Filed: March 28, 2005

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

No. 03-1433

_______________

(CA-01-1421-CCB; CA-01-1456-CCB; CA-01-3259-CCB;

CA-01-3260-CCB; CA-01-3261-CCB; CA-01-3899-CCB)

J. DOUGLAS PINNEY, M.D.; PATRICIA S. COLONELL, individually

and on behalf of all others similarly situated; FRANCIS J.

FARINA, individually and on behalf of all those similarly

situated; GARRETT J. NAQUIN; RONALD LEBLANC; JUDITH A.

KAUFMAN; ASHER RUBENSTEIN; CRYSTALL GILLIAM; DIMITRI MACK;

RIEDY GIMPELSON, individually and on behalf of all others

similarly situated; SARAH DAHLGREN, on behalf of herself and

all others similarly situated; LINDA BARRELL; BLAYNE

MINOGUE; BRIAN LANE BARRETT; DIANA BARRETT; DAVID C. KELLER;

MARSHA L. KELLER,

 Plaintiffs - Appellants,

versus

NOKIA, INCORPORATED, a/k/a Nokia Mobile Phones,

Incorporated, a/k/a Nokia Corporation; NEC AMERICA,

INCORPORATED; ERICSSON WIRELESS COMMUNICATIONS,

INCORPORATED, a/k/a Ericsson, Incorporated; SPRINT PCS

LIMITED PARTNERSHIP, a/k/a Sprint PCS, a/k/a Sprint

Spectrum, LLP, a/k/a Sprint Spectrum; AUDIOVOX

COMMUNICATIONS CORPORATION; NEXTEL COMMUNICATIONS,

INCORPORATED, a/k/a Nextel Communications of the

Mid-Atlantic, Incorporated, a/k/a Nextel Partners,

Incorporated, a/k/a Nextel; MATSUSHITA CORPORATION OF

AMERICA, a/k/a Panasonic Corporation; PHILIPS ELECTRONICS

NORTH AMERICA CORPORATION; QUALCOMM INCORPORATED; SAMSUNG

ELECTRONICS AMERICA, INCORPORATED, a/k/a Samsung

Electronics; SANYO NORTH AMERICA, INCORPORATED, a/k/a Sanyo

Business Systems Corporation, a/k/a Sanyo North America

Group; SONY ELECTRONICS, INCORPORATED; AT&T CORPORATION,

a/k/a AT&T; VERIZON MARYLAND, INCORPORATED, a/k/a Verizon,

a/k/a Verizon Wireless, formerly known as Bell Atlantic

Maryland, Incorporated; VERIZON COMMUNICATIONS,
INCORPORATED, formerly known as Bell Atlantic Corporation;

VERIZON WIRELESS, a/k/a Nynex, a/k/a Bell Atlantic Nynex,

a/k/a Bell Atlantic Mobile, Incorporated, a/k/a Bell

Atlantic NYNEX Mobile; CELLCO PARTNERSHIP, d/b/a Verizon

Wireless, formerly known as Bell Atlantic NYNEX Mobile,

formerly known as Bell Atlantic Mobile; CINGULAR WIRELESS,

LLC, formerly known as BellSouth Mobility, Incorporated,

a/k/a Southwestern Bell Wireless, formerly known as

Southwestern Bell Mobile Systems, Incorporated; CINGULAR

WIRELESS, a/k/a Washington/Baltimore Cellular Limited

Partnership; SBC COMMUNICATIONS, INCORPORATED; CELLULAR ONE

GROUP, a/k/a Cellular One; VOICESTREAM WIRELESS CORPORATION;

C.E.I., INCORPORATED, a/k/a Communications Electronics,

a/k/a Communications Electronics, Incorporated; BALTIMORE

BUSINESS COMMUNICATIONS, INCORPORATED; COMCAST/METROPHONE;

