Under the decision below, state courts are
authorized to conduct their own “risk-utility” balancing of
RF emission levels for wireless telephones and to arrive at
different conclusions as to what is “safe” or what constitutes
3
an “unreasonable” danger. App. 19a-20a. The Fourth Circuit
decision thus would allow state courts to impose differing,
state-specific “remedies,” such as design, labeling, and
equipment mandates for wireless telephones — including
requirements, such as headset mandates, that have been
expressly considered and rejected by the FCC. As Judge
Kiser recognized in dissent, judicial acceptance of
respondents’ claims would “result in the complete
invalidation of federal regulatory standards.” App. 49a. This
Court has repeatedly held that conflict preemption
principles bar exactly this kind of state regulation. See, e.g.,
Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 348
(2001); Geier v. Am. Honda Motor Co., 529 U.S. 861, 881 (2000).
The Fourth Circuit panel reached a contrary result only
by applying a legal standard fundamentally at odds with
the decisions of this Court. In particular, the panel majority
disregarded the preemptive force of the FCC’s regulations,
as if the comprehensive federal regulatory regime governing
RF emissions did not exist, and instead searched for specific
congressional authorization to displace state regulation. Not
only has this Court rejected such a congressional “plain
statement” rule, see Geier, 529 U.S. at 881 (2000); see also
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 548 (1992)
(Scalia, J., concurring in part and concurring in the
judgment), it is irreconcilable with congressional authority
to delegate general rulemaking power to federal agencies
against the backdrop of the Supremacy Clause.
The panel majority below also improperly applied a
“presumption against preemption” despite this Court's
nearly century long recognition that radio communications
are uniquely federal and the FCC’s assertion of “federal
primacy” over regulation of technical standards for wireless
telephony. App. 34a n.4. In the process, the Fourth Circuit
purported to limit the principles recognized by this Court's
decision in United States v. Locke, 529 U.S. 89 (2000), to the
narrow context of maritime law. The net result of the Fourth
+
Circuit's analysis is that federal regulations are presumed
to be subordinate to state law—unless Congress
affirmatively states that every aspect of the federal
regulatory regime that it intends to authorize will preempt
unforeseen conflicting applications of state law.
In addition, the Fourth Circuit badly misread a critical
provision of the Communications Act that establishes a clear
jurisdictional divide between federal and state authority
over wireless services. Entitled “State Preemption,” 47
U.S.C. § 332(c)(3)(A) denies state and local governments
“any authority to regulate the entry of . . . any commercial
mobile service.” 47 U.S.C. § 332(c)(3)(A) (emphasis added).
Setting operational standards such as permissible RF
emissions, and imposing design, equipment, or labeling
duties as conditions precedent to distributing or using
wireless telephones, are quintessential forms of entry
regulation. In contrast to the Fourth Circuit, the Seventh
Circuit has correctly read the statute to “create separate
spheres of responsibility” and to reserve design and
operational standards for all network components to the
“exclusively federal” sphere. Bastien v. AT&T Wireless Servs.,
205 F.3d 983, 987 (7th Cir. 2000).
The Fourth Circuit's endorsement of a state common
law broadside into the coherence and uniformity of federal
radio regulation, standing alone, makes this case one of
exceptional importance and worthy of this Court's plenary
review. Both Congress and the FCC have repeatedly
recognized that a reliable and seamless interstate wireless
network is a national resource —essenrtial to homeland
security, public safety, and the economic health of this
country. This Court's intervention is necessary to prevent
the balkanization of network standards invited by the
decision below, which will, if uncorrected, undermine the
ability of consumers to use an FCC-approved wireless
telephone in every state in the Union. For these reasons,
discussed in detail below, this petition should be granted.
5
STATEMENT OF THE CASE
A. Factual Background
1. Federal Regulation Of Radio Transmissions
Regulation of radio transmissions has long been the
responsibility of federal, not state, government. The Radio
Act of 1912 first established a comprehensive federal
licensing regime for commercial radio transmissions and
“forbade the operation of radio apparatus without a license
from the Secretary of Commerce and Labor.” NBC v. United
States, 319 U.S. 190, 210 (1943). Congress strengthened that
regime in the Radio Act of 1927 in order “to maintain the
control of the United States over all the channels of interstate
and foreign radio transmission.” Radio Act of 1927 § 1, 44
Stat. 1162 (1927). The 1927 Act created a new regulatory
agency, the Federal Radio Commission, with the power to
assign frequencies and regulate not only the power and
duration of all radio transmissions but also the “apparatus
to be used” for such transmissions. Id. § 4(e), 44 Stat. at 1163.
Congress built on the foundations of the 1927 Act in
the Communications Act of 1934, which established the FCC
and gave the agency plenary authority to regulate interstate
and foreign radio communications. See NBC, 319 U.S. at 214.
Section 301 of the 1934 Act reaffirmed the exclusive federal
authority established by the 1927 Act: “No person shall use
or operate any apparatus for the transmission of energy or
communications or signals by radio, . . . except under and
in accordance with this chapter and with a license in that
behalf granted unde: the provisions of this chapter.” 47
U.S.C. § 301. Title [II of the Act gave the FCC authoritv over
every technical aspect of radio communication, including
the power and time of operation, id. § 303(c), the location
of stations or classes of stations, id. § 303(d), and “the kind
of apparatus to be used with respect to its external effects and
the purity and sharpness of the emissions from each station
and from the apparatus therein,” id. § 303(e) (emphases
added).
6
2. The Advent Of Cellular Telephone Technology
Against this federal regulatory backdrop, commercial
deployment of “cellular” radio telephone technology began
in the late twentieth century. Such technology is designed
to maximize the ability of multiple subscribers to use the
same limited portion of radio spectrum without
interference. By breaking a geographic area into “cells” and
placing a base station in each cell, both the handsets and
the base stations can use significantly less transmission
power than they otherwise would. This allows more
handsets to use the same set of radio frequencies within a
given geographic area, by reducing the potential for
interference between individual mobile units. See WILLIAM
C.Y. Lee, Mobile Communications Engineering: Theory and
Applications 6 (1982).
In a cellular system, each handset communicates with
the base station that provides the best overall signal, and a
call is automatically handed from base station to base station
as the user’s position in the network changes. Id. at 10. RF
emissions provide the radio communications by carrying
the signal from a transmitter to a receiver. See FCC, OET,
Questions and Answers about Biological Effects and Potential
Hazards of RF Electromagnetic Fields, Bulletin 56 at 3 (August
1999), available at http://www.fcc.gov/oet/info/documents/
bulletins/. There is a direct correlation between any
transmitter’s signal strength and the amount of RF energy
that the transmitter emits. See id. at 5. A wireless telephone
is thus an integral part of the wireless network itself. Its
power levels and ability to send and receive voice and data
communications through RF emissions (as well as the
ancillary signals necessary to other network functions)
cannot be severed from network design as a whole. For
example, the network’s effective coverage area can only be
defined in relation to the design and power levels of both
the fixed antennae that serve as “base stations” and the
portable transceivers contained in each subscriber's wireless
7
telephone. See THeopore S. Rappaport, Wireless
Communications — Principles and Practice 17 (1996)
(“RAPPAPORT”).
At the inception of commercial two-way wireless
telephony, the FCC recognized that all technical aspects of
the service fall squarely within its plenary authority over
all forms of interstate radio transmission under Title III of
the Communications Act. See Future Use of Frequency Band
806-960 MHZ, 46 FCC 2d 752, 766-67, 944 (1974). The
Commission made clear that its “technical standards and
... Operational rules are to apply nationwide . . . without
regard to state boundaries or varying local jurisdictions.”
Id. at 766, 443. After initial deployments of wireless
networks proved successful, the FCC revised its rules
regarding cellular telephony and allocated additional
spectrum to commercial mobile services. See Use of the Bands
825-845 MHz and 870-890 MHz, 86 FCC 2d 469 (1981). The
Commission reaffirmed that the “essential objective” of its
wireless policy was to “achieve nationwide compatibility,”
so that a subscriber could use a wireless telephone anywhere
in the Nation. Id. at 503, 79. To that end, the Commission
again “assert[ed] federal primacy over the areas of technical
standards and competitive market structure for cellular
service.” Id. at 504-05, 482.
The FCC’s reconsideration order in the first standard-
setting docket for wireless devices explained that its
technical standards were intended to be exclusive of
competing state regulation. See Use of the Bands 825-845 MHz
and 870-890 MHz, 89 FCC 2d 58, 66 415 (1982) (“1982 Cellular
Order”). The Commission emphasized that federal design
and operational specifications were “carefully developed”
in order to achieve “efficient spectrum re-use and
nationwide compatibility, while providing sufficient
flexibility to accommodate new technological innovations.”
Id. at 95, 81. The FCC identified national uniformity as a
central component of federal wireless policy: “It is
8
imperative that no additional requirements be imposed by
the states which could conflict with our standards and
frustrate the federal scheme for the provision of nationwide
cellular service.” Id.
In 1993, Congress made significant amendments to the
Communications Act in order to further consolidate
wireless regulation at the federal level and thus “foster the
growth and development of mobile services that, by their
nature, operate without regard to state lines as an integral
part of the national telecommunications infrastructure.” H.
R. Rep. No. 103-111, at 260 (1993). In particular, the 1993
amendments added § 332(c)(3)(A), entitled “State
Preemption,” to the Communications Act Omnibus Budget
Reconciliation Act of 1993, Pub. L. No. 193-66, Title VI,
§ 6002(b), 107 Stat. 312 (1993) (“OBRA”). That provision
provides, in pertinent part, that “no State or local
government shall have any authority to regulate the entry
of or rates charged by any commercial mobile service.” 47
U.S.C. § 332(c)(3)(A) (emphasis added).
In addition, the OBRA amendments excluded wireless
services from the traditional division between state and
federal regulatory authority over “intrastate” versus
“interstate” telecommunications services. See e.g., AT&T
Corp. v. Iowa Utils. Bd., 525 U.S. 366, 728-33 (1999). The OBRA
amendments expressly removed wireless services from the
reservation of state authority in 47 U.S.C. § 152(b) — negating
any argument that there exists any “intrastate” component
of wireless service presumptively subject to state control.
In the FCC’s words, this change was designed to ensure a
“national regulatory policy for [wireless telephony], not a
policy that is balkanized state-by-state.” Petition on Behalf
of the State of Conn., 10 F.C.C.R. 7025, 7034, 414 (1995).
2) =
3. The FCC’s RF Emissions Regulations
The FCC has long understood that, as the exclusive
licensing agency for communications by radio, it bears the
responsibility under federal law for evaluating and
addressing any safety concerns raised by RF emissions from
FCC-licensed devices. See Biological Effects of Radiofrequency
Radiation, 100 FCC 2d 543, 543, 41 (1985) (“ Biological Effects
of RF”). Pursuant to its obligations under the National
Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§
4321-4335, the Commission initiated its first inquiry into
potential biological impacts of FCC-licensed devices in 1979.
Biological Effects of RF, 100 FCC 2d at 544, 42. This proceeding
resulted in the adoption of specific federal RF emission
standards based on the research and recommendations
contained in the 1982 report of the American National
Standards Institute (“ANSI”). Id. at 551, 924. Many low
power devices, including wireless telephones, were
“categorical[ly] exclu[ded]” from NEPA obligations based
upon the FCC’s determination that the devices posed no
RF dangers under normal! conditions of use. Id. at 563, 458.
In 1993, the FCC opened the rulemaking that led to the
regulations at issue in this case. The rulemaking was
prompted by the FCC’s desire to harmonize its RF
regulations with new ANSI standards. The Commission
specifically contemplated that the updated RF regulations
would apply more broadly, to a whole range of FCC-
regulated transmitters, including cellular telephones.
Guidelines for Evaluating the Envtl. Effects of Radiofrequency
Radiation, 8 F.C.C.R. 2849, 2851, 416 (1993) (“RF NPRM”).
The FCC invoked its general regulatory authority under the
Communications Act as grounds for promulgating this
comprehensive RF emissions regulatory scheme, id. at 2854,
931; see 47 U.S.C. §§ 154(i)-(j), 303(r), as well as its
“obligations under the NEPA .. . to provide the means by
which to evaluate Commission actions with respect to
10
environmental significance,” RF NPRM, 8 F.C.C.R. at 2854,
31 (citations omitted). As mandated by NEPA, the
Commission solicited comments “from expert health and
safety agencies within the Federal Government ... in the
interest of developing a consistent approach to the treatment
of RF exposure environments for the private sector and
Federal Government.” /d. at 2850, 4 11.
Three years later, while this rulemaking was still
pending, Congress passed the Telecommunications Act of
1996 (the “1996 Act”), a sweeping, deregulatory reform of
federal telecommunications policy. Section 704(b) of the
1996 Act, captioned “Radio Frequency Emissions,”
provided: “Within 180 days after the Enactment of this Act,
the Commission shall complete action in [the 1993
rulemaking] to prescribe and make effective rules regarding
the environmental effects of radio frequency transmissions.”
Pub. L. No. 104-204, § 704(b), 110 Stat. 56 (1996). This call
for swift FCC action was based upon Congress's judgment
that “it is in the national interest that uniform, consistent
requirements, with adequate safeguards of the public health
and safety, be established as soon as possible.” H. R. Rep.
No. 104-204, at 94 (I) (1995) (emphasis added). Congress
knew that any such rules, by their nature, required the FCC
to strike “an appropriate balance in policy” between
“adequate safeguards of the public health and safety” and
the “speed[y] deployment and the availability of
competitive wireless telecommunications services.” [d.
Consistent with this statutory directive, the FCC
adopted the mandatory RF testing, certification, and
emission standards at issue here so as “[t]o protect public
health with respect to RF radiation from FCC-regulated
transmitters.” Guidelines for Evaluating the Effects of
Radiofrequency Radiation, 11 F.C.C.R. 15123, 15184, $169
(1996) (“RF Order I”). The FCC’s final rules balanced the
competing national priorities identified by Congress in the
passage of § 704(b). Indeed, the Commission characterized
11
its RF standards as reflecting a “balance between the need
to protect the public . . . from exposure to potentially
harmful RF electromagnetic fields and the requirement that
the industry be allowed to provide telecommunications
services to the public in the most efficient and practical
manner possible.” Guidelines for Evaluating the Envtl. Effects
of Radiofrequency Radiation, 12 F.C.C.R. 13494, 13496, 42
(1997) (“RF Order II”).
The Commission set maximum permissible exposure
levels for every component of the wireless network capable
of RF emissions, including handsets. See RF Order I, 11
F.C.C.R. at 15147, 463 (“The [RF emissions] limits we are
adopting will generally apply to portable devices . . . [and
include] hand-held cellular telephones.”); 47 C.F.R.
§ 1.1307(b)(2) (regulating wireless “[mJobile and portable
transmitting devices”); id. § 2.1093(b) (setting specific RF
levels for portable transmitting devices “designed to be used
. within 20 centimeters of the body of the user”). The
FCC’s RF regulations specify testing and exposure limits
for the entire body, for any one cubic gram of human tissue,
and for the hands, feet, and ankles. See 47 C.F.R. § 2.1093(d).
These regulations, which have a fifty-fold safety factor built
into authorized exposure limits, see Brief of the Respondents
in Opposition at 3 n.4, Citizens for the Appropriate Placement
of Telecomms. Facilities v. FCC, Nos. 00-393, 00-407, 00-417,
00-427 (U.S. Dec. 4, 2001) (“FCC Brief in Citizens for
Appropriate Placement”) are even more restrictive in some
respects than the revised RF standards adopted by ANSI.
The FCC made pre-market RF testing and certification
of wireless telephones a part of its equipment authorization
process. Thus, no such telephone may be offered for sale or
lease in the United States “unless . . . such device has been
authorized ... in accordance with [the RF regulations].”
47 C.F.R. § 2.803(a)(1). The Commission also incorporated
compliance with RF requirements as a condition on the
exercise of wireless service providers’ federal spectrum
12
licenses. See id. § 24.51(a) (“Each transmitter utilized for
operation under this part and each transmitter marketed, as
set forth in § 2.803 of this chapter, must be of a type that has been
authorized by the Commission under its certification procedure for
use under this part.”) (emphasis added).
As required by NEPA, see 42 U.S.C. § 4332(2)(C), the FCC
consulted extensively with other federal agencies, including
the FDA, the EPA, and OSHA. The FDA’s participation was
particularly important, given its overlapping regulatory
authority “to protect the public health and safety from
electronic product radiation.” 21 U.S.C. § 360ii(a). The final
RF emission standards “represent[ed] a consensus view of the
federal agencies responsible for matters relating to the public
heaith and safety.” RF Order I, 11 F.C.C.R. at 15124, 42.
