Pinney v. Nokia Inc , 402 F.3d 430 ( 2005 )

Filed: March 28, 2005
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_______________
No. 03-1433
_______________
(CA-01-1421-CCB; CA-01-1456-CCB; CA-01-3259-CCB;
CA-01-3260-CCB; CA-01-3261-CCB; CA-01-3899-CCB)
J. DOUGLAS PINNEY, M.D.; PATRICIA S. COLONELL, individually
and on behalf of all others similarly situated; FRANCIS J.
FARINA, individually and on behalf of all those similarly
situated; GARRETT J. NAQUIN; RONALD LEBLANC; JUDITH A.
KAUFMAN; ASHER RUBENSTEIN; CRYSTALL GILLIAM; DIMITRI MACK;
RIEDY GIMPELSON, individually and on behalf of all others
similarly situated; SARAH DAHLGREN, on behalf of herself and
all others similarly situated; LINDA BARRELL; BLAYNE
MINOGUE; BRIAN LANE BARRETT; DIANA BARRETT; DAVID C. KELLER;
MARSHA L. KELLER,
Plaintiffs - Appellants,
versus
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
LIMITED PARTNERSHIP, a/k/a Sprint PCS, a/k/a Sprint
Spectrum, LLP, a/k/a Sprint Spectrum; AUDIOVOX
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 CORPORATION OF
AMERICA, a/k/a Panasonic Corporation; PHILIPS 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 ELECTRONICS, 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 WIRELESS, a/k/a Nynex, a/k/a Bell Atlantic Nynex,
a/k/a Bell Atlantic Mobile, Incorporated, a/k/a Bell
Atlantic NYNEX Mobile; CELLCO PARTNERSHIP, d/b/a Verizon
Wireless, formerly known as Bell Atlantic NYNEX Mobile,
formerly known as Bell Atlantic Mobile; CINGULAR WIRELESS,
LLC, formerly known as BellSouth Mobility, Incorporated,
a/k/a Southwestern Bell Wireless, formerly known as
Southwestern Bell Mobile Systems, Incorporated; CINGULAR
WIRELESS, a/k/a Washington/Baltimore Cellular Limited
Partnership; SBC COMMUNICATIONS, INCORPORATED; CELLULAR ONE
GROUP, a/k/a Cellular One; VOICESTREAM WIRELESS CORPORATION;
C.E.I., INCORPORATED, a/k/a Communications Electronics,
a/k/a Communications Electronics, Incorporated; BALTIMORE
BUSINESS COMMUNICATIONS, INCORPORATED; COMCAST/METROPHONE;
RADIOFONE; POWERTEL, INCORPORATED; POWERTEL PCS,
INCORPORATED; POWERTEL/ATLANTA, INCORPORATED; MITSUBISHI
WIRELESS COMMUNICATIONS, INCORPORATED; MOTOROLA,
INCORPORATED, a Delaware corporation; CELLULAR
TELECOMMUNICATIONS AND INTERNET ASSOCIATION, a District of
Columbia corporation; CELLULAR TELECOMMUNICATIONS INDUSTRY
ASSOCIATION; TELECOMMUNICATIONS INDUSTRY ASSOCIATION, a/k/a
TIA; NEXTEL PARTNERS OPERATING CORPORATION,
Defendants - Appellees,
and
WESTINGHOUSE COMMUNICATIONS; SOUTHERN TELECOM, INCORPORATED,
a/k/a Southern LINC; JOHN DOES 1-100; LGIC CORPORATION
PANASONIC CORPORATION; SAMSUNG SDI COMPANY; SANYO
CORPORATION; SONY CORPORATION; PLANET CELLULAR
COMMUNICATIONS, INCORPORATED; VISITOR CELLULAR L.L.C.; BELL
SOUTH MOBILITY; KYOCERA WIRELESS CORPORATION; MCI WORLDCOM
COMMUNICATIONS, INCORPORATED; U.S. WEST WIRELESS, L.L.C., A
Colorado corporation; U. S. WEST COMMUNICATIONS,
INCORPORATED, a Colorado corporation; GTE MOBILNET OF SAN
DIEGO, INCORPORATED, a Delaware corporation; GTE WIRELESS
SAN DIEGO, LLC, a California Limited Liability; CELLULAR
CARRIERS ASSOCIATION OF CALIFORNIA, a California
corporation; AB CELLULAR HOLDINGS, LLC, d/b/a LA Cellular,
d/b/a Los Angeles Cellular Telephone Company
Defendants.
______________
O R D E R
______________
The court amends its opinion filed March 16, 2005, as
follows:
On Page 6, line 16, substitute the name “Paul Walter” for
the name “Paul F. Walter.”
On Page 7, add at line 12, John A. Stewart, Jr., HULSE &
WANEK, New Orleans, Louisiana; Mark J. Jeansonne, MILLING,
BENSON, WOODWARD, New Orleans, Louisiana, for Radiofone, Inc.
For the Court
/s/ Patricia S. Connor
____________________________
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
J. DOUGLAS PINNEY, M.D.; PATRICIA 
S. COLONELL, individually and on
behalf of all others similarly
situated; FRANCIS J. FARINA,
individually and on behalf of all
those similarly situated; GARRETT J.
NAQUIN; RONALD LEBLANC; JUDITH A.
KAUFMAN; ASHER RUBENSTEIN;
CRYSTALL GILLIAM; DIMITRI MACK;
RIEDY GIMPELSON, individually and
on behalf of all others similarly
situated; SARAH DAHLGREN, on
behalf of herself and all others
similarly situated; LINDA BARRELL;
BLAYNE MINOGUE; BRIAN LANE
BARRETT; DIANA BARRETT; DAVID C.
KELLER; MARSHA L. KELLER,  No. 03-1433
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 LIMITED PARTNERSHIP, a/k/a
Sprint PCS, a/k/a Sprint Spectrum,
LLP, a/k/a Sprint Spectrum;
AUDIOVOX COMMUNICATIONS
CORPORATION; NEXTEL
COMMUNICATIONS, INCORPORATED,

2 PINNEY v. NOKIA, INC.
a/k/a Nextel Communications of the 
Mid-Atlantic, Incorporated, a/k/a
Nextel Partners, Incorporated, a/k/a
Nextel; MATSUSHITA CORPORATION OF
AMERICA, a/k/a Panasonic
Corporation; PHILIPS 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
ELECTRONICS, 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 WIRELESS,
a/k/a Nynex, a/k/a Bell Atlantic
Nynex, a/k/a Bell Atlantic Mobile,
Incorporated, a/k/a Bell Atlantic
NYNEX Mobile; CELLCO
PARTNERSHIP, d/b/a Verizon
Wireless, formerly known as Bell
Atlantic NYNEX Mobile, formerly
known as Bell Atlantic Mobile;
CINGULAR WIRELESS, LLC, formerly
known as BellSouth Mobility,
Incorporated, a/k/a Southwestern

PINNEY v. NOKIA, INC. 3
Bell Wireless, formerly known as 
Southwestern Bell Mobile Systems,
Incorporated; CINGULAR WIRELESS,
a/k/a Washington/Baltimore Cellular
Limited Partnership; SBC
COMMUNICATIONS, INCORPORATED;
CELLULAR ONE GROUP, a/k/a Cellular
One; VOICESTREAM WIRELESS
CORPORATION; C.E.I., INCORPORATED,
a/k/a Communications Electronics,
a/k/a Communications Electronics,
Incorporated; BALTIMORE BUSINESS
COMMUNICATIONS, INCORPORATED;
COMCAST/METROPHONE; RADIOFONE;
POWERTEL, INCORPORATED; POWERTEL
PCS, INCORPORATED;
POWERTEL/ATLANTA, INCORPORATED;
MITSUBISHI WIRELESS
COMMUNICATIONS, INCORPORATED; 
MOTOROLA, INCORPORATED, a
Delaware corporation; CELLULAR
TELECOMMUNICATIONS AND INTERNET
ASSOCIATION, a District of Columbia
corporation; CELLULAR
TELECOMMUNICATIONS INDUSTRY
ASSOCIATION; TELECOMMUNICATIONS
INDUSTRY ASSOCIATION, a/k/a TIA;
NEXTEL PARTNERS OPERATING
CORPORATION,
Defendants-Appellees,
and
WESTINGHOUSE COMMUNICATIONS;
SOUTHERN TELECOM, INCORPORATED,
a/k/a Southern LINC; JOHN DOES
1-100; LGIC CORPORATION;

4 PINNEY v. NOKIA, INC.
PANASONIC CORPORATION; SAMSUNG 
SDI COMPANY; SANYO CORPORATION;
SONY CORPORATION; PLANET
CELLULAR COMMUNICATIONS,
INCORPORATED; VISITOR CELLULAR
L.L.C.; BELL SOUTH MOBILITY;
KYOCERA WIRELESS CORPORATION;
MCI WORLDCOM COMMUNICATIONS,
INCORPORATED; U.S. WEST WIRELESS,
L.L.C., A Colorado corporation; U.