RADIOFONE; POWERTEL, INCORPORATED; POWERTEL PCS,

INCORPORATED; POWERTEL/ATLANTA, INCORPORATED; MITSUBISHI

WIRELESS COMMUNICATIONS, INCORPORATED; MOTOROLA,

INCORPORATED, a Delaware corporation; CELLULAR

TELECOMMUNICATIONS AND INTERNET ASSOCIATION, a District of

Columbia corporation; CELLULAR TELECOMMUNICATIONS INDUSTRY

ASSOCIATION; TELECOMMUNICATIONS INDUSTRY ASSOCIATION, a/k/a

TIA; NEXTEL PARTNERS OPERATING CORPORATION,

Defendants - Appellees,

and

WESTINGHOUSE COMMUNICATIONS; SOUTHERN TELECOM, INCORPORATED,

a/k/a Southern LINC; JOHN DOES 1-100; LGIC CORPORATION

PANASONIC CORPORATION; SAMSUNG SDI COMPANY; SANYO

CORPORATION; SONY CORPORATION; PLANET CELLULAR

COMMUNICATIONS, INCORPORATED; VISITOR CELLULAR L.L.C.; BELL

SOUTH MOBILITY; KYOCERA WIRELESS CORPORATION; MCI WORLDCOM

COMMUNICATIONS, INCORPORATED; U.S. WEST WIRELESS, L.L.C., A

Colorado corporation; U. S. WEST COMMUNICATIONS,

INCORPORATED, a Colorado corporation; GTE MOBILNET OF SAN

DIEGO, INCORPORATED, a Delaware corporation; GTE WIRELESS

SAN DIEGO, LLC, a California Limited Liability; CELLULAR

CARRIERS ASSOCIATION OF CALIFORNIA, a California

corporation; AB CELLULAR HOLDINGS, LLC, d/b/a LA Cellular,

d/b/a Los Angeles Cellular Telephone Company

Defendants.

______________

O R D E R

______________
The court amends its opinion filed March 16, 2005, as

follows:

On Page 6, line 16, substitute the name “Paul Walter” for

the name “Paul F. Walter.”

On Page 7, add at line 12, John A. Stewart, Jr., HULSE &

WANEK, New Orleans, Louisiana; Mark J. Jeansonne, MILLING,

BENSON, WOODWARD, New Orleans, Louisiana, for Radiofone, Inc.

For the Court

/s/ Patricia S. Connor

____________________________

 Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

J. DOUGLAS PINNEY, M.D.; PATRICIA 

S. COLONELL, individually and on

behalf of all others similarly

situated; FRANCIS J. FARINA,

individually and on behalf of all

those similarly situated; GARRETT J.

NAQUIN; RONALD LEBLANC; JUDITH A.

KAUFMAN; ASHER RUBENSTEIN;

CRYSTALL GILLIAM; DIMITRI MACK;

RIEDY GIMPELSON, individually and

on behalf of all others similarly

situated; SARAH DAHLGREN, on

behalf of herself and all others

similarly situated; LINDA BARRELL;

BLAYNE MINOGUE; BRIAN LANE

BARRETT; DIANA BARRETT; DAVID C.  No. 03-1433 KELLER; MARSHA L. KELLER,

Plaintiffs-Appellants,

v.

NOKIA, INCORPORATED, a/k/a Nokia

Mobile Phones, Incorporated, a/k/a

Nokia Corporation; NEC AMERICA,

INCORPORATED; ERICSSON WIRELESS

COMMUNICATIONS, INCORPORATED,

a/k/a Ericsson, Incorporated; SPRINT

PCS LIMITED PARTNERSHIP, a/k/a

Sprint PCS, a/k/a Sprint Spectrum,

LLP, a/k/a Sprint Spectrum;

AUDIOVOX COMMUNICATIONS

CORPORATION; NEXTEL

COMMUNICATIONS, INCORPORATED, 
a/k/a Nextel Communications of the 

Mid-Atlantic, Incorporated, a/k/a

Nextel Partners, Incorporated, a/k/a

Nextel; MATSUSHITA CORPORATION OF

AMERICA, a/k/a Panasonic

Corporation; PHILIPS ELECTRONICS

NORTH AMERICA CORPORATION;

QUALCOMM INCORPORATED; SAMSUNG

ELECTRONICS AMERICA,

INCORPORATED, a/k/a Samsung

Electronics; SANYO NORTH AMERICA,

INCORPORATED, a/k/a Sanyo Business

Systems Corporation, a/k/a Sanyo

North America Group; SONY

ELECTRONICS, INCORPORATED; AT&T

CORPORATION, a/k/a AT&T; VERIZON

MARYLAND, INCORPORATED, a/k/a

Verizon, a/k/a Verizon Wireless, 

formerly known as Bell Atlantic

Maryland, Incorporated; VERIZON

COMMUNICATIONS, INCORPORATED,

formerly known as Bell Atlantic

Corporation; VERIZON WIRELESS,

a/k/a Nynex, a/k/a Bell Atlantic

Nynex, a/k/a Bell Atlantic Mobile,

Incorporated, a/k/a Bell Atlantic

NYNEX Mobile; CELLCO

PARTNERSHIP, d/b/a Verizon

Wireless, formerly known as Bell

Atlantic NYNEX Mobile, formerly

known as Bell Atlantic Mobile;

CINGULAR WIRELESS, LLC, formerly

known as BellSouth Mobility,

Incorporated, a/k/a Southwestern 

2 PINNEY v. NOKIA, INC.
Bell Wireless, formerly known as



Southwestern Bell Mobile Systems,

Incorporated; CINGULAR WIRELESS,

a/k/a Washington/Baltimore Cellular

Limited Partnership; SBC COMMUNICATIONS, INCORPORATED

;