The FCC’s RF standards were directly, but unsuccessfully,
challenged in court. These challenges related not only to the
Commission's authority to promulgate the standards, but also
to the policy judgments made regarding the scientific evidence
and the appropriate safety factor. See EMR Network v. FCC,
391 F.3d 269 (D.C. Cir. 2004) (affirming FCC denial of a petition
to amend the RF rules to reduce authorized emission levels),
cert. denied, 125 S. Ct. 2925; Cellular Phone Taskforce v. FCC, 205
F.3d 82, 90 (2d Cir. 2000) (rejecting argument that the RF
standards are insufficiently protective in light of possible “non-
thermal effects of RF radiation”).
B. Proceedings Below
Respondents filed a complaint in Louisiana state court
on May 26, 2000, which was removed to federal district court
in Louisiana based on diversity of citizenship. This complaint
(Naquin), as well as four other class action complaints filed in
different state courts,’ alleged that FCC-approved wireless
? The other four cases are Pinney v. Nokia; Inc., No. 01-1456 (D. Md.),
Gimpelson v. Nokia, Inc., No. 01-1615 (N.D. Ga.), Gilliam v. Nokia, Inc., No.
01-4275 (S.D.N.Y.), and Farina v. Nokia, Inc., No. 01-2477 (E.D. Pa.).
13
telephones are defective products and unreasonably
dangerous under the product liability and tort laws of their
respective States. The five complaints named virtually the
entire wireless industry, including most of the major
manufacturers and service providers. Petitioners removed
the Naquin case at issue here, and the four other state class
action lawsuits, to the appropriate federal district courts.
The Judicial Panel on Multidistrict Litigation consolidated
the cases for pretrial proceedings in the U.S. District Court
for the District of Maryland. See In re: Wireless Litigation,
170 F. Supp. 2d 1356 (J.P.M.L. 2001).
The gravamen of all five complaints, including that at
issue here, is that scientific uncertainty exists regarding
putative “non-thermal effects” of RF emissions. See, e.g.,
Naquin Compl. 4 XLI, App. 203a (alleging that “it was
foreseeable that [wireless telephones] created some health
risk and would or could cause some adverse health effect” ).
The complaints also alleged that petitioners misrepresented
“{t}he presence of adequate testing of RFR,” id. 4 LIX.b,
App. 209a, and “intentionally, negligently and wrongfully
reported that the [wireless telephones] were safe,” id.
4 XLVIIL, App. 206a.
According to respondents, the alleged risk that wireless
telephones (which respondents acknowledge complied with
all FCC testing and emission requirements) might cause
someone injury is sufficient to require petitioners to include:
(1) warnings that their phones are unsafe if used without a
headset; (2) a headset with every telephone to reduce RF
exposure of the brain and ear; and (3) instructions for the
use of headsets. Id. ¢ CXXXI, App. 239a. Respondents
specifically sought an injunction forcing petitioners to
provide class members nationwide with headsets. Naquin
Compl. 4 CXXVIIL, App. 236a. For class members whose
wireless telephones were not compatible with a headset,
respondents sought an injunction requiring petitioners to
provide a new headset-compatible phone and a headset.
Id.
14
After the district court denied respondents’ motion to
remand the four non-diversity cases, App. 77a-78a,
petitioners filed a consolidated motion to dismiss all five
complaints with prejudice on federal preemption grounds.
The district court granted the motion, concluding that both
respondents’ theories of liability and their requested relief
conflicted with the purposes and efficacy of the FCC’s RF
regulations. App. 64a-65a.
The district court held that the long and significant
history of federal control of radio transmission and
transmitters negated any possible presumption against
federal preemption. App. 63a (citing Locke, 529 U.S. at
108). After carefully examining the entire regulatory
scheme, including Section 332’s express preemption
provisions, thé FCC’s statements of purpose in its
rulemaking proceedings, and the scope and operation of
the federal RF regulations themselves, the district court
concluded:
{[Respondents’ claims] seek to have the
responsible federal agencies’ judgment overruled
in several separate states by an individual judge
or jury through compensatory and declaratory
relief requiring the provision of headsets,
instructions, and “reasons” the headsets should
be used. Such a result is contrary to the
Congressional purposes of national uniformity,
deference to agencies’ expertise, and striking an
appropriate balance between wireless
telecommunications development and public
safety.
App. 73a.
A divided panel of the Fourth Circuit reversed. App.
4a, 46a. As an initial matter, the panel majority overturned
the district court’s holding that federal subject matter
jurisdiction existed in four of the cases removed from state
15
court. App. 9a-29a. Because subject matter jurisdiction over
Naquin rested on diversity of citizenship, however, the
Fourth Circuit reached the merits of the federal preemption
issue in this case. App. 29a.*
On the merits, the Fourth Circuit held that neither the
claims at issue in this case nor the relief specifically sought,
was preempted by federal law and hence reversed the
district court’s judgment of dismissal under Rule 12(b)(6)
and reinstated the Naquin complaint. The majority began
by invoking a “presumption against preemption” and
emphasizing that this presumption is “particularly strong
when Congress legislates in a field which the States have
traditionally occupied, such as health and safety.” App. 34a
(internal quotation and citations omitted). The majority held
that the district court's reliance on Locke was “misplaced
because there is not the same federal presence in the wireless
telecommunications area as there is in the area of maritime
commerce.” Id. at 34a-35a & n4.
Applying this presumption in favor of state authority,
the Fourth Circuit then held that the FCC’s comprehensive
regulatory regime did not preempt respondents’ claims.
According to the majority, the Commission could not
preempt state law in the absence of clear “evidence” of “a
congressional goal of achieving preemptive national RF
radiation standards for wireless telephones.” Id. at 43a. The
majority failed to find any such “evidence” and further held
* In four of the consolidated cases, see n. 2, supra, federal jurisdiction
rested solely on federal question grounds. A separate group of
petitioners has asked this Court to vacate and remand the Fourth
Circuit's jurisdictional ruling in light of this Court's intervening decision
in Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 125 S. Ct. 2363
(2005). In the fifth case, which is at issue in this petition, federal
jurisdiction also rested on diversity of citizenship, and the plaintiffs
eventually amended their complaint to add a federal claim. See App.
237a. Thus, there is no dispute over subject matter jurisdiction in this
case, and both the district court and the Fourth Circuit properly reached
the merits of the federal preemption defense.
16
that the supposed absence of express preemption
“counsel[ed] against” a finding of conflict preemption. Id.
The Fourth Circuit also held that § 332(c)(3)(A)’s ban
on any form of state entry regulation did not preempt
respondents’ claims. The majority ruled that that the relief
sought by respondents — “a headset requirement” — did not
constitute “a barrier to entry for PCS providers.” Id. at 40a.
The majority asserted that because the wireless telephone
was not part of the wireless network itself, and instead only
served as a means of accessing the network, state regulation
of the wireless telephones (as opposed to fixed antennae)
could not violate § 332. Id. at 36a-40a.
Senior District Judge Kiser dissented from the panel's
decision to remand four of the cases. Id. at 46a. He agreed
with the district court that the federal RF regulations “reflect
what the FCC believes will maintain the proper balance
between the interest in promoting wireless communication
throughout the country and the interest in protecting the
health and safety of all consumers.” Id. The dissent
concluded that respondents’ claims, by upsetting that
balance, would “result in the complete invalidation of
federal regulatory standards.” Id. at 49a.
On April 12, 2005, the Solicitor General authorized the
filing of an amicus brief by the United States expressing
the FCC’s view that the panel decision was wrong and
should be reviewed by the full court. Id. at 184a. That same
day, the Fourth Circuit denied rehearing en banc, id. at 130a,
depriving the Fourth Circuit of the FCC’s views regarding
the preemptive effect of its own regulations.
17
REASONS FOR GRANTING THE PETITION
I. The Fourth Circuit Effectively Invalidated the Federal
RF Regulatory Regime by Ignoring this Court's
Precedent on Agency Conflict Preemption.
The Fourth Circuit's holding that state lawsuits may
rebalance competing federal goals, re-evaluate expert
findings and policy judgments made by federal agencies,
and create different and conflicting obligations from those
contained in federal standards designed to apply uniformly
across the country, cannot coexist with settled principles
of this Court's conflict preemption jurisprudence. App. 41la-
45a. The decision will wreak havoc on the law of agency
conflict preemption: It denies agency regulations any
independent preemptive force under the Supremacy Clause
and places Congress in a legislative straightjacket in crafting
agency mandates where conflicts with state law might
eventually arise.
Of most immediate concern, the decision below opens
the door to a novel encroachment by state law into the
technical and operational standards for interstate
communications by radio. Not only will a patchwork of state
standards undermine network reliability in general, it will
threaten the ability of the wireless network to serve critical
national security and public safety functions. As the FCC
has recognized, “(t]he Homeland Security obligations of the
Nation’s public safety agencies make it imperative that their
communications systems are robust and highly reliable.”
Improving Pub. Safety Commc’ns in the 800 MHz Band, 19
F.C.C.R. 14969, 14969, 41 (2004). Disparate state regulation
of the design and RF emissions of portable wireless devices
will adversely impact nationwide interoperability, the
ability to “roam” outside a subscriber's designated network,
and interstate public safety communications, as well as the
new location technologies now being deployed as part of
the FCC’s wireless E911 initiative. See 47 C.F.R. § 20.18; see
also infra n. 5.
18
1. Under the Supremacy Clause, U.S. Const. art. VI, sec.
2, federal law preempts all state law that stands “as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Crosby v. Nat'l Foreign
Trade Council, 530 U.S. 363, 372-73 (2000). Federal
regulations are clearly “Laws of the United States” that can
have independent preemptive effect under the Supremacy
Clause. See, e.g., Fid. Fed. Savs. & Loan v. de la Cuesta, 458
U.S. 141, 152-54 (1982). Indeed, “[flederal regulations have
no less preemptive effect than federal statutes.” Jd. at 153.
Thus, the only relevant statutory inquiry in an agency
preemption case is whether the agency was “acting within
the scope of its congressionally delegated authority” by
adopting the regulation at issue. La. Pub. Serv. Comm’‘n v.
FCC, 476 U.S. 355, 369 (1986); see also Fid. Fed. Savs. & Loan,
458 U.S. at 153-54; United States v. Shimer, 367 U.S. 374, 383
(1961). This Court has made quite clear that no special
statement of congressional intent to preempt or to authorize
the agency to preempt is necessary. See, e.g., City of New
York v. FCC, 486 U.S. 57, 64 (1988).
The Fourth Circuit disregarded these bedrock
preemption principles. According to the panel majority, the
question here is not whether Congress has authorized the
FCC to promulgate the regulations at issue, which it
indisputably has, but rather whether Congress itself has
expressly stated an “objective of achieving preemptive
national RF radiation standards for wireless telephones.”
App. 42a-43a. Because, in the majority's view, no federal
statute expressly preempts respondents’ claims, no conflict
preemption can arise from state interference with the
governing federal regulatory regime: “The complete
absence of any provision addressing wireless telephones
counsels against a finding that § 332 evidences a
congressional goal of achieving preemptive national RF
radiation standards for wireless telephones.” Id. at 43a.
This myopic focus on congressional action, rather than
agency action, allowed the Fourth Circuit panel to “accord
... no weight,” App. 28a, to the FCC’s repeated statements
19
that its technical standards for all wireless devices must be
exclusive in order to be effective: “It is imperative that no
additional requirements be imposed by the states which could
conflict with our standards and frustrate the ‘ederal scheme
for the provision of nationwide cellular service.” 1982
Cellular Order, 89 FCC 2d at 95, 481 (emphasis added). The
panel majority simply refused to examine agency intent,
the legislative and regulatory background against which
the federal RF standards were adopted, or the practical
effect of disparate state regulation on the ability of federal
regulations to achieve federal policy goals — factors that the
district court found dispositive under this Court's
precedents. App. 64a-72a.
The Fourth Circuit's approach to agency conflict
preemption is flatly inconsistent with this Court's
precedents. This Court has “emphasized that in a situation
where state law is claimed to be pre-empted by federal
regulation, a ‘narrow focus on Congress’ intent to supersede
state law [is] misdirected.’” City of New York, 486 U.S. at 64
(quoting Fid. Fed. Savs. & Loan, 458 U.S. at 154). The majority
effectively conflated express and implied preemption,
making it essentially impossible to find the latter in the
absence of the former. As this Court has explained, however,
“conflict pre-emption is different in that it turns on the
identification of ‘actual conflict’ and not an express
statement of pre-emptive intent.” Geier, 529 U.S. at §84
(citation omitted).
2. Had the panel majority asked the right question, it
would have recognized that “(t]he answer” to whether
respondents’ state-law claims frustrate federal law is, as the
district court concluded, “yes.” App. 65a. That is so because
respondents’ claims “would necessarily require a judge and
jury to usurp the regulatory function entrusted by Congress
to the expertise and discretion of federal agencies.” Id.
As the dissent pointed out, “[t]he FCC has enacted a
uniform, nationwide regulatory scheme pertaining to
wireless telephones which is the result of a thorough and
complex rule-making process.” Id. at 46a. In adopting the
20
federal RF emissions standards, the FCC struck a careful
and deliberate balance between the goal of promoting the
prompt and efficient roll-out of a seamless national wireless
communications network and the potential health risks
from exposure to RF emissions. See supra at 10-11.
If these state lawsuits are permitted to proceed, the
FCC’s detailed regulations regarding the testing of wireless
telephones for RF emissions, 47 C.F.R. § 2.1093(d)(3); the
authorized RF emission levels themselves, id. § 2.1093(d);
resulting FCC certification; and “grant[s] of equipment
authorization,” id. § 2.803(a)(2), would all be rendered
meaningless. Courts (and juries) applying state law would
be free to conduct their own “risk-utility” balancing under
various doctrines of product liability and tort law (or
conduct no balancing at all), and thus effectively revoke
the FCC’s grant of equipment authorization to market a
wireless telephone on a nationwide basis.‘
These lawsuits thus constitute obstacles to the
accomplishment of at least two federal objectives. The first
is the existence of uniform national standards, which ensure |
that subscribers can seamlessly use their wireless telephones
across the country. Both Congress and the FCC have
repeatedly emphasized the need for national uniformity in
the area of wireless telecommunications. See supra 7-11.
When Congress passed § 704(b) it directed a national risk-
utility analysis, based upon nationwide network concerns
that lie beyond the ken of any individual state or state court. _
Many consumer products, such as lawnmowers or
dishwashers, are purchased and used within the same state.
A wireless telephone, by contrast, is part of an interstate
network and intended to “roam” among the fifty states and
* Respondents’ claims even contemplate that petitioners could be
held liable for common law fraud for telling consumers that FCC-
approved handsets are “safe.” See App. 15a-16a. Ironically, the FCC and
FDA make exactly this sort of statement ir explaining their RF standards
to the public. See FCC/FDA— Market Sense, Ceil Phones: Facts, Fiction,
Frequency, available at www.fcc.gov/cgb/cell_phones.html (asserting that
“[a]ny cell phone at or below these (FCC-mandated] SAR levels (that is,
any phone legally sold in the U.S.) is a ‘safe’ phone”).
21
to provide reliable communications in every one of them.
As with control of the authorized routes and flight times of
aircraft traveling in federal airspace, see City of Burbank v.
Lockheed Air Terminal, Inc., 411 U.S. 624 (1973), the maximum
authorized speeds for interstate trains, see CSX Transp., Inc.
v. Easterwood, 507 U.S. 658 (1993), or the design and crew
requirements for interstate tankers, Locke, 529 U.S. at 110,
uniformity of regulation is central to the achievement of
the primary objective of federal regulation — seamless
interstate operation.
The second relevant federal objective is achievement
of the proper balance between potential health and safety
concerns and the deployment of a reliable and seamless
wireless infrastructure. Indeed, the Solicitor General has
emphasized the FCC's exclusive role in striking this balance
in briefs filed with this Court:
There is a trade-off between [the goal of
promoting the prompt and efficient roll-out of a
national wireless telecommunications
infrastructure] and public exposure to RF energy:
all risk from RF energy could be eliminated by
prohibiting wireless communications
technologies. Congress has entrusted to the FCC
the process of striking the appropriate balance,
a subject squarely within the agency's expertise.
FCC Brief in Citizens for Appropriate Placement at 21. Yet,
respondents’ claims are premised on the theory that the FCC
rules can be superseded by verdicts in state tort suits, which
rebalance the same competing interests in arriving at new
and different standards for RF emissions.