S. WEST COMMUNICATIONS,
INCORPORATED, a Colorado 
corporation; GTE MOBILNET OF SAN
DIEGO, INCORPORATED, a Delaware
corporation; GTE WIRELESS SAN
DIEGO, LLC, a California Limited
Liability; CELLULAR CARRIERS
ASSOCIATION OF CALIFORNIA, a
California corporation; AB
CELLULAR HOLDINGS, LLC, d/b/a LA
Cellular, d/b/a Los Angeles Cellular
Telephone Company,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-01-1421-CCB; CA-01-1456-CCB; CA-01-3259-CCB;
CA-01-3260-CCB; CA-01-3261-CCB; CA-01-3899-CCB)
Argued: October 1, 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.
PINNEY v. NOKIA, INC. 5
Reversed and remanded by published opinion. Judge Michael wrote
the opinion, in which Judge Luttig joined. Senior Judge Kiser wrote
a dissenting opinion.
COUNSEL
ARGUED: Michael R. Allweiss, LOWE, STEIN, HOFFMAN,
ALLWEISS & HAUVER, L.L.P., New Orleans, Louisiana, for
Appellants. Kenneth Winston Starr, KIRKLAND & ELLIS, L.L.P.,
Washington, D.C., for Appellees. ON BRIEF: H. Russell Smouse,
John C. M. Angelos, Glenn E. Mintzer, LAW OFFICES OF PETER
G. ANGELOS, P.C., Baltimore, Maryland; H. Thomas Howell,
HOWELL & GATELY, Baltimore, Maryland, for Appellants. Garrett
B. Johnson, Terrence J. Dee, Michael B. Slade, KIRKLAND &
ELLIS, L.L.P., Chicago, Illinois, for Motorola, Inc. Seamus C. Duffy,
Mary Catherine Roper, DRINKER, BIDDLE & REATH, L.L.P.,
Philadelphia, Pennsylvania, for Cingular Wireless, Inc., SBC Com-
munications, Inc. Mark F. Horning, Thomas M. Barba, STEPTOE &
JOHNSON, Washington, D.C., for AT&T Corp., AT&T Wireless
PCS, LLC and AT&T Wireless Services, Inc. John H. Beisner, Brian
P. Brooks, O’MELVENY & MEYERS, L.L.P., Washington, D.C., for
Verizon Wireless, Cellco Partnership. Paul F. Strain, VENABLE,
BAETJER AND HOWARD, L.L.P., Baltimore, Maryland; M. King
Hill, III, VENABLE, BAETJER AND HOWARD, L.L.P., Towson,
Maryland; Jane Fugate Thorpe, Scott A. Elder, ALSTON & BIRD,
L.L.P., Atlanta, Georgia, for Cellco Partnership formerly d/b/a Bell
Atlantic Mobile and Bell Atlantic Nynex Mobile d/b/a Verizon Wire-
less, Verizon Maryland, Inc. a/k/a Verizon Wireless, a/k/a Verizon,
f/k/a Bell Atlantic-Maryland, Inc., Verizon Communications, Inc.,
f/k/a Bell Atlantic Corporation, Verizon Wireless, a/k/a Bell Atlantic
Nynex, a/k/a Nynex, a/k/a Bell Atlantic Mobile, Inc. f/k/a Bell Atlan-
tic Nynex Mobile, Inc. Thomas Watson, Curtis Renner, WATSON &
RENNER, Washington, D.C., for Cingular Wireless, L.L.C. Michael
Esher Yaggy, Jeffrey M. Yeatman, PIPER RUDNICK, L.L.P., Balti-
more, Maryland, for Motorola, Inc. Steven M. Laduzinsky, Scott A.
Hanfling, KANE, LADUZINSKY & MENDOZA, LTD., Chicago,
Illinois; Robert B. Green, IRWIN, GREEN & DEXTER, L.L.P.,
Towson, Maryland, for Cellular Telecommunications and Internet
6 PINNEY v. NOKIA, INC.
Association. Michael H. O’Brien, Jason P. Sultzer, WILSON,
ELSER, MOSKOWITZ, EDELMAN & DICKER, White Plains, New
York; Laura N. Steel, WILSON, ELSER, MOSKOWITZ, EDEL-
MAN & DICKER, Washington, D.C.; John B. Isbister, Harold M.
Walter, TYDINGS & ROSENBERG, L.L.P., Baltimore, Maryland,
for Samsung Electronics America, Inc., a/k/a Samsung Electronics.
Paul S. Schleifman, SHOOK, HARDY & BACON, L.L.P., Washing-
ton, D.C.; J. Stan Sexton, Michael D. Moeller, SHOOK, HARDY &
BACON, L.L.P., Kansas City, Missouri, for Sprint PCS Limited Part-
nership, a/k/a Sprint Spectrum; Sprint Spectrum, L.L.C., d/b/a Sprint
PCS. Charles P. Goodell, James A. Frederick, GOODELL, DEV-
RIES, LEECH & DANN, Baltimore, Maryland, for North America,
Inc. a/k/a Sanyo North America Group, Sanyo Corporation, Sanyo
Business Systems Corporation. Steven M. Zager, Lance Lackey, Rob-
ert Pemberton, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.,
Houston, Texas; Paul Walter, TYDINGS AND ROSENBERG,
L.L.P., Baltimore, Maryland, for Nokia, Inc., a/k/a Nokia Mobile
Phones, Inc., and Nokia Corporation. Ray M. Aragon, Raymond B.
Biagini, MCKENNA, LONG & ALDRIDGE, L.L.P., Washington,
D.C., for Electronics North America Corporation. Eugene A. Schoon,
Tamar B. Kelber, SIDLEY, AUSTIN, BROWN & WOOD, L.L.P.,
Chicago, Illinois, for Voicestream Wireless Corporation a/k/a Voice-
stream Wireless, Powertel, Inc., Powertel PCS, Inc., Powertel/Atlanta,
Inc. Patrick R. Buckler, Walter T. Dudley, MCGUIREWOODS,
L.L.P., Baltimore, Maryland; Edward M. Crane, David L. Hanselman,
SKADDEN, ARPS, SLATE, MEAGHER & FLOM, Chicago, Illi-
nois, for Nextel Communications of the Mid-Atlantic, Inc., Nextel of
New York, Inc., and Nextel South Corp. James P. Ulwick, KRAMON
& GRAHAM, P.A., Baltimore, Maryland, for NEC America, Inc.