CELLULAR ONE GROUP, a/k/a Cellular

One; VOICESTREAM WIRELESS CORPORATION; C.E.I., INCORPORATED

,

a/k/a Communications Electronics,

a/k/a Communications Electronics,

Incorporated; BALTIMORE BUSINESS COMMUNICATIONS, INCORPORATED; COMCAST/METROPHONE; RADIOFONE

;

POWERTEL, INCORPORATED; POWERTEL

PCS, INCORPORATED;

POWERTEL/ATLANTA, INCORPORATED;

MITSUBISHI WIRELESS



COMMUNICATIONS, INCORPORATED;

MOTOROLA, INCORPORATED, a

Delaware corporation; CELLULAR TELECOMMUNICATIONS AND INTERNET ASSOCIATION, a District of Columbia

corporation; CELLULAR TELECOMMUNICATIONS INDUSTRY ASSOCIATION; TELECOMMUNICATIONS INDUSTRY ASSOCIATION, a/k/a TIA; NEXTEL PARTNERS OPERATING CORPORATION,

Defendants-Appellees,

and

WESTINGHOUSE COMMUNICATIONS;

SOUTHERN TELECOM, INCORPORATED,

a/k/a Southern LINC; JOHN DOES

1-100; LGIC CORPORATION;



PINNEY v. NOKIA, INC.3
PANASONIC CORPORATION; SAMSUNG 

SDI COMPANY; SANYO CORPORATION;

SONY CORPORATION; PLANET

CELLULAR COMMUNICATIONS,

INCORPORATED; VISITOR CELLULAR

L.L.C.; BELL SOUTH MOBILITY;

KYOCERA WIRELESS CORPORATION;

MCI WORLDCOM COMMUNICATIONS,

INCORPORATED; U.S. WEST WIRELESS,

L.L.C., A Colorado corporation; U.

S. WEST COMMUNICATIONS,

INCORPORATED, a Colorado 

corporation; GTE MOBILNET OF SAN

DIEGO, INCORPORATED, a Delaware

corporation; GTE WIRELESS SAN

DIEGO, LLC, a California Limited

Liability; CELLULAR CARRIERS

ASSOCIATION OF CALIFORNIA, a

California corporation; AB

CELLULAR HOLDINGS, LLC, d/b/a LA

Cellular, d/b/a Los Angeles Cellular

Telephone Company,

Defendants. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Catherine C. Blake, District Judge.

(CA-01-1421-CCB; CA-01-1456-CCB; CA-01-3259-CCB;

CA-01-3260-CCB; CA-01-3261-CCB; CA-01-3899-CCB)

Argued: October 1, 2004

Decided: March 16, 2005

Before LUTTIG and MICHAEL, Circuit Judges, and

Jackson L. KISER, Senior United States District Judge

for the Western District of Virginia, sitting by designation.

4 PINNEY v. NOKIA, INC.
Reversed and remanded by published opinion. Judge Michael wrote

the opinion, in which Judge Luttig joined. Senior Judge Kiser wrote

a dissenting opinion. 

COUNSEL

ARGUED: Michael R. Allweiss, LOWE, STEIN, HOFFMAN,

ALLWEISS & HAUVER, L.L.P., New Orleans, Louisiana, for

Appellants. Kenneth Winston Starr, KIRKLAND & ELLIS, L.L.P.,

Washington, D.C., for Appellees. ON BRIEF: H. Russell Smouse,

John C. M. Angelos, Glenn E. Mintzer, LAW OFFICES OF PETER

G. ANGELOS, P.C., Baltimore, Maryland; H. Thomas Howell,

HOWELL & GATELY, Baltimore, Maryland, for Appellants. Garrett

B. Johnson, Terrence J. Dee, Michael B. Slade, KIRKLAND &

ELLIS, L.L.P., Chicago, Illinois, for Motorola, Inc. Seamus C. Duffy,

Mary Catherine Roper, DRINKER, BIDDLE & REATH, L.L.P.,

Philadelphia, Pennsylvania, for Cingular Wireless, Inc., SBC Communications, Inc. Mark F. Horning, Thomas M. Barba, STEPTOE &

