Pinney v. Nokia
This text of 216 F. Supp. 2d 474 (Pinney v. Nokia) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
MEMORANDUM
BLAKE, District Judge.
The plaintiffs in this multidistriet litigation have brought five class actions against defendants in the states of Maryland, Pennsylvania, New York, Georgia, and Louisiana. Each count of each complaint is brought, on its face, under state statutory or common law.1 Asserting federal jurisdiction under several theories, the defendants filed notices of removal under 28 U.S.C. § 1441(b) in all five actions. The Judicial Panel on Multidistrict Litigation transferred the cases to this court. Now pending is plaintiffs’ consolidated and renewed motion for remand pursuant to 28 U.S.C. § 1447(c). The issues have been fully briefed, and a hearing was held on February 15, 2002. For the reasons set forth below, the plaintiffs’ motion will be denied.
Plaintiffs purport to represent all cell phone purchasers who have not been diagnosed with brain-related diseases, and who were not provided with headsets when they purchased or leased their telephones. They allege that defendants have negligently and fraudulently endangered the consuming public by providing wireless phones without headsets,. knowing that these phones emit unsafe levels of radio frequency (“RF”) radiation. Rather than seek a traditional tort or contract remedy on behalf of this strangely defined class, however, plaintiffs ask their respective state courts to: (1) declare wireless phones that are in compliance with the FCC’s safety regulations on radio frequency emissions “unreasonably dangerous” under state law when sold without headsets; (2) enjoin defendants from selling FCC-eom-pliant wireless phones without headsets; (3) order defendants to provide free headsets to all wireless telephone users; and (4) order defendants to provide “warnings” to consumers about the “dangers” of using FCC-compliant phones. As illustrated by the relief requested, the plaintiffs’ suits, though couched in the language of state tort and contract law, have only one goal'— to challenge in state court the validity and sufficiency of the federal regulations on radio frequency radiation from wireless phones. Because plaintiffs’ suits are a disguised attack on federal law in an area of national importance, the court will exercise jurisdiction over plaintiffs’ claims.
I. REMOVAL JURISDICTION
State court actions which originally could have been filed in federal court may be removed to federal court by the defendant pursuant to 28 U.S.C. § 1441. Caterpillar v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); Mulcahey v. Columbia Organic Chemicals Company, Inc., 29 F.3d 148, 151 (4th Cir.1994). [480]*480Section 1441 provides, in pertinent part, that “any civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441. Absent diversity of citizenship, the propriety of re- moval under § 1441 depends on whether the action is one “arising under the Constitution, laws, or treaties of the United States,” as set forth by 28 U.S.C. § 1331. Mulcahey, 29 F.3d at 151; Rosciszewski v. Arete Associates, Inc., 1 F.3d 225, 230 (4th Cir.1993).
As the Fourth Circuit has explained:
In order to determine if an action arises under federal law, we must apply the well-pleaded complaint rule. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). This rule ‘provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.’ Id. Because ‘[t]he well-pleaded complaint rule applies to the original jurisdiction of the district courts as well as to their removal jurisdiction,’ Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10 n. 9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983), a plaintiff ‘may avoid federal jurisdiction by exclusive reliance on state law’ in pleading its case, Caterpillar, Inc., 482 U.S. at 392, 107 S.Ct. 2425.
Rosciszewski, 1 F.3d at 231; see also J.H.W. Sr., Inc. v. Exxon Co., U.S.A, 921 F.Supp. 1436, 1438 (D.Md.1996).
Ordinarily, therefore, the plaintiff as “the master of his complaint” may select a state forum by choosing to rely on state law claims only, even if the facts alleged also would support a claim under federal law. See Franchise Tax Bd., 463 U.S. at 22, 103 S.Ct. 2841; Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F.Supp. 1098, 1100 (D.S.C.1990). While a district court should be cautious in denying defendants access to a federal forum because remand orders are generally unre-viewable, see Cheshire, 758 F.Supp. at 1100; Chables Alan WRight, ARTHUR R. Miller, & Edward H. Cooper 14B Fed. Prao. & Proo. Juris.3D § 3721 at 351-52 (2002), it is also true that removal jurisdiction raises “significant federalism concerns,” and therefore must be strictly construed. Mulcahey, 29 F.3d at 151 (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)). The burden of establishing federal jurisdiction is on the party seeking removal. Id. (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921)). “If federal jurisdiction is doubtful, a remand is necessary.” Id. (citing In re Business Men’s Assur. Co. of America, 992 F.2d 181, 183 (8th Cir.1993)); see also Cheshire, 758 F.Supp. at 1102.
Recognizing that the complaint does not on its face allege any federal claims, the defendants seek to invoke three removal doctrines to support federal question jurisdiction: “substantial federal question,” “artful pleading,” and “complete preemption.” 2 The defendants also maintain that, in complying with the FCC’s regulations on RF emissions from wireless phones, [481]*481they were “acting under” a federal officer for purposes of 28 U.S.C. § 1442. The court will address each of defendants’ removal arguments in turn.
II. SUBSTANTIAL FEDERAL QUESTION JURISDICTION
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MEMORANDUM
BLAKE, District Judge.
The plaintiffs in this multidistriet litigation have brought five class actions against defendants in the states of Maryland, Pennsylvania, New York, Georgia, and Louisiana. Each count of each complaint is brought, on its face, under state statutory or common law.1 Asserting federal jurisdiction under several theories, the defendants filed notices of removal under 28 U.S.C. § 1441(b) in all five actions. The Judicial Panel on Multidistrict Litigation transferred the cases to this court. Now pending is plaintiffs’ consolidated and renewed motion for remand pursuant to 28 U.S.C. § 1447(c). The issues have been fully briefed, and a hearing was held on February 15, 2002. For the reasons set forth below, the plaintiffs’ motion will be denied.
Plaintiffs purport to represent all cell phone purchasers who have not been diagnosed with brain-related diseases, and who were not provided with headsets when they purchased or leased their telephones. They allege that defendants have negligently and fraudulently endangered the consuming public by providing wireless phones without headsets,. knowing that these phones emit unsafe levels of radio frequency (“RF”) radiation. Rather than seek a traditional tort or contract remedy on behalf of this strangely defined class, however, plaintiffs ask their respective state courts to: (1) declare wireless phones that are in compliance with the FCC’s safety regulations on radio frequency emissions “unreasonably dangerous” under state law when sold without headsets; (2) enjoin defendants from selling FCC-eom-pliant wireless phones without headsets; (3) order defendants to provide free headsets to all wireless telephone users; and (4) order defendants to provide “warnings” to consumers about the “dangers” of using FCC-compliant phones. As illustrated by the relief requested, the plaintiffs’ suits, though couched in the language of state tort and contract law, have only one goal'— to challenge in state court the validity and sufficiency of the federal regulations on radio frequency radiation from wireless phones. Because plaintiffs’ suits are a disguised attack on federal law in an area of national importance, the court will exercise jurisdiction over plaintiffs’ claims.