Francis A. Citera, GREENBERG & TRAURIG, P.C., Chicago, Illi-
nois, for Electronics Inc., Qualcomm Incorporated. Russell J. Rogers,
Lawrence A. Slovensky, MCKENNA, LONG & ALDRIDGE, L.L.P.,
Atlanta, Georgia, for Partners Operating Corp. and Nextel Partners,
Inc. Paul D. Krause, Laura N. Steel, WILSON, ELSER, MOS-
KOWITZ, EDLEMAN & DICKER, L.L.P., Washington, D.C., for
Matsushita Corporation of America, a/k/a Panasonic Corporation, and
Sanyo North America, Inc. a/k/a Sanyo North America Group; Sanyo
Corporation; Sanyo Business Systems, Corporation. Paul Vishny,
Paul Freehling, D’ANCONA & PFLAUM, L.L.C., Chicago, Illinois,
PINNEY v. NOKIA, INC. 7
for Telecommunications Industry Association. Mark H. Kolman, Leslie R. Cohen,
DICKSTEIN, SHAPIRO, MORIN & OSHINSKY, L.L.P., Washington, D.C., for
Audiovox Communications Corp. Charles L. Perry, ANDREWS & KURTH, L.L.P.,
Dallas, Texas, for Cellular One Group. Matthew T. Covell, Kevin B. Getzendanner,
ARNALL, GOLDEN & GREGORY, L.L.P., Atlanta, Georgia, for Mitsubishi
Wireless Communications, Inc. Daniel S. Reinhardt, Steven J. Hewitson, TROUTMAN,
SANDERS, L.L.P., Atlanta, Georgia, for Southern Telecom, Inc. Gregg L. Bernstein,
Denis J. Charlesworth, MARTIN, SNYDER & BERNSTEIN, P.A., Baltimore,
Maryland; Charles L. Babcock, David T. Moran, James M. McCown, Ryan C. Wirtz,
JACKSON WALKER, L.L.P., Dallas, Texas, for Ericsson Inc. Maureen Ellen
Murphy, MURPHY & MURPHY, L.L.C., Catonsville, Maryland, for Baltimore
Business Communications, Inc. John A. Stewart, Jr., HULSE & WANEK, New
Orleans, Louisiana; Mark J. Jeansonne, MILLING, BENSON, WOODWARD,
New Orleans, Louisiana, for Radiofone, Inc.
OPINION
MICHAEL, Circuit Judge:
This multidistrict litigation includes five class actions brought ini-
tially 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 wire-
less 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 all 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.
8 PINNEY v. NOKIA, INC.
I.
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 (usually a tower) within
range. A base station 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 Identi-
fication Number (MIN), its System Identification Code (SID), and its
Electronic Serial Number (ESN). The ESN is a number permanently
programmed into the telephone when it is manufactured. The SID and
the MIN are programmed into the wireless telephone when a cus-
tomer 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 con-
firms 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 wire-
less 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, each 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. 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) radia-
tion, 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
PINNEY v. NOKIA, INC. 9
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.
In 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, negli-
gently and fraudulently endangered the consuming public by market-
ing wireless telephones without headsets. According to the plaintiffs,
they were exposed to 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 wire-
less 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 consoli-
dated motion to remand their cases to the state courts in which they
10 PINNEY v. NOKIA, INC.
originated. The plaintiffs in the fifth case (the "Naquin plaintiffs") did
not join this motion because there was federal subject matter jurisdic-
tion 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 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 dis-
miss 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.
II.
We turn first to the district court’s order denying the Pinney plain-
tiffs’ 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 juris-
diction." 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." Id. "If it
appears before final judgment that a case was not properly 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. Labor-
er’s Vacation Trust, 463 U.S. 1, 8 (1983) (citing 28 U.S.C. §
1447(c)).
PINNEY v. NOKIA, INC. 11
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 of action.’") (quoting Am. Well Works Co. v. Layne
& Bowler Co., 241 U.S. 257, 260 (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 (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 neces-
sary element of one of the well-pleaded . . . claims." Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 808 (1988) (quoting
Franchise Tax Bd., 463 U.S. at 13, 27-28) (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
12 PINNEY v. NOKIA, INC.
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 ele-
ments, the claim does not arise under federal law pursuant to the sub-
stantial federal question doctrine, and removal cannot be justified
under this doctrine. Id.
A plaintiff’s right to relief necessarily depends on a question of
federal law when "it appears that some . . . disputed question of fed-
eral law is a necessary element of one of the well-pleaded state
claims." Franchise Tax Bd., 463 U.S. at 13. 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; see also Dixon,
369 F.3d at 817 ("[I]f the plaintiff can support his claim with even
one theory that does not call 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 Califor-
nia 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. 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 law, under which a tax levy may be enforced; fed-
eral 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." Id. at 13. "[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 pre-emption, 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." Id. at 14.
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 determin-
ing whether removal was proper. See Pullman Co. v. Jenkins, 305
U.S. 534, 537 (1939). The Pinney plaintiffs assert seven claims in
PINNEY v. NOKIA, INC. 13
their original complaints. They first allege that Nokia is strictly liable
for placing a defectively designed product into the stream of com-
merce. These claims are brought under the laws of Georgia, Mary-
land, 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 reason-
ably 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. ICI Ams., Inc., 450 S.E.2d 671, 673-74 (Ga. 1994); Nis-
san Motor Co. v. Nave, 740 A.2d 102, 118 (Md. Ct. Spec. App.
1999); Voss v. Black & Decker Mfg. Co., 450 N.E.2d 204, 208-09
(N.Y. 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).
Second, the Pinney plaintiffs allege that Nokia is strictly liable for
its failure to warn about the adverse health risks associated with wire-
less 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 dan-
ger while the product is used in a foreseeable manner. See Hunt v.
Harley-Davidson Motor Co., 248 S.E.2d 15, 16 (Ga. Ct. App. 1978);
Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 639 (Md. 1992); Ras-
telli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222, 225 (N.Y.
1992); Davis v. Berwind Corp., 690 A.2d 186, 190 (Pa. 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 sus-
tained 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 materi-
14 PINNEY v. NOKIA, INC.
ally 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 fail-
ure deceived, or had the tendency to deceive, consumers. See Md.
Code Ann., Com. Law II, § 13-301(1), (2)(i), (3), (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 claim for breach of this implied warranty, a plaintiff must estab-
lish 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
v. J & L Melton, Inc., 606 S.E.2d 47, 49 n.1 (Ga. Ct. App. 2004);
Ford Motor Co. v. Gen. Acc. Ins. Co., 779 A.2d 362, 370 n.13 (Md.
2001); Denny v. Ford Motor Co., 662 N.E.2d 730, 736 (N.Y. 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 foresee-
able manners." Denny, 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 tele-
phones, (2) in misrepresenting to the public that wireless telephones
are safe, (3) in suppressing any scientific evidence suggesting that
wireless telephones are not safe, (4) in failing to provide warnings
about the potential health risks from failing to use a headset, 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 fol-
lowing 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, 578 S.E.2d 106, 108 (Ga. 2003);
Hemmings v. Pelham Wood LLP, 826 A.2d 443, 451 (Md. 2003). A
PINNEY v. NOKIA, INC. 15
manufacturer generally has a duty to exercise reasonable care in man-
ufacturing, designing, and selling its products "so as to make the
products reasonably safe for intended or foreseeable uses." Chrysler
Corp v. Batten, 450 S.E.2d 208, 211 (Ga. 1994) (citation omitted); see
also Eagle Pitcher Indus., Inc. v. Balbo, 604 A.2d 445, 454 n.9 (Md.
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 defen-
dant made a false representation, (2) the defendant knew the represen-
tation was false or was recklessly indifferent to its truth or falsity, (3)
the defendant made the representation with the intent to defraud the
plaintiff, (4) the plaintiff justifiably relied on the false representation,
and (5) the plaintiff suffered damages as a result. See Rhone v. Bol-
den, ___ S.E.2d ___, 2004 WL 2567343 (Ga. Ct. App. 2004); Mar-
tens Chevrolet, Inc. v. Seney, 439 A.2d 534, 537 (Md. 1982); P.
Chimento Co. v. Banco Popular de Puerto Rico, 617 N.Y.S.2d 157,
158 (N.Y. App. Div. 1994); Gibbs v. Ernst, 647 A.2d 882, 889 (Pa.
1994). Concealment of a material fact, with intent to deceive, satisfies
the false representation element of fraud. See Paul v. Desito, 550
S.E.2d 739, 744 (Ga. Ct. App. 2001); Hoffman v. Stamper, 843 A.2d
153, 186 (Md. Ct. Spec. App. 2004); Nasaba Corp. v. Harfred Realty
Corp., 39 N.E.2d 243, 245 (N.Y. 1942); De Joseph v. Zambelli, 139
A.2d 644, 647 (Pa. 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 con-
duct. See Miller v. Lomax, 596 S.E.2d 232, 242 (Ga. Ct. App. 2004);
Alleco, Inc. v. Harry & Jeannette Weinberg Found., Inc., 639 A.2d
173, 176-77 (Md. Ct. Spec. App. 1994).