JOHNSON, Washington, D.C., for AT&T Corp., AT&T Wireless

PCS, LLC and AT&T Wireless Services, Inc. John H. Beisner, Brian

P. Brooks, O’MELVENY & MEYERS, L.L.P., Washington, D.C., for

Verizon Wireless, Cellco Partnership. Paul F. Strain, VENABLE,

BAETJER AND HOWARD, L.L.P., Baltimore, Maryland; M. King

Hill, III, VENABLE, BAETJER AND HOWARD, L.L.P., Towson,

Maryland; Jane Fugate Thorpe, Scott A. Elder, ALSTON & BIRD,

L.L.P., Atlanta, Georgia, for Cellco Partnership formerly d/b/a Bell

Atlantic Mobile and Bell Atlantic Nynex Mobile d/b/a Verizon Wireless, Verizon Maryland, Inc. a/k/a Verizon Wireless, a/k/a Verizon,

f/k/a Bell Atlantic-Maryland, Inc., Verizon Communications, Inc.,

f/k/a Bell Atlantic Corporation, Verizon Wireless, a/k/a Bell Atlantic

Nynex, a/k/a Nynex, a/k/a Bell Atlantic Mobile, Inc. f/k/a Bell Atlantic Nynex Mobile, Inc. Thomas Watson, Curtis Renner, WATSON &

RENNER, Washington, D.C., for Cingular Wireless, L.L.C. Michael

Esher Yaggy, Jeffrey M. Yeatman, PIPER RUDNICK, L.L.P., Baltimore, Maryland, for Motorola, Inc. Steven M. Laduzinsky, Scott A.

Hanfling, KANE, LADUZINSKY & MENDOZA, LTD., Chicago,

Illinois; Robert B. Green, IRWIN, GREEN & DEXTER, L.L.P.,

Towson, Maryland, for Cellular Telecommunications and Internet

PINNEY v. NOKIA, INC. 5
Association. Michael H. O’Brien, Jason P. Sultzer, WILSON,

ELSER, MOSKOWITZ, EDELMAN & DICKER, White Plains, New

York; Laura N. Steel, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, Washington, D.C.; John B. Isbister, Harold M.

Walter, TYDINGS & ROSENBERG, L.L.P., Baltimore, Maryland,

for Samsung Electronics America, Inc., a/k/a Samsung Electronics.

Paul S. Schleifman, SHOOK, HARDY & BACON, L.L.P., Washington, D.C.; J. Stan Sexton, Michael D. Moeller, SHOOK, HARDY &

BACON, L.L.P., Kansas City, Missouri, for Sprint PCS Limited Partnership, a/k/a Sprint Spectrum; Sprint Spectrum, L.L.C., d/b/a Sprint

PCS. Charles P. Goodell, James A. Frederick, GOODELL, DEVRIES, LEECH & DANN, Baltimore, Maryland, for North America,

Inc. a/k/a Sanyo North America Group, Sanyo Corporation, Sanyo

Business Systems Corporation. Steven M. Zager, Lance Lackey, Robert Pemberton, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.,

Houston, Texas; Paul Walter, TYDINGS AND ROSENBERG,

L.L.P., Baltimore, Maryland, for Nokia, Inc., a/k/a Nokia Mobile

Phones, Inc., and Nokia Corporation. Ray M. Aragon, Raymond B.

Biagini, MCKENNA, LONG & ALDRIDGE, L.L.P., Washington,

D.C., for Electronics North America Corporation. Eugene A. Schoon,

Tamar B. Kelber, SIDLEY, AUSTIN, BROWN & WOOD, L.L.P.,

Chicago, Illinois, for Voicestream Wireless Corporation a/k/a Voicestream Wireless, Powertel, Inc., Powertel PCS, Inc., Powertel/Atlanta,

Inc. Patrick R. Buckler, Walter T. Dudley, MCGUIREWOODS,

L.L.P., Baltimore, Maryland; Edward M. Crane, David L. Hanselman,

SKADDEN, ARPS, SLATE, MEAGHER & FLOM, Chicago, Illinois, for Nextel Communications of the Mid-Atlantic, Inc., Nextel of

New York, Inc., and Nextel South Corp. James P. Ulwick, KRAMON

& GRAHAM, P.A., Baltimore, Maryland, for NEC America, Inc.

Francis A. Citera, GREENBERG & TRAURIG, P.C., Chicago, Illinois, for Electronics Inc., Qualcomm Incorporated. Russell J. Rogers,

Lawrence A. Slovensky, MCKENNA, LONG & ALDRIDGE, L.L.P.,

Atlanta, Georgia, for Partners Operating Corp. and Nextel Partners,

Inc. Paul D. Krause, Laura N. Steel, WILSON, ELSER, MOSKOWITZ, EDLEMAN & DICKER, L.L.P., Washington, D.C., for

