3/16. The U.S. Court of Appeals (4thCir) issued its divided opinion [39 pages in PDF] in Pinney v. Nokia, class action litigation regarding radio frequency (RF) radiation of wireless telephones. This opinion deals with the procedural battle over whether these cases should be heard in federal court, which is Nokia's choice, or in various state courts, which is the choice of the class action lawyers, and whether the claims are preempted by the federal Communications Act.

The District Court previously held that the plaintiffs' claims in four actions arise under federal federal law, and hence, that the U.S. District Court has subject matter jurisdiction. The District Court further held that the claims in all five of these cases are preempted by federal law, and hence, must dismissed. The Court of Appeals reversed.

This opinion is a major setback for companies that sell RF devices. It also minimizes the effect of the Federal Communications Commission (FCC) rules in this area. If this opinion stands, equipment makers could be held liable by state courts, under state law, for selling equipment that satisfies the FCC's radiation standards.

Background. Class action lawyers filed five complaints in the courts of five states against Nokia and other companies that make and sell wireless telephones. They alleged that their wireless telephones emit an unsafe level of RF radiation, and that in knowing this, negligently and fraudulently endangered the consuming public by marketing wireless telephones without headsets. J. Douglas Pinney is the lead plaintiff in one of these five actions.

The class action lawyers asserted only state law claims, in actions brought in state courts. More specifically, the class action lawyers alleged that Nokia is strictly liable for its failure to warn about the adverse health risks associated with wireless telephones, that Nokia is liable for violating various state consumer protection statutes, that Nokia breached an implied warranty of merchantability by selling and distributing unreasonably dangerous wireless telephones, that Nokia is liable for negligence, that Nokia engaged in a civil conspiracy to market unsafe wireless telephones by improper and wrongful means, and that Nokia engaged in fraud by misinforming and misleading the public as to the safety of wireless telephones.

However, the Federal Communications Commission (FCC), pursuant to the Communications Act, has written rules on RF emissions by wireless phones. See also, the FCC's Office of Engineering and Technology's (OET) web page titled Radio Frequency Safety.

Nokia removed all of these actions to federal courts, pursuant to 28 U.S.C. § 1447, which governs procedure for removal of actions. Nokia asserted that the claims raise a federal claim, and hence, that the federal courts have subject matter jurisdiction. (The Constitution provides that "The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, ..." and "between Citizens of different States".)

The Judicial Panel on Multidistrict Litigation (JPML) then transferred the actions to the U.S. District Court for the District of Maryland for consolidated pretrial proceedings.

The class action lawyers moved to remand four of these actions back to state courts. In the fifth action there is diversity jurisdiction. (That is, it is "between Citizens of different States".) The District Court denied the request. It also held that the claims in all five cases are preempted by the Communications Act of 1934, and dismissed them.

See, District Court's June 21, 2002 Memorandum [39 pages in PDF] regarding federal jurisdiction.

Court of Appeals Opinion. The Court of Appeals reversed. It remanded to the District Court with instructions that it remand the four cases to the various state courts in which they were originally brought (Georgia, Maryland, New York, and Pennsylvania).

In the fifth action (in Louisiana), the Court of Appeals found that there is federal jurisdiction based upon diversity of citizenship of the parties. Hence, the Court of Appeals reversed the District Court's preemption based dismissal, and remanded that case back to the U.S. District Court for further proceedings in the District Court.

The Appeals Court wrote that "In determining whether a plaintiff's claim arises under federal law, we apply the well-pleaded complaint rule", which provides that the court should consider only the complaint of the plaintiff, and not defenses raised by the defendant. Moreover, the Appeals Court wrote that "it is undisputed that state law creates the claims asserted by the Pinney plaintiffs".

Also, the Appeals Court concluded that these cases do not raise any "substantial question of federal law".

The Appeals Court also addressed the District Court's holding. "The district court, however, determined that these cases depend on the resolution of a substantial federal question because the claims ``put ... directly into dispute´´ the validity and sufficiency of the federal RF radiation standards for wireless telephones."