By their very nature, respondents’ state-law claims seek
to upset the balance struck by the FCC and replace it with a
more “ protective” regime. See, e.g., Buckman, 531 U.S. at 348
(finding obstacle preemption where “somewhat delicate
balance of statutory objectives” could “be skewed by
allowing” state-law claims); Geier, 529 US. at 881 (holding
that a rule of state tort law that imposed a duty contrary to
22
the “mix” of options permitted by federal regulations is
conflict-preempted); Edgar v. MITE Corp., 457 U.S. 624, 634
(1982) (finding obstacle preemption where state law “upset
the careful balance struck by Congress”).
3. No “presumption against preemption” diminishes
these conflicts with the federal regulatory regime. App. 34a
n.4. Putting aside the fact that the federal presence in the
area of RF regulation is substantial in both scope and
longevity, see supra at 5-12, a presumption against federal
authority has no place in an Article Ili court's assessment
of the scope of an administrative agency's statutory
mandate. See, e.g., Chevron U.S.A., Inc. v. NRDC, 467 US.
837, 842-45 (1984); Buckman, 531 U.S. at 347-48. The very
theory of the administrative state —Congressional
delegation of legislative powers, with sufficient guidance,
to an Executive agency —cannot be reconciled with any
presumption >gainst the scope of that authority. New York
v. FERC, 535 .'»-. 1, 18 (2002). Indeed, the fact that Congress
has seen fit to centralize authority over certain subject
matter in an expert federal agency, standing alone, suggests
that a presumption in favor of state law is inappropriate.
See Geier, 529 U.S. at 885 ("[O}ne can assume that Congress
or an agency ordinarily would not intend to permit a
significant conflict.”).
The panel majority also erred, and acted in
contravention of this Court's decision in Geier, by holding
that the absence of express preemption creates a
presumption against conflict preemption. Compare App.
42a-44a with Geier, 529 U.S. at 869-71. As Geier explained,
Congress’ inclusion of an express pre-emption clause “does
not bar the ordinary working of conflict pre-emption
principles.” Id. at 869; see also Sprietsma v. Mercury Marine,
537 U.S. 51, 65 (2002) (quoting Geier, 529 U.S. at 869). Because
Congress acts against a background presumption of conflict
preemption, it need not (and should not be expected to)
enact an express preemption clause in order to establish
conflict preemption, and its inclusion of such a clause does
not narrow the operation of conflict preemption. Here, as
23
in Geier, there is simply no reason why “Congress [would]
not have wanted ordinary pre-emption principles to apply
where an actual conflict with a federal objective is at stake.”
529 U.S. at 871.
4. The practical implications forthe FCC and the
wireless industry of the Fourth Circuit's ruling are daunting.
The decision below places no apparent limits on the ability
of a court, applying state law, to strike a new “risk-utility”
balance, no matter how different from the one set by the
FCC. Additional testing requirements, lower RF emissions
standards, headsets, warning labels, metal shields, novel
antenna designs, and even outright bans on certain handset
configurations, for example, are all apparently within the
new state authority over RF standards established by the
court of appeals. Each state may now fashion its own trade-
offs and adopt its own new RF standards without reference
to the federal standards. Allowing fifty state court systems
to arrive at their own respective definitions of RF safety
and to implement those definitions through various new
legal duties could negatively impact network coverage,
roaming capabilities, and the deployment of new
technologies designed to provide a consistent, predictable
location service for E911 purposes.°
In fact, this is a case where both the theory of liability,
see supra 18-22, and the proposed relief conflict with federal
law. While the panel majority asserted that “a headset
requirement would not stand as an obstacle to Congress's
* In the Enhanced 911 context, when a customer makes such a call
using a cellular phone, some carriers triangulate the position of the call
using multiple cell sites in order to determine the customer's location
and pass it on to public safety officials. See Dale N. Hatfield, A Report on
Technical and Operational Issues Impacting the Provision of Enhanced 911
Services, at 10 (Nov.2002), available at http:/ / gullfoss2.fcc.gov/ prod/
ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6513296239.
Reducing RF emissions can jeopardize this approach, because the weaker
the handset’s signal, the less likely it is that the signal will be received
in at least three cell sites at a level sufficient to allow the caller's location
to be determined. This concern applies particularly in rural areas, which
tend to have lower cell site density.
24
goal of achieving nationwide coverage,” App. 45a, that is
unpersuasive for several reasons.
First, in a joint publication, the FCC and FDA have
specifically stated that they do not believe that a headset
requirement promotes RF safety. See FCC/FDA - Cell Phone
Facts: Consumer Information on Wireless Phones, available at
http://www .fda.gov/cellphones/qa.htm|#6a (“Since there are no
known risks from exposure to RF emissions from wireless
phones, there is no reason to believe that hands-free kits
reduce risks.”). Second, where a class member's wireless
telephone is not headset-compatible, respondents seek
injunctive relief requiring both a new wireless telephone
and a headset. Third, the headset requirement must be
accompanied by a statement regarding the use or
recommended use of the headset in such a way as to avoid
liability under respondents’ theories, which, by definition,
will require petitioners to tell consumers that FCC-approved
wireless telephones are “unsafe” or “unreasonably
dangerous.” See Naquin Compl. ¢ CXXX, App. 237a
(alleging that petitioners’ public statements that FCC-
approved phones “are safe” without a headset is a deceptive
trade practice under federal law). This combination of
requested relief would substantially alter the balance struck
by the FCC and undermine public confidence in the safety
of wireless communications.
This Court should not wait for the Fourth Circuit's
erroneous decision to spawn a crazy quilt of state RF and
wireless telephone design and equipment mandates. At the
very least, this Court should call for the views of the Solicitor
General, who authorized a brief supporting the petition for
rehearing en banc in the Fourth Circuit but was unable to
place the position of the United States and the FCC before
that court. Given this Court's repeated recognition thatthe |
relevant federal agency's views on the issue of conflict
preemption are entitled to substantial weight, see, ¢.g., Geier,
529 U.S. at 883; Medtronic, Inc. v. Lohr, 518 U.S. 470, 496-97,
498-99 (1996); id. at 505-06 (Breyer, J., concurring);
25 =
Hillsborough County, Florida-v. Automated Medical
Laboratories, 471 U.S. 707, 716-17 (1985), the views of the
Solicitor General and the FCC are vital to the Court's
consideration of this petition.
Il. The Fourth Circuit Misread the Categorical Ban on
State Entry Regulation in § 332(c)(3)(A), Creating a
Conflict with the Seventh Circuit.
The Fourth Circuit also erred, and created a conflict
with the Seventh Circuit, by holding that respondents’
lawsuit is not expressly preempted by a federal statute that
denies state and local governments “any authority to regulate
the entry of .. . any commercial mobile service.” 47 U.S.C.
§ 332(c)(3)(A) (emphasis added). The lower court ignored
the plain language and purpose of the statute, improperly
grafted an undefined “barrier to entry” test on the
provision’s flat ban on any form of entry regulation, and
erroneously held that a wireless telephone is not part of
the wireless network.
1. As with its analysis of agency conflict preemption,
the panel majority began its examination of § 332(c)(3)(A)
applying a presumption against preemption, which tainted
the panel majority's entire analysis. App. 34a-35a & n.4.
Although such a presumption may be appropriate in certain
areas of traditional state regulation, see, e.g., Bates v. Dow
Agrosciences LLC, 125 S. Ct. 1788 (2005); Medtronic, 518 U.S.
at 485, this Court has made clear that it does not apply
“when the State regulates in an area where there has been a
history of significant federal presence,” Locke, 529 US. at
108. As explained in detail above, see supra at 5-12, and as
the district court correctly found, App. 62a-63a, the design
and operational characteristics of radio transmitters has
been an area of primary federal concern and control since
the early twentieth century.
The Fourth Circuit attempted to distinguish Locke on
’ the ground that “there is not the same federal presence in
the wireless telecommunications area as there is in the area
of maritime commerce,” at issue in Locke. App. 34a n.4. To
26
the contrary, comprehensive federal regulation of wireless
communications actually predates the federal maritime
statutes at issue in Locke. 529 U.S. at 101 (Tank Vessel Act of
1936). As described above, Congress first established federal
regulation over the technical aspects of all wireless
communications in the Radio Acts-of 1912 and 1927, swift
on the heels of Marconi’s first demonstrations of the
wonders of “ wireless telegraphy.” The Communications Act
of 1934 “formulated a unified and comprehensive
regulatory system for the industry [and] the objectives of
the legislation have remained substantially unaltered since
1927.” NBC, 319 U.S. at 214; see supra at 5. If this long and
comprehensive regulatory history does not constitute a
“significant federal presence” in the regulation of technical
aspects of wireless communication., then Locke has no
meaning outside federal regulation of international tankers.°
2. Applying this “presumption,” the panel majority
interpreted Section 332(c)(3)(A) to apply only to “barriers”
to entry and held that state regulation of a wireless
telephone’s RF emissions is not such a “barrier.” App. 38a-
40a. The relevant statutory provision, however, does not
employ the term “barrier.” Rather, the statute more broadly
forbids the exercise of “any authority” to “regulate entry”
in the context of commercial wireless service, 47 "J.S.C. §
332(c)(3)(A) (emphasis added), regardless of the extent of
the burden imposed by such regulation. The court below
thus erred by asking whether the relief requested might
create a “barrier” to entry, as opposed to inquiring whether
the lawsuit seeks to “regulate the entry of ... any commercial
* Other circuits have correctly read Locke to apply to areas such as
railroad safety regulation, see CSX Transp., Inc. v. Williams, 406 F.3d
667, 673 (D.C. Cir. 2005), and the regulation of interstate communications
by wire, see Ting v. AT&T Corp., 319 F.3d 1126, 1136 (9th Cir. 2003). This
petition provides the Court with a vehicle to address the confusion
among the circuits as to when Locke applies and how its application
affects implied preemption analysis.
27
mobile service” at all.” The Fourth Circuit’s addition of a
“barrier to entry” requirement to what was heretofore
viewed as a categorical prohibition on certain state action —
and a jurisdictional dividing line —is contrary to both the
plain language of § 332(c)(3)(A) and congressional intent
in enacting that provision.
The breadth of this language is underscored when
considered in light of OBRA’s amendment to 47 U.S.C. §
152(b). See supra at 8. Prior to that amendment, as this Court
has explained, the Communications Act established “a
system of dual state and federal regulation over telephone
service,” La. Pub. Serv. Comm'n, 476 U.S. at 360, with the
FCC exercising plenary jurisdiction over “interstate . . .
communications” and jurisdiction over “intrastate services”
reserved to state public utility commissions, id. Indeed, the
holding of Louisiana was that Section 152(b) deprived the
FCC of authority to preempt state regulation of depreciation
rates for intrastate services. Id. at 379.
In 1993, Congress decided to exclude wireless services
from Section 152(b), and thus to remove such services from
the sphere of intrastate jurisdiction. Congress thereby
evinced its intent to exempt wireless carriers from the type
of regulation state commissions had imposed on wireline
carriers (i.e., carriers offering telecommunications over
wired networks). The amendment to Section 152(b) also
” Other parts of the Communications Act, in contrast, do mandate
that a particular state or local action actually operate as a barrier to a
carrier's ability to provide service. See, ¢.g., 47 U.S.C. § 253(a) (“Removal
of Barriers to Entry . . . No State or local statute or regulation, or other
State or local legal requirement, may prohibit or have the effect of
prohibiting the ability of any entity to provide any interstate or intrastate
telecommunications service.” (emphasis added)); id. § 332 (c)(7)(B)(II)
(state or local regulation of personal wireless service facilities “shall
not prohibit or have the effect of prohibiting the provision of personal wireless
services”) (emphasis added). These provisions demonstrate that
Congress knows full well how to draft a statute that preempts only state
regulation that can be shown to actually impede the provision of a
telecommunications service. See Barnhart v. Sigmon Coal Co., 534 U.S.
438, 452 (2002).
28
represents a congressional judgment that wireless services
have no intrastate component for the States to regulate. The
reference to entry regulation in Section 332(c)(3)(A), then,
is best construed as a term of art referencing all forms of
regulation over equipment and services that state
commissions had imposed on wireline telephone
companies. See id. at 372 (explaining that “technical terms
of art should be interpreted by reference to the trade or
industry to which they apply”). By ignoring this
background and context of Section 332(c)(3)(A), the Fourth
Circuit ignored congressional intent and authorized state
entry regulation as long as it does not run afoul of an
undefined “barrier to entry” test.
The Fourth Circuit's exclusion of the wireless handset
from the protection of § 332(c)(3)(A) was also plainly wrong.
See App. 40a (“A headset requirement for wireless
telephones would not constitute a barrier to entry into the
[mobile commercial services] market because wireless
telephones are only used to access a wireless service
provider's network of coverage; the telephones themselves
do not provide the actual coverage.”). As explained above,
in two-way radio communications, the coverage of the
network is defined both by the power, design, and placement
of the base station transmitter and by the power and design
of the antenna and transceiver in the handset. See Rappaport
at 17. A given set of base stations may provide seamless
coverage for one handset design, but may provide wholly
inadequate coverage for another handset with a different
antenna or operating at lower power. Particularly in rural
areas, lower handset signal strength could mean that the
handset loses contact with one base station before the call
can be handed off to another base station. Unless there is
some set level of RF emissions from wireless handsets, the
network (including the telephone itself) is useless.
The FCC’s own regulations underscore that the wireless
telephone is a transmitter that is part of the carrier's wireless
network. Subscribers’ mobile stations “when receiving
service from [a] cellular system, are considered to be
29
operating under the authorization of that cellular system,” and
thus “[c]ellular system licensees are responsible for exercising
effective operational control over mobile stations receiving service
through their cellular systems.” 47 C.F.R. § 22.927 (emphasis
added). The integral nature of the handset is also shown by
the fact that in wireless networks, “the power ievels
transmitted by every subscriber unit are under constant control
by the serving base stations,” Rappaport at 17, which can and
do adjust the power outputs of the handsets in order to ensure
that each handset transmits the smallest amount of power
necessary to maintain a quality link.
Technical mandates for equipment design and
configuration, pre-market testing and labeling requirements
are all quintessential forms of entry regulation. As the FCC has
made clear, state certification regimes that include
“engineering standards, inspections and tests, service quality
standards, and safety requirements” are “precluded by the
provision in amended Section 332 that categorically preempts
state and local entry regulation.” Petition on Behalf of the State
of Haw. Pub. Util. Comm ‘n for Auth. To Extend Its Rate Regulation
of Commercial Mobile Radio Servs. in the State of Haw., 10 F.C.C.R.
7872, 7880, 437 n. 120 (1995) (citing H. R. Rep. No. 103-111,
103rd Cong., 1st Sess. 261 (1993)).
3. The Fourth Circuit's engrafting of a “barrier to entry”
requirement onto Section 332(c)(3)(A) conflicts with the
Seventh Circuit's decision in Bastien. Bastien held that Section
332(c)(3)(A) preempted a state tort action alleging that a
cellular service provider “misled [the plaintiff] about his
cellular telephone service.” 205 F.3d at 984. As the Seventh
Circuit explained, the complaint challenged “the modes and
conditions under which AT&T Wireless may begin offering
service in the Chicago market.” Id. at 989. Because “[t}he statute
makes the FCC responsible for determining the number,
placement and operation of the cellular towers and other
infrastructure,” granting the plaintiff relief “ would necessarily
force AT&T Wireless to do more than required by the FCC: to
provide more towers, clearer signals or lower rates.” Id. “The
statute,” however, “ specifically insulates these FCC decisions
from state court review.” Id. The plaintiff in Bastien (like
30
respondents here) was engaged in a “transparent attempt to
recast federal claims [challenging the FCC regulations] as state
law fraud and breach of contract actions.” Id.*
Just as a challenge to the number of base stations in a
coverage area constitutes forbidden entry regulation, so too
does state regulation based upon the wireless handset’s RF
emissions to a base tower, particularly given that the design
and signal strength of both parts of the network are completely
interdependent. To regulate one is to regulate the other — and
regulatory authority over different parts of the network cannot
practically be divided between the FCC and the fifty states.
Accordingly, respondents’ lawsuits are preempted not
only by the FCC’s comprehensive regulation of RF testing and
emissions, but also by the express preemption of “entry”
regulation contained in § 332(c)(3)(A). The Fourth Circuit
badly misread the preemptive scope of § 332(c)(3)(A) in its
own right, and then used its erroneous conclusion regarding
statutory preemption to buttress its rejection of agency conflict
preemption. Because the questions presented are interrelated,
and because the Fourth Circuit's treatment of § 332(c)(3)(A)
conflicts with the Seventh Circuit's analysis in Bastien, this
Court should grant certiorari on both questions presented by
this petition.