I. REMOVAL JURISDICTION
State court actions which originally could have been filed in federal court may be removed to federal court by the defendant pursuant to 28 U.S.C. § 1441. Caterpillar v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); Mulcahey v. Columbia Organic Chemicals Company, Inc., 29 F.3d 148, 151 (4th Cir.1994). [480]*480Section 1441 provides, in pertinent part, that “any civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441. Absent diversity of citizenship, the propriety of re- moval under § 1441 depends on whether the action is one “arising under the Constitution, laws, or treaties of the United States,” as set forth by 28 U.S.C. § 1331. Mulcahey, 29 F.3d at 151; Rosciszewski v. Arete Associates, Inc., 1 F.3d 225, 230 (4th Cir.1993).
As the Fourth Circuit has explained:
In order to determine if an action arises under federal law, we must apply the well-pleaded complaint rule. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). This rule ‘provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.’ Id. Because ‘[t]he well-pleaded complaint rule applies to the original jurisdiction of the district courts as well as to their removal jurisdiction,’ Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10 n. 9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983), a plaintiff ‘may avoid federal jurisdiction by exclusive reliance on state law’ in pleading its case, Caterpillar, Inc., 482 U.S. at 392, 107 S.Ct. 2425.
Rosciszewski, 1 F.3d at 231; see also J.H.W. Sr., Inc. v. Exxon Co., U.S.A, 921 F.Supp. 1436, 1438 (D.Md.1996).
Ordinarily, therefore, the plaintiff as “the master of his complaint” may select a state forum by choosing to rely on state law claims only, even if the facts alleged also would support a claim under federal law. See Franchise Tax Bd., 463 U.S. at 22, 103 S.Ct. 2841; Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F.Supp. 1098, 1100 (D.S.C.1990). While a district court should be cautious in denying defendants access to a federal forum because remand orders are generally unre-viewable, see Cheshire, 758 F.Supp. at 1100; Chables Alan WRight, ARTHUR R. Miller, & Edward H. Cooper 14B Fed. Prao. & Proo. Juris.3D § 3721 at 351-52 (2002), it is also true that removal jurisdiction raises “significant federalism concerns,” and therefore must be strictly construed. Mulcahey, 29 F.3d at 151 (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)). The burden of establishing federal jurisdiction is on the party seeking removal. Id. (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921)). “If federal jurisdiction is doubtful, a remand is necessary.” Id. (citing In re Business Men’s Assur. Co. of America, 992 F.2d 181, 183 (8th Cir.1993)); see also Cheshire, 758 F.Supp. at 1102.
Recognizing that the complaint does not on its face allege any federal claims, the defendants seek to invoke three removal doctrines to support federal question jurisdiction: “substantial federal question,” “artful pleading,” and “complete preemption.” 2 The defendants also maintain that, in complying with the FCC’s regulations on RF emissions from wireless phones, [481]*481they were “acting under” a federal officer for purposes of 28 U.S.C. § 1442. The court will address each of defendants’ removal arguments in turn.
II. SUBSTANTIAL FEDERAL QUESTION JURISDICTION
“Congress has given the lower federal courts jurisdiction to hear ‘only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law.’ ” Interstate Petroleum Corp. v. Morgan, 249 F.3d 215, 219 (4th Cir.2001) (en banc) (quoting Franchise Tax Bd., 463 U.S. at 27, 103 S.Ct. 2841); see also Battle v. Seibels Bruce Ins. Co., 288 F.3d 596, 606-07 (4th Cir.2002). As this court recognized in Maryland v. Philip Morris Inc., 934 F.Supp. 173, 178 (D.Md.1996), the fact that questions of federal law may need to be determined during the course of state litigation is insufficient to confer federal question jurisdiction under the substantial federal question doctrine. Rather, “the existence of federal question jurisdiction must be determined by ‘principled, pragmatic distinctions,’ and ‘careful judgments about the exercise of federal judicial power’; only where the ‘federal interest at stake’ is substantial will federal jurisdiction lie.” Custer v. Sweeney, 89 F.3d 1156, 1168 (4th Cir.1996) (quoting Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 813-14, 814 n. 12, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986)). “[T]he proper test for federal jurisdiction [is] ‘the degree to which federal law must be in the forefront of the case and not collateral, peripheral or remote.’ ” Mulcahey, 29 F.3d at 152 (quoting Merrell Dow, 478 U.S. at 813 n. 11, 106 S.Ct. 3229).
While “the mere presence of a federal issue in a state cause of action does not automatically confer federal question jurisdiction,”3 Merrell Doiv, 478 U.S. at 813, 106 S.Ct. 3229, there are a limited number of cases which depend on the resolution of a federal question sufficiently substantial to arise under federal law. Merrell Dow, 478 U.S. at 808-09, 106 S.Ct. 3229; Ormet Corp. v. Ohio Power Co., 98 F.3d 799, 806 (4th Cir.1996) (citing Franchise Tax Bd., 463 U.S. 1, 27-28, 103 S.Ct. 2841); Mulcahey, 29 F.3d at 151. Generally, when “ ‘the right set up by [a] party may be defeated by one construction of the constitution or law of the United States, and sustained by the opposite construction,’ jurisdiction can be had in federal courts.” Ormet, 98 F.3d at 806 (quoting Osborn v. Bank of United States, 22 U.S. (9 Wheat) 738, 822, 6 L.Ed. 204 (1824)). In reaching such a determination, the Supreme Court has consistently instructed federal courts to make “sensitive judgments about congressional intent, judicial power, and the federal system.” Merrell Dow, 478 U.S. at 810, 106 S.Ct. 3229.4
[482]*482The defendants argue that removal is warranted because the plaintiffs’ claims will require the resolution of substantial questions of federal law under the Federal Communications Act of 1934 (“FCA”), 47 U.S.C. § 151, et. seq. The court agrees. In the FCA, Congress explicitly instructed the FCC to set national standards regulating the levels of radio frequency emitted from telecommunication facilities. Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (1996), § 704(b). As a result, after notice and lengthy public proceedings, the FCC promulgated safety regulations that clearly and specifically delineate the levels of RF emissions that will be allowed from wireless phones:
Limits for General Population/ Uncontrolled exposure: 0.08 W/kg as averaged over the whole-body and spatial peak SAR not exceeding 1.6 W/kg as averaged over any 1 gram of tissue (defined as a tissue volume in the shape of a cube). Exceptions are the hands, wrists, feet and ankles where the spatial peak SAR shall not exceed 4 W/kg, as averaged over any 10 grams of tissue (defined as a tissue volume in the shape of a cube).
47 C.F.R. 2.1093(d)(2). Defendants must comply with the RF safety requirements in 47 C.F.R. 2.1093(d)(2) in order to make their phones available to the public.
In determining whether plaintiffs’ claims necessarily depend on substantial issues of federal law, the court must consider the allegations made and relief requested in plaintiffs’ complaints. Before doing so, however, the court will discuss the comprehensive nature of federal regulation of [483]*483wireless service to put the matter before it in context.