16 PINNEY v. NOKIA, INC.
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. The district court, however, deter-
mined that these cases depend on the resolution of a substantial fed-
eral question because the claims "put . . . directly into dispute" the
validity and sufficiency of the federal RF radiation standards for wire-
less telephones. See In Re Wireless Tel. Radio Frequency Emissions
Prods. Liab. Litig., 216 F. Supp. 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." Id. Although the court acknowledged that
the complaints contain no allegations attacking the federal RF radia-
tion 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 sub-
stantial federal question doctrine. Id. at 488, 491-92.1
The district court erred by not recognizing that its inquiry was lim-
ited by the well-pleaded complaint rule. It should have considered
only whether a disputed question of federal law is an essential ele-
ment of one of the well-pleaded state claims. See Franchise Tax Bd.,
463 U.S. at 13. 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 fed-
eral RF radiation standards and (2) that the Pinney plaintiffs would be
called upon to rebut that 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 so,
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 (1986). Again, "a case may not be removed to fed-
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 stan-
dard." Post at 37. As we explain in the text that follows, this argument
cannot be sustained.
PINNEY v. NOKIA, INC. 17
eral 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.
The thrust of the claims is that Nokia violated state law by manu-
facturing 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 ele-
ments, without reference to federal law, that the plaintiffs must estab-
lish in order to a make out "valid claim[s] for relief." 463 U.S. at 13.
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 (1936). The lurking
question of federal law is, of course, the affirmative defense of pre-
emption, but that does not make the claims into ones arising under
federal law.
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 ele-
ment a plaintiff must establish is that the product suffered from a
design defect. A design defect is established by proving that the prod-
uct is unreasonably dangerous, as determined by the risk-utility stan-
dard. Nokia argues that the FCC’s RF radiation standards establish
the relevant "duty" with regard to RF radiation emissions from wire-
less 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 liabil-
ity context. In any event, the nub of Nokia’s argument is that a wire-
less telephone’s compliance (or noncompliance) with the federal RF
radiation standards determines whether the telephone is unreasonably
18 PINNEY v. NOKIA, INC.
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 unreason-
ably dangerous under the risk-utility standard. See Doyle v. Volkswa-
genwerk Aktiengesellschaft, 481 S.E.2d 518, 521 (Ga. 1997); Beatty
v. Trailmaster Prods., 625 A.2d 1005, 1014 (Md. 1993); Denny, 662
N.E.2d at 735-36; Sherman v. M. Lowenstein & Sons, Inc., 282
N.Y.S.2d 142, 143-44 (N.Y. App. Div. 1967). And because Pennsyl-
vania 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 law for selling a product that suffers from a design
defect. See Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d
590, 593-94 (Pa. 1987) (holding that product compliance with indus-
try 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 estab-
lish 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 auto-
matically establish the defective design element.
Nokia also argues that the Pinney plaintiffs "need to establish dis-
puted federal-law propositions" to make out their fraud claims. Br. for
Appellees at 27. To make out a claim of fraud, a plaintiff must estab-
lish, among other elements, that the defendants made a false state-
ment. Nokia asserts that the Pinney plaintiffs, in order to prove that
statements made by Nokia were false, must demonstrate that the "sub-
stantive content of federal wireless emissions regulations is inconsis-
tent with [Nokia’s] alleged characterizations of those regulations." Id.
This is a mischaracterization of the fraud claims. The Pinney plain-
tiffs do not allege that Nokia fraudulently misrepresented the RF radi-
ation standards. Rather, they allege that Nokia made false statements
by misrepresenting the general safety of wireless telephones and by
misrepresenting or failing to disclose the biological risks posed by
wireless telephones. To prove the falsity of these statements, the Pin-
ney 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
PINNEY v. NOKIA, INC. 19
substantial question of federal law that is a necessary element of the
Pinney plaintiffs’ strict liability (design defect) or fraud claims.2
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 sub-
stantial 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
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 state-
ment 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.
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 Amer-
ican National Standards Institute (‘ANSI’) Committee responsible for
developing safety standards for RFR emitting devices." J.A. 140. ANSI’s
proposals regarding RF radiation standards were generally adopted in
FCC rulemaking. See In re Guidelines, 11 FCC Rcd. at 15123-25.
According to the dissent, the allegation about Nokia’s influence over
ANSI means that the plaintiffs "are . . . attacking the rule-making process
that the FCC used in developing [its RF radiation] standards." Post at 38.
The dissent, however, does not explain how the allegation about ANSI
raises a substantial question of federal law that is a necessary element of
any one of the plaintiffs’ state law claims.
20 PINNEY v. NOKIA, INC.
need for uniform implementation and interpretation, that connection
can provide a basis for federal question jurisdiction even if no explic-
itly 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 telecom-
munications. A sufficient connection exists between the telecommuni-
cations regulatory regime and the Pinney plaintiffs’ claims, Nokia
says, because the claims are premised on the amount of RF radiation
that emits from wireless telephones, a technical aspect of wireless
telephones that is regulated by the FCC. To begin with, Nokia’s suffi-
cient 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 stan-
dards. 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 ques-
tion 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 con-
nection 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 our 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 exer-
cise of jurisdiction by federal courts." Id. at 807 (citation omitted).
Nokia claims this language stands for the proposition that a nexus (or,
in Nokia’s words, a "sufficient connection") between a plaintiff’s
claim for relief and a federal regulatory scheme is sufficient to estab-
PINNEY v. NOKIA, INC. 21
lish removal jurisdiction. Nokia’s reliance on the quoted statement
from Ormet is completely off the mark because the statement specifi-
cally 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 dis-
puted 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 Pin-
ney plaintiffs can establish the necessary elements of their claims
without resolving a question of federal law, the cases are still remov-
able under the substantial federal question doctrine because of a con-
nection 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 ("[T]he mere presence of a federal issue in a
state cause of action does not confer federal question jurisdiction.").
In sum, removal of these cases cannot be sustained on the basis of the
substantial federal question doctrine.
C.
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 pre-empt[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 fed-
22 PINNEY v. NOKIA, INC.
eral 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." Id. 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 com-
plaint. Darcangelo v. Verizon Communications, 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 "dis-
cernible 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.3d 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 establishes the
exclusive claim for 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 regula-
tions for and in connection with [wire or radio] communication ser-
vice, shall be just and reasonable." 47 U.S.C. § 201(b). Specifically,
Nokia argues that the sale of dangerous wireless telephones consti-
tutes 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 enti-
ties that must provide [transmission] service[s] to the public without
discrimination and are heavily regulated by the FCC." In re Applica-
tion of the United States for an Order Authorizing the Roving Inter-
ceptions 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 wire-
less 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
PINNEY v. NOKIA, INC. 23
groups of defendants: providers of wireless service (that also market
and distribute wireless telephones) and manufacturers of wireless tele-
phones. As to the second group, the plaintiffs allege that these defen-
dants "engaged in the design, manufacture, marketing, and sale of"
wireless telephones. See, e.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 can-
not 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 provid-
ers), 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 dis-
tributing wireless telephones. An interpretation of § 201 that would
construe the selling of dangerous wireless telephones as a "practice in
connection with" wireless service would be dubious at best. A "prac-
tice in connection with" wireless service does not even include tor-
tious 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 wireless 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 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 Communica-
tion Sys., 89 F.C.C.2d 58 (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
24 PINNEY v. NOKIA, INC.
addition to such remedies." 47 U.S.C. § 414. The presence of a sav-
ings 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 (11th 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 determina-
tion 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 evi-
dence 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 plaintiffs’ claims do not arise under federal law,
the district court lacked jurisdiction over them, making removal
improper.
III.
After the district court denied the Pinney plaintiffs’ motion to
remand their four cases to state court, it dismissed all five cases,
including the one brought by the Naquin plaintiffs, on the ground that
the claims are preempted by the FCA. Because the district court
lacked subject matter jurisdiction over the four cases brought by the
Pinney plaintiffs, the district court had no power to dismiss them.
However, as we noted earlier, the district court has diversity jurisdic-
tion over the case brought by the Naquin plaintiffs. See 28 U.S.C.
§ 1332(a). We must therefore review the district court’s order grant-
ing Nokia’s motion to dismiss the claims of the Naquin plaintiffs.
A.