CONCLUSION
For the foregoing reasons, this Court should grant the
petition for writ of certiorari.
* The Bastien court also correctly rejected the “savings clause”
argument relied upon by the court below. Compare Bastien, 205 F.3d at 987,
with App. 44a. As the Seventh Circuit explained, “(t]o read the [saving]
clause expansively would abrogate the very federal regulation of mobile
telephone providers that the act intended to create.” 205 F.3d at 987. Rather,
“[t}he two clauses read together create separate spheres of responsibility,
one exclusively federal and the other aliowing concurrent state and federal
regulation.” Id; see also AT&T Corp. v. Cent. Office Tel., Inc., 524 U.S. 214,
227-28 (1998) (reasoning that savings clause “cannot in reason be construed
as continuing in customers a common law right . . . which would be
absolutely inconsistent with the provisions of the act.”) (internal quotation
omitted).
KENNETH W. STARR
CHRISTOPHER LANDAU
KIRKLAND & Eis LLP
655 Fifteenth Street, NW
Washagton, DC 20005-5793
(202) 879-5000
Counsel for Motorola, Inc.
KENNETH S. GELLER
Davip M. Gossett
Mayer, Brown, Rowe
& Maw LLP
1909 K Street, N.W.
Washington, DC 20006
(202) 263-3000
Counsel for Cingular
Wireless LLC
Respectfully submitted.
Anprew G. McBawe
Counsel of Record
Hea! C. WALKER
KATHRYN COMERFORD TODD
Josnua S. TURNER
Wiey Rew & Fre_omo LLP
1776 K Street, N.W.
Washington, DC 20006
(202) 719-7000
Counsel for Nokia Inc.
Seamus C. Durry
CuristorHer M. ARFAA
Droxer Biooie & Reatu LLP
One Logan Square
18th & Cherry Streets
Philadelphia, PA 19103
(215) 988-2700
Counsel for AT&T Corp.;
Counsel for Cingular
Wireless LLC, formerly
known as BellSouth
Mobility, Inc.; Counsel for
BellSouth Mobility LLC,
successor-in-interest to
BellSouth Mobility, Inc.
Garrett B. Jounson, P.C.
Terrence J. Dee
Micwaet B. SLADE
Kurx_ano & Exus LLP
200 East RANDOLPH Drive
Cuicaco, [L 60601-6636
(312) 861-2000
Counsel for Motorola, Inc.
Marx H. KoLMan
Deporan GoLosTock RINGEL
Kennet B. TROTTER
DicxsTew SHaPirno Morin
& Osniwsxy LLP
2101 L Street, N.W.
Washington, DC 20037-1526
(202) 785-9700
Counsel for Audiovox
Communications Corporation
CuHar_es L. BABCock
Davip T. Moran
Ryan C. Wirtz
JACKSON WALKER L.L.P.
901 Main Street
Suite 6000
Dallas, TX 75202
(214) 953-6000
Counsel for Ericsson
Mark H. Kouman
Desoran Goipstock RINGEL
KenneTH B. TROTTER
DicxsTEIN SHAPIRO Morin
& Osnisxy LLP
2101 L Street, N.W.
Washington, DC 20037-1526
(202) 785-9700
Counsel for Kyocera
Wireless Corporation
James P. ULwicx
KRramMon & Granam, PA.
One South Street
Suite 2600
Baltimore, MD 21202
(410) 752-6030
Counsel for NEC America, Inc.
Epwarp M. Crane
Topo A. FRANKEL
SKADDEN, Arps, SLATE,
Meacuer & Fiom, LLP
333 W. Wacker Drive
Suite 2100
Chicago, IL 60606-1285
(312) 407-0700
Water T. DuDLey
Patrick R. Bucker
McGumeWooos, LLP
1750 Tysons Boulevard
Suite 1800
McLean, VA. 22102
(703) 712-5465
Counsel for Nextel South Corp.
Steven M. ZaAcer
Axin Gump STRAuss
Hauer & Fetp LLP
1111 Louisiana Street
44th Floor
Houston, TX 77002
(713) 220-8109
Counsel for Nokia Inc.
RAYMOND B. BIAGINI
Lisa M. Norrett
McKenna LONG
& ALprince LLP
1900 K Street, N.W.
Washington, DC 20006
(202) 496-7500
Counsel for Philips
Electronics North America
Corporation
Francis A. CITERA
GREENBERG TRAURIG, LLP
77 West Wacker Drive
Suite 2500
Chicago, IL 60601
(312) 456-8413
Counsel for QUALCOMM
Incorporated
APPENDIX
APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
DECIDED MARCH 16, 2005
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-1433
J. Douctas PINNEY, M.D.; Patricia S. Covone., individually
and on behalf of all others similarly situated; Francis J. Farina,
individually and on behalf of all those similarly situated;
Garrett J. Naguin; Ronaco Lesianc; Jupity A. KaurMan;
Asner Rupenstein; Crystact Gitittam; Dimitri Mack;
Riepy Gimpecson, individually and on behalf of all others
similarly situated; Sakan DAHiGRen, on behalf of herself and
all others similarly situated; Linpa Barrett; BLAYNE
MinoGcue; Brian Lane Barrett; Diana Barrett; Davin C.
Keiver; MarsuHa L. Keer,
Plaintiffs-Appellants,
v.
Nokia, INcorPoRATED, a/k/a Nokia Mobile Phones, Incorporated,
a/k/a Nokia Corporation; NEC America, INCORPORATED;
EricssON WirELESS COMMUNICATIONS, INCORPORATED, a/k/a
Ericsson, Incorporated; Sprint PCS Limirep PartNersuip,
a/k/a Sprint PCS, a/k/a Sprint Spectrum, LLP, a/k/a Sprint
Spectrum; Aupiovox CommunicaTIONS CorPORATION; NEXTEL
COMMUNICATIONS, INCORPORATED, a/k/a Nextel
Communications of the Mid-Atlantic, Incorporated, a/k/a
Nextel Partners, Incorporated, a/k/a Nextel; MaTsusHIta
2a
Appendix A
CORPORATION OF America, a/k/a Panasonic Corporation;
Puities ELectronics NortH AMERICA CORPORATION; QUALCOMM
INCORPORATED; SAMSUNG ELECTRONICS AMERICA, INCORPORATED,
a/k/a SAMSUNG ELecTroNics; Sanyo NortH AMERICA,
INCORPORATED, a/k/a Sanyo Business Systems Corporation,
a/k/a Sanyo North America Group; Sony ELEcTRONICcs,
IncorPoRATED; AT & T Corporation, a/k/a AT & T; VERIZON
MARYLAND, INCORPORATED, a/k/a Verizon, a/k/a Verizon
Wireless, formerly known as Bell Atlantic Maryland,
Incorporated; VERIZON COMMUNICATIONS, INCORPORATED,
formerly known as Bell Atlantic Corporation; Verizon
Wirevess, a/k/a NYNEX, a/k/a Bell Atlantic NYNEX, a/k/a
Bell Atlantic Mobile, Incorporated, a/k/a Bell Atlantic
NYNEX Mobile; Ceti_co Partnersuip, d/b/a Verizon
Wireless, formerly known as Bell Atlantic NYNEX Mobile,
formerly known as Bell Atlantic Mobile; CinGuLar WiRELEss,
LLC, formerly known as Bell]South Mobility, Incorporated,
a/k/a Southwestern Bell Wireless, formerly known as
Southwestern Bell Mobile Systems, Incorporated; CINGULAR
Wireess, a/k/a Washington/Baltimore Cellular Limited
Partnership; SBC Communications, INCORPORATED, CELLULAR
One Group, a/k/a Cellular One; VoicestTrREAM WIRELESS
Corporation; C.E.1., Incorporatep, a/k/a Communications
Electronics, a/k/a Communications Electronics, Incorporated;
BALTIMORE Business COMMUNICATIONS, INCORPORATED;
Comcast/METROPHONE; RADIOFONE; POWERTEL, INCORPORATED;
Powertet PCS, INcorPORATED; PowerRTEL/ATLANTA,
INCORPORATED; MitsupisHt WirkELESS COMMUNICATIONS,
INCORPORATED; MOTOROLA, INCORPORATED, a Delaware
corporation; CELLULAR TELECOMMUNICATIONS AND INTERNET
Association, a District of Columbia corporation; CELLULAR
TELECOMMUNICATIONS INDUSTRY ASSOCIATION; TELECOMMUNI-
3a
Appendix A
CATIONS INDUSTRY ASSOCIATION, a/k/a TIA; NexTet PARTNERS
OPERATING CORPORATION,
Defendants-Appellees,
and
WESTINGHOUSE COMMUNICATIONS; SOUTHERN TELECOM,
INCORPORATED, a/k/a Southern Linc; Joun Does 1-100; LGIC
CORPORATION; PANASONIC CORPORATION; SAMSUNG SDI
Company; SANYO CorPoRATION; SONY CORPORATION; PLANET
CELLULAR COMMUNICATIONS, INCORPORATED; VisiTOR CELLULAR
L.L.C.; Bett Soutn Mositity; Kyrocera WIRELESS
Corporation; MCI Woritpcom COMMUNICATIONS,
IncorporateD; U.S. West Wirecess, L.L.C., A Colozado
corporation; U.S. West COMMUNICATIONS, INCORPORATED, a
Colorado corporation; GTE Mositnet or San Digco,
INCORPORATED, a Delaware corporation; GTE Wire.ess SAN
Dieco, LLC, a California Limited Liability; CELLULAR
CARRIERS ASSOCIATION OF CALIFORNIA, a California
corporation; AB CeLLuLar Howpincs, LLC, d/b/a LA Cellular,
d/b/a Los Angeles Cellular Telephone Company,
Defendants.
Argued: October |, 2004
Decided: March 16, 2005
Before LUTTIG and MICHAEL, Circuit Judges, and
Jackson L. KISER, Senior United States District Judge for
the Western District of Virginia, sitting by designation.
4a
Appendix A
OPINION
MICHAEL, Circuit Judge:
This multidistrict litigation includes five class actions
brought initially in the state courts of Georgia, Louisiana,
Maryland, New York, and Pennsylvania. The plaintiffs sue
Nokia Inc. and other entities (collectively, “Nokia”) involved
in the manufacture and sale of wireless telephones. The
plaintiffs claim that wireless telephones emit an unsafe level
of radio frequency radiation and that Nokia has hidden this
fact from consumers. Nokia removed the five cases to various
federal courts, and the Judicial Panel on Multidistrict
Litigation (JPML) transferred the cases to the United States
District Court for the District of Maryland (the district court)
for consolidated pretrial proceedings. The district court
denied the plaintiffs’ motion to remand four of the cases to
state court and then dismissed al! five cases on the ground
that the plaintiffs’ state law claims are preempted by the
Federal Communications Act of 1934 (FCA), 47 U.S.C.
§ 151 et seq. The plaintiffs appeal both rulings. Because
federal subject matter jurisdiction is lacking in four of the
cases, we reverse the district court's order denying the motion
to remand those cases. There is diversity jurisdiction over
the fifth case, and because the state law claims are not
preempted, we reverse the order dismissing that case.
A wireless telephone (commonly called a cell phone) is
actually a radio containing a low power transmitter. When a
wireless telephone is turned on, it searches for a base station
5a
Appendix A
(usually a tower) within range. A base siation is a fixed
transmitter containing antennae and electronic equipment that
communicates with the transmitter in a wireless telephone.
If a wireless telephone finds a base station within range, the
telephone identifies itself by transmitting its Mobile
Identification Number (MIN), its System Identification Code
(SID), and its Electronic Serial Number (ESN). The ESN is
a number permanently programined into the telephone when
it is manufactured. The SID and the MIN are programmed
into the wireless telephone when a customer purchases a
service plan and the telephone is activated. The base station
relays the identifying information (MIN, SID, and ESN) to
the local mobile telephone switching office (MTSO), which
confirms that the telephone is assigned to a valid customer.
An MTSO is a sophisticated computer that controls all of
the base stations in a particular area for the purpose of
coordinating radio transmissions to and from wireless
telephones. Once an MTSO confirms that a wireless
telephone is assigned to a valid customer, the MTSO assigns
a frequency on which the user may communicate.
Base stations receiving and routing transmissions from
wireless telephones have a relatively small transmission range
because they have low power transmitters. Accordingly, to
provide continuous wireless telephone service coverage over
an extended area, numerous base stations must be built.
Cities and regions are divided into cells, typically ten square
miles, cach containing a base station. As a user moves out
of one cell (and thus out of range of the base station in
that cell) and into an adjoining cell, the MTSO hands
the signal off to the base station in the adjoining cell.
6a
Appendix A
Marshall Brain & Jeff Tyson, How Cell Phones Work,
at http://www.howstuffworks.com/cell-phone.htm/printable
(last visited January 24, 2005).
Wireless telephones emit a low level of radio frequency
(RF) radiation, a form of electromagnetic energy, from their
antennae when they communicate with base stations. See Cell
Phone Facts: Consumer Information on Wireless Phones,
at http://www.fda.gov/cellphones/qa.html (last updated
July 29, 2003). While it is well established that exposure to
high levels of RF radiation can cause adverse health effects,
there is no scientific consensus on the effects of low level
exposure. The Federal Communications Commission (FCC)
requires all transmitters that emit RF radiation to be
authorized by the agency before they are marketed or sold.
See 47 C.F.R. §§ 2.801, 2.803 (2004). Pursuant to the
National Environmental Policy Act of 1969, 42 U.S.C. § 4321
et seq., which requires agencies to consider the impact of
their actions on the quality of the human environment, the
FCC has promulgated rules that limit the amount of RF
radiation that FCC-regulated transmitters (including wireless
telephones) may emit. /n re Guidelines for Evaluating the
Envtl. Effects of Radiofrequency Radiation, 11 FCC Rcd.
15123, 15125 (1996) (in re Guidelines ); see 47 C.F.R.
$§ 1.1307, 1.1310, 2.1091, 2.1093.
The plaintiffs brought five class actions in state courts
against Nokia, claiming, among other things, that (1) wireless
telephones emit an unsafe level of RF radiation and (2) Nokia,
in knowing this, negligently and fraudulently endangered the
consuming public by marketing wireless telephones without
headsets. According to the plaintiffs, they were exposed to
7a
Appendix A
the risk of adverse biological effects from the RF radiation
emitted by their wireless telephones when they used the
telephones without headsets. The plaintiffs purport to
represent wireless telephone users who have not been
diagnosed with brain- or eye-related diseases and who were
not provided headsets when they leased or bought their
wireless telephones. Compensatory damages are sought in
an amount sufficient to buy a headset for each class member
who lacks one and to reimburse each class member who has
already bought one. For class members with wireless
telephones that are not headset-compatible, an injunction is
sought to require Nokia to provide them with telephones that
can be used with a headset. The plaintiffs also seek punitive
damages, costs, and attorneys’ fees.
After these cases were filed in the five state courts, Nokia
removed them, pursuant to 28 U.S.C. § 1447, to the five
appropriate federal district courts. On October 31, 2001, the
JPML transferred the five cases to the District of Maryland
for consolidated or coordinated pre-trial proceedings.
On January 7, 2002, the plaintiffs in four of the cases —
those with lead plaintiffs named Pinney, Farina, Gilliam,
and Gimpelson (collectively, the “Pinney plaintiffs”) — filed
a consolidated motion to remand their cases to the state courts
in which they originated. The piaintiffs in the fifth case
(the “Naquin plaintiffs”) did not join this motion because
there was federal subject matter jurisdiction over their case
based on diversity of citizenship. On June 21, 2002, the -
district court denied the Pinney plaintiffs’ motion to remand
on the ground that their claims necessarily depend on the
resolution of a substantial federal question. According to the
8a
Appendix A
district court, the claims are a disguised attack on the FCC's
RF radiation standards, and resolution of the claims would
require the court to rule on the validity of those standards.
After remand was denied, Nokia filed a consolidated
motion to dismiss for failure to state a claim, see Fed.R.Civ.P.
12(b)(6), on the ground of federal preemption. On March 5,
2003, the district court granted Nokia’s motion on the basis
that the plaintiffs’ claims are pre-empted by the FCA. More
specifically, the district court concluded that the relief sought
by the plaintiffs in all five cases conflicts with Congress's
goal of achieving national uniformity in RF radiation
emission levels for all wireless telecommunications
equipment. The plaintiffs appeal the district court's orders.
Il.