Matsushita Corporation of America, a/k/a Panasonic Corporation, and

Sanyo North America, Inc. a/k/a Sanyo North America Group; Sanyo

Corporation; Sanyo Business Systems, Corporation. Paul Vishny,

Paul Freehling, D’ANCONA & PFLAUM, L.L.C., Chicago, Illinois,

6 PINNEY v. NOKIA, INC.
for Telecommunications Industry Association. Mark H. Kolman, Leslie R. Cohen,

DICKSTEIN, SHAPIRO, MORIN & OSHINSKY, L.L.P., Washington, D.C., for

Audiovox Communications Corp. Charles L. Perry, ANDREWS & KURTH, L.L.P.,

Dallas, Texas, for Cellular One Group. Matthew T. Covell, Kevin B. Getzendanner,

ARNALL, GOLDEN & GREGORY, L.L.P., Atlanta, Georgia, for Mitsubishi 

Wireless Communications, Inc. Daniel S. Reinhardt, Steven J. Hewitson, TROUTMAN,

SANDERS, L.L.P., Atlanta, Georgia, for Southern Telecom, Inc. Gregg L. Bernstein,

Denis J. Charlesworth, MARTIN, SNYDER & BERNSTEIN, P.A., Baltimore, 

Maryland; Charles L. Babcock, David T. Moran, James M. McCown, Ryan C. Wirtz,

JACKSON WALKER, L.L.P., Dallas, Texas, for Ericsson Inc. Maureen Ellen

Murphy, MURPHY & MURPHY, L.L.C., Catonsville, Maryland, for Baltimore

Business Communications, Inc. John A. Stewart, Jr., HULSE & WANEK, New

Orleans, Louisiana; Mark J. Jeansonne, MILLING, BENSON, WOODWARD,

New Orleans, Louisiana, for Radiofone, Inc. 

OPINION

MICHAEL, Circuit Judge: 

This multidistrict litigation includes five class actions brought initially in the state courts of Georgia, Louisiana, Maryland, New York,

and Pennsylvania. The plaintiffs sue Nokia Inc. and other entities

(collectively, "Nokia") involved in the manufacture and sale of wireless telephones. The plaintiffs claim that wireless telephones emit an

unsafe level of radio frequency radiation and that Nokia has hidden

this fact from consumers. Nokia removed the five cases to various

federal courts, and the Judicial Panel on Multidistrict Litigation

(JPML) transferred the cases to the United States District Court for

the District of Maryland (the district court) for consolidated pretrial

proceedings. The district court denied the plaintiffs’ motion to remand

four of the cases to state court and then dismissed all five cases on

the ground that the plaintiffs’ state law claims are preempted by the

Federal Communications Act of 1934 (FCA), 47 U.S.C. § 151 et seq.

The plaintiffs appeal both rulings. Because federal subject matter

jurisdiction is lacking in four of the cases, we reverse the district

court’s order denying the motion to remand those cases. There is

diversity jurisdiction over the fifth case, and because the state law

claims are not preempted, we reverse the order dismissing that case.

PINNEY v. NOKIA, INC. 7
I.

A wireless telephone (commonly called a cell phone) is actually a

radio containing a low power transmitter. When a wireless telephone

is turned on, it searches for a base station (usually a tower) within

range. A base station is a fixed transmitter containing antennae and

electronic equipment that communicates with the transmitter in a

wireless telephone. If a wireless telephone finds a base station within

range, the telephone identifies itself by transmitting its Mobile Identification Number (MIN), its System Identification Code (SID), and its

Electronic Serial Number (ESN). The ESN is a number permanently

programmed into the telephone when it is manufactured. The SID and

the MIN are programmed into the wireless telephone when a customer purchases a service plan and the telephone is activated. The

base station relays the identifying information (MIN, SID, and ESN)

to the local mobile telephone switching office (MTSO), which confirms that the telephone is assigned to a valid customer. An MTSO

is a sophisticated computer that controls all of the base stations in a

particular area for the purpose of coordinating radio transmissions to

and from wireless telephones. Once an MTSO confirms that a wireless telephone is assigned to a valid customer, the MTSO assigns a

frequency on which the user may communicate. 

Base stations receiving and routing transmissions from wireless

telephones have a relatively small transmission range because they

have low power transmitters. Accordingly, to provide continuous

wireless telephone service coverage over an extended area, numerous

base stations must be built. Cities and regions are divided into cells,

typically ten square miles, each containing a base station. As a user

moves out of one cell (and thus out of range of the base station in that

cell) and into an adjoining cell, the MTSO hands the signal off to the

base station in the adjoining cell. Marshall Brain & Jeff Tyson, How

Cell Phones Work, at http://www.howstuffworks.com/cell-phone.htm/

printable (last visited January 24, 2005). 

Wireless telephones emit a low level of radio frequency (RF) radiation, a form of electromagnetic energy, from their antennae when they

communicate with base stations. See Cell Phone Facts: Consumer

Information on Wireless Phones, at http://www.fda.gov/cellphones/

qa.html (last updated July 29, 2003). While it is well established that

8 PINNEY v. NOKIA, INC.
exposure to high levels of RF radiation can cause adverse health

effects, there is no scientific consensus on the effects of low level

exposure. The Federal Communications Commission (FCC) requires

all transmitters that emit RF radiation to be authorized by the agency

before they are marketed or sold. See 47 C.F.R. §§ 2.801, 2.803

(2004). Pursuant to the National Environmental Policy Act of 1969,

42 U.S.C. § 4321 et seq., which requires agencies to consider the

impact of their actions on the quality of the human environment, the

FCC has promulgated rules that limit the amount of RF radiation that

FCC-regulated transmitters (including wireless telephones) may emit.