It continued, "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.´´ ... Although the court acknowledged that the complaints contain no allegations attacking the federal RF radiation standards, it believed that it could ultimately resolve the case only by passing judgment on the validity of the federal standards. The court therefore determined that removal was justified under the substantial federal question doctrine."

The Court of Appeals concluded that "The district court erred by not recognizing that its inquiry was limited by the well-pleaded complaint rule. It should have considered only whether a disputed question of federal law is an essential element of one of the well-pleaded state claims."

Analysis. This opinion is a victory for the class action lawyers who purport to present people who have been injured by cell phone use. Conversely, it is a defeat for the companies that make and sell wireless phones. Moreover, it could adversely affect the wireless industry.

This opinion also minimizes the authority of the FCC to set safety standards for radio frequency devices.

This opinion overturns no rules. Nor does it limit FCC authority to enforce its rules against companies that make or sell RF equipment. Rather, this opinion allows persons to sue, under state law, and in state courts, for conduct that meets FCC standards.

For example, the Court of Appeals also wrote that "even if Nokia's wireless telephones comply with the federal RF radiation standards, the Pinney plaintiffs could still establish the defective design element of the their strict liability claim. Conversely, if Nokia’s wireless telephones do not comply with the federal RF radiation standards, the Pinney plaintiffs would not automatically establish the defective design element."

Companies that make or sell RF devices might be subjected to 51 different sets of rules or standards.

Nokia and the others might yet seek en banc review, or certiorari. (All counsel contacted by TLJ either declined to discuss this case, or did not return phone calls.) It is also possible that the FCC might participate as amicus curiae in further proceedings.

Judge Michael wrote the opinion of the Court of Appeals. Judge Michael Luttig, who has long been considered to be a potential Supreme Court nominee in any Republican administration, joined. Judge Jackson Kiser wrote a dissent.

Ken Starr, lead counsel for the companies that make and sell wireless phones before the Court of Appeals, stated in a release that "Congress has given the FCC broad authority to regulate radio frequency emissions from wireless phones and the FCC has accordingly set standards for wireless phones through a uniform, nationwide scheme. Thus, these cases belong in federal court. The Fourth Circuit's split-decision that these cases should not be heard in federal court and are not preempted by federal law is unfortunate. We are considering appealing to the full Court of Appeals, and, if necessary will consider seeking review by the Supreme Court. The jurisdictional issues in this case are important, not just to the mobile telephone industry but to the general enforcement of federal law, and should attract interest from the Supreme Court. But whether these cases are heard in state or federal court, we are confident that the courts will find, as the scientific community has found, that wireless phones cause no adverse health effects."

Dissent. Judge Kiser wrote that the FCC, pursuant to statutory authority, has promulgated rules regarding permissible RF emissions by wireless telephones. He wrote that the class action lawyers "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 invalidate a federal regulation arises under federal law."

He added that "We should not dismiss this case as lacking federal question jurisdiction 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 district court's finding of federal question jurisdiction."

This case is J. Douglas Pinney, et al. v. Nokia, Incorporated, et al., and consolidated cases, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 03-1433, an appeal from the U.S. District Court for the District of Maryland, D.C. Nos. CA-01-1421-CCB, CA-01-1456-CCB, CA-01-3259-CCB, CA-01-3260-CCB, CA-01-3261-CCB, and CA-01-3899-CCB), Judge Catherine Blake presiding.

3/15. The House Science Committee's (HSC) Subcommittee on Environment, Technology, and Standards amended and approved HR 250, the "Manufacturing Technology Competitiveness Act of 2005".

This bill would, among other things, authorize the appropriation of $425,688,000 for FY 2006 (and increasing amounts for subsequent years) for the scientific and technical research and services laboratory activities of the National Institute of Standards and Technology (NIST), of which $55,777,000 would be for electronics and electrical engineering, and $60,660,000 would be for computer science and applied mathematics.