Before we address the substance of the dismissal, we consider the
Naquin plaintiffs’ argument that the district court erred in taking up
Nokia’s motion to dismiss their case. They first contend the dismissal
PINNEY v. NOKIA, INC. 25
should be vacated because there is no subject matter jurisdiction over
the other four cases (the Pinney plaintiffs’ cases) that were consoli-
dated with their case. The Naquin plaintiffs argue that if the district
court had not erred in failing to recognize that it lacked jurisdiction
over the cases of the Pinney plaintiffs, only the Naquin case would
have remained, and Nokia’s motion to dismiss would not have been
considered due to lack of venue over the lone remaining case.
According to the Naquin plaintiffs, the district court’s error also
denied them the procedural right to petition the JPML or the district
court for a re-transfer of their case to the transferor court, the United
States District Court for the Eastern District of Louisiana. Finally, the
Naquin plaintiffs argue that the district court should not have consid-
ered the motion to dismiss because it had been denied by the trans-
feror court prior to transfer.
There is no merit to the argument that venue over the Naquin plain-
tiffs’ case in the District of Maryland was improper due to the lack
of federal jurisdiction over the other four consolidated cases. The stat-
ute authorizing transfer (and consolidation) of multidistrict actions, 47
U.S.C. § 1407, is a venue statute that allows the JPML to override a
plaintiff’s choice of forum when three factors are present: (1) "one or
more common questions of fact are pending in different districts," (2)
a transfer would serve "the convenience of parties and witnesses," and
(3) a transfer would "promote the just and efficient conduct of [the]
actions." 28 U.S.C. § 1407(a); see also In re Vernitron Secs. Litig.,
462 F. Supp. 391, 394 (J.P.M.L. 1979) ("Nor can the policies behind
venue provisions designed to operate in the context of single indepen-
dent actions prevail, in a multidistrict context, over the Panel’s statu-
tory mandate to weigh the interests of all the plaintiffs and all the
defendants and to consider multidistrict litigation as a whole in light
of the purposes of the law."). Transfer, of course, may be ordered
only for the purpose of "coordinated or consolidated pretrial proceed-
ings." 28 U.S.C. § 1407(a).
In the present cases, the JPML, after noting the presence of com-
mon questions of fact, found that "[c]entralization . . . in the District
of Maryland [would] serve the convenience of the parties and wit-
nesses and [would] promote the just and efficient conduct of the liti-
gation, while accordingly being necessary in order to avoid
duplication of discovery, prevent inconsistent pretrial rulings, and
26 PINNEY v. NOKIA, INC.
conserve the resources of the parties, their counsel, and the judiciary."
In Re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig.,
No. 1421 (J.P.M.L. Oct. 31, 2001) (order consolidating and transfer-
ring the cases to the District of Maryland). Because these findings sat-
isfied the prerequisites for transfer, and because the proceedings were
still in the pretrial stage, venue in the District of Maryland was
proper. The Naquin plaintiffs essentially seek to add an additional
requirement that subject matter jurisdiction must exist over all trans-
ferred and consolidated cases for venue to be proper in the transferee
court. There is no basis for this requirement in either the multidistrict
litigation statute or the case law.
The Naquin plaintiffs next argue that they were denied their proce-
dural right to request a remand to the Eastern District of Louisiana as
a result of the district court’s error in finding subject matter jurisdic-
tion over the cases brought by the Pinney plaintiffs. We disagree. At
any point in the district court proceedings, the Naquin plaintiffs could
have petitioned the JPML directly for a remand, or they could have
requested that the district court suggest a remand to the JPML.
J.P.M.L. Rule 7.6(c)(i), (ii); see also In re Roberts, 178 F.3d 181, 184
(3d Cir. 1999) (noting that once a case is transferred, only the JPML,
and not the transferee court, has the authority to remand the case to
the transferor court). The Naquin plaintiffs never moved the JPML for
a remand nor asked the district court to suggest remand to the JPML.
Because these plaintiffs failed to raise the remand issue with either
the JPML or the district court, we consider the issue waived for pur-
poses of this appeal. See Holland v. Big River Minerals Corp., 181
F.3d 597, 605 (4th Cir. 1999) ("Generally, issues that were not raised
in the district court will not be addressed on appeal.").
Finally, the Naquin plaintiffs argue that the district court’s dis-
missal order should be vacated because Judge Lemelle of the Eastern
District of Louisiana had denied, prior to transfer, motions to dismiss
filed by some of the defendants. The Naquin plaintiffs claim that a
transferee court may reconsider a prior order of a transferor court only
when: (1) there is an intervening change in the law, (2) there is newly
discovered (material) evidence, or (3) reconsideration is necessary to
correct a clear error of law or prevent manifest injustice. The two
cases relied on by the Naquin plaintiffs do not support such a con-
stricted view of a transferee court’s authority. In each of the cases,
PINNEY v. NOKIA, INC. 27
Microbix Biosys., Inc. v. Biowhittaker, Inc., 184 F. Supp. 2d 434, 436
(D. Md. 2000), and Potter v. Potter, 199 F.R.D. 550, 552 (D. Md.
2001), the district court was ruling on a motion for reconsideration of
its own order. The rules of constraint urged by the Naquin plaintiffs
make sense when a district court is asked to reconsider its own order.
"Were it otherwise, then there would be no conclusion to motions
practice, each motion becoming nothing more than the latest install-
ment in a potentially endless serial that would exhaust the resources
of the parties and the court — not to mention its patience." Potter,
199 F.R.D. at 553. This same constraint is not always justified in the
multidistrict litigation context, where there is a need for consistent
treatment of consolidated cases. See Astarte Shipping Co. v. Allied
Steel & Expert Svc., 767 F.2d 86, 87 (5th Cir. 1985) ("The transferee
court has the power and the obligation to modify or rescind any orders
in effect in the transferred case which it concludes are incorrect.");
Degulis v. LXR Biotech., Inc., 928 F. Supp. 1301, 1309 (S.D.N.Y.
1996) ("A transferee court in a multi-district litigation thus has the
power to modify interlocutory orders entered by the transferor court
prior to transfer under 28 U.S.C. § 1407.") (citation omitted). Here,
Judge Lemelle, in denying the motions to dismiss, denied them with-
out prejudice and explicitly acknowledged that the issue of federal
preemption could be revisited later in the litigation. In sum, the dis-
trict court did not err in considering Nokia’s motion to dismiss the
Naquin case.
B.
In their amended complaint the Naquin plaintiffs allege both state
and federal claims and seek the same remedy as the Pinney plaintiffs,
headsets for wireless telephones.3 We now consider whether the
3
For their federal claims the Naquin plaintiffs allege that Nokia has
violated the Magnuson-Moss Warranty Improvement Act, 15 U.S.C.
§ 2310. More specifically, they allege that Nokia breached the implied
warranty of fitness for a particular purpose by failing to provide headsets
and by engaging in deceptive trade practices in failing to disclose the
harmful effects of RF radiation from wireless telephones. This failure to
disclose renders the manufacturers’ express warranties for wireless tele-
phones misleading, the amended complaint alleges. The district court
appeared to dismiss the Naquin plaintiffs’ amended complaint entirely on
preemption grounds, even though federal claims are also alleged.
28 PINNEY v. NOKIA, INC.
Naquin plaintiffs’ state law claims are preempted by the FCA. Under
the Supremacy Clause a state law that "interferes with, or is contrary
to" federal law is invalid. Free v. Bland, 369 U.S. 663, 666 (1962).
There are three theories under which Congress preempts state law.
First, under express preemption Congress expressly declares its intent
to preempt state law. S. Blasting Svcs., Inc. v. Wilkes County, 288
F.3d 584, 590 (4th Cir. 2002) (citing Hillsborough County v. Auto-
mated Med. Labs., Inc., 471 U.S. 707, 713 (1985)). Second, under
field preemption Congress impliedly preempts state law when "fed-
eral law so thoroughly occupies a legislative field as to make reason-
able the inference that Congress left no room for the states to
supplement it." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516
(1992) (internal quotation marks and citations omitted). Third, under
conflict preemption Congress impliedly preempts state law when it
"actually conflicts with federal law." Hillsborough, 471 U.S. at 713.
We must remember that "the purpose of Congress is the ultimate
touchstone in every pre-emption case." Medtronic, Inc. v. Lohr, 518
U.S. 470, 485 (1996) (internal quotation marks and citations omitted).
Further, "[c]onsideration under the Supremacy Clause starts with the
basic assumption that Congress did not intend to displace state law."