We turn first to the district court’s order denying the
Pinney plaintiffs’ consolidated motion to remand their four
cases to state court. Federal removal jurisdiction may be
exercised over state court actions “of which the district courts
of the United States have original jurisdiction.” 28 U.S.C.
§ 1441(a). The original jurisdiction of the district courts
includes jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331. The propriety of Nokia's removal of the Pinney
plaintiffs’ state court cases depends on whether the claims
“aris[e} under” federal law. See Mulcahey v. Columbia
Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).
We must strictly construe our removal jurisdiction because
removal “raises significant federalism concerns.” /d. “If it
appears before final judgment that a case was not properly
9a
Appendix A
removed, because it was not within the original jurisdiction
of the United States district courts, the district court must
remand it to the state court from which it was removed.”
Franchise Tax Bd. of Cal. v. Constr. Laborer’s Vacation Trust,
463 U.S. 1, 8, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (citing
28 U.S.C. § 1447(c)).
We begin with the issue of whether the Pinney plaintiffs’
claims arise under federal law pursuant to the substantial
federal question doctrine. We then address whether their
claims arise under federal law pursuant to the doctrine of
complete preemption. We ultimately conclude that the claims
of the Pinney plaintiffs do not arise under federal law by
reason of either doctrine. Accordingly, the district court
lacked jurisdiction over these claims, and the court erred in
denying the Pinney plaintiffs’ consolidated motion to remand
their cases to state court.
A.
In determining whether a plaintiff's claim arises under
federal law, we apply the well-pleaded complaint rule, which
holds that courts “ordinarily ... look no further than the
plaintiff's [properly pleaded] complaint in determining
whether a lawsuit raises issues of federal law capable of
creating federal-question jurisdiction under 28 U.S.C.
§ 1331.” Custer v. Sweeney, 89 F.3d 1156, 1165 (4th Cir.
1996). Thus, in examining the complaint, our first step is to
“discern whether federal or state law creates the cause of
action.” Mulcahey, 29 F.3d at 151; see also Dixon v. Coburg
Dairy, Inc., 369 F.3d 811, 816 (4th Cir.2004) (“The vast
majority of lawsuits ‘arise under the law that creates the cause
10a
Appendix A
of action.’ ”) (quoting Am. Well Works Co. v. Layne & Bowler
Co., 241 U.S. 257, 260, 36 S.Ct. 585, 60 L.Ed. 987 (1916)).
If federal law creates a plaintiff's claim, then removal is
proper. Mulcahey, 29 F.3d at 151. The general rule, of course,
is that a plaintiff is the “master of the claim,” and he may
“avoid federal jurisdiction by exclusive reliance on state law”
in drafting his complaint. Caterpillar Inc. v. Williams,
482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987).
Here, it is undisputed that state law creates the claims asserted
by the Pinney plaintiffs, but this does not end our inquiry.
We must also determine whether these cases fall within the
small class of “cases in which a well-pleaded complaint
establishes . . . that the plaintiff’s right to relief necessarily
depends on resolution of a substantial question of federal
law, in that federal law is a necessary element of one of the
well-pleaded ... claims.” Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 808, 108 S.Ct. 2166, 100
L.Ed.2d 811 (1988) (quoting Franchise Tax Bd., 463 US.
at 13, 27-28, 103 S.Ct. 2841) (internal quotation marks and
citations omitted). Under the substantial federal question
doctrine, “a defendant seeking to remove a case in which
state law creates the plaintiff's cause of action must establish
two elements: (1) that the plaintiff's right to relief necessarily
depends on a question of federal law, and (2) that the question
of federal law is substantial.” Dixon, 369 F.3d at 816. If the
defendant fails to establish either of these elements, the claim
does not arise under federal law pursuant to the substantial
federal question doctrine, and removal cannot be justified
under this doctrine. /d.
Appendix A
A plaintiff’s right to relief necessarily depends on a
question of federal law when “it appears that some ...
disputed question of federal law is a necessary element of
one of the well-pleaded state claims.” Franchise Tax Bd.,
463 U.S. at 13, 103 S.Ct. 2841. If a plaintiff can establish,
without the resolution of an issue of federal law, all of the
essential elements of his state law claim, then the claim does
not necessarily depend on a question of federal law. See id.
at 13-14, 103 S.Ct. 2841; see also Dixon, 369 F.3d at 817
(“[I)f the plaintiff can support his claim with even one theory
that does not cail for an interpretation of federal law, his
claim does not ‘arise under’ federal law for purposes of §
1331.”). This principle is illustrated in Franchise Tax Board.
There, the Supreme Court found no substantial federal
question when a California tax agency attempted to enforce
a levy on funds held in trust for several taxpayers under an
ERISA-covered benefit plan. 463 U.S. at 13-14, 193 S.Ct.
2841. The claim did not necessarily depend on a resolution
of federal law because “California law establishe[d] a set of
conditions, without reference to federal |aw, under which a
tax levy may be enforced; federal law bec[ame] relevant only
by way of a defense to an obligation created entirely by state
law, and then only if [the state agency] ha[d] made out a
valid claim for relief under state law.” Jd. at 13, 103 S.Ct.
2841. “[I}t has been well-settled law,” the Court noted, “that
a case may not be removed to federal court on the basis of a
federal defense, including the defense of preempxion, even
if the defense is anticipated in the plaintiff's complaint, and
even if both parties admit that the defense is the only question
truly at issue in the case.” /d. at 14, 103 S.Ct. 2841.
l2a
Appendix A
We now examine the claims in the complaints filed by
the Pinney plaintiffs. We note parenthetically that the district
court allowed these plaintiffs to amend their complaints after
it denied their motion to remand. Because amendment
occurred after removal, we look at the original complaints
rather than the amended complaints in determining whether
removal was proper. See Pullman Co. v. Jenkins, 305 U.S.
534, 537, 59 S.Ct. 347, 83 L.Ed. 334 (1939). The Pinney
plaintiffs assert seven claims in their original complaints.
They first allege that Nokia is strictly liable for placing a
defectively designed product into the stream of commerce.
These claims are brought under the laws of Georgia,
Maryland, New York, and Pennsylvania. Under the laws of
all four states, a manufacturer (and sometimes a seller) is
strictly liable for selling a defectively designed product that
causes personal injury. Georgia, Maryland, and New York
assess whether a product suffers from a design defect by using
the risk-utility balancing test. Under this test a fact-finder
must determine whether the manufacturer acted reasonably
in choosing a particular product design, given the probability
and magnitude of the risk, the usefulness of the product in
its particular condition, and the burden on the manufacturer
to eliminate the risk. See Banks v. IC] Ams., Inc., 264 Ga.
732, 450 S.E.2d 671, 673-74 (1994); Nissan Motor Co. v.
Nave, 129 Md.App. 90, 740 A.2d 102, 118 (1999); Voss v.
Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398,
450 N.E.2d 204, 208-09 (1983). Under Pennsylvania law a
product suffers from a design defect if it lacks a component
necessary to make it safe for its intended use. See Harsh v.
Petroll, 840 A.2d 404, 416-17 (Pa.2003).
13a
Appendix A
Second, the Pinney plaintiffs allege that Nokia is strict!y
liable for its failure to warn about the adverse health risks
associated with wireless telephones. These claims are brought
under the laws of Georgia, Maryland, New York, and
Pennsylvania. According to these laws, when a manufacturer
or a seller knows or should have known of the latent danger
of a product and fails to warn the consuming public, the
manufacturer or seller is strictly liable for injuries caused by
the danger while the product is used in a foreseeable manner.
See Hunt v. Harley-Davidson Motor Co., 147 Ga.App. 44,
248 S.E.2d 15, 16 (1978); Owens-Illinois, Inc. v. Zenobia,
325 Md. 420, 601 A.2d 633, 639 (1992); Rastelli v. Goodyear
Tire & Rubber Co., 79 N.Y.2d 289, 582 N.Y.S.2d 373, 591
N.E.2d 222, 225 (1992); Davis v. Berwind Corp., 547 Pa.
260, 690 A.2d 186, 190 (1997).
Third, the Pinney plaintiffs allege that Nokia is liable
for violating various state consumer protection statutes. These
claims are brought under the laws of Maryland, New York,
and Pennsylvania, where the relevant statutes allow a plaintiff
to recover for losses or injuries sustained when a merchant
engages in deceptive trade practices. See Md.Code Ann.,
Com. Law II, § 13-408; N.Y. Gen. Bus. Law § 349(h)
(McKinney); 73 Pa. Cons.Stat. § 201-9.2. These statutes
generally require a plaintiff to prove either (1) that the
defendant made materially false or misleading statements
about its product that deceived, or had the tendency to
deceive, consumers, or (2) that the defendant failed to state
a material fact with respect to its product, and this failure
deceived, or had the tendency to deceive, consumers.
See Md.Code Ana., Com. Law II, § 13-301(1), (2)(i), (3),
l4a
Appendix A
(9)(i); N.Y. Gen. Bus. Law § 350-a(1); 73 Pa. Cons.Stat.
§ 201-2(4)(v), (vii), (ix), (xxi).
Fourth, the Pinney plaintiffs allege that Nokia breached
an implied warranty of merchantability by selling and
distributing unreasonably dangerous wireless telephones.
These claims are brought under the laws of Georgia,
Maryland, New York, and Pennsylvania. To make out a ciaim
for breach of this implied warranty, a plaintiff must establish
that a product is not of merchantable quality and that he
suffered an injury as a result. A product is not of merchantable
quality when it is not fit for the ordinary purposes for which
it is used. See Wilson vy. J & L Melton, Inc., 270 Ga.App. 1,
606 S.E.2d 47, 49 n. 1 (2004); Ford Motor Co. v. Gen. Acc.
Ins. Co., 365 Md. 321, 779 A.2d 362, 370 n. 13 (2001); Denny
v. Ford Motor Co., 87 N.Y.2d 248, 639 N.Y.S.2d 250, 662
N.E.2d 730, 736 (1995); Phillips v. Cricket Lighters, 852
A.2d 365, 370-71 (Pa.Super.Ct.2004). In determining
whether a product is of merchantable quality, the fact-finder
focuses on the “expectations for the performance of the
product when used in the customary, usual, and reasonably
foreseeable manners.” Denny, 639 N.Y.S.2d 250, 662 N.E.2d
at 736.
Fifth, the Pinney plaintiffs allege that Nokia was
negligent (1) in failing to conduct adequate and appropriate
scientific research on the adverse health effects of exposure
to RF radiation from wireless telephones, (2) in misrepresent-
ing to the public that wireless telephones are safe, (3) in
suppressing any scientific evidence suggesting that wircless
telephones are not safe, (4) in failing to provide warnings
about the potential health risks from failing to use a headset,
.1Sa
Appendix A
and (5) in failing to provide headsets and instructions
encouraging their use. These claims are brought under the
laws of Georgia and Maryland. To make out a claim for
negligence, a plaintiff must establish the following elements:
(1) the defendant owed the plaintiff a duty, (2) the defendant
breached that duty, (3) the plaintiff suffered an injury, and
(4) there was a causal connection between the breach and
the injury. See Johnson v. Am. Nat'l Red Cross, 276 Ga. 270,
578 S.E.2d 106, 108 (2003); Hemmings v. Pelham Wood LLP,
375 Md. 522, 826 A.2d 443, 451 (2003). A manufacturer
generally has a duty to exercise reasonable care in
manufacturing, designing, and selling its products “so as to
make the products reasonably safe for intended or foreseeable
uses.” Chrysler Corp. v. Batten, 264 Ga. 723, 450 S.E.2d
208, 211 (1994) (citation omitted), see also Eagle-Picher
Indus., Inc. v. Balbos, 326 Md. 179, 604 A.2d 445, 454 n. 9
(1992).
Sixth, the Pinney plaintiffs allege that Nokia engaged in
fraud by misinforming and misleading the public as to the
safety of wireless telephones. These claims are brought under
the laws of Georgia, Maryland, New York, and Pennsylvania.
To make out a claim for fraud, a plaintiff must establish the
following elements: (1) the defendant made a false
representation, (2) the defendant knew the representation
was false or was recklessly indifferent to its truth or falsity,
(3) the defendant made the representation with the intent to
defraud the plamtiff, (4) the plaintiff justifiably relied on
the false representation, and (5) the plaintiff suffered damages
as a result. See Rhone v. Bolden, 270 Ga.App. 712, 608 S.E.2d
22 (2004); Martens Chevrolet, Inc. v. Seney, 292 Md. 328,
439 A.2d 534, 537 (1982); P. Chimento Co. v. Banco Popular
16a
Appendix A
de Puerto Rico, 208 A.D.2d 385, 617 N.Y.S.2d 157, 158
(N.Y.App.Div.1994), Gibbs v. Ernst, 538 Pa. 193, 647 A.2d
882, 889 (1994). Concealment of a material fact, with intent
to deceive, satisfies the false representation element of fraud.
See Paul v. Destito, 250 Ga.App. 631, 550 S.E.2d 739, 744
(2001); Hoffman v. Stamper, 155 Md.App. 247, 843 A.2d
153, 186 (2004); Nasaba Corp. v. Harfred Realty Corp.,
287 N.Y. 290, 39 N.E.2d 243, 245 (1942); De Joseph v.
Zambelli, 392 Pa. 24, 139 A.2d 644, 647 (1958).
Seventh, the Pinney plaintiffs allege that Nokia engaged
in a civil conspiracy to market unsafe wireless telephones
by improper and wrongful means, and, in doing so, both
defrauded the plaintiffs and failed to warn them of the health
risks of using wireless telephones. These claims are brought
under the laws of Georgia and Maryland. In a claim for civil
conspiracy a plaintiff must establish that two or more
defendants, acting in concert, engaged in conduct constituting
a tort. Damages are assessed on the basis of the defendants’
tortious conduct, not on the basis of their agreement to engage
in such conduct. See Miller v. Lomax, 266 Ga.App. 93, 596
S.E.2d 232, 242 (2004); Aileco, Inc. v. Harry & Jeanette
Weinberg Found., Inc., 99 Md.App. 696, 639 A.2d 173,
176-77 (1994).
We have thoroughly examined the claims asserted by
the Pinney plaintiffs in their complaints, and one thing is
clear: the elements of each of the claims depend only on the
resolution of questions of state law. There is no “substantial,
disputed question of federal law [that] is a necessary element
of [any] of the well-pleaded state claims.” Franchise Tax
Bd., 463 U.S. at 13, 103 S.Ct. 2841. The district court,
17a
Appendix A
however, determined that these cases depend on the
resolution of a substantia! federal question because the claims
“put . . . directly into dispute” the validity and sufficiency of
the federal RF radiation standards for wireless telephones.
See In Re Wireless Tel. Radio Frequency Emissions
Prods. Liab. Litig., 216 FSupp.2d 474, 488 (D.Md.2002)
(In re Wireless I). The ultimate objective of these complaints,
according to the district court, “is to attack the lack of a
headset requirement under the federal RF safety rules.” /d.
Although the court acknowledged that the complaints contain
no allegations attacking the federal RF radiation standards,
it believed that it could ultimately resolve the case only by
passing judgment on the validity of the federal standards.
The court therefore determined that removal was justified
under the substantial federal question doctrine. /d. at 488,
491-92.'
The district court erred by not recognizing that its inquiry
was limited by the well-pleaded complaint rule. It should
have considered only whether a disputed question of federal
law is an essential element of one of the well-pleaded state
claims. See Franchise Tax Bd., 463 U.S. at 13, 103 S.Ct.
2841. The district court went beyond this restricted inquiry
and in effect anticipated (1) that Nokia would raise the
affirmative defense that the state law claims are preempted
by the FCA and federal RF radiation standards and (2) that
the Pinney plaintiffs would be called upon to rebut that
1. The dissent makes the same argument as the district court
~ that a substantial federal question exists because “the effect of
[the Pinney plaintiffs’) allegations” is to “challenge the sufficiency
of the FCC standard.” Post at 459. As we explain in the text that
follows, this argument cannot be sustained.
18a
Appendix A
defense. The cases could be decided, the court concluded,
only by resolving whether the claims are preempted by the
FCA and the federal RF radiation standards. Even if that is
$0, a preemption defense “that raises a federal question is
inadequate to confer federal jurisdiction.” Merrell Dow
Pharms., Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct.