1. Federal Regulation of RF Emissions from Wireless Phones
Congress asserted federal control over all interstate wire and radio communications systems and established the Federal Communications Commission (“FCC” or “the Commission”) as the sole authority for licensing radio facilities and regulating the technical aspects of radio communications in the Federal Communications Act of 1934 (“FCA”), 47 U.S.C. § 151. See In re An Inquiry Into the Use of the Bands 825-845 MHz and 870-890 MHz for Cellular Communications Systems, 86 F.C.C.2d 469, ¶ 80, 1981 WL 158543 (1981) (Def. Appendix, Tab 1) (hereinafter “Cellular Communications Systems ”) (“In enacting such legislation Congress has determined that overall management of the radio spectrum and the licensing of radio facilities are areas within the exclusive jurisdiction of the Federal government.”). Pursuant to this exclusive authority, the FCC has issued licenses and set the technical standards for wireless telecommunications since the inception of commercial wireless telephone service. See Cellular Communications Systems, ¶¶ 86-115; 47 C.F.R. § 20.3. The FCC currently licenses all equipment used to provide wireless service, including wireless hand-held telephones, and regulates the radiated power levels from all licensed devices, both stationary and portable. 47 C.F.R. §§ 2.901, 1.1307, 2.1093, 2.1091.
In promulgating licensing and technical rules to govern wireless service, one of the FCC’s overriding goals is to design cellular service in a manner that will achieve nationwide compatibility. Cellular Communications Systems, ¶ 79. “In this regard [the FCC] has expressly stated that a cellular subscriber traveling outside of his or her local service area should be able to communicate over a cellular system in another city.” Id. Recognizing the danger that piecemeal state regulation might pose to this endeavor, the FCC has established “federal primacy over the areas of technical standards and competitive market structure for cellular service.” Id. at ¶¶ 79, 82.5 The FCC’s technical standards are intended to produce “compatible operation of equipment on both local and national levels,” and promote “signal quality and other quality aspects of system performance.” Cellular Communications Systems, ¶ 84. Thus, regulation of wireless service typically revolves around matters such as the allocation of frequencies, height and power of antenna base stations, and radiation power of mobile units such as wireless phones. Id. at ¶¶ 87-95.
To further encourage the rapid deployment of uniform wireless services, Congress began to develop a system of federal telecommunications regulation in the 1993 amendments to the FCA. See Omnibus Budget Reconciliation Act of 1993, Pub.L. No. 103-66, § 6002, 107 Stat. 312, 387-97 (1993) (“OBRA” or the “1993 Amendments”); In re Petition of the Connecticut Department of Public Utility Control to Retain Regulatory Control of the Rates of Wholesale Cellular Service Providers in the State of Connecticut, 10 F.C.C. Red. 7025, ¶¶ 2, 10, 1995 WL 316493 (1995), review denied, 78 F.3d 842 (2d Cir.1996). First, Congress revised Section 2(b) of the Act to exclude wireless services from the prohibition on federal regulation of intrastate communications. See 47 U.S.C. § 152(b). Second, Congress amended 47 U.S.C. § 332 to give the FCC exclusive authority over the regulation of the rates [484]*484charged by and market entry of mobile service providers. OBRA, § 6002(b)(2)(A), 107 Stat. 312, 394 (1993), codified at 47 U.S.C. § 332(c)(3)(A). Congress intended these changes to “foster the growth and development of mobile services that, by their nature, operate without regard to state lines as an integral part of the national telecommunications infrastructure.” H.R.Rep. No. Ill, 103rd Cong., 1st Sess. 260 (1993), reprinted in 1993 U.S.C.C.A.N. 378, 587 (Def. Appendix, Tab 2).
In the Telecommunications Act of 1996 (“FTA” or the “1996 Amendments”), Pub.L. No. 104-104,110 Stat. 56, Congress revisited the FCA by directly prohibiting state and local regulation of “the placement, construction, and modification of personal wireless service facilities” on the basis of concerns about radio frequency radiation. 47 U.S.C. § 332(c)(7)(B)(iv). As a result,
Pursuant to Section 332(c)(7), and consistent with the Commission’s general authority to regulate the operation of radio facilities, State and local governments are broadly preempted from regulating the operation of personal wireless service facilities based on RF emission considerations. Thus, for example, a local government may not require a facility to comply with RF emissions or exposure limits that are stricter than those set forth in the Commission’s rules, and it may not restrict how a facility authorized by the Commission may operate based on RF emissions or any other cause.
In re Procedures for Reviewing Requests for Relief from State and Local Regulations Pursuant to Section 332(c) (7) (B)(v) of the Communications Act of 1931, Report and Order, 15 FCC Red. 22, 821, ¶ 17(2000) (Def. Appendix, Tab 3). According to the relevant Congressional report:
The Committee finds that the current State and local requirements, siting and zoning decisions by non-federal units of government, have created an inconsistent and, at times, conflicting patchwork of requirements which will inhibit the deployment of Personal Communications Services (PCS) as well as the rebuilding of a digital technology-based cellular telecommunications network. The Committee believes it is in the national interest that uniform, consistent requirements, with adequate safeguards of the public health and safety, be established as soon as possible.
H.R.Rep. No. 104-204, 104th Cong., 2d Sess. 94 (1996), reprinted in 1996 U.S.C.C.A.N. 10, 61 (DefAppendix, Tab.5). To “insure an appropriate balance in policy,” id., Congress instructed the FCC to prescribe rules regarding the environmental effects of radio frequency emissions within 180 days of the enactment of the 1996 Amendments. Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (1996), § 704(c).
While the 1996 Amendments were being debated, the FCC was already in the process of determining whether to update its radio frequency radiation regulations.6 [485]*485After notice and an extensive period for the submission of public comment, the FCC issued Release No. 96-326 (the “FCC First Order ”) on August 1, 1996. See In re Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, Release No. 96-326, 11 F.C.C.R. 15123, 1996 WL 926565 (1996) (Def. Appendix, Tab 8.) Release No. 96-326 articulates a specific absorption rate (“SAR”) that wireless phones may not exceed,7 and currently applies to all wireless phones sold in the United States. See 47 C.F.R. §§ 1.1307, 2.1091, 2.1093.8 According to the FCC, the limits set by Release No. 96-326 are “one fiftieth of the point at which RF energy begins to cause any unhealthful thermal effect.” Cellular Phone Taskforce v. FCC, U.S. Sup.Ct. No. 00-393, Brief for the Respondents in Opposition [to Petition for Writ of Certioriari], p. 3 (Dec.2000) (hereinafter “FCC Brief”) (Def. Appendix, Tab 4) (citing National Council on Radiation Protection and Measurements, Biological Effects and Exposure Criteria for Ra-diofrequency Electromagnetic Fields, NCRP Report No. 86, at 279-283 (1986)).
