1

The Pennsylvania Public Utility Commission filed a separate

notice of removal. That notice of removal was assigned case

number 4:CV-05-728. By order of April 13, 2005, case number

4:CV-05-728 was consolidated with case number 4:CV-05-714 and the

Clerk directed to close case number 4:CV-05-728. 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PENNSYLVANIA CARRIER’S :

COALITION, ATX LICENSING, INC., :

FULL SERVICE COMPUTING CORP., : 

trading as Full Service :

Network, LINE SYSTEMS, INC., :

and REMI RETAIL COMMUNICATIONS, : 

L.L.C., : 

 :

 Plaintiffs : No. 4:CV-05-714

 : 

 v. : Notice of Removal filed 4/8/05

 : 

PENNSYLVANIA PUBLIC UTILITY : (Judge Muir)

COMMISSION, VERIZON :

PENNSYLVANIA, INC., AND :

VERIZON NORTH, INC., :

 : 

 Defendants :

 ORDER

April 21, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On April 8 and 11, 2005, Defendants Pennsylvania Public

Utility Commission, Verizon Pennsylvania, Inc., and Verizon North,

Inc., removed the above-captioned action to this court from the

Commonwealth Court of Pennsylvania.1 Plaintiffs in their pleadings

filed in state court allege that they were denied due process when

the Public Utility Commission modified an order issued in 1999

which controlled the relationship between Plaintiffs and Defendants

Verizon Pennsylvania Inc., and Verizon North, Inc.(hereinafter

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On April 20, 2005, Plaintiff Remi Retail Communications,

L.L.C., filed a notice opting out of this litigation.

3

The 1999 order of the PUC has been referred to by the

parties as the Global Order.

4

Verizon refers to 28 U.S.C. §§ 1331 and 1441(b) in its 

notice of removal. The Pennsylvania Public Utility Commission

refers to 28 U.S.C. § 1441(b) in its notice of removal. Section

1331 states as follows:

The district courts shall have original jurisdiction

of all civil actions arising under the Constitution,

laws, or treaties of the United States.

Section 1441(b) states in pertinent part as follows:

Any civil action of which the district courts have

original jurisdiction founded on a claim or right

arising under the Constitution, treaties or laws of

the United States shall be removable without regard

to the citizenship or residence of the parties. . . .

2

collectively referred to as “Verizon”).2

 The 1999 order required

Verizon to offer wholesale access to its unbundled telephone

network.3

 Plaintiffs rely on a section of the Pennsylvania Public

Utility Code which states as follows:

The commission may, at any time, after notice and

after opportunity to be heard as provided in 

this chapter, rescind or amend any order made by

it.

66 Pa.C.S.A. § 703(g). Plaintiffs contend that under § 703(g) the

Public Utility Commission was required to provide them with notice

of the proposed modification of the 1999 order and a hearing prior

to the effective date of any change to that order. Plaintiffs rely

exclusively on state law. They do not raise a federal due process

claim.

The basis for removal asserted by Defendants is that

Plaintiffs’ state court pleadings raise a federal question.4

 They

Case 4:05-cv-00714-MM Document 27 Filed 04/21/05 Page 2 of 9
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Verizon is an incumbent local exchange carrier and

Plaintiffs are competitive local exchange carriers. 

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argue that the federal Telecommunications Act of 1996 and related

regulations promulgated by the Federal Communications Commission

provide this court with subject-matter jurisdiction. They also

contend that recent regulatory action by the FCC relieved Verizon

of its obligation to provide Plaintiffs with access to its

unbundled telephone network. This regulatory action is embodied in

what is known as the Triennial Review Remand Order or TRRO released

by the FCC on February 4, 2005. The pertinent portion of the TRRO,

set forth in the executive summary of that document, states as

follows:

Mass Market Local Circuit Switching. Incumbent [Local

Exchange Carriers] have no obligation to provide

competitive [Local Exchange Carriers] with unbundled

access to mass market local circuit switching. We adopt

a 12-month plan for competing carriers to transition away

from use of unbundled mass market local circuit

switching. This transition plan applies only to the

embedded customer base, and does not permit competitive

LECs to add new switching [Unbundled Network Elements]5

See Doc. 24, Exhibit C. According to Verizon, the FCC’s TRRO has

relieved Verizon from its unbundling obligations for mass market

local switching and it is not required to accept new orders for

Unbundled Network Elements-Platforms using unbundled switching on

or after March 11, 2005.

On April 12, 2005, Plaintiffs filed a motion to remand

this action to state court. That motion became ripe for

disposition on April 19, 2005, with the filing of Plaintiffs’ reply

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 On April 18, 2005, we issued an order which authorized any

party to elect that the undersigned recuse himself from presiding

over this case by April 20, 2005, at 3:00 p.m. None of the

parties did so. If such an election had been made, the case

would have been reassigned by the Clerk of Court to another judge

and the Clerk of Court would not have revealed the identity of

the electing party to the undersigned judge. 

4

brief.6

The Defendants have the burden of establishing that

removal was warranted. Dukes v. U.S. Health Care, 57 F.3d 350, 359

(3d Cir. 1995). Furthermore, the removal statutes are to be

strictly construed and all doubts with respect to this court’s

subject-matter jurisdiction to entertain a case are to be resolved

in favor of remand. Brown v. Francis, 75 F.3d 860, 865 (3d Cir.

1996).

The key question before the court is whether or not we

have federal question jurisdiction to entertain the present action.

The United States Supreme Court has held that “[t]he presence or

absence of federal-question jurisdiction is governed by the ‘wellpleaded complaint rule,’ which provides that federal question

jurisdiction exists only when a federal question is presented on

the face of the plaintiff’s properly pleaded complaint.”