The Subcommittee approved two amendments by voice votes. First, it approved an amendment offered by Rep. Vernon Ehlers (R-MI), the sponsor of the bill, that makes technical corrections. Second, it approved an amendment offered by Rep. David Wu (D-OR) that would permit the Manufacturing Extension Partnership (MEP) to accept funding from other federal agencies.

The HSC stated in a release that this bill will "foster innovation in the manufacturing sciences by creating a mechanism for coordinating federal manufacturing research and development (R&D). It would also create new -- and strengthen existing -- programs that support manufacturing research, development and innovation, and would provide technical extension services to small and medium-sized manufacturers."

3/17. The House Science Committee (HSC) amended and approved HR 28, the "High-Performance Computing Revitalization Act of 2005". The Committee rejected, on a vote of 17-19, an amendment offered by Rep. Brad Sherman (D-CA) that would have added the requirement that the National Science Foundation (NSF) support research into the implications of computers that would be capable of mimicking human abilities to learn, reason, and make decisions. Rep. Sherwood Boehlert (R-NY), the Chairman of the Committee, and a cosponsor of the bill, stated that "Now I might be willing to continue to support this amendment ... if I thought that it dealt with a crucial and pressing problem. But it doesn't. All the experts tell us we are nowhere near creating the dystopia that Mr. Sherman fears." See, HSC release.

3/16. The House Judiciary Committee approved, without amendment, S 256, the "Bankruptcy Abuse Prevention and Consumer Protection Act of 2005". The Committee considered, but rejected, numerous amendments. The Senate approved S 256 on March 10, 2005. The House Judiciary Committee stated in a release that this bill "now moves to the House floor, where it will be considered in early April. If, as expected, no amendments are made, S. 256 will then be sent to President Bush for his signature."

3/10. The Senate Commerce Committee amended and approved S 268, by voice vote, the "Training for Realtime Writers Act of 2005", a bill to provide competitive grants for training court reporters and closed captioners to meet requirements for realtime writers under the Telecommunications Act of 1996. This bill, which is sponsored by Sen. Tom Harkin (D-IA), authorizes the appropriation of $20 Million per year for FY 2006 through FY 2009. Under FCC rules, all English language television broadcasts must be captioned by 2006, and all Spanish language broadcasts must be captioned by 2010. The Committee approved an amendment offered by Sen. John Sununu (R-NH) that establishes a firm sunset date of 2009 for the program, and sets an administrative cost cap of 5%.

3/16. The House Commerce Committee's Subcommittee on Telecommunications and the Internet held a hearing titled "How Internet Protocol-Enabled Services are Changing the Face of Communications: A Look at the Voice Marketplace". See, prepared testimony [10 pages in PDF] of Paul Erickson (Chairman of SunRocket), prepared testimony [12 pages in PDF] of Carl Grivner (CEO of XO Communications), prepared testimony [16 pages in PDF] of John Melcher (Executive Director Greater Harris County, in the Houston, Texas, area), prepared testimony [5 pages in PDF] of Karen Puckett (P/COO of CenturyTel), prepared testimony [5 pages in PDF] of Thomas Rutledge (COO of Cablevision, testified on behalf of the National Cable Telecommunications Association), and prepared testimony [8 pages in PDF] of Mark Shlanta (CEO of South Dakota Network Communications, testifying on behalf of the National Telecommunications Cooperative Association).

3/8. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property (CIIP) held a hearing titled "Digital Music Licensing and Section 115 of the Copyright Act". See, 17 U.S.C. § 115. See also, prepared testimony of Wood Newton (songwriter), prepared testimony of David Israelite (P/CEO of the National Music Publishers' Association), prepared testimony of Larry Kenswil (President, eLabs/Universal Music Group), and prepared testimony of Jonathan Potter (Executive Director of the Digital Media Association).

3/15. Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, gave a speech to the U.S. Judicial Conference. He stated, among other things, that the Congress will split the U.S. Court of Appeals for the 9th Circuit. He said that "The Ninth is too big in so many ways. It leads all circuits in total appeals filed and pending. It represents too many people and too many litigants over too large an expanse of geography. Along with others in Congress, I am greatly concerned about the Ninth’s inability -- based on its size and workload -- to do more of its work en banc on issues of great importance. It is not a question of if the Ninth will be split, but when."