The FCC’s RF guidelines have been criticized because of the agency’s acknowledged lack of expertise over public health and safety matters. In response, the FCC has stated:
To be sure, the [FCC] ‘does not have the expertise to make independent judgments on such alleged health effects as ‘electrosensitivity’ or other reported effects on human health. This is the responsibility of the federal health and safety agencies.’ RF Reconsideration Order, 12 F.C.C.R. at 13, 538. As the agency acknowledged when it first implemented RF exposure rules, it lacks expertise to ‘develop our own radiation exposure guidelines,’ but ‘does have the expertise and authority to recognize technically sound standards promulgated by reputable and competent organizations such as ANSI.’ 100 F.C.C.2d at 551. Moreover, the FCC consulted extensively with EPA, FDA, OSHA and other federal health and safety agencies, all of which concurred in the final standard. RF Order, 11 F.C.C.R. at 13, 538. EPA in particular had been working on its own set of RF exposure rules and it had extensive familiarity with the scientific and medical literature. PetApp. A10. In short, the RF regulations culminated from a multi-disciplinary, multi-agency effort in which the FCC took the lead.
FCC Brief, 21-22 (Def. Appendix, Tab 4) (emphasis in original).9 The FDA’s involve[486]*486ment was particularly important because of its authority over radiation emitting products pursuant to the Electronic Product Radiation Control Act. See 21 U.S.C. § 360ii.10 Under the advisement of the FDA, for example, the FCC declined to adopt the ANSI/ IEEE radiated power exclusion, which would have exempted wireless phones and other low-power devices from having to comply with federal RF safety standards. FCC First Order, ¶¶ 49, 71; FCC Second Order, ¶ 30.11 The FDA has characterized the RF requirements as “a significant step towards achieving a consensus guideline on RF exposure which will have the support of the federal agencies responsible for protecting the public from nonionizing radiation injury.” (Letter from Elizabeth D. Jacobson, Ph.D., Deputy Director for Science, FDA Center for Devices and Radiological Health, to Richard M. Smith, Chief of the FCC Office of Engineering and Technology, dated July 17, 1996 (Def. Appendix, Tab 9).)12 Thus, the national RF requirements represent an inter-agency collabora[487]*487tive federal effort, mandated by Congress and spearheaded by the FCC, to achieve “a proper balance between the need to protect the public and workers from exposure to excessive RF electromagnetic fields and the need to allow communication services to readily address growing marketplace demands.”13 FCC Second Order, ¶ 29.
2. Plaintiffs’ Claims
To determine whether, plaintiffs’ right to relief necessarily depends on a substantial federal question, the court must examine the plaintiffs’ complaints. In Pinney, plaintiffs acknowledge that defendants are licensed by the FCC to provide wireless phones, and that the phones are manufactured in accordance with these licenses and other information provided by the FCC. {See Pinney at ¶¶ 50-52). Nonetheless, plaintiffs claim that defendants have (1) failed to warn consumers about adverse health risks associated with RF emissions from wireless phones {id., “COUNT ISTRICT PRODUCT LIABILI-TYFAILURE TO WARN,” ¶¶ 88-100); (2) knowingly placed defective and unreasonably dangerous products in the stream of commerce by selling and activating wireless phones without headsets {see Pinney, “COUNT IISTRICT PRODUCT LIABIL-ITYDESIGN OR, MANUFACTURING DEFECT,” ¶¶ 101-109); (3) engaged in deceptive acts and practices by “making false and misleading oral and written statements” about the safety of wireless phones in violation of Maryland’s Consumer Protection Act, Md. Com. Law Code Ann. § 13-101, ei. seq. {id., “COUNT III— VIOLATIONS OF MARYLAND CONSUMER PROTECTION ACT,” ¶¶ 110-114);14 (4) breached implied warranties of merchantability by knowingly selling and distributing unreasonably dangerous wireless phones {id., “COUNT IVBREACH OF IMPLIED WARRANTIES,” ¶¶ 115-121); (5) negligently designed, manufactured, tested, marketed, distributed, and/or sold the wireless phones to the public {id., “COUNT VNEGLIGENCE,” ¶¶ 122-133); (6) fraudulently “misinformed, misled, and deceived” consumers into believing in the safety of the wireless phone {id., “COUNT VIFRAUD” and “COUNT VIIFRAUD BY CONCEAL[488]*488MENT,” ¶¶ 84, 133-149); and (7) conspired to market unsafe wireless phones by improper and wrongful means (id., “COUNT VIIICIVIL CONSPIRACY,” ¶¶ 150-163). In plaintiffs’ view, any statements by defendants portraying the phones as “safe” because they comply with FCC standards are fraudulent and deceitful because “the FCC ha[s] declared that it does not consider itself the ‘expert agency’ for evaluating the health effects” of radio frequency radiation. (See id. at ¶¶ 53, 79.) To bolster this position, plaintiffs suggest that such safety “advertisements” have been challenged by the FDA. (Pinney at ¶ 80 (citing Letter from Elizabeth Jacobson, Deputy Director of the Food & Drug Administration’s Center for Devices and Radiological Health, dated July 19, 1993).) Plaintiffs further claim that defendants, both individually and collectively, have conspired to exercise improper influence over the American National Standards Institute, the organization responsible for developing the RF safety guidelines upon which the national standards are based. (Id. at ¶¶ 71-75.) These allegations put the validity of the federal regulations, and the process by which they were developed, directly into dispute.
Although none of these claims explicitly challenge the FCC’s radiation exposure guidelines, an examination of the class plaintiffs propose and the remedy plaintiffs request reveals that the true gravamen of these complaints is to attack the lack of a headset requirement under the federal RF safety rules. Plaintiffs seek to represent all present and future cell phone users who have not been diagnosed with the injuries wireless phones supposedly generate.15 (Pinney, “CLASS ACTION ALLEGATIONS,” ¶ 42.) The only relief they request is for the court to force defendants to provide them with headsets, either through compensatory damages or prohibitory injunctions.16 (See Pinney, ¶¶ 100(a)-(h), 109(a)-(h), 114(a)-(g), 121(a)-(g), 133(a)-(h), 142(a)-(h), 149(a)-(h), 163(a)-(h).) Any court faced with such a class and request[489]*489ed remedy necessarily must evaluate whether the FCC has been authorized by Congress to act as the final authority on the regulation of RF emissions from wireless phones, and whether the current RF requirements promulgated by the FCC adequately protect the public’s health. Indeed, the FCC has already considered and rejected a headset requirement.17 Thus, a state imposed headset rule necessarily invalidates the national standard. A suit to invalidate a federal regulation as unreasonable arises under federal law. See Cahnmann v. Sprint Corp., 133 F.3d 484, 488 (7th Cir.1998) (“A tariff filed with a federal agency is the equivalent of a federal regulation, and so a suit to enforce it, and even more clearly a suit to invalidate it as unreasonable under federal law ... arises under federal law.”) (citations omitted); see also Marcus, 138 F.3d at 55-56 (upholding removal of a breach of warranty claim against AT & T under the substantial federal question doctrine because the tariff that the claim was based upon had the force of federal law).