Maryland v. Louisiana, 451 U.S. 725, 746 (1981) (citation omitted).
This presumption against preemption is particularly strong when Con-
gress legislates "‘in a field which the States have traditionally occu-
pied,’" such as health and safety.4 Medtronic, 518 U.S. at 485
(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
4
The district court decided that the presumption against preemption
does not apply here because the Naquin plaintiffs’ claims relate to wire-
less telecommunications, an area where, according to the court, "‘there
has been a history of significant federal presence.’" In re Wireless Tel.
Radio Frequency Prods. Liab. Litig., 248 F. Supp. 2d 452, 463 (D. Md.
2003) (quoting United States v. Locke, 529 U.S. 89, 108 (2000)). In
Locke the Supreme Court concluded that the State of Washington’s oil
tanker regulations were not entitled to the presumption against preemp-
tion because the regulations governed national and international maritime
commerce, an area long regulated by Congress. 529 U.S. at 108. The dis-
trict court’s reliance on Locke is misplaced because there is not the same
federal presence in the wireless telecommunications area as there is in
the area of maritime commerce. States continue to have considerable
authority in the wireless telecommunications area. See, e.g., 47 U.S.C.
§ 332(c)(3)(A) (providing that states may not regulate "the entry of or
rates charged by" wireless service providers, but that they may regulate
PINNEY v. NOKIA, INC. 29
1.
Nokia argues that the Naquin plaintiffs’ claims are expressly pre-
empted by two provisions of the FCA. The first provision appears in
§ 332(c)(7), which is aimed at the "[p]reservation of local zoning
authority" over "decisions regarding the placement, construction, and
modification of personal wireless service facilities." 47 U.S.C.
§ 332(c)(7)(A). Nokia asserts that the claims are expressly preempted
by § 332(c)(7)(B)(iv), which limits the general authority of local
bodies as follows: "No State or local government or instrumentality
thereof may regulate the placement, construction, and modification of
personal wireless service facilities on the basis of the environmental
effects of radio frequency emissions" if the facilities comply with the
FCC’s RF radiation standards. 47 U.S.C. § 332(c)(7)(B)(iv). This sec-
tion applies only to "personal wireless service facilities," a term
defined in circular fashion as "facilities for the provision of personal
wireless services." 47 U.S.C. § 332(c)(7)(C)(ii). The statute does not
define the term "facilities" or "facility." We must therefore determine,
as a matter of first impression, whether a wireless telephone consti-
tutes a "facility" for purposes of § 332(c)(7)(B)(iv). We conclude that
it does not.
"If the ‘statutory language is unambiguous and the statutory
scheme is coherent and consistent,’ our inquiry ends." Alexander S.
v. Boyd, 113 F.3d 1373, 1383 (4th Cir. 1997) (quoting Robinson v.
Shell Oil Co., 519 U.S. 337, 342 (1997)). "The plainness or ambiguity
of statutory language is determined by reference to the language
itself, the specific context in which the language is used, and the
"other terms and conditions" of wireless service); 47 U.S.C. § 332(c)(7)
(providing that state authority to regulate the "placement, construction,
and modification of personal wireless service facilities" is preserved
except in specific circumstances). While wireless telephones must meet
the FCC’s specifications and be authorized by the FCC before they can
be sold, see 47 C.F.R. § 2.803, these provisions do not provide a remedy
to someone injured by a defective wireless telephone. "The presumption
against preemption is even stronger against preemption of state remedies,
like tort recoveries, when no federal remedy exists." Abbot v. Am. Cya-
namid Co., 844 F.2d 1108, 1112 (4th Cir. 1988) (citation omitted).
30 PINNEY v. NOKIA, INC.
broader context of the statute as a whole." Robinson, 519 U.S. at 341.
Although "facility" as used in § 332(c)(7)(B)(iv) is not defined, when
the specific and broader contexts of its use are considered, it becomes
plain that a wireless telephone is not a facility. The dictionary defines
"facility" as "something (as a hospital, machinery, plumbing) that is
built, constructed, installed, or established to perform some particular
function or serve or facilitate some particular end." Webster’s Third
New International Dictionary 812 (1993). If the dictionary definition
was used here, a facility would be something "built, constructed,
installed, or established" to provide personal wireless service. This
might arguably include a wireless telephone. We continue our
inquiry, however, and examine the specific statutory context in which
the term "facility" is used. Section 332(c)(7) is entitled, "Preservation
of local zoning authority" and provides, as the general rule, that
"nothing [in the statute] shall limit or affect the authority of a State
or local government or instrumentality thereof over decisions regard-
ing the placement, construction, and modification of personal wireless
service facilities." 47 U.S.C. § 332(c)(7)(A). The section goes on to
provide limitations to the general rule, and in doing so attempts to
strike a balance between the states’ interests in regulating land use
and the federal government’s interest in facilitating the development
of wireless telephone service. See Omnipoint Communications
Enters., L.P. v. Newtown Township, 219 F.3d 240, 242-43 (3rd Cir.
2000); Town of Amherst v. Omnipoint Communications Enters., Inc.,
173 F.3d 9, 13 (1st Cir. 1999). Because § 332(c)(7) deals with the
authority of the states over zoning and land use, we conclude that
Congress intended the term "facility" to mean a structure or object,
such as a base station or a mobile telephone switching office (MTSO),
that falls within the states’ zoning or land use authority. This interpre-
tation excludes devices, such as wireless telephones, that are com-
pletely portable and have no attachment to land. The broader context
in which the term "facility" is used also supports the interpretation
that the term does not include wireless telephones. As we discuss
below, see infra at 33, Congress enacted the entire § 332 to ensure the
availability of a nationwide network of wireless service coverage.
Consistent with this objective, a facility should, at the very least, be
part of the infrastructure (a base station or an MTSO, for example)
that provides wireless service coverage. A wireless telephone, how-
ever, only accesses a wireless service provider’s network of coverage;
PINNEY v. NOKIA, INC. 31
a wireless telephone itself is not part of the underlying infrastructure.
Because both the specific context of the use of the term "facilities"
in § 332(c)(7) and the broader context (and purpose) of § 332 reveal
that a wireless telephone is not a facility under § 332(c)(7)(B)(iv),
state tort claims relating to the manufacture and sale of wireless tele-
phones are not expressly preempted by § 332(c)(7)(B)(iv).
Nokia next argues that § 332(c)(3)(A) expressly preempts the
Naquin plaintiffs’ claims. This section prohibits a state or local gov-
ernment from regulating "the entry of or the rates charged by any
commercial mobile service," but allows it to regulate "other terms and
conditions of commercial mobile services." 47 U.S.C. § 332(c)(3)(A).
Nokia argues that the Naquin plaintiffs seek to use state law to regu-
late technical specifications for wireless telephones; this, Nokia says,
would hinder entry into the commercial mobile service market
because the FCC requires that wireless service providers certify that
they are using only FCC-authorized equipment. Because Nokia cites
to the licensing provisions dealing with personal communications ser-
vices (PCS), a specific type of commercial mobile service, we under-
stand Nokia’s argument to assert that state regulation of wireless
telephone specifications constitutes a barrier to entry for PCS providers.5
While § 332(c)(3)(A) is unclear as to what precisely constitutes a
barrier to entry into the PCS market, we conclude that the relief
sought by the Naquin plaintiffs (a headset requirement) is not such a
barrier. To begin with, the PCS market is a market for wireless ser-
vice. Wireless service providers use base stations and MTSOs to
create a network of coverage, a network that wireless telephone users
5
There are basically two competing modes of wireless communica-
tions, cellular services and PCS. Malcom J. Tuesly, Note, Not in My
Backyard: The Siting of Wireless Communications Facilities, 51 Fed.
Comm. L.J. 887, 888 (1999). Cellular systems operate in the 834-MHz
to 894-MHz range, and PCS systems operate in the 1850-MHz to 1990-
MHz range. Marshall Brain & Jeff Tyson, How Cell Phones Work, at
http://electronics.howstuffworks.com/cell-phone.htm/printable (last vis-
ited Jan. 24, 2005). "As demand for cellular service has outgrown the
available radio spectrum used for cellular signals, the wireless industry
has turned to PCS, which utilizes digital technology that triples the
capacity of traditional cellular systems." Tuesly, supra at 88.