3229, 92 L.Ed.2d 650 (1986). Again, “a case may not be
removed to federal court on the basis of a federal defense,
including the defense of preemption,” even if the complaint
begs the assertion of the defense, and even if “the defense is
the only question truly at issue in the case.” Franchise Tax
Bd., 463 U.S. at 14, 103 S.Ct. 2841
The thrust of the claims is that Nokia violated state law
by manufacturing and selling a product that it knew, or should
have known, was dangerous and by not adequately warning
of the dangers. As was the case in Franchise Tax Board, state
law establishes a set of elements, without reference to federal
law, that the plaintiffs must establish in order to a make out
“valid claim({s] for relief.” 463 U.S. at 13, 103 S.Ct. 2841.
Federal law becomes relevant only as a defense, and only
after the Pinney plaintiffs have made out the elements of
their state law claims. In this situation, as the Supreme Court
has observed, “[t]he most one can say is that a question of
federal law is lurking in the background.” Gully v. First Nat'l
Bank, 299 U.S. 109, 117, 57 S.Ct. 96, 81 L.Ed. 70 (1936).
The lurking question of federal law is, of course, the
affirmative defense of preemption, but that does not make
the claims into ones arising under federal law.
19a
Appendix A
B.
It becomes even clearer that the Pinney plaintiffs’ claims
do not contain a disputed question of federal law when we
consider Nokia's arguments. Nokia argues that an issue of
federal law must be resolved for the Pinney plaintiffs to
establish the necessary elements for two of their claims.
Nokia first points to the claim of strict liability due to a design
defect. As discussed above, see supra at 12-13, one element
a plaintiff must establish is that the product suffered from a
design defect. A design defect is established by proving that
the product is unreasonably dangerous, as determined by the
risk-utility standard. Nokia argues that the FCC’s RF
radiation standards establish the relevant “duty” with regard
to RF radiation emissions from wireless telephones, and
therefore the unreasonably dangerous inquiry depends on the
resolution of a federal question. Br. for Appellees at 26.
Nokia’s use of the term “duty” is misplaced because the term
is more commonly employed in a negligence context, not a
Strict liability context. In any event, the nub of Nokia's
argument is that a wireless telephone’s compliance
(or noncompliance) with the federal RF radiation standards
determines whether the telephone is unreasonably dangerous.
Nokia is wrong. Under the laws of Georgia, Maryland, and
New York, compliance with the federal RF radiation
standards is only one factor in assessing whether a wireless
telephone is unreasonably dangerous under the risk-utility
standard. See Doyle v. Volkswagenwerk Aktiengesellschaft,
267 Ga. 574, 481 S.E.2d 518, 521 (1997); Beatty v.
Trailmaster Prods., 330 Md. 726, 625 A.2d 1005, 1014
(1993); Denny, 639 N.Y.S.2d 250, 662 N.E.2d at 735-36;
Sherman v. M. Lowenstein & Sons, Inc., 28 A.D.2d 922, 282
20a
Appendix A
N.Y.S.2d 142, 143-44 (N.Y.App.Div.1967). And because
Pennsylvania law rejects the importation of negligence
concepts into its strict liability doctrine, compliance with
the federal RF radiation standards is not relevant in
determining whether Nokia is strictly liable under
Pennsylvania iaw for selling a product that suffers from a
design defect. See Lewis v. Coffing Hoist Div., Duff-Norton
Co., 515 Pa. 334, 528 A.2d 590, 593-94 (1987) (holding that
product compliance with industry standards is irrelevant in
Strict liability case based on defective design). Thus, even if
Nokia’s wireless telephones comply with the federal RF
radiation standards, the Pinney plaintiffs could still establish
the defective design element of the their strict liability
claim. Conversely, if Nokia’s wireless telephones do not
comply with the federal RF radiation standards, the Pinney
plaintiffs would not automatically establish the defective
design element.
Nokia also argues that the Pinney plaintiffs “need to
establish disputed federal-law propositions” to make out their
fraud claims. Br. for Appellees at 27. To make out a claim of
fraud, a plaintiff must establish, among other elements, that
the defendants made a false statement. Nokia asserts that
the Pinney plaintiffs, in order to prove that statements made
by Nokia were false, must demonstrate that the “substantive
content of federal wireless emissions regulations is
inconsistent with [Nokia's] alieged characterizations of those
regulations.” /d. This is a mischaracterization of the fraud
claims. The Pinney plaintiffs do not allege that Nokia
fraudulently misrepresented the RF radiation standards,
Rather, they allege that Nokia made false statements by
misrepresenting the general safety of wireless telephones and
21a
Appendix A
by misrepresenting or failing to disclose the biological risks
posed by wireless telephones. To prove the falsity of these
statements, the Pinney plaintiffs must establish that the RF
radiation emissions from wireless telephones create a health
risk. This has nothing to do with the substantive content of
the federal regulations. In sum, there is no substantial
question of federal law that is a necessary element of the
Pinney plaintiffs’ strict liability (design defect) or fraud
claims.’
2. In arguing for removal jurisdiction, the dissent points to one
of the many factual allegations made by the Pinney plaintiffs in
support of their fraud claims. The Pinney plaintiffs allege that Nokia
engaged in fraud on an occasion when it claimed that wireless
telephones are safe and “fall within [FCC] safety standards,”
but “deceitfully omitted the fact that the FCC had declared that it
does not consider itself the ‘expert agency’ for evaluating health
effects.” J.A. 142 (emphasis in original). According to the dissent,
this allegation “call[s] into question the expertise of the FCC.”
Post at 37. That is not the case. To establish that the safety statement
made by Nokia was false, a necessary element for fraud, the Pinney
plaintiffs need only prove that the failure to disclose the FCC's
statement was the concealment of a material fact or that Nokia's
safety statement was false in light of the FCC's statement. The
plaintiffs will not have to prove any lack of FCC expertise in the RF
radiation area in order to establish that Nokia made false statements
about the safety of wireless telephones. A “substantial, disputed
question of federal law” is simply not a necessary element of the
fraud claims. Franchise Tax Bd., 463 U.S. at 13, 103 S.Ct. 2841.
The dissent also relies on a general allegation in the Pinney
plaintiffs’ complaint to support its argument that removal jurisdiction
exists. This allegation is that Nokia “obtain[ed] and exercised control
over the American National Standards Institute (‘ANSI’) Committee
(Cont'd)
22a
Appendix A
To get around this problem, Nokia advances a new theory
— the “sufficient connection” to a federal regulatory scheme
theory — for why the Pinney plaintiffs’ claims are removable
pursuant to the substantial federal question doctrine. Nokia
relies on Our decision in Ormet Corp. v. Ohio Power Co.,
98 F.3d 799 (4th Cir. 1996), to argue that “where a plaintiff's
state law complaint is sufficiently connected to a federal
regulatory regime as to which Congress has expressed a need
for uniform implementation and interpretation, that
connection can provide a basis for federal question
jurisdiction even if no explicitly federal claim is pled.” Br.
for Appellees at 25. Nokia does not suggest a standard for
determining when a connection is sufficient to render removal
proper under its theory, but it nonetheless asserts that a
sufficient connection exists in the present cases. According
to Nokia, there is a comprehensive federal scheme to regulate
wireless telecommunications, and Congress has delegated
to federal regulators the exclusive authority over all technical
aspects of wireless telecommunications. A sufficient
connection exists between the telecommunications regulatory
regime and the Pinney plaintiffs’ claims, Nokia says, because
(Cont'd)
responsible for developing safety standards for RFR emitting
devices.” J.A. 140. ANS! s proposals regarding RF radiation
standards were generally adopted in PCC rulemaking. See /n re
Guidelines, 11 PCC Red. at 15123-25, 1996 WL 926565. According
to the dissent, the allegation about Nokia's influence over ANSI
means that the plaintiffs “are .. . attacking the rule-making process
that the PCC used in developing [its RF radiation) standards.” Pos
at 38. The dissent, however, does not explain how the allegation
about ANSI raises a substantial question of federal law that is a
necessary clement of any one of the plaintiffs’ state law claims.
23a
Appendix A
the claims are premised on the amcunt of RF radiation that
emits from wireless telephones, a technical aspect of wireless
telephones that is regulated by the FCC. To begir with,
Nokia’s sufficient connection theory, as applied to these
claims, is similar to, if not indistinguishable from, the
argument that the Pinney plaintiffs’ claims are removable
under the substantial federal question doctrine because they
are preempted by the FCA and the federal RF radiation
standards. Nokia, of course, avoids couching its argument
in preemption terms because it knows that the affirmative
defense of preemption cannot serve as a basis for removal
under the substantial federal question doctrine. Regardless
of whether Nokia's sufficient connection theory is at bottom
a preemption argument, we reject it because it is not
supported by our Ormet decision, and it is inconsistent with
Supreme Court precedent.
Ormet does not establish, or even support, Nokia's
sufficient connection theory. In Ormet one of the elements
of the plaintiff's state commercial law claim contained a
disputed question of federal law: for the plaintiff to establish
the element, it had to show that it was an owner (as defined
by the federal Clean Air Act) of tradeable emission allowance
permits. 98 F.3d at 807. Nokia relies on ou: statement,
“[w here the resolution of a federal issue in a state-law cause
of action could, because of different approaches and
inconsistency, undermine the stability and efficiency of a
federal statutory regime, the need for uniformity becomes a
substantial federal interest, justifying the exercise of
jurisdiction by federal courts.” Jd. at 807 (citation omitted).
Nokia claims this language stands for the proposition that a
nexus (or, in Nokia's words, a “sufficient connection”)
24a
Appendix A
between a plaintiff's claim for relief and a federal regulatory
scheme is sufficient to establish removal jurisdiction. Nokia's
reliance on the quoted statement from Ormet is completely
off the mark because the statement specifically addresses the
issue of whether a federal question is substantial enough to
justify removal jurisdiction, not the threshold issue of
whether a federal question must be resolved in order for the
plaintiff to establish a necessary element of his claim.
Nowhere in Ormet did we ever suggest that some “sufficient
connection” between a federal regulatory regime and a state
claim is enough to establish removal jurisdiction. In short,
Ormet did not slacken in any way the principle that the
substantial federal question doctrine applies only when a
disputed issue of federal law is an essential element of at
least one of the plaintiffs’ state claims.
Ormet aside, Nokia's sufficient connection theory is
inconsistent with Supreme Court precedent. By Nokia's
reasoning, even if the Pinney plaintiffs can establish the
necessary elements of their claims without resolving a
question of federal law, the cases are still removable under
the substantial federal question doctrine because of a
connection between the federal scheme regulating wireless
telecommunications and the Pinney plaintiffs’ state claims.
That is not enough. The Supreme Court has been quite clear
that for removal to be proper under the substantial federal
question doctrine, a plaintiff's ability to establish the
necessary elements of his state law claims must rise or fall
on the resolution of a question of federal law. See Merrell
Dow, 478 U.S. at 813, 106 S.Ct. 3229 (“[T]he mere presence
of a federal issue in a state cause of action does not confer
federal question jurisdiction.”). In sum, removal of thes<
2Sa
Appendix A
cases cannot be sustained on the basis of the substantial
federal question doctrine.
Cc.
Having determined that these cases do not arise under
federal law pursuant to the substantial federal question
doctrine, we consider whether they arise under federal law
through the doctrine of complete preemption. Under complete
preemption a state claim arises under federal law when
Congress “so completely preempt [s] a particular area that
any civil complaint raising th{e] select group of claims is
necessarily federal in character.” Metro. Life Ins. Co. v.
Taylor, 481 U.S. 58, 63-64 (1987). There is, of course, a
difference between the doctrine of complete preemption and
the affirmative defense of federal preemption. “As a defense,
[federal preemption] does not appear on the face of a well-
pleaded complaint, and, therefore, does not authorize removal
to federal court.” /d. at 63 (citation omitted). In contrast, the
doctrine of complete preemption “converts an ordinary state
common law complaint into one stating a federal claim,”
id. at 65, and the federal claim is deemed to appear
on the face of the complaint. Darcangelo v. Verizon
Commu tications, Inc., 292 F.3d 181, 187 (4th Cir.2002). To
remove an action on the basis of complete preemption, a
defendant must establish that the plaintiff has a “discernible
federal [claim]” and that “Congress intended [the federal
claim] to be the exclusive remedy for the alleged wrong.”
King v. Marriott Int'l, Inc., 337 F.4d 421, 425 (4th Cir.2003).
In assessing the removal of these cases on the basis of
complete preemption, our basic inquiry is whether the FCA
26a
Appendix A
establishes the exclusive claim /or consumers alleging injury
by wireless telephones. Nokia argues that §§ 201 and 207 of
the FCA provide the exclusive claim for the Pinney plaintiffs.
Section 207 allows private parties to sue common carriers
and recover damages resulting from a common carrier's
breach of its obligations under the FCA. 47 U.S.C. § 207.
Nokia argues that the Pinney plaintiffs’ exclusive claim is to
allege that Nokia violated § 201(b), which imposes on
common carriers the obligation that “[a}ll charges, practices,
classifications, and regulations for and in connection with
{wire or radio] communication service, shall be just and
reasonable.” 47 U.S.C. § 201(b). Specifically, Nokia argues
that the sale of dangerous wireless telephones constitutes a
“practice in connection with” wireless service. Nokia is
wrong in saying that the FCA provides the exclusive claim.
First off, § 207 does not provide any claim against a
number of the defendants in these cases. Sections 201 and
207 allow recovery only against common carriers. Under the
FCA “‘common carriers’ are entities that must provide
[transmission] service [s} to the public without discrimination
and are heavily regulated by the FCC.” /n re Application of
the United States for an Order Authorizing the Roving
Interception of Oral Communications, 349 F.3d 1132, 1137
n. 9 (9th Cir.2003) (citations omitted); see also 47 U.S.C.
§ 153(10). In the wireless telecommunications arena,
“[a] person engaged in the provision of” wireless service is
treated as a common carrier. See 47 U.S.C. § 332(c) 1 (A).
In their complaints the Pinney plaintiffs name two groups of
defendants: providers of wireless service (that also market
and distribute wireless telephones) and manufacturers of
wireless telephones. As to the second group, the plaintiffs
27a
Appendix A
allege that these defendants “engaged in the design,
manufacture, marketing, and sale of” wireless telephones.
See, ¢.g., J.A. 122-127. There are no allegations that these
manufacturer-defendants are engaged in providing any
wireless service, and we therefore conclude that these
defendants canrot be treated as common carriers. As a result,
they cannot be sued under §§ 201 and 207.
As to the first group of defendants (certain wireless
service providers), Nokia does not cite to any authority that
supports the proposition that §§ 201 and 207 provide wireless
telephone users with a claim against wireless service
providers for their role in marketing and distributing wireless
telephones. An interpretation of § 201 that would construc
the selling of dangerous wireless telephones as a “practice
in connection with” wireless service would be dubious at
best. A “practice in connection with” wireless service does
not even include tortious conduct such as deceptive
advertising and billing by wireless service providers in the
provision of wireless telephone service. See Marcus v. AT&T
Corp., 138 F.3d 46, 54 (2d Cir.1998). Further, even if we
were to broadly construe § 201 as Nokia urges, there is simply
no evidence that Congress intended §§ 201 and 207 to be
the exclusive claim for plaintiffs alleging injury from wireless
telephones. Nokia fails to identify any evidence in the statute
or legislative history that Congress intended §§ 201 and 207
to preempt completely state law claims that are based on a
wireless service provider's sale and promotion of wircless
telephones. The single authority to which Nokia cites is an
FCC statement claiming that individual states should not be
permitted to add additional requirements to the standards the
FCC imposes for cellular systems. See Br. for Appellees at
28a
Appendix A
36 (citing In re An Inquiry into the Use of the Bands 825-
845 MHz and 870-890 MHz for Cellular Communications
Sys.; and Amendment of Parts 2 and 22 of the Commission's
Rules Relative to Cellular Communication Sys. , 89 F.C.C.2d
58, 1982 WL 190439 (1982)). This statement is not evidence
of congressional intent, and we accord it no weight.
The FCA also contains a savings clause: “Nothing
contained in this chapter shall in any way abridge or alter
the remedies now existing at common law or by statute, but
the provisions of this chapter are in addition to such
remedies.” 47 U.S.C. § 414. The presence of a savings clause
counsels against a finding that Congress intended to sweep
aside all state claims in a particular area. Indeed, at least two
circuits have recognized in other contexts that § 414
precludes such a finding. See Smith v. GTE Corp., 236 F.3d
1292, 1313 (1 1th Cir.2001) (concluding that § 414 counsels
against a determination that the FCA completely preempts
telecommunications customers’ claims against a
telecommunications service provider's fraudulent conduct
in leasing telephones and related equipment); Marcus, 138
F.3d at 54 (concluding that § 414’s savings clause counsels
against a determination that the FCA completely preempts
wireless service customers’ claims against a wireless service
provider based on the provider's deceptive billing and false
advertising). Because there is no evidence that Congress
intended the FCA to provide the exclusive remedy for claims
like those of the Pinney plaintiffs, and because there is
evidence that Congress intended to preserve state law claims
such as the ones asserted in these cases, we conclude that
these claims do not arise under federal law through the
doctrine of complete preemption. Because the Pinney
29a
Appendix A
plaintiffs’ claims do not arise under federal law, the district
court lacked jurisdiction over them, making removal
improper.
i.