The Second Circuit recently rejected a suit to invalidate the FCC’s RF regulations in Cellular Phone Taskforce v. FCC, 205 F.3d 82 (2d Cir.2000), cert. denied, 531 U.S. 1070, 121 S.Ct. 758, 148 L.Ed.2d 661 (2001). The similarities between Cellular Phone Taskforce and the present case cannot be ignored. In Cellular Phone Task-force, two consumer groups challenged the FCC’s standards on RF emissions in federal court. These groups contended, as the plaintiffs do here, that the current federal RF regulations do not adequately protect the public from the “non-thermal effects of RF radiation.”18 Instead of requesting a headset, however, plaintiffs in Cellular Phone Taskforce argued that the FCC should have created greater safety margins to account for scientific uncertainty about RF emissions. Id. at 90-91. [490]*490Characterizing this as “a policy question, not a legal one,” id,., the Second Circuit remarked:
The FCC concluded that requiring exposure to be kept as low as reasonably achievable in the face of scientific uncertainty would be inconsistent with its mandate to ‘balance between the need to protect the public and workers from exposure to potentially harmful RF electromagnetic fields and the requirement that industry be allowed to provide telecommunications services to the public in the most efficient and practical manner possible.’ This policy conclusion is neither irrational, arbitrary nor capricious and we decline to disturb it.
Id. at 92.
Congress’s primary goal in regulating wireless service is to develop a seamless and ubiquitous national system of wireless communications.
The RF exposure rules govern the activities of entities that are licensed and heavily regulated by the FCC. Congress has charged the FCC with ‘making available ... a rapid, efficient, Nationwide, and world-wide wire and radio communications service,’ 47 U.S.C. 151 (1994 & Supp. IV 1998), has declared it ‘the policy of the United States to encourage the provision of new technologies and services to the public,’ 47 U.S.C. 157(a), and has established procedures to ensure the ‘efficient and intensive use of the electromagnetic spectrum,’ 47 U.S.C. 309(j)(3)(D) (Supp. IV 1998). There is a trade-off between those goals and public exposure to RF energy: all risk from RF energy could be eliminated by prohibiting wireless communications technologies. Congress has entrusted to the FCC the process of striking the appropriate balance, a subject squarely within the agency’s expertise.
FCC Brief at 21. The current federal requirements reflect carefully considered judgments by Congress, FCC, FDA, EPA, NIOSH, and OSHA about the appropriate method of balancing these concerns. As the Fourth Circuit recognized in Ormet, “[wjhere the resolution of a federal issue in a state-law cause of action could, because of different approaches and inconsistency, undermine the stability and efficiency of a federal statutory regime, the need for uniformity becomes a substantial federal interest, justifying the exercise of jurisdiction by federal courts.” Ormet, 98 F.3d at 807 (citing Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat) 304, 347-48, 4 L.Ed. 97 (1816) (Story, J)).19 While state courts [491]*491ultimately might conclude that they are preempted from regulating the wireless industry on the basis of RF concerns, the risk of fifty different states articulating fifty different rules about whether and to what extent they may set RF safety standards could create market instability and prevent the maintenance of an unimpeded national network of rapid and efficient telecommunications service, a goal of significant importance to national commerce and security. With these federal interests figuring so centrally to plaintiffs’ case, removal is fully justified.
Removal might not be warranted if plaintiffs could prevail without a court evaluating the validity and sufficiency of the federal standards. “[I]f a claim is supported not only by a theory establishing federal subject matter jurisdiction but also by an alternative theory which would not establish such jurisdiction, then federal subject matter jurisdiction does not exist.” Mulcahey, 29 F.3d at 153- (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 811, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)); Danfelt v. Bd. of County Commissioners, Washington County, 998 F.Supp. 606, 609710 (D.Md.1998). Here, however, the central premise of each count of each complaint is that federal safety regulations governing wireless hand-held phones permit the sale of a product that is unreasonably dangerous to consumers. The only way a court can resolve this dispute and possibly grant plaintiffs the remedy they seek is for it to pass judgment on the validity of the federal RF standards.20 Defendants have the [492]*492right to have such an evaluation take place in federal court. The court will therefore deny plaintiffs’ motion to remand.
III. ARTFUL PLEADING
Under the doctrine of “artful pleading,” a court is permitted to look behind a complaint to determine whether a plaintiff is attempting to conceal the federal nature of his claim by fraud or obfuscation. Philip Morris Inc., 934 F.Supp. at 175. The application of artful pleading is “most appropriate in cases where federal law altogether preempts and supplants state law, but plaintiff seeks to avoid the effect of preemption by pleading only state causes of action.” See id. at 175 (quoting Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F.Supp. 1098, 1100 (D.S.C.1990)). In 1998, the Supreme Court stated in Rivet v. Regions Bank of Louisiana: “[T]he artful pleading doctrine allows removal where federal law completely preempts a plaintiffs state-law claim.” 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912.
Since Rivet, some courts have concluded that artful pleading cannot exist absent complete preemption. See Waste Control Specialists, LLC v. Envirocare of Texas, Inc., 199 F.3d 781, 783 (5th Cir.2000) (“Without complete preemption, the artful pleading doctrine does not apply.”); Goepel v. National Postal Mail Handlers Union, 36 F.3d 306, 311 n. 5 (3rd Cir.1994) (“[Complete preemption] has been referred to elsewhere as the ‘artful pleading’ doctrine, under which a court will not allow a plaintiff to deny a defendant a federal forum when the plaintiffs complaint contains a federal claim ‘artfully pled’ as a state law claim.”) (citation omitted). Others, including one court within this circuit, have declined to read into Rivet an intention by the Supreme Court to collapse artful pleading and complete preemption into a single rule. See Reveal v. Stinson, 115 F.Supp.2d 688, 690 n. 2 (S.D.W.Va.2000).
Past precedent indicates that artful pleading requires the presence of either complete preemption or “ ‘a state cause of action the merits of which turn on an important federal question.’ ” Id. at 690 (citations omitted). As noted in Reveal, it would be inappropriate to assume that the Supreme Court in Rivet overruled sub si-lentio “a landmark line of cases that have guided the determination of federal jurisdiction for many decades.” Reveal, 115 F.Supp.2d at 690 n. 2; see also 14B Wright, Miller, & Cooper, supra, § 3722 at 447.
Rather than characterizing artful pleading as a separate “removal doctrine,” however, the term may more accurately be used to describe the manner in which some plaintiffs, such as those presently before the court, manage to plead claims that are actually federal (because they are either completely preempted, or based entirely [493]*493on substantial federal questions) under state law. In such cases, a court need not “blind itself to the real gravamen of [the] claim.” Philip Morris, 934 F.Supp. at 176 (iquoting In re Wiring Device Antitrust Litig., 498 F.Supp. 79, 82 (E.D.N.Y.1980)). Plaintiffs’ proposed class represents the same interests as the consumer groups in Cellular Phone Taskforce — both sets of plaintiffs are uninjured users of wireless phones seeking stricter limits on radio frequency emissions. Unlike the Cellular Phone Taskforce plaintiffs, however, the plaintiffs in this litigation want reconsideration of the federal standards to occur in state court. In other words, rather than directly attack the federal requirements in the appropriate forum, plaintiffs are attempting to circumvent the FCA’s comprehensive regulatory scheme by pursuing stricter safety measures, ie., the addition of headsets, under state tort law.