In re Guidelines for Evaluating the Envtl. Effects of Radiofrequency

Radiation, 11 FCC Rcd. 15123, 15125 (1996) (In re Guidelines); see

47 C.F.R. §§ 1.1307, 1.1310, 2.1091, 2.1093. 

The plaintiffs brought five class actions in state courts against

Nokia, claiming, among other things, that (1) wireless telephones emit

an unsafe level of RF radiation and (2) Nokia, in knowing this, negligently and fraudulently endangered the consuming public by marketing wireless telephones without headsets. According to the plaintiffs,

they were exposed to the risk of adverse biological effects from the

RF radiation emitted by their wireless telephones when they used the

telephones without headsets. The plaintiffs purport to represent wireless telephone users who have not been diagnosed with brain- or eyerelated diseases and who were not provided headsets when they

leased or bought their wireless telephones. Compensatory damages

are sought in an amount sufficient to buy a headset for each class

member who lacks one and to reimburse each class member who has

already bought one. For class members with wireless telephones that

are not headset-compatible, an injunction is sought to require Nokia

to provide them with telephones that can be used with a headset. The

plaintiffs also seek punitive damages, costs, and attorneys’ fees. 

After these cases were filed in the five state courts, Nokia removed

them, pursuant to 28 U.S.C. § 1447, to the five appropriate federal

district courts. On October 31, 2001, the JPML transferred the five

cases to the District of Maryland for consolidated or coordinated pretrial proceedings. On January 7, 2002, the plaintiffs in four of the

cases — those with lead plaintiffs named Pinney, Farina, Gilliam, and

Gimpelson (collectively, the "Pinney plaintiffs") — filed a consolidated motion to remand their cases to the state courts in which they

PINNEY v. NOKIA, INC. 9
originated. The plaintiffs in the fifth case (the "Naquin plaintiffs") did

not join this motion because there was federal subject matter jurisdiction over their case based on diversity of citizenship. On June 21,

2002, the district court denied the Pinney plaintiffs’ motion to remand

on the ground that their claims necessarily depend on the resolution

of a substantial federal question. According to the district court, the

claims are a disguised attack on the FCC’s RF radiation standards,

and resolution of the claims would require the court to rule on the

validity of those standards. 

After remand was denied, Nokia filed a consolidated motion to dismiss for failure to state a claim, see Fed. R. Civ. P. 12(b)(6), on the

ground of federal preemption. On March 5, 2003, the district court

granted Nokia’s motion on the basis that the plaintiffs’ claims are preempted by the FCA. More specifically, the district court concluded

that the relief sought by the plaintiffs in all five cases conflicts with

Congress’s goal of achieving national uniformity in RF radiation

emission levels for all wireless telecommunications equipment. The

plaintiffs appeal the district court’s orders. 

II.

We turn first to the district court’s order denying the Pinney plaintiffs’ consolidated motion to remand their four cases to state court.

Federal removal jurisdiction may be exercised over state court actions

"of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). The original jurisdiction of the district

courts includes jurisdiction over "all civil actions arising under the

Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

The propriety of Nokia’s removal of the Pinney plaintiffs’ state court

cases depends on whether the claims "aris[e] under" federal law. See

Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th

Cir. 1994). We must strictly construe our removal jurisdiction

because removal "raises significant federalism concerns." Id. "If it

appears before final judgment that a case was not properly removed,

because it was not within the original jurisdiction of the United States

district courts, the district court must remand it to the state court from

which it was removed." Franchise Tax Bd. of Cal. v. Constr. Laborer’s Vacation Trust, 463 U.S. 1, 8 (1983) (citing 28 U.S.C. §

1447(c)). 

10 PINNEY v. NOKIA, INC.
We begin with the issue of whether the Pinney plaintiffs’ claims

arise under federal law pursuant to the substantial federal question

doctrine. We then address whether their claims arise under federal

law pursuant to the doctrine of complete preemption. We ultimately

conclude that the claims of the Pinney plaintiffs do not arise under

federal law by reason of either doctrine. Accordingly, the district

court lacked jurisdiction over these claims, and the court erred in

denying the Pinney plaintiffs’ consolidated motion to remand their

cases to state court. 

A.

In determining whether a plaintiff’s claim arises under federal law,

we apply the well-pleaded complaint rule, which holds that courts

"ordinarily . . . look no further than the plaintiff’s [properly pleaded]

complaint in determining whether a lawsuit raises issues of federal

law capable of creating federal-question jurisdiction under 28 U.S.C.

