# Petition for Writ of Certiorari — Nokia, Inc. v. Naquin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0082%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 546 U.S. 998 ## 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, maki [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0082%3A1. Public record. Not legal advice.