Ordinarily, as “masters of the complaint,” plaintiffs may plead their claims within the confines of state law, if they so choose. Recognizing the unlikelihood of success in federal court given the Second Circuit’s determination in Cellular Phone Taskforce, however, plaintiffs have imper-missibly structured this litigation to avoid the uniform determination of RF safety in a federal forum by simultaneously bringing substantially similar actions in a variety of state courts. Plaintiffs may not deny defendants their right to have decisions concerning RF safety made in a federal forum by labeling their claims exclusively under state law in order to conceal the existence of a substantial federal question. Nor may plaintiffs “deliberately obscure[] the true nature of their claims in an attempt to proceed with their action in state court without the restrictions imposed by the comprehensive regulatory scheme embodied in the Communications Act.” In re Comcast Cellular Telecommunications Litigation, 949 F.Supp. 1193, 1204 (E.D.Pa.1996) (permitting removal of disguised rate challenge pursuant to artful pleading doctrine). Thus, plaintiffs’ artful pleading further warrants this court’s decision to exercise jurisdiction.
IV. COMPLETE PREEMPTION
Plaintiffs next argue that removal is proper on the basis of complete preemption. In considering this argument, the court must distinguish between ordinary conflict preemption and complete preemption. As the Fourth Circuit has explained:
Under ordinary conflict preemption, state laws that conflict with federal laws are preempted, and preemption is asserted as ‘a federal defense to the plaintiffs suit. . As a defense it does not appear on the face of a well-pleaded complaint, and, therefore, does not authorize removal to federal court.’ Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987).... In the case of complete preemption, however, Congress ‘so completely pre-empt[s] a particular area that any civil complaint raising this select group of claims is necessarily federal in character.’ Taylor, 481 U.S. at 63-64, 107 S.Ct. 1542. That is to say, the doctrine of complete preemption ‘converts an ordinary state common law complaint into one stating a federal claim.’ Id. at 65, 107 S.Ct. ,1542. Thus, the doctrine of complete preemption serves as a corollary to the well-pleaded complaint rule: because the state claims in the complaint are converted into federal claims, the federal claims appear on the face of the complaint. Id. at 63-65, 107 S.Ct. 1542.
Darcangelo v. Verizon Communications, 292 F.3d 181, 187 (4th Cir.2002); see also Rosciszewski, 1 F.3d at 231; Marcus v. AT&T Corp., 138 F.3d 46, 52-53 (2d Cir.1998). In such cases, removal is appropri[494]*494ate under the doctrine of complete preemption.
The complete preemption doctrine has been invoked by the Supreme Court in only three contexts since its inception: claims under the Labor Management Relations Act (LMRA), 29 U.S.C. § 141, et. seq., between a labor union and employer under a collective bargaining agreement, see Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 561-62, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968); certain claims under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001, et. seq., see Metropolitan Life, 481 U.S. at 65-67, 107 S.Ct. 1542; and claims regarding certain Indian land grant rights, see Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666-67, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). In 1993, the Fourth Circuit concluded that § 301 of the Copyright Act, 17 U.S.C. § 301(a), also supported complete preemption. Rosciszewski, 1 F.3d at 232-33.
Due to its infrequent usage, the precise rules for finding complete preemption are unclear. “[T]he evolution of the doctrine ... has been one of fits-and-starts and zig-zags and has, not surprisingly, occasioned both confusion and disagreement among the federal circuit and district courts.” Schmeling v. NORDAM, 97 F.3d 1336, 1339 (10th Cir.1996) (quoting Burke v. Northwest Airlines, Inc., 819 F.Supp. 1352, 1356 (E.D.Mich.1993)). “The inclusion of the term ‘preemption’ within the doctrine’s label, while not inaccurate, has enkindled a substantial amount of confusion between the complete preemption doctrine and the broader and more familiar doctrine of ordinary preemption.” BLAB T.V. of Mobile, Inc. v. Comcast Cable Communications, Inc., 182 F.3d 851, 854 (11th Cir.1999); Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir.2000). Complete preemption is not triggered merely because a defendant successfully raises a federal preemption defense. To support an argument for removal based on complete preemption, a defendant must show not only that the plaintiffs claim is preempted under principles of federal law, but also that Congress intended to allow him to litigate the equivalent of his state claim in a féderal forum. BLAB T.V., 182 F.3d at 857.
The complete preemption doctrine was first applied in Avco Corp., 390 U.S. at 560-62, 88 S.Ct. 1235, where the Supreme Court determined that an employer’s attempt to have union employees enjoined from striking was a suit “arising under the ‘laws of the United States’ within the meaning of the removal statute,” even though the suit was brought in state court and invoked principles of state contract law. Years later, in Franchise Tax Board, the Court characterized Avco in this manner:
The necessary ground of decision was that the preemptive force of § 301 [of the LMRA] is so powerful as to displace entirely any state cause o,f action ‘for violation of contracts between an employer and a labor organization.’ Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Avco stands for the proposition that if a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law.
Franchise Tax Bd., 463 U.S. at 23-24, 103 S.Ct. 2841.
The Franchise Tax Board Court considered the propriety of removing a state court action filed by a state tax board to enforce levies against an ERISA trust fund. The Court concluded that ERISA preemption did not convert the agency’s [495]*495state claim into a federal one because, unlike § 301 of the LMRA and the plaintiff in Avco, ERISA “did not provide an alternative cause of action in favor of the states to enforce its rights.” Franchise Tax Bd., 463 U.S. at 26, 103 S.Ct. 2841. The Court also found it important that, “[ujnlike the contract rights at issue in Avco, the State’s right to enforce its tax levies is not of central concern to [ERISA].” Id. at 25-26,103 S.Ct. 2841.
In Metropolitan Life, however, the Supreme Court determined that a state court action that was both preempted by and within the scope of § 502(a) of ERISA would be completely preempted under the Avco rule.21 481 U.S. at 64-67, 107 S.Ct. 1542. The Court came to this conclusion, although reluctantly, for two reasons. First, the jurisdictional grant of § 502(a) was virtually identical to that of the LMRA, which the court had previously found indicative of complete preemption. Id. at 65-66, 107 S.Ct. 1542. Second, the legislative history of ERISA revealed a clear Congressional intent that suits to enforce benefits under ERISA plans be treated as “arising under the laws of the United States in similar fashion to those brought under section 301 of the [LMRA] of 1947.” Id. (quoting H.R. Conf. Rep. No. 93-1280, p. 327 (1974)). These factors, taken together, demonstrated Congress’s intent to make causes of action within the scope of § 502(a) removable to federal court. Id.
Avco, Franchise Tax Board, and Metropolitan Life suggest several factors that should be considered in determining whether removal is appropriate based on the doctrine of complete preemption. These include:
whether the state claim is displaced by federal law under an ordinary preemption analysis, whether the federal statute providés a cause of action, what kind of jurisdictional language exists in the federal statute, and what kind of language is present in the legislative history to evince Congress’s intentions.