§ 1331." Custer v. Sweeney, 89 F.3d 1156, 1165 (4th Cir. 1996).

Thus, in examining the complaint, our first step is to "discern whether

federal or state law creates the cause of action." Mulcahey, 29 F.3d

at 151; see also Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th

Cir. 2004) ("The vast majority of lawsuits ‘arise under the law that

creates the cause of action.’") (quoting Am. Well Works Co. v. Layne

& Bowler Co., 241 U.S. 257, 260 (1916)). If federal law creates a

plaintiff’s claim, then removal is proper. Mulcahey, 29 F.3d at 151.

The general rule, of course, is that a plaintiff is the "master of the

claim," and he may "avoid federal jurisdiction by exclusive reliance

on state law" in drafting his complaint. Caterpillar Inc. v. Williams,

482 U.S. 386, 392 (1987). Here, it is undisputed that state law creates

the claims asserted by the Pinney plaintiffs, but this does not end our

inquiry. We must also determine whether these cases fall within the

small class of "cases in which a well-pleaded complaint establishes

. . . that the plaintiff’s right to relief necessarily depends on resolution

of a substantial question of federal law, in that federal law is a necessary element of one of the well-pleaded . . . claims." Christianson v.

Colt Indus. Operating Corp., 486 U.S. 800, 808 (1988) (quoting

Franchise Tax Bd., 463 U.S. at 13, 27-28) (internal quotation marks

and citations omitted). Under the substantial federal question doctrine,

"a defendant seeking to remove a case in which state law creates the

plaintiff’s cause of action must establish two elements: (1) that the

PINNEY v. NOKIA, INC. 11
plaintiff’s right to relief necessarily depends on a question of federal

law, and (2) that the question of federal law is substantial." Dixon,

369 F.3d at 816. If the defendant fails to establish either of these elements, the claim does not arise under federal law pursuant to the substantial federal question doctrine, and removal cannot be justified

under this doctrine. Id.

A plaintiff’s right to relief necessarily depends on a question of

federal law when "it appears that some . . . disputed question of federal law is a necessary element of one of the well-pleaded state

claims." Franchise Tax Bd., 463 U.S. at 13. If a plaintiff can establish,

without the resolution of an issue of federal law, all of the essential

elements of his state law claim, then the claim does not necessarily

depend on a question of federal law. See id. at 13-14; see also Dixon,

369 F.3d at 817 ("[I]f the plaintiff can support his claim with even

one theory that does not call for an interpretation of federal law, his

claim does not ‘arise under’ federal law for purposes of § 1331.").

This principle is illustrated in Franchise Tax Board. There, the

Supreme Court found no substantial federal question when a California tax agency attempted to enforce a levy on funds held in trust for

several taxpayers under an ERISA-covered benefit plan. 463 U.S. at

13-14. The claim did not necessarily depend on a resolution of federal

law because "California law establishe[d] a set of conditions, without

reference to federal law, under which a tax levy may be enforced; federal law bec[ame] relevant only by way of a defense to an obligation

created entirely by state law, and then only if [the state agency] ha[d]

made out a valid claim for relief under state law." Id. at 13. "[I]t has

been well-settled law," the Court noted, "that a case may not be

removed to federal court on the basis of a federal defense, including

the defense of pre-emption, even if the defense is anticipated in the

plaintiff’s complaint, and even if both parties admit that the defense

is the only question truly at issue in the case." Id. at 14. 

We now examine the claims in the complaints filed by the Pinney

plaintiffs. We note parenthetically that the district court allowed these

plaintiffs to amend their complaints after it denied their motion to

remand. Because amendment occurred after removal, we look at the

original complaints rather than the amended complaints in determining whether removal was proper. See Pullman Co. v. Jenkins, 305

U.S. 534, 537 (1939). The Pinney plaintiffs assert seven claims in

12 PINNEY v. NOKIA, INC.
their original complaints. They first allege that Nokia is strictly liable

for placing a defectively designed product into the stream of commerce. These claims are brought under the laws of Georgia, Maryland, New York, and Pennsylvania. Under the laws of all four states,

a manufacturer (and sometimes a seller) is strictly liable for selling a

defectively designed product that causes personal injury. Georgia,

Maryland, and New York assess whether a product suffers from a

design defect by using the risk-utility balancing test. Under this test

a fact-finder must determine whether the manufacturer acted reasonably in choosing a particular product design, given the probability and

magnitude of the risk, the usefulness of the product in its particular

condition, and the burden on the manufacturer to eliminate the risk.

See Banks v. ICI Ams., Inc., 450 S.E.2d 671, 673-74 (Ga. 1994); Nissan Motor Co. v. Nave, 740 A.2d 102, 118 (Md. Ct. Spec. App.