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)(citing

Gully v. First Nat’l Bank, 299 U.S. 109, 112-13 (1936). A

plaintiff is entitled to remain in state court so long as its

complaint does not “affirmatively allege a federal claim.”

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003). A

plaintiff may avoid federal jurisdiction by relying exclusively on

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state law. Caterpillar, Inc. v. Williams, 482 U.S. at 392.

Furthermore, just because federal law may come into the case as

part of a defendant’s defense, or even as background, does not make

the case removable. Franchise Tax Bd. v. Construction Laborers

Vacation Trust, 463 U.S. 1, 10 (1983). 

The Plaintiffs’ pleadings in this case only raise claims

under state law, i.e., a violation of a state law requiring notice

and a hearing, and a request for injunctive relief pending the

state’s compliance with the state law. Although Defendants have

asserted a defense of preemption, a defense claim that federal law

preempts a plaintiff’s action is insufficient to justify removal to

federal court. Dukes, 57 F.3d at 353-54; Caterpillar, Inc. v.

Williams, 482 U.S. at 398 (“The fact that a defendant might

ultimately prove that a plaintiff’s claims are pre-empted under [a

federal statute] does not establish that they are removable to

federal court.”). We are unpersuaded by Defendants’ argument that

Plaintiffs have raised a federal claim which was properly removed

to this court.

Federal courts have “recognized an exception to the wellpleaded complaint rule -- the ‘complete preemption’ exception --

under which ‘Congress may so completely pre-empt a particular area

that any civil complaint raising this select group of claims is

necessarily federal in character.’” Dukes, 57 F.3d at 354 (citing

Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 63-64

(1987)). Defendants have argued that the Telecommunications Act of

1996 completely preempts Plaintiffs’ state law claims. They

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contend that Congress has preempted the area of unbundling

obligations under section 251 of the Telecommunications Act of

1996. We are unpersuaded by this argument. Defendants rely on the

case of United States Telecom Ass’n v. FCC , 359 F.3d 554 (D.C.

Cir. 2004). However, that case did not reach the issue of

preemption of state law. Id. at 594. Furthermore, the Court of

Appeals for the Eighth Circuit has stated as follows:

Even when the FCC issues rules pursuant to its

valid rulemaking authority under section 251,

subsection 251(d)(3) prevents the FCC from 

preempting a state commission order that 

establishes access and interconnection

obligations so long as the state commission

order (I) is consistent with the requirements

of section 251 and (ii) does not substantially

` prevent the implementation of the requirements

of sections 251 . . . This provision does

not require all state commission orders to be

consistent with all of the FCC’s regulations

promulgated under section 251. The FCC 

[and here, Verizon] attempts to read such a 

requirement into this subsection by asserting

that a state policy that is inconsistent with

an FCC regulation is necessarily also 

inconsistent with the terms of section 251 and

substantially prevents the implementation of 

section 251. [citations omitted] The FCC’s

[and Verizon’s] conflation of the requirements

of section 251 with its own regulations is

unwarranted and illogical. It is entirely 

possible for a state interconnection or 

access regulation, order, or policy to vary

from a specific FCC regulation and yet be

consistent with the overarching terms of section

251 and not substantially prevent the implementation

of section 251. . . In this circumstance, 

subsection 251(d)(3) would prevent the FCC from 

preempting such a state rule, even though it

differed from an FCC regulation. 

*********

The FCC’s [and here, the Defendants’] statement

that state rules must be consistent with the

Commission’s regulations promulgated pursuant to

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Subsection 251(d)(3) states as follows:

(3) Preservation of State access regulations

In prescribing and enforcing regulations to

implement the requirements of this section,

the Commission shall not preclude the

enforcement of any regulation, order, or 

policy of a State commission that

 (A) establishes access and interconnection 

 obligations of local exchange carriers;

 (B) is consistent with the requirements of

 this section; and

 (C) does not substantially prevent implementation

 of the requirements of this section and the

 purposes of this part.

47 U.S.C.A. § 251(d)(3). 

7

section 251 is not supportable in light of 

subsection 251(d)(3).7

Iowa Utilities Board v. FCC, 120 F.3d 753, 806-807 (8th Cir. 1997),

affirmed in part and vacated in part, AT & T v. Iowa Utilities

Board, 525 U.S. 336 (1999)(emphasis and bracketed insertions

added). This particular holding by the Court of Appeals for Eighth

Circuit was not affected by the Supreme Court’s review. 

We reject Defendants’ contention that Congress completely

preempted the area of unbundling obligations. See also Smith v.

GTE Corp., 236 F.3d 1292, 1313 (11th Cir. 2001)(“We have noted that

‘the [Supreme] Court has revisited the complete preemption doctrine

only sparingly’ and has found complete preemption only in the

context of two federal statutes -- the Labor Management Relations

Act . . . and the Employment Retirement Income Security Act . . .

Furthermore, ‘although the Supreme Court recognizes the existence

of the complete preemption doctrine, the Court does so hesitatingly

Case 4:05-cv-00714-MM Document 27 Filed 04/21/05 Page 7 of 9
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and displays no enthusiasm to extend the doctrine into areas of law

beyond the LMRA and ERISA.’”). 

Under the circumstances presented, there are many doubts

regarding the jurisdiction of this court to entertain Plaintiffs’

action. Consequently, we will abide by the requirement that all

doubts be resolved in favor of remand.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Plaintiffs’ motion to remand (Doc. 8) is granted.

2. This case is remanded to the Commonwealth Court of

Pennsylvania.

3. The Clerk of Court shall close the file in this case.

s/Malcolm Muir _____________________________ MUIR, U.S. District Judge

MM:gs

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