BLAB T.V., 182 F.3d at 857. In evaluating these factors, a court must keep in mind that the “touchstone” of the inquiry is not the “obviousness” of the preemption defense, but the intent of Congress. Metropolitan Life, 481 U.S. at 66, 107 S.Ct. 1542; Rosciszewski, 1 F.3d at 231-32.
Defendants articulate two statutory provisions which they believe support complete preemption: 47 U.S.C. § 332(c)(3), and 47 U.S.C. § 332(c)(7)(B)(iv).
47 U.S.C. § 332(c)(3)(A) provides:
[N]o State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services.
47 U.S.C. § 332(c)(7)(B)(iv) provides:
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 to the extent that such facilities comply with the Commission’s regulations concerning such emissions.
[496]*496Several appellate and district courts already have determined that the provisions of the FCA do not serve as a basis for removal pursuant to the complete preemption doctrine. Smith v. GTE Corp., 236 F.3d 1292, 1312-13 (11th Cir.2001) (the FCA does not provide a basis for removal pursuant to the complete preemption doctrine); Marcus, 138 F.3d at 53 (same); Quayle v. MCI WorldCom, Inc., 2001 WL 1329594, **1-3, 2001 U.S. Dist. LEXIS 17450, *5-10 (N.D.Cal. Oct. 22, 2001) (unpubl.) (same); Braco v. MCI WorldCom Communications, Inc., 138 F.Supp.2d 1260, 1268-69 (C.D.Cal.2001) (same); Crump v. WorldCom, Inc., 128 F.Supp.2d 549, 556-60 (W.D.Tenn.2001) (the comprehensive nature of the regulatory scheme created by the FCA does not support complete preemption).
According to defendants, these holdings are of dubious relevance to the present case because they address the propriety of complete preemption in the context of wire-line rather than wireless communications, the latter area being where Congress has expressed a strong national interest in uniformity across state boundaries. Although this distinction could be considered significant, a number of courts have declined to invoke complete preemption in the area of wireless communications as well. See Shaw v. AT & T Wireless Services, Inc., 2001 WL 539650, **1-4, 2001 U.S. Dist. LEXIS 6589, *4-14 (N.D.Tex. May 18, 2001) (unpubl.) (§ 332(c)(3) does not support complete preemption); Bell Atlantic Mobile, Inc. v. Zoning Board of Butler Township, 138 F.Supp.2d 668, 676-77 (W.D.Pa.2001) (§ 332(c)(7) does not support complete preemption); State of Iowa v. United States Cellular Corp., 2000 U.S. Dist. LEXIS 21656, at *15-16 (S.D.Iowa 2000) (unpubl.) (§ 332 does not support complete preemption); Bryceland v. AT & T Corp., 122 F.Supp.2d 703, 706-10 (N.D.Tex.2000) (same); Aronson v. Sprint Spectrum, L.P., 90 F.Supp.2d 662, 664-69 (W.D.Pa.2000) (same); Sanderson, Thompson, Ratledge & Zimny v. AWACS, Inc., 958 F.Supp. 947, 952-58 (D.Del.1997) (same); but see Bastien v. AT&T Wireless Services, Inc., 205 F.3d 983, 986-90 (7th Cir.2000) (§ 332(c)(3)(A) supports complete preemption). These courts have done so primarily because of the absence of indicia that Congress intended any of the provisions of the FCA, including the preemptive provisions of § 332, to permit removal.22
[497]*497Defendants argue that plaintiffs’ claims are completely preempted by § 332 because plaintiffs, by asking state courts to enjoin the provision of cell phones without headsets on the basis of RF emissions, are essentially inviting state courts to regulate entry on the basis of radio frequency concerns, which §§ 332(c)(3)(A) and 332(c)(7)(B)(iv) expressly prohibit. Plaintiffs, on the other hand, contend that a state tort headset requirement is not a condition of entry as contemplated by § 332(c)(3), nor is a portable phone a “facility” for purposes of § 332(c)(7). The court does not need to reach these questions because, while §§ 332(c)(3) and (e)(7)(B)(iv) undoubtedly are strong express preemption provisions which may be held in state court to bar relief of the sort plaintiffs request,23 neither provision demonstrates removal intent. Bryceland, 122 F.Supp.2d at 710; Aronson, 90 F.Supp.2d at 667-68; Bauchelle, 989 F.Supp. at 646-48. To the contrary, and unlike the ERISA and the LMRA, the FCA contains a savings clause which provides, “Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” 47 U.S.C. § 414. “The existence of this type of ‘savings’ clause which ‘contemplate[s] the application of state-law and the exercise of state court jurisdiction to some degree ... counsels against a conclusion that the purpose behind the ... Act was to replicate the unique preemptive force of the LMRA and ERISA.’ ” Smith, 236 F.3d at 1313 {quoting BLAB, 182 F.3d at 857-58); Marcus, 138 F.3d at 54; Bryceland, 122 F.Supp.2d at 710; Aronson, 90 F.Supp.2d at 668; Bauchelle, 989 F.Supp. at 648; Weinberg, 165 F.R.D. at 441; see also Geier v. Amer[498]*498ican Honda Motor Company, Inc., 529 U.S. 861, 868, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) (“[A] savings clause assumes that there are some significant number of common-law liability cases to save.”). Moreover, there is nothing in the legislative history or jurisdictional provisions of the FCA to suggest that Congress intended claims preempted by § 332 to “arise under” federal law in the same way as § 502 of ERISA or § 301 of the LMRA. Indeed, although § 332(c)(3) manifests a clear Congressional intent to act preemptively with regard to rates and market entry, the provision, by its own terms, is “narrowly conceived.” Bryceland, 122 F.Supp.2d at 707 n. 3. By allowing states to regulate “other terms and conditions of commercial mobile services,” the language of the provision itself suggests that Congress did not intend for it to support complete preemption. Id.
Defendants suggest that a clear indication of removal intent is not required in the Fourth Circuit under Rosciszewski v. Arete, 1 F.3d 225. In Rosciszewski, the Fourth Circuit extended the complete preemption doctrine to § 301 of the Copyright Act, 17 U.S.C. § 301. Rosciszewski, 1 F.3d at 228. The plaintiff in Rosciszewski brought an action in state court against alleged appropriators of his copyrighted computer program on the grounds that their conduct violated a Virginia statute prohibiting copying by use of computer. Id. The defendants removed to federal court, and the court found the plaintiffs claims completely preempted by § 301. Id.