32 PINNEY v. NOKIA, INC.
generally pay a fee to access. The FCC licenses portions of the radio
spectrum to wireless service providers so they can provide PCS cov-
erage, see 47 C.F.R. § 24.1(a), (b), and one of the main requirements
for the grant of a license is that the licensee must construct enough
base stations to provide coverage to the area for which it receives a
license. 47 C.F.R. §§ 24.103, 24.203. Accordingly, in order for state
law to constitute a barrier to entry, it must, at a minimum, obstruct
or burden a wireless service provider’s ability to provide a network
of wireless service coverage. See, e.g., Bastien v. AT&T Wireless
Svcs., Inc., 205 F.3d 983 (7th Cir. 2000) (concluding that an action
brought under state law to challenge the number of base stations in
a coverage area constitutes a barrier to entry and is prohibited by
§ 332(c)(3)(A)).
A headset requirement for wireless telephones would not constitute
a barrier to entry into the PCS market because wireless telephones are
only used to access a wireless service provider’s network of coverage;
the telephones themselves do not provide the actual coverage. It is
true that wireless service providers commonly market wireless tele-
phones in conjunction with wireless service packages, and the wire-
less telephones that they sell must comply with federal RF radiation
standards. See 47 C.F.R. § 24.52. Nevertheless, a wireless service
provider’s choice to bundle service packages and telephones does not
mean that a headset requirement would affect its ability to enter into
the wireless service market or to provide a network of wireless ser-
vice coverage. Furthermore, notwithstanding Nokia’s assertion, we
find nothing in the regulations that requires a wireless service pro-
vider to certify, as a condition for obtaining a license to provide PCS,
that the wireless telephones used within its coverage area comply with
the FCC’s RF radiation standards. This certification is generally
undertaken by the manufacturer of the telephones when it requests
equipment authorization. See 47 C.F.R. §§ 24.51(b); 24.52. Because
the relief sought by the Naquin plaintiffs would not be a barrier for
wireless service providers seeking to enter the PCS market,
§ 332(c)(3)(A) does not expressly preempt the claims of the Naquin
plaintiffs.
2.
We also hold that the Naquin plaintiffs’ claims are not preempted
under the doctrines of conflict preemption and field preemption. As
PINNEY v. NOKIA, INC. 33
noted above, a state statute can be set aside by conflict preemption
"when compliance with both federal and state regulations is a physi-
cal impossibility, or when state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress." Hillsborough, 471 U.S. at 713 (internal quotation marks
and citations omitted). Again, there is a strong presumption against
preemption when the federal government regulates in areas tradition-
ally left to the states, such as health and safety. Medtronic, 518 U.S.
at 485.
The district court concluded that the Naquin plaintiffs’ claims are
preempted because their cases stand as an obstacle to "Congress’
objectives of achieving national uniformity in wireless telecommuni-
cations services and striking a balance between the proliferation of
wireless services and the need to protect the public from any harmful
effects of RF exposure." In re Wireless Tel. Radio Frequency Emis-
sions Prods. Liab. Litig., 248 F. Supp. 2d 452, 463 (D. Md. 2003).
Reasoning that the plaintiffs were essentially seeking to impose a
headset requirement or a stricter RF radiation standard, the district
court concluded that allowing the cases to go forward would usurp the
regulatory authority Congress entrusted to expert federal agencies that
had already confronted these issues. Id. The district court relied on
§ 332 of the FCA to find a sweeping congressional objective of ensur-
ing that all equipment used in connection with wireless telecommuni-
cations be subject to exclusive national RF radiation standards that
have the effect of precluding state regulation on the subject. Id. at 464
(citing In re Wireless I, 216 F. Supp. 2d at 483-87).
We conclude that the district court erred because the FCA provides
no evidence of such an objective. Congress enacted § 332 to ensure
the availability of a nationwide network of wireless service coverage,
more specifically, to develop the infrastructure necessary to provide
wireless services. Thus, § 332 (1) provides factors that the FCC must
consider in managing the spectrum used for wireless services, 47
U.S.C. § 332(a); (2) classifies wireless service providers that provide
wireless service to the public for profit as "common carriers" (subject-
ing them to numerous duties under the FCA), 47 U.S.C.
§ 332(c)(1)(A); (3) prevents states from regulating "the entry of or the
rates charged by" wireless service providers, 47 U.S.C.
§ 332(c)(3)(A); and (4) limits in certain respects the ability of states
34 PINNEY v. NOKIA, INC.
and local zoning authorities to regulate the "placement, construction,
and modification" of facilities that provide wireless service, 47 U.S.C.
§ 332(c)(7).
We do not infer from § 332 the congressional objective of achiev-
ing preemptive national RF radiation standards for wireless tele-
phones. First, § 332 does not address the subject of wireless
telephones, let alone the more specific issue of the permissible
amount of RF radiation from wireless telephones. The FCC’s RF radi-
ation standards for wireless telephones were not promulgated pursu-
ant to a mandate contained in § 332 of the FCA, but rather pursuant
to the National Environmental Policy Act’s mandate that all agencies
assess the environmental impact of their actions. For the FCC, the
action was authorizing transmitters that emit RF radiation. In re
Guidelines for Evaluating the Envt’l Effects of Radiofrequency Radia-
tion, 11 FCC Rcd. 15123, 15125 (1996). The complete absence of any
provision addressing wireless telephones counsels against a finding
that § 332 evidences a congressional goal of achieving preemptive
national RF radiation standards for wireless telephones.
Second, in pursuing its objective of ensuring the availability of a
nationwide network of wireless service coverage, Congress has been
very careful to preempt expressly only certain areas of state law, pre-
serving the remainder for state regulation. For example,
§ 332(c)(3)(A) prohibits states from regulating "the entry of or the
rates charged by" wireless service providers, but explicitly provides
that states may still regulate "the other terms and conditions of com-
mercial mobile service." 47 U.S.C. § 332(c)(3)(A). And § 332(c)(7)
preserves a good measure of the states’ authority over decisions
regarding "placement, construction, and modification of personal
wireless service facilities." 47 U.S.C. § 332(c)(7)(A). Consistent with
this conscious and careful effort to carve out the areas of state laws
that it wants to preempt, Congress has specifically allowed for pre-
emptive national RF radiation standards only for personal wireless
service facilities. Section 332(c)(7)(B)(iv) provides that state and
local zoning authorities may not "regulate the placement, construc-
tion, and modification of personal wireless service facilities" on the
basis of RF emissions as long as the facilities comply with the FCC’s
RF radiation standards. This specificity as to the preemptive nature of
federal RF radiation standards for personal wireless service facilities
PINNEY v. NOKIA, INC. 35
weighs against a finding that Congress has an implicit goal of making
preemptive the RF radiation standards for all other types of wireless
telecommunications equipment, including wireless telephones.
Third, there are two applicable savings clauses. There is the general
savings clause of the FCA, which provides that "[n]othing 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 chap-
ter are in addition to such remedies." 47 U.S.C. § 414. And there is
the savings clause in section 601(c)(1) of the Telecommunications
Act of 1996. This Act added 47 U.S.C. § 332(c)(7), which preempts
some of the states’ authority to regulate the location of base stations
(not wireless telephones); the savings clause, however, provides that
the Act "shall not be construed to modify, impair, or supersede Fed-
eral, State, or local law unless expressly so provided . . . ." Telecom-
munications Act of 1996, Pub. L. No. 104-104, § 601(c)(1), 110 Stat.
56, 143. These savings clauses counsel against any broad construction
of the goals of § 332 and § 332(c)(7) that would create an implicit
conflict with state tort law.
Having determined that the FCA provides no evidence of a con-
gressional objective to ensure preemptive national RF radiation stan-
dards for wireless telephones, we next examine whether the relief
sought by the Naquin plaintiffs would stand as an obstacle to Con-
gress’ actual goal of establishing a nationwide network of wireless
telephone service coverage. We conclude that it would not. It is diffi-
cult to understand how a headset requirement (the specific relief
sought) would affect the establishment of a nationwide wireless ser-
vice network or the availability of wireless service coverage. Wireless
service providers generally provide wireless service coverage through
a network of base stations that are coordinated by MTSOs. A wireless
telephone user purchases a service plan from a wireless service pro-
vider, and the provider assigns the user a MIN and a SID, which
allow the user to access this network of base stations and MTSOs.