1999); Voss v. Black & Decker Mfg. Co., 450 N.E.2d 204, 208-09

(N.Y. 1983). Under Pennsylvania law a product suffers from a design

defect if it lacks a component necessary to make it safe for its

intended use. See Harsh v. Petroll, 840 A.2d 404, 416-17 (Pa. 2003).

Second, the Pinney plaintiffs allege that Nokia is strictly liable for

its failure to warn about the adverse health risks associated with wireless telephones. These claims are brought under the laws of Georgia,

Maryland, New York, and Pennsylvania. According to these laws,

when a manufacturer or a seller knows or should have known of the

latent danger of a product and fails to warn the consuming public, the

manufacturer or seller is strictly liable for injuries caused by the danger while the product is used in a foreseeable manner. See Hunt v.

Harley-Davidson Motor Co., 248 S.E.2d 15, 16 (Ga. Ct. App. 1978);

Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 639 (Md. 1992); Rastelli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222, 225 (N.Y.

1992); Davis v. Berwind Corp., 690 A.2d 186, 190 (Pa. 1997). 

Third, the Pinney plaintiffs allege that Nokia is liable for violating

various state consumer protection statutes. These claims are brought

under the laws of Maryland, New York, and Pennsylvania, where the

relevant statutes allow a plaintiff to recover for losses or injuries sustained when a merchant engages in deceptive trade practices. See Md.

Code Ann., Com. Law II, § 13-408; N.Y. Gen. Bus. Law § 349(h)

(McKinney); 73 Pa. Cons. Stat. § 201-9.2. These statutes generally

require a plaintiff to prove either (1) that the defendant made materiPINNEY v. NOKIA, INC. 13
ally false or misleading statements about its product that deceived, or

had the tendency to deceive, consumers, or (2) that the defendant

failed to state a material fact with respect to its product, and this failure deceived, or had the tendency to deceive, consumers. See Md.

Code Ann., Com. Law II, § 13-301(1), (2)(i), (3), (9)(i); N.Y. Gen.

Bus. Law § 350-a(1); 73 Pa. Cons. Stat. § 201-2(4)(v), (vii), (ix),

(xxi). 

Fourth, the Pinney plaintiffs allege that Nokia breached an implied

warranty of merchantability by selling and distributing unreasonably

dangerous wireless telephones. These claims are brought under the

laws of Georgia, Maryland, New York, and Pennsylvania. To make

out a claim for breach of this implied warranty, a plaintiff must establish that a product is not of merchantable quality and that he suffered

an injury as a result. A product is not of merchantable quality when

it is not fit for the ordinary purposes for which it is used. See Wilson

v. J & L Melton, Inc., 606 S.E.2d 47, 49 n.1 (Ga. Ct. App. 2004);

Ford Motor Co. v. Gen. Acc. Ins. Co., 779 A.2d 362, 370 n.13 (Md.

2001); Denny v. Ford Motor Co., 662 N.E.2d 730, 736 (N.Y. 1995);

Phillips v. Cricket Lighters, 852 A.2d 365, 370-71 (Pa. Super. Ct.

2004). In determining whether a product is of merchantable quality,

the fact-finder focuses on the "expectations for the performance of the

product when used in the customary, usual, and reasonably foreseeable manners." Denny, 662 N.E.2d at 736. 

Fifth, the Pinney plaintiffs allege that Nokia was negligent (1) in

failing to conduct adequate and appropriate scientific research on the

adverse health effects of exposure to RF radiation from wireless telephones, (2) in misrepresenting to the public that wireless telephones

are safe, (3) in suppressing any scientific evidence suggesting that

wireless telephones are not safe, (4) in failing to provide warnings

about the potential health risks from failing to use a headset, and (5)

in failing to provide headsets and instructions encouraging their use.

These claims are brought under the laws of Georgia and Maryland.

To make out a claim for negligence, a plaintiff must establish the following elements: (1) the defendant owed the plaintiff a duty, (2) the

defendant breached that duty, (3) the plaintiff suffered an injury, and

(4) there was a causal connection between the breach and the injury.

See Johnson v. Am. Nat’l Red Cross, 578 S.E.2d 106, 108 (Ga. 2003);

Hemmings v. Pelham Wood LLP, 826 A.2d 443, 451 (Md. 2003). A

14 PINNEY v. NOKIA, INC.
manufacturer generally has a duty to exercise reasonable care in manufacturing, designing, and selling its products "so as to make the

products reasonably safe for intended or foreseeable uses." Chrysler

Corp v. Batten, 450 S.E.2d 208, 211 (Ga. 1994) (citation omitted); see

also Eagle Pitcher Indus., Inc. v. Balbo, 604 