3/17. President Bush nominated Rep. Bob Portman (R-OH) to be the U.S. Trade Representative (USTR). If confirmed by the Senate, he will replace Robert Zoellick, who is now Deputy Secretary of State. Peter Allgeier is the acting USTR.

Bush and Portman spoke at a White House event to announce the nomination. Bush said that "trade creates jobs, raises living standards, and lowers prices for families here at home. Rob also understands that as the world trades more freely, it becomes more free and prosperity abounds." See, transcript.

Bush also said that "We need to continue to open markets abroad by pursuing bilateral free trade agreements with partners around the world. We need to finish our work to establish a free trade area of the Americas, which will become the largest free trade zone in the world. We need to complete the Doha round negotiations within the World Trade Organization to reduce global barriers to trade. We must continue to vigorously enforce the trade laws on the books so that American businesses and workers are competing on a level playing field."

Portman stated that "open markets and better trade relations are key components to a more peaceful, a more stable and a more prosperous world. Through expanded trade, the roots of democracy and freedom are deepened. And here at home, trade policy opens markets to create jobs, a higher standard of living and greater economic growth."

Portman has been a U.S. Representative for twelve years. He is also a member of the House Ways and Means Committee, which has trade related jurisdiction, and a member of the House Republican leadership. Before that he worked for the elder President Bush, in the Office of Legislative Affairs, and as Associate Counsel. Before that he worked for the law firm of Graydon Head & Ritchey in Cincinnati, and for the law firm of Patton Boggs in Washington DC.

The House will not meet. The motion for adjournment on March 17 provided that the next meeting will be at 2:00 PM on Monday, March 21.

The Senate will not meet. It will meet for morning hour at 4:00 PM on Monday, March 21.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking regarding revisions to its Schedule of Regulatory Fees. See, notice in the Federal Register, February 28, 2005, Vol. 70, No. 38, at Pages 9575-9606.

The House will not meet on Monday, March 21 through Friday, April 1. See, House calendar.

The Senate will not meet on Monday, March 21 through Friday, April 1. See, Senate calendar.

9:30 - 11:30 AM. The Federal Communications Commission's (FCC) World RadioCommunication 2007 (WRC-07) Advisory Committee's Informal Working Group 4: Broadcasting and Amateur Issues will meet. Location: Shaw Pittman, 2300 N St. NW.

10:00 AM - 3:30 AM. The Federal Communications Commission (FCC) will host its second annual Satellite Forum. The event will be webcast by the FCC. See, FCC notice. Location: FCC, Commission Meeting Room, 445 12th St., SW.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA), Satellite Broadcasting & Communications Association (SBCA), and Satellite Industry Association (SIA) will host a continuing legal education (CLE) seminar titled "Satellite 101". Registrations and cancellations are due by 5:00 PM on March 17. See, registration form [PDF]. Location: Shaw Pittman, 2300 N St. NW.

CANCELLED. 8:30 AM - 4:30 PM. The Federal Communications Bar Association's (FCBA) and the Satellite Broadcasting & Communications Association (SBCA) will host an event titled "Satellite Media Law Forum". Federal Communications Commission (FCC) Commissioner Jonathan Adelstein will speak at 9:00 AM. Location: National Press Club, 529 14th St. NW, 13th Floor.

10:00 AM - 12:00 NOON. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the Organization of American States' (OAS) Inter-American Telecommunication Commission's (CITEL) Permanent Consultative Committee II meeting in Guatemala to be held in April 2005. See, notice in the Federal Register, December 30, 2004, Vol. 69, No. 250, at Pages 78515-78516. For more information, including the location, contact Cecily Holiday at holidaycc@state.gov or Anne Jillson at jillsonad@state.gov. Location: undisclosed.