While wireless telephones access the network, they are not part of the
infrastructure; accordingly, a headset requirement would not stand as
an obstacle to Congress’s goal of achieving nationwide coverage.
Finally, we reject Nokia’s argument that the Naquin plaintiffs’
claims are preempted on the basis of field preemption. As our previ-
36 PINNEY v. NOKIA, INC.
ous discussion indicates, the FCA does not "so thoroughly occup[y]
[the] legislative field [of wireless telecommunications] as to make
reasonable the inference that Congress left no room for the states to
supplement it." Cipollone, 505 U.S. at 516. There is no evidence that
Congress intended that state law claims, such as those asserted by the
Naquin plaintiffs, be swept aside.
IV.
For the foregoing reasons, we reverse the district court’s order
denying the consolidated motion to remand made by the plaintiffs in
the Pinney, Farina, Gilliam, and Gimpelson cases. Because federal
subject matter jurisdiction does not exist over these four cases, we
return them to the district court for remand to the state courts in which
they originated. We also reverse the district court’s order dismissing
the Naquin plaintiffs’ case as preempted by the FCA. That case is
remanded to the district court for further proceedings.
REVERSED AND REMANDED
KISER, Senior District Judge, dissenting:
I dissent because, like the district court in its well-researched and
well-reasoned opinion, I believe the case cannot be resolved without
proving that the FCC’s RF radiation emission standards are too high
to protect the consuming public. This conclusion stems from a read-
ing of the plaintiffs’ complaint — not from any defense that the
defendants may assert.
The majority opinion reviews in some detail what elements of the
seven claims must be proved and concludes that none of the claims
are dependent on whether or not the wireless telephones comply with
the FCC standards. Apparently, the majority believes that the plain-
tiffs can prove their prima facie case of all seven claims without refer-
ence to the FCC standards regulating RF radiation emissions in
wireless telephones and without proving that those standards are
insufficient and invalid. I disagree. The plaintiffs are not trying this
case in a vacuum. The FCC has enacted a uniform, nationwide regula-
tory scheme pertaining to wireless telephones which is the result of
PINNEY v. NOKIA, INC. 37
a thorough and complex rule-making process. The final rules reflect
what the FCC believes will maintain the proper balance between the
interest in promoting wireless communication throughout the country
and the interest in protecting the health and safety of all consumers.
The plaintiffs will not be able to ignore these standards. In proving
their prima facie case for each claim, the plaintiffs will have to prove
the unreasonableness of the RF radiation emitted by FCC-compliant
wireless telephones. The plaintiffs will thus have to establish that the
FCC standards are insufficient. It is well-settled that a suit to invali-
date a federal regulation arises under federal law. See Cahnmann v.
Sprint Corp., 133 F.3d 484, 488 (7th Cir. 1998). In this case, the FCC
standards’ validity vel non is a matter of plaintiffs’ proof by the very
words of the complaint which purport to attack the FCC regulations.
This thinly-disguised attack on the validity of the FCC standards
raises a substantial federal question.
The plaintiffs attack the FCC standards in three ways. First, the
plaintiffs challenge the sufficiency of the FCC standard. The plaintiffs
allege that the defendants’ wireless telephones, which comply with
the FCC standard, do not give adequate protection from RF radiation.
Although the plaintiffs have not indicted the FCC standard by name,
that is the effect of their allegations.
Second, the plaintiffs challenge the expertise of the FCC. The
plaintiffs allege that defendants were dishonest when they stated to
the public that "cell phones fall within the safety standards of the
[FCC]." ¶ 79. Plaintiffs arrive at the conclusion that the above state-
ment is false because the defendants "omitted the fact that the FCC
had declared it does not consider itself the ‘expert agency’ for evalu-
ating health effects," even though the FCC relied on experts in evalu-
ating health effects, one of which was the FDA. See Cellular Phone
Task Force v. FCC, 205 F.3d 82, 88 (2nd Cir. 2000). This allegation
is incorporated by reference in all of the plaintiffs’ claims but is par-
ticularly pertinent to Count VI (Fraud) and Count VII (Fraud by Con-
cealment). These allegations form a part of plaintiffs’ factual basis on
which these two counts are based. These are facts plaintiffs must
prove along with any other alleged misrepresentations to sustain the
allegations in the complaint. Therefore, the plaintiffs call into ques-
tion the expertise of the FCC and the sufficiency of its standards.
38 PINNEY v. NOKIA, INC.
Third, the plaintiffs question the procedure by which the FCC
developed the regulations. Specifically, the plaintiffs challenge the
data on which the FCC relied. In the rule-making process, the FCC
relied in part on standards of the American National Standards Insti-
tute ("ANSI"). Id. Plaintiffs allege that the defendants "obtain[ed] and
exercise[d] control over the [ANSI] Committee responsible for devel-
oping safety standards for RFR emitting devices." ¶ 71. The plaintiffs
are therefore attacking the rule-making process that the FCC used in
developing these standards. Because the plaintiffs are making a direct
attack upon the validity and sufficiency of the FCC regulations, their
claims arise under federal law.
The majority finds that this case fails to raise a substantial federal
question because it does not rise or fall on the resolution of a question
of federal law. In support of this conclusion, the majority points out
the holding of the Supreme Court that the "mere presence of a federal
issue in a state cause of action does not confer federal question juris-
diction." Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S.
804, 813 (1986). The situation in Merrell Dow, however, is inapposite
to the one in this case. In Merrell Dow, the plaintiffs were supporting
the Federal Food, Drug, and Cosmetic Act and claiming a violation
of that act was negligence. Here, the plaintiffs are seeking to com-
pletely undo the FCC standard. Claims with the potential for severely
limiting or eliminating a federal regulatory scheme raise a much more
substantial federal question than those that merely seek to inure to the
benefit of such a scheme. On the other hand, I find this case very sim-
ilar to our holding in Ormet Corp. v. Ohio Power Co. In Ormet, the
plaintiff’s claim was couched in traditional commercial litigation lan-
guage, but we held that because the plaintiffs had to make reference
to the Clean Air Act to define one of the terms of the contract there
was a sufficient nexus to the Clean Air Act to support federal question
jurisdiction. Ormet Corp. v. Ohio Power Co., 98 F.3d 799, 807 (4th
Cir. 1996). The same logic applies here. Although the FCC regulation
must be dealt with by the plaintiffs in a negative manner, its inade-
quacy is a fact that plaintiffs must prove. This provides a sufficient
nexus to support federal question jurisdiction.
Moreover, the need for uniformity in a federal regulatory scheme
heightens the importance of the federal question. In Ormet, we held
that "[w]here the resolution of a federal issue in a state-law cause of
PINNEY v. NOKIA, INC. 39
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 justify-
ing the exercise of jurisdiction by federal courts." Id. (citing Martin
v. Hunter’s Lessee, 14 U.S. 304, 347-48 (1816)). Here, plaintiffs are
not merely raising a claim which may undermine a federal regulatory
scheme through inconsistent interpretations; rather they are raising
claims which, if successful, will result in the complete invalidation of
federal regulatory standards. This presents a substantial federal ques-
tion.
This Court has repeated the call by Justice Cardozo for "principled,
pragmatic distinctions" in determining federal question jurisdiction.
Columbia Gas Transmission Corp. v. Drain, 191 F.3d 552, 558 (4th
Cir. 1999). In the words of Justice Cardozo, "[w]hat is needed is
something of that common-sense accommodation of judgment to
kaleidoscopic situations which characterizes the law in its treatment
of causation . . . a selective process which picks the substantial causes
out of the web and lays the other ones aside." Id. (quoting Gully v.
First National Bank, 299 U.S. 109, 117-18 (1936)). Although we
have affirmed our commitment to Justice Cardozo’s words, the major-
ity today does not adhere to the principles espoused in these words.
We should not dismiss this case as lacking federal question jurisdic-
tion simply because the plaintiffs have filed claims cloaked in state
law language. Instead, we should use common sense and recognize
that plaintiffs’ claims directly implicate a federal regulatory scheme
and threaten to undermine that same scheme. I would affirm the dis-
trict court’s finding of federal question jurisdiction.