After the district court denied the Pinney plaintiffs’
motion to remand their four cases to state court, it dismissed
all five cases, including the one brought by the Naquin
plaintiffs, on the ground that the claims are preempted by
the FCA. Because the district court lacked subject matter
jurisdiction over the four cases brought by the Pinney
plaintiffs, the district court had no power to dismiss them.
However, as we noted earlier, the district court has diversity
jurisdiction over the case brought by the Naquin plaintiffs.
See 28 U.S.C. § 1332(a). We must therefore review the
district court's order granting Nokia's motion to dismiss the
claims of the Naquin plaintiffs.
A.
Before we address the substance of the dismissal, we
consider the Naquin plaintiffs’ argument that the district court
erred in taking up Nokia's motion to dismiss their case. They
first contend the dismissal should be vacated because there
is NO subject matter jurisdiction over the other four cases
(the Pinney plaintiffs’ cases) that were consolidated with their
case. The Naquin plaintiffs argue that if the district court
had not erred in failing to recognize that it lacked jurisdiction
over the cases of the Pinney plaintiffs, only the Naquin case
would have remained, and Nokia’s motion to dismiss would
not have been considered due to lack of venue over the lone
30a
Appendix A
remaining case. According to the Naquin plaintiffs, the
district court's error also denied them the procedural right to
petition the JPML or the district court for a retransfer of their
case to the transferor court, the Uniied States District Court
for the Eastern District of Louisiana. Finally, the Naquin
plaintiffs argue that the district court should not have
considered the motion to dismiss because it had been denied
by the transferor court prior to transfer.
There is no merit to the argument that venue over the
Naquin plaintiffs’ case in the District of Maryland was
improper due to the lack of federal jurisdiction over the other
four consolidated cases. The statute authorizing transfer (and
consolidation) of multidistrict actions, 47 U.S.C. § 1407, is
a venue statute that allows the JPML to override a plaintiff's
choice of forum when three factors are present: (1) “one or
more common questions of fact are pending in different
districts,” (2) a transfer would serve “the convenience of
parties and witnesses,” and (3) a transfer would “promote
the just and efficient conduct of [the] actions.” 28 U.S.C.
§ 1407(a); see also In re Vernitron Secs. Litig., 462 F. Supp.
391, 394 (J.P.M.L.1978) (“Nor can the policies behind venue
provisions designed to operate in the context of single
independent actions prevail, in a multidistrict context, over
the Panel's statutory mandate to weigh the interests of all
the plaintiffs and all the defendants and to consider
multidistrict litigation as a whole in light of the purposes of
the law.”). Transfer, of course, may be ordered only for the
purpose of “coordinated or consolidated pretrial
proceedings.” 28 U.S.C. § 1407(a).
3la
Appendix A
In the present cases, the JPML, after noting the presence
of common questions of fact, found that “[c]entralization
... in the District of Maryland [would] serve the convenience
of the parties and witnesses and [would] promote the just
and efficient conduct of the litigation, while accordingly
being necessary in order to avoid duplication of discovery,
prevent inconsistent pretrial rulings, and conserve the
resources of the parties, their counsel, and the judiciary.”
In Re Wireless Tel. Radio Frequency Emissions Prods. Liab.
Litig., 170 F.Supp.2d 1356 (J.P.M.L.2001) (order
consolidating and transferring the cases to the District of
Maryland). Because these findings satisfied the prerequisites
for transfer, and because the proceedings were still in the
pretrial stage, venue in the District of Maryland was proper.
The Naquin plaintiffs essentially seek to add an additional
requirement that subject matter jurisdiction must exist over
all transferred and consolidated cases for venue to be proper
in the transferee court. There is no basis for this requirement
in either the multidistrict litigation statute or the case law.
The Naquin plaintiffs next argue that they were denied
their procedural right to request a remand to the Eastern
District of Louisiana as a result of the district court’s error
in finding subject matter jurisdiction over the cases brought
by the Pinney plaintiffs. We disagree. At any point in the
district court proceedings, the Naquin plaintiffs could have
petitioned the JPML directly for a remand, or they could have
requested that the district court suggest a remand to the JPML.
J.P.M.L. Rule 7.6(c)(i), (ii); see also In re Roberts, 178 F.3d
181, 184 (3d Cir. 1999) (noting that once-a case is transferred,
only the JPML, and not the transferee court, has the authority
to remand the case to the transferor court). The Naquin
32a
Appendix A
plaintiffs never moved the JPML for a remand nor asked the
district court to suggest remand to the JPML. Because these
plaintiffs failed to raise the rernand issue with either the JPML
or the district court, we consider the issue waived for
purposes of this appeal. See Holland v. Big River Minerals
Corp., 181 F.3d 597, 605 (4th Cir. 1999) (“Generally, issues
that were not raised in the district court will not be addressed
on appeal.”’).
Finally, the Naquin plaintiffs argue that the district
court’s dismissal order should be vacated because Judge
Lemelle of the Eastern District of Louisiana had denied, prior
to transfer, motions to dismiss filed by some of the
defendants. The Naquin plaintiffs claim that a transferee court
may reconsider a prior order of a transferor court only when:
(1) there is an intervening change in the law, (2) there is
newly discovered (material) evidence, or (3) reconsideration
is necessary to correct a clear error of law or prevent manifest
injustice. The two cases relied on by the Naquin plaintiffs
do not support such a constricted view of a transferee court's
authority. In each of the cases, Microbix Biosys., Inc. v.
BioWhittaker, Inc., 184 F. Supp. 2d 434, 436 (D. Md. 2000),
and Potter v. Potter, 199 F.R.D. 550, 552 (D. Md. 2001), the
district court was ruling on a motion for reconsideration of
its own order. The rules of constraint urged by the Naquin
plaintiffs make sense when a district court is asked to
reconsider its own order. “Were it otherwise, then there would
be no conclusion to motions practice, each motion becoming
nothing more than the latest installment in a potentially
endless serial that would exhaust the resources of the parties
and the court — not to mention its patience.” Potter, 199
F.R.D. at 553. This same constraint is not always justified in
33a
Appendix A
the multidistrict litigation context, where there is a need for
consistent treatment of consolidated cases. See Astarte
Shipping Co. v. Allied Steel & Export Svc., 767 F.2d 86, $7
(Sth Cir.1985) (“The transferee court has the power and the
obligation to modify or rescind any orders in effect in the
transferred case which it concludes are incorrect.”);
Degulis v. LXR Biotech., Inc., 928 F. Supp. 1301, 1309
(S.D.N.Y.1996) (“A transferee court in a multidistrict
litigation thus has the power to modify interlocutory orders
entered by the transferor court prior to transfer under
28 U.S.C. § 1407.”) (citation omitted). Here, Judge Lemelle,
in denying the motions to dismiss, denied them without
prejudice and explicitly acknowledged that the issue of
federal preemption could be revisited later in the litigation.
In sum, the district court did not err in considering Nokia's
motion to dismiss the Naquin case.
In their amended complaint the Naquin plaintiffs allege -
both state and federal claims atiu seek the same remedy as
the Pinney plaintiffs, headsets for wireless telephones.’
3. For their federal claims the Naquin plaintiffs allege that
Nokia has violated the Magnuson-Moss Warranty Improvement Act,
15 U.S.C. § 2310. More specifically, they allege that Nokia breached
the implied warranty of fitness for a particular purpose by failing to
provide headsets and by engaging in deceptive trade practices in
failing to disclose the harmful effects of RF radiation from wireless
telephones. This failure to disclose renders the manufacturers’
express warranties for wireless telephones misleading, the amended
complaint alleges. The district court appeared to dismiss the Naquin
plaintiffs’ amended complaint entirely on preemption grounds, even
though federal claims are also alleged.
34a
Appendix A
We now consider whether the Naquin plaintiffs’ state law
claims are preempted by the FCA. Under the Supremacy
Clause a state law that “interferes with, or is contrary to”
federal law is invalid. Free v. Bland, 369 U.S. 663, 666
(1962). There are three theories under which Congress
preempts state law. First, under express preemption Congress
expressly declares its intent to preempt state law. S. Blasting
Sves., Inc. v. Wilkes County, 288 F.3d 584, 590 (4th Cir. 2002)
(citing Hillsborough County v. Automated Med. Labs., Inc.,
471 U.S. 707, 713 (1985)). Second, under field preemption
Congress impliedly preempts state law when “federal law so
thoroughly occupies a legislative field as to make reasonable
the inference that Congress left no room for the states to
supplement it.” Cipollone v. Liggett Group, Inc., 505 U.S.
504, 516 (1992) (internal quotation marks and citations
omitted). Third, under conflict preemption Congress
impliedly preempts state law when it “actually conflicts with
federal law.” Hillsborough, 471 U.S. at 713. We must
remember that “the purpose of Congress is the ultimate
touchstone in every preemption case.” Medtronic, Inc. v.
Lohr, 518 U.S. 470, 485 (1996) (internal quotation marks
and citations omitted). Further, “[c]onsideration under the
Supremacy Clause starts with the basic assumption that
Congress did not intend to displace state law.” Maryland v.
Louisiana, 451 U.S. 725, 746 (1981) (citation omitted). This
presumption against preemption is particularly strong when
Congress !egislates “‘in a field which the States have
traditionally occupied,’” such as health and safety.‘
4. The district court decided that the presumption against
preemption does not apply here because the Naqui. plaintiffs’ claims
relate to wireless telecommunications, an area where, according to
(Cont'd)
35a
Appendix A
Medtronic, 518 U.S. at 485 (quoting Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947)).
1.
Nokia argues that the Naquin plaintiffs’ claims are
expressly preempted by two provisions of the FCA. The first
provision appears in § 332(c)(7), which is aimed
at the “[p]reservation of local zoning authority” over
(Cont'd)
the court, “‘there has been a history of significant federal presence.’”
In re Wireless Tel. Radio Frequency Prods. Liab. Litig., 248 F. Supp.
2d 452, 463 (D.Md.2003) (quoting United States v. Locke, 529 U.S.
89, 108 (2000)). In Locke the Supreme Court concluded that the
State of Washington's oil tanker regulations were not entitled to the
presumption against preemption because the regulations governed
national and international maritime commerce, an area long regulated
by Congress. 529 U.S. at 108. The district court’s reliance on Locke
is misplaced because there is not the same federal presence in the
wireless telecommunications area as there is in the area of maritime
commerce. States continue to have considerable authority in the
wireless telecommunications area. See, e.g.,47 U.S.C. § 332(c)(3)(A)
(providing that states may not regulate “the entry of or rates charged
by” wireless service providers, but that they may regulate “other
terms and conditions” of wireless service); 47 U.S.C. § 332(c)(7)
(providing that state authority to regulate the “placement,
construction, and modification of personal wireless service facilities”
is preserved except in specific circumstances). While wireless
telephones must meet the FCC’s specifications and be authorized by
the FCC before they can be sold, see 47 C.F.R. § 2.803, these
provisions do not provide a remedy to someone injured by a defective
wireless telephone. “The presumption against preemption is even
stronger against preemption of state remedies, like tort recoveries,
when no federal remedy exists.” Abbot v. Am. Cyanamid Co., 844
F.2d 1108, 1112 (4th Cir. 1988) (citation omitted).
36a
Appendix A
“decisions regarding the placement, construction, and
modification of personal wireless service facilities.”
47 U.S.C. § 332(c\(7)(A). Nokia asserts that the claims are
expressly preempted by § 332(c)(7)(B)(iv), which limits the
general authority of local bodies as follows: “No State or
local government or instrumentality thereof may regulate the
placement, construction, and modification of personal
wireless service facilities on the basis of the environmental
effects of radio frequency emissions” if the facilities
comply with the FCC’s RF radiation standards. 47 U.S.C.
§ 332(c\(7)(BXiv). This section applies only to “personal
wireless service facilities,” a term defined in circular fashion
as “facilities for the provision of personal wireless services.”
47 U.S.C. § 332(cK7)(C\ii). The statute does not define the
term “facilities” or “facility.” We must therefore determine,
as a matter of first impression, whether a wireless telephone
constitutes a “facility” for purposes of § 332(c)(7)(B)(iv).
We conclude that it does not.
“If the ‘statutory language is unambiguous and the
Statutory scheme is coherent and consistent,’ our inquiry
ends.” Alexander S. v. Boyd, 113 F.3d 1373, 1383 (4th
Cir.1997) (quoting Robinson v. Shell Oil Co., 519 U.S. 337,
342 (1997)). “The plainness or ambiguity of statutory
language is determined by reference to the language itself,
the specific context in which the language is used, and the
broader context of the statute as a whole.” Robinson, 519
U.S. at 341. Although “facility” as used in § 332(c\7)(B){iv)
is not defined, when the specific and broader contexts of its
use are considered, it becomes plain that a wireless telephone
is not a facility. The dictionary defines “facility” as
“something (as a hospital, machinery, plumbing) that is built,
37a
Appendix A
constructed, installed, or established to perform some
particular function or serve or facilitate some particular end.”
Webster's Third New International Dictionary 812 (1993).
If the dictionary definition was used here, a facility would
be something “built, constructed, installed, or established”
to provide personal wireless service. This might arguably
include a wireless telephone. We continue our inquiry,
however, and examine the specific statutory context in which
the term “facility” is used. Section 332(c)(7) is entitled,
“Preservation of local zoning authority” and provides, as the
general rule, that “nothing [in the statute] shall limit or affect
the authority of a State or local government or instrumentality
thereof over decisions regarding the placement, construction,
and modification of personal wireless service facilities.”
47 U.S.C. § 332(c)(7)(A). The section goes on to provide
limitations to the general rule, and in doing so attempts to
strike a balance between the states’ interests in regulating
iand use and the federal government's interest in facilitating
the development of wireless telephone service.
See Omnipoint Communications Enters., L.P. v. Newtown
Township, 219 F.3d 240, 242-43 (3rd Cir.2000); Town of
Amherst v. Omnipoint Communications Enters., Inc., 173
F.3d 9, 13 (ist Cir. 1999). Because § 332(c)(7) deals with the
authority of the states over zoning and land use, we conclude
that Congress intended the term “facility” to mean a structure
or object, such as a base station or a mobile telephone
switching office (MTSO), that falls within the states’ zoning
or land use authority. This interpretation excludes devices,
such as wireless telephones, that are completely portable and
have no attachment to land. The broader context in which
the term “facility” is used also supports the interpretation
that the term does not include wireless telephones. As we
38a
Appendix A
discuss below, see infra at 33, Congress enacted the entire
§ 332 to ensure the availability of a nationwide network of
wireless service coverage. Consistent with this objective, a
facility should, at the very least, be part of the infrastructure
(a base station or an MTSO, for example) that provides
wireless service coverage. A wireless telephone, however,
only accesses a wireless service provider's network of
coverage; a wireless telephone itself is not part of the
underlying infrastructure. Because both the specific context
of the use of the term “facilities” in § 332(c)(7) and the
broader context (and purpose) of § 332 reveal that a wireless
telephone is not a facility under § 332(c)(7)(B){iv), state tort
claims relating to the manufacture and sale of wireless
telephones are not expressly preempted by § 332(c)(7)(B)(iv).