4:00 - 5:45 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "The Future of the World Trade Organization". The speakers will be Jagdish Bhagwati (Columbia University), John Jackson (Georgetown University Law School), Gary Horlick (Wilmer Cutler & Pickering), Jay Smith (George Washington University), Hugo Paemen (Hogan & Hartson), Robert Lawrence (Harvard University). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST) and the Federal Information Systems Security Educators' Association (FISSEA) titled "FISSEA Conference: Target Training in 2005: Computer Security Awareness, Training, and Education". See, NIST notice and registration page. Location: Bethesda North Marriott Hotel and Conference Center, 5701 Marinelli Road, North Bethesda, MD.

Day one of a four day convention and expo hosted by the Access Intelligence (formerly named PBI Media) titled "Satellite 2005". See, notice. Location: Washington Convention Center.

6:00 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a happy hour. For more information, contact Megan Anne Stull at 202 303-1189 or mstull at willkie dot com, or Jason Friedrich at 202 354-1340 or jason dot friedrich at dbr dot com. Location: Finemondo Restaurant, 1319 F St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. The topic will be "The FCC's Fiber Unbundling Rules - Is the TRO Working?". For more information, contact Jason Friedrich at 202 354-1340 or jason dot friedrich at dbr dot com. Location: Drinker Biddle & Reath, 1500 K St., NW.

Day two of a two day conference hosted by the National Institute of Standards and Technology (NIST) and the Federal Information Systems Security Educators' Association (FISSEA) titled "FISSEA Conference: Target Training in 2005: Computer Security Awareness, Training, and Education". See, NIST notice and registration page. Location: Bethesda North Marriott Hotel and Conference Center, 5701 Marinelli Road, North Bethesda, MD.

Day two of a four day convention and expo hosted by the Access Intelligence (formerly named PBI Media) titled "Satellite 2005". See, notice. Location: Washington Convention Center.

10:00 AM - 1:30 PM. The American Enterprise Institute (AEI) will host a panel discussion and luncheon titled "The Future of Telecom Deregulation: Two Alternate Visions". The panel will be comprised of Robert Hahn (AEI Brookings Joint Center for Regulatory Studies), Gregory Rosston (Stanford University, Stanford Institute for Economic Policy Research), Jonathan Nuechterlein (Wilmer Cutler, and former FCC Deputy General Counsel), Philip Weiser (University of Colorado), Thomas Hazlett (Manhattan Institute), John Mayo (Georgetown University, McDonough School of Business), Scott Wallsten (AEI Brookings), Robert Litan (AEI Brookings). Nuechterlein, Weiser and Hazlett will present papers. David Dorman, Ch/CEO of AT&T, will be the luncheon speaker. See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

10:00 AM - 12:00 NOON. The Antitrust Modernization Commission (AMC) will meet. See, notice in the Federal Register, February 22, 2005, Vol. 70, No. 34, at Page 8568. Location: Federal Trade Commission (FTC), Conference Center Rooms A & B, 601 New Jersey Ave., NW.

4:00 PM. Sara Stadler (Emory University School of Law) will present a draft paper titled "How Copyright is Like a Mobius Strip". See, notice of event. (Stadler is also known as Nelson.) This event is part of the Spring 2005 Intellectual Property Workshop Series sponsored by the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School (GWULS). For more information, contact Robert Brauneis at 202 994-6138 or rbraun at law dot gwu dot edu. The event is free and open to the public. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th St., NW.

Day three of a four day convention and expo hosted by the Access Intelligence (formerly named PBI Media) titled "Satellite 2005". See, notice. Location: Washington Convention Center.

5:00 PM. Deadline to submit initial comments to the Copyright Office (CO) in response to its notice of inquiry (NOI) regarding orphan works -- copyrighted works whose owners are difficult or impossible to locate. The CO stated in a notice in the Federal Register that it seeks public comments on "whether there are compelling concerns raised by orphan works that merit a legislative, regulatory or other solution, and what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders." See, Federal Register, January 26, 2005, Vol. 70, No. 16, at Pages 3739 - 3743.

Day four of a four day convention and expo hosted by the Access Intelligence (formerly named PBI Media) titled "Satellite 2005". See, notice. Location: Washington Convention Center.

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