Nothing in Rosciszewski, however, is inconsistent with the notion that complete preemption requires removal intent. Indeed, after acknowledging that the doctrine has been sparingly and reluctantly applied, Rosciszewski, 1 F.3d at 231, the Fourth Circuit found the requisite intent for two reasons. Id. at 231-33. First, the court observed that the legislative history of § 301 indicates that the provision was “ ‘intended to be stated in the clearest and most unequivocal language possible so as to foreclose any conceivable misinterpretation of its unqualified intention that Congress shall act preemptively.’ ” Id. (quoting H.R.Rep. No. 1476, 94th Cong.2d Sess. 1390 (1976)). Moreover, the court emphasized that Congress granted exclusive jurisdiction over copyright matters to federal courts, while permitting concurrent jurisdiction over claims under ERISA and the LMRA. Id. In the view of the Fourth Circuit, this jurisdictional grant is “strong evidence that Congress intended copyright litigation to take place in federal courts.” Id. at 232. Such evidence “compels the conclusion that Congress intended that state-law actions preempted by § 301(a) of the Copyright Act arise under federal law.” Id.
Although the Rosciszewski court looked for and found removal intent, certain aspects of the Copyright Act precluded evaluating Congress’s removal intent based on the specific factors found important by the Supreme Court in Metropolitan Life. When § 301 of the Copyright Act was enacted, for example, claims within the exclusive jurisdiction of federal courts could not be removed because of the derivative jurisdiction rule. Rosciszewski, 1 F.3d at 233, n. 6 (citations omitted). Since a claim under the Copyright Act would therefore have had to be brought in federal court directly (because federal courts had exclusive jurisdiction over such claims), questions about whether such claims could be removed were of no import. After Congress abolished the derivative jurisdiction rule in 1987, id., federal courts were able to hear claims removed from state court even if the state court did not itself have jurisdiction. Id. (citing 28 U.S.C. A. § 1441(e) (West Supp.1993)). Because the question of removal was inap[499]*499plicable at the time of the statute’s enactment, however, the fact that removal was not mentioned in the legislative history could not be determinative of Congressional intent. Id. (citations omitted). Moreover, because the Copyright Act’s exclusive jurisdiction provision was adopted before the Supreme Court’s application of the complete preemption doctrine in Avco and Metropolitan Life, the court declined to “draw a negative inference from the failure of Congress” to make copyright matters removable with the same language used in the jurisdiction provisions of ERISA and the LMRA. Id,.; cf. Metropolitan Life, 481 U.S. at 65-66, 107 S.Ct. 1542 (relying on statement in ERISA’s legislative history that actions for benefits under ERISA plans are to be regarded as arising under federal law in the same manner as actions under § 301 of the LMRA).
The unique factors present in Roscisz-eivski are not present here. The FCA was amended in 1993 and 1996. During both of these time periods, Congress knew of the Supreme Court’s interpretations of sections 301 of the LMRA and 502(a) of ERISA in Avco and Metropolitan Life, and could have expressly indicated removal intent if it desired to do so. Nothing in the legislative history or jurisdictional language of the FCA amendments expresses removal intent. The only court to have held otherwise is the Seventh Circuit in Bastien v. AT&T Wireless Servs., Inc., 205 F.3d 983 (7th Cir.2000). In Bastien, the plaintiff sued AT & T in state court, alleging breach of contract and consumer fraud because he was experiencing a high number of dropped calls. The Seventh Circuit not only determined that Bastien’s claims constituted state regulation of entry conditions in violation of § 332(c)(3), but also found § 332(c)(3) sufficient to support removal of the plaintiffs claim under the complete preemption doctrine. Id. at 987. The Seventh Circuit did not, however, engage in the analysis used by either the Supreme Court or the Fourth Circuit, as it did not look for removal intent in either the jurisdictional language or legislative history. Accordingly, this court cannot rely on Bastien as persuasive authority. The defendants have not established the requisite factors for complete preemption, and this court does not have jurisdiction over plaintiffs’ claims by virtue of the complete preemption doctrine.
Y. FEDERAL OFFICER PROVISION
Finally, defendants argue that removal is proper under 28 U.S.C. § 1442(a)(1), which provides that an action may be removed by “[a]ny officer of the United States or any agency thereof, or person acting under him, for any act under color of such office.” In order to satisfy this provision, the defendants must (1) raise a colorable federal defense to the claims asserted against them; (2) show that they were acting under the direction of a federal officer; and (3) demonstrate a causal nexus between plaintiffs’ claims and acts they performed under color of federal authority. Pack v. AC & S, Inc., 838 F.Supp. 1099, 1101 (D.Md.1993) (citing Mesa v. California, 489 U.S. 121, 124-25, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989)). Plaintiffs argue that defendants have failed to meet the last-two requirements. The court agrees.
Most courts have held that in order for a defendant to be “acting under” a federal officer, the federal officer must have “ ‘direct and detailed control’ over the defendant.” Fung v. Abex Corp., 816 F.Supp. 569, 572 (N.D.Cal.1992) (citing Ryan v. Dow Chemical Co., 781 F.Supp. 934, 947 (E.D.N.Y.1992)). “This control requirement can be satisfied by strong government intervention and the threat that a defendant will be sued in state court ‘based upon actions taken pursuant to fed[500]*500eral direction.’ ” Id. (quoting Gulati v. Zuckerman, 723 F.Supp. 353 (E.D.Pa.1989)). In Ryan, the court explained:
The rule established is that removal by a “person acting under” a federal officer must be predicated upon a showing that the acts that form the basis for the state civil or criminal suit were performed pursuant to an officer’s direct orders or to comprehensive and detailed regulations .... By contrast, a person or corporation establishing only that the relevant acts occurred under the general auspices of a federal office or officer is not entitled to section 1442(a)(1) removal. Likewise, the mere fact that a corporation participates in a regulated industry is insufficient to support removal absent a showing that the particular conduct being sued upon is closely linked to detailed and specific regulations.
781 F.Supp. at 947 (citation omitted).
Defendants argue that removal under § 1442(a)(1) is proper because “(1) the claims in, these actions are directed at the design and configuration of wireless phones, and (2) the FCC specifically directed defendants to sell or provide only telephones emitting approved levels of RF.” (Def. Opp. to PI. Mot. for Remand, p. 63.) Defendants have not shown, however, that they were “acting under” federal officials with respect to the specific acts for which they are being sued. Plaintiffs’ suit is based on defendants’ failure to provide headsets with wireless phones. Thus, to support removal defendants must show not only that the phones were built according to FCC specifications, but also that the FCC restricted or prohibited them from providing additional safeguards, such as headsets, to consumers. See Ruffin v. Armco Steel Corp., 959 F.Supp. 770, 774 (S.D.Tex.1997), opinion vacated by Ruffin v. Armco Steel Corp., 1999 WL 318023 (S.D.Tex.1999) (because case transferred to Judicial Panel on Multidistrict Litigation); Arness v. Boeing North American, Inc., 997 F.Supp. 1268, 1275 (C.D.Cal.1998). Defendants have failed to show this.24 Accordingly, removal based on the federal officer provision is improper.
A separate order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby Ordered that:
1. the plaintiffs’ consolidated and renewed motion for remand is DENIED; and
2. copies of this Order and the accompanying Memorandum shall be sent to counsel of record.
Related
Cite This Page — Counsel Stack
216 F. Supp. 2d 474, 2002 U.S. Dist. LEXIS 11144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pinney-v-nokia-mdd-2002.