Nokia next argues that § 332(c)(3)(A) expressly preempts
the Naquin plaintiffs’ claims. This section prohibits a state
or local government from regulating “the entry of or the rates
charged by any commercial mobile service,” but allows it to
regulate “other terms and conditions of commercial mobile
services.” 47 U.S.C. § 332(c)(3)(A). Nokia argues that the
Naquin plaintiffs seek to use state law to regulate technical
specifications for wireless telephones; this, Nokia says,
would hinder entry into the commercial mobile service
market because the FCC requires that wireless service
providers certify that they are using only FCC-authorized
equipment. Because Nokia cites to the licensing provisions
dealing with personal communications services (PCS), a
specific type of commercial mobile service, we understand
Nokia’s argument to assert that state regulation of wireless
39a
Appendix A
telephone specifications constitutes a barrier to entry for PCS
providers.°
While § 332(c)(3)(A) is unclear as to what precisely
constitutes a barrier to entry into the PCS market, we
conclude that the relief sought by the Naquin plaintiffs (a
headset requirement) is not such a barrier. To begin with, the
PCS market is a market for wireless service. Wireless service
providers use base stations and MTSOs to create a network
of coverage, a network that wireless telephone users generally
pay a fee to access. The FCC licenses portions of the radio
spectrum to wireless service providers so they can provide
PCS coverage, see 47 C.F.R. § 24.1(a), (b), and one of the
main requirements for the grant of a license is that the licensee
must construct enough base stations to provide coverage to
the area for which it receives a license. 47 C.F.R. §§ 24.103,
24.203. Accordingly, in order for state law to constitute a
barrier to entry, it must, at a minimum, obstruct or burden a
wireless service provider's ability to provide a network of
wireless service coverage. See, e.g., Bastien v. AT&T Wireless
Svcs., Inc., 205 F.3d 983 (7th Cir.2000) (concluding that an
5. There are basically two competing modes of wireless
communications, cellular services and PCS. Malcom J. Tuesly, Note,
Not in My Backyard: The Siting of Wireless Communications
Facilities, 51 Fed. Comm. LJ. 887, 888 (1999). Cellular systems
operate-in the 834-MHz to 894-MHz range, and PCS systems operate
in the 1850-MHz to 1990-MHz range. Marshall Brain & Jeff Tyson,
How Cell Phones Work, at hitp:// electronics.howstuffworks.com/
cell-phone.htm/printable (last visited Jan. 24, 2005). “As demand
for cellular service *ias outgrown the available radio spectrum used
for cellular signals, the wireless industry has turned to PCS, which
utilizes digital technology that triples the capacity of traditional
cellular systems.” Tuesly, supra at 88.
40a
Appendix A
action brought under state law to challenge the number of
base stations in a coverage area constitutes a barrier to entry
and is prohibited by § 332(c)(3)(A)).
A headset requirement for wireless telephones would not
constitute a barrier to entry into the PCS market because
wireless telephones are only used to access a wireless service
provider's network of coverage; the telephones themselves
do not provide the actual coverage. It is true that wireless
service providers commonly market wireless telephones in
conjunction with wireless service packages, and the wireless
telephones that they sell must comply with federal
RF radiation standards. See 47 C.F.R. § 24.52. Nevertheless,
a wireless service provider's choice to bundle service
packages and telephones does not mean that a headset
requirement would affect its ability to enter into the wireless
service market or to provide a network of wireless service
coverage. Furthe "more, notwithstanding Nokia's assertion,
we find nothing in the regulations that requires a wireless
service provider to certify, as a condition for obtaining a
license to provide PCS, that the wireless telephones used
within its coverage area comply with the FCC’s RF radiation
standards. This certification is generally undertaken by the
manufacturer of the telephones when it requests equipment
authorization. See 47 C.F.R. §§ 24.51(b); 24.52. Because the
relief sought by the Naquin plaintiffs would not be a barrier
for wireless service providers seeking to enter the PCS
market, § 332(c)(3)(A) does not expressly preempt the claims
of the Naquin plaintiffs.
4la
Appendix A
2.
We also hold that the Naquin plaintiffs’ claims are not
preempted under the doctrines of conflict preemption and
field preemption. As noted above, a state statute can be set
aside by conflict preemption “when compliance with both
federal and state regulations is a physical impossibility, or
when state law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of
Congress.” Hillsborough, 471 U.S. at 713 (internal quotation
marks and citations omitted). Again, there is a strong
presumption against preemption when the federal
government regulates in areas traditionally left to the states,
such as health and safety. Medtronic, 518 U.S. at 485.
The district court concluded that the Naquin plaintiffs’
claims are preempted because their cases stand as an obstacle
to ‘Congress’ objectives of achieving national uniformity in
wireless telecommunications services aid striking a balance
between the proliferation of wireless services and the need
to protect the public from any harmful effects of
RF exposure.” /n re Wireless Tel. Radiv Frequency Emissions
Prods. Liab. Litig., 248 F. Supp.2d 452, 463 (D. Ma. 2003).
Reasoning that the plaintiffs were essentially seeking to
impose a headset requirement or a stricter RF radiation
standard, the district court concluded that allowing the cases
to go forward would usurp the regulatory authority Congress
entrusted to expert federal agencies that had already
confronted these issues. /d. The district court relied on § 332
of the FCA to find a sweeping congressional objective of
ensuring that all equipment used in counection with wireless
telecommunications be subject to exclusive national RF
42a
a
Appendix A
radiation standards that have the effect of precluding state
regulation on the subject. /d. at 464 (citing In re Wireless I,
216 F. Supp.2d at 483-87).
We conclude that the district court erred because the FCA
provides no evidence of such an objective. Congress enacted
§ 332 to ensure the availability of a nationwide network of
wireless service coverage, more specifically, to develop the
infrastructure necessary to provide wireless services. Thus,
§ 332(1) provides factors that the FCC must consider in
managing the spectrum used for wireless services, 47 U.S.C.
§ 332(a); (2) classifies wireless service providers that provide
wireless service to the public for profit as “common carriers”
(subjecting them to numerous duties under the FCA),
47 U.S.C. § 332(c)(1)(A); (3) prevents states from regulating
“the entry of or the rates charged by” wireless service
providers, 47 U.S.C. § 332(c)(3)(A); and (4) limits in certain
respects the ability of states and local zoning authorities to
regulate the “placement, construction, and modification” of
facilities that provide wireless service, 47 U.S.C. § 332(c)(7).
We do not infer from § 332 the congressional objective
of achieving preemptive national RF radiation standards for
wireless telephones. First, § 332 does r 4 .ddress the subject
of wireless telephones, let alone the i..ore specific issue of
the permissible amount of RF radiat.:>.1 from wireless
telephones. The FCC’s RF radiation standards for wireless
telephones were not promulgated pursuant to a mandate
contained in § 332 of the FCA, but rather pursuant to the
National Environmental Policy act’s mandate that all
agencies assess the environmental impact of their actions.
For the FCC, the action was authorizing transmitters that
43a
Appendix A
emit RF radiation. Jn re Guidelines for Evaluating the Envt'l
Effects of Radiofrequency Radiation, 11 FCC Red. 15123,
15125 (1996). The complete absence of any provision
addressing wireless telephones counsels against a finding that
§ 332 evidences a congressional goal of achieving preemptive
national RF radiation standards for wireless telephones.
Second, in pursuing its objective of ensuring the
availability of a nationwide network of wireless service
coverage, Congress has been very careful to preempt
expressly only certain areas of state law, preserving the
remainder for state regulation. For example, § 332(c)(3)(A)
prohibits states from regulating “the entry of or the rates
charged by” wireless service providers, but explicitly
provides that states may still regulate “the other terms
and conditions of commercial mobile service.” 47 U.S.C.
§ 332(c)(3)(A). And § 332(c)(7) preserves a good measure
of the states’ authority over decisions regarding “placement,
construction, and modification of personal wireless service
facilities.” 47 U.S.C. § 332(c)(7)(A). Consistent with this
conscious and careful effort to carve out the areas of state
laws that it wants to preempt, Congress has specifically
allowed for preemptive national RF radiation standards only
for personal wireless service facilities. Section
332(c)(7)(B)(iv) provides that state and local zoning
authorities may not “regulate the placement, construction,
and modification of personal wireless service facilities” on
the basis of RF emissions as long as the facilities comply
with the FCC’s RF radiation standards. This specificity as to
the preemptive nature of federal RF radiation standards for
personal wireless service facilities weighs against a finding
that Congress has an implicit goal of making preemptive the
44a
Appendix A
RF radiation standards for all other types of wireless
telecommunications equipment, including wireless
telephones.
Third, there are two applicable savings clauses. There is
the general savings clause of the FCA, which provides that
“[njothing contained in this chapter shall in any way abridge
or alter the remedies now existing at common law or by
statute, but the provisions of this chapter are in addition to
such remedies.” 47 U.S.C. § 414. And there is the savings
clause in section 601(c)(1) of the Telecommunications Act
of 1996. This Act added 47 U.S.C. § 332(c)(7), which
preempts some of the states’ authority to regulate the location
of base stations (not wireless telephones); the savings clause,
however, provides that the Act “shall not be construed to
modify, impair, or supersede Federal, State, or local law
unless expressly so provided. .. .” Telecommunications Act
of 1996, Pub.L. No. 104-104, § 601(c)(1), 110 Stat. 56, 143.
These savings clauses counsel against any broad construction
of the goals of § 332 and § 332(c)(7) that would create an
implicit conflict with state tort law.
Having determined that the FCA provides no evidence
of a congressional objective to ensure preemptive national
RF radiation standards for wireless telephones, we next
examine whether the relief sought by the Naquin plaintiffs
would stand as an obstacle to Congress’ actual goal of
establishing a nationwide network of wireless telephone
service coverage. We conclude that it would not. It is difficult
to understand how a headset requiremer ‘the specific relief
sought) would affect the establishment of a nationwide
wireless service network or the availability of wireless service
45a
Appendix A
coverage. Wireless service providers generally provide
wireless service coverage through a network of base stations
that are coordinated by MTSOs. A wireless telephone user
purchases a service plan from a wireless service provider,
and the provider assigns the user a MIN and a SID, which
allow the user to access this network of base stations and
MTSOs. While wireless telephones access the network, they
are not part of the infrastructure; accordingly, a headset
requirement would not stand as an obstacle to Congress’s
goal of achieving nationwide coverage.
Finally, we reject Nokia’s argument that the Naquin
plaintiffs’ claims are preempted on the basis of field
preemption. As our previous discussion indicates, the FCA
does not “so thoroughly occup[y][the] legislative field [of
wireless telecommunications] as to make reasonable the
inference that Congress left no room for the states to
supplement it.” Cipollone, 505 U.S. at 516. There is no
evidence that Congress intended that state law claims, such
as those assested by the Naquin_plaintiffs, be swept aside.
IV.
For the foregoing reasons, we reverse the district court’s
order denying the consolidated motion to remand made by
the plaintiffs in the Pinney, Farina, Gilliam, and Gimpelson
cases. Because federal-subject matter jurisdiction does not
exist over these four cases, we return them to the district
court for remand to the state courts in which they originated.
We also reverse the district court’s order dismissing the
Naquin plaintiffs’ case as preempted by the FCA. That case
is remanded to the district court for further proceedings.
REVERSED AND REMANDED
46a
Appendix A
KISER, Senior District Judge, dissenting:
I dissent because, like the district court in its well-
researched and well-reasoned opinion, | believe the case
cannot be resolved without proving that the FCC’s
RF radiation emission standards are too high to protect the
consuming public, This conclusion stems from a reading of
the plaintiffs’ complaint — not from any defense that the
defendants may assert.
The majority opinion reviews in some detail what
elements of the seven claims must be proved and concludes
that none of the claims are dependent on whether or not the
wireless te‘zphones comply with the FCC standards.
Apparently, the majority believes that the plaintiffs can prove
their prima facie case of all seven claims without reference
to the FCC standards regulating RF radiation emissions in
wireless telephones and without proving that those standards
are insufficient and invalid. I disagree. The plaintiffs are not
trying this case in a vacuum. The FCC has enacted a uniform,
nationwide regulatory scheme pertaining to wireless
telephones which is the result of a thorough and complex
rule-making process. The final rules reflect what the FCC
- believes will maintain the proper balance between the interest
in promoting wireless communication throughout the country
and the interest in protecting the health and safety of all
consumers, The plaintiffs will not be able to ignore these
standards. In proving their prima facie case for each claim,
the plaintiffs will have to prove the unreasonableness of the
RF radiation emitted by FCC-compliant wireless telephones.
The plaintiffs will thus have to establish that the FCC
standards are insufficient. It is well-settled that a suit to
47a
Appendix A
invalidate a federal regulation arises under federal law.
See Cahnmann v. Sprint Corp., 133 F.3d 484, 488 (7th
Cir.1998). In this case, the FCC standards’ validity vel non
is a matter of plaintiffs’ proof by the very words of the
complaint which purport to attack the FCC regulations. This
thinly-disguised attack on the validity of the FCC standards
raises a substantial federal question.
The plaintiffs attack the FCC standards in three ways.
First, the plaintiffs challenge the sufficiency of the FCC
standard. The plaintiffs allege that the defendants’ wireless
telephones, which comply with the FCC standard, do not
give adequate protection from RF radiation. Although the
plaintiffs have not indicted the FCC standard by name, that
is the effect of their allegations.
Second, the plaintiffs challenge the expertise of the FCC.
The plaintiffs allege that defendants were dishonest when
they stated to the public that “cell phones fall within the safety
standards of the [FCC].” 4 79. Plaintiffs arrive at the
conclusion that the above statement is false because the
defendants “omitted the fact that the FCC had declared it
does not consider itself the ‘expert agency’ for evaluating
health effects,” even though the FCC relied on experts in
evaluating health effects, one of which was the FDA.
See Cellular Phone Taskforce v. FCC, 205 F.3d 82, 88
(2d Cir.2000). This allegation is incorporated by reference
in all of the ‘plaintiffs’ claims but is particularly pertinent to
Count VI (Fraud) and Count VII (Fraud by Concealment).
These allegations form a part of plaintiffs’ factual basis on
which these two counts are based. These are facts plaintiffs
must prove along with any other alleged misrepresentations
48a
Appendix A
to sustain the allegations in the complaint. Therefore, the
plaintiffs call into question the expertise of the FCC and the
sufficiency of its standards.
Third, the plaintiffs question »>rocedure by which the
FCC developed the regulations. Specifically, the plaintiffs
challenge the data on which the FCC relied. In the rule-
making process, the FCC relied in part on standards of the
American National Standards Institute (“ANSI”). /d.
Plaintiffs allege that the defendants “obtain[ed] and
exercise[d] control over the [ANSI] Committee responsible
for developing safety standards for RFR emitting devices.”
{ 71. The plaintiffs are therefore attacking the rule-making
process that the FCC used in developing these standards.
Because the plaintiffs are making a direct attack upon the
validity and sufficiency of the FCC regulations, their claims
arise under federal law.
The majority finds that this case fails to raise a substantial
federal question because it does not rise or fall on the
resolution of a question of federal law. In support of this
conclusion, the majority points out the holding of the
Supreme Court that the “mere presence of a federal issue in
a State cause of action does not confer federal question
jurisdiction.” Merrell Dow Pharmaceuticals, Inc. v.
Thompson, 478 U.S. 804, 813 (1986). The situation in Merrell
Dow, however, is inapposite to the one in this case. lo Merrell
Dow, the plaintiffs were supporting the Federal Foc.i, Drug,
and Cosmetic Act and claiming a violation of that act was
negligence. Here, the plaintiffs are seeking to completely
undo the FCC standard. Claims with the potential for severely
limiting or eliminating a federal regulatory scheme raise a
49a
Appendix A
much more substantial federal question than those that merely
seek to inure to the benefit of such a scheme. On the other
hand, I find this case very similar to our holding in Ormet
Corp. v. Ohio Power Co. In Ormet, the plaintiff's claim was
couched in traditional commercial litigation language, but
we held that because the plaintiffs had to make reference to
the Clean Air Act to define one of the terms of the contract
there was a sufficient nexus to the Clean Air Act to support
federal question jurisdiction. Ormet Corp. v. Ohio Power
Co., 98 F.3d 799, 807 (4th Cir. 1996). The same logic applies
here. Although the FCC regulation must be dealt with by the
plaintiffs in a negative manner, its inadequacy is a fact that
plaintiffs must prove. This provides a sufficient nexus to
support federal question jurisdiction.
Moreover, the need for uniformity in a federal regulatory
scheme heightens the importance of the federal question. In
Ormet, we held that “[{w]here the resolution of a federal issue
in a state-law cause of action could, because of different
approaches and inconsistency, undermine the stability and
efficiency of a federal statutory regime, the need for
uniformity becomes a substantial federal interest justifying
the exercise of jurisdiction by federal courts.” /d. (citing
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 347-48,
4 L.Ed. 97 (1816)). Here, plaintiffs are not merely raising a
claim which may undermine a federal] regulatory scheme
through inconsistent interpretations; rather they are raising
claims which, if successful, will result in the complete
invalidation of federal regulatory standards. This presents a
substantial federal question.
50a
Appendix A
This Court has repeated the call by Justice Cardozo for
“principled, pragmatic distinctions” in determining federal
question jurisdiction. Columbia Gas Transmission Corp. v.
Drain, 191 F.3d 552, 558 (4th Cir.1999). In the words of
Justice Cardozo, “[w]Jhat is needed is something of that
common-sense accommodation of judgment to kaleidoscopic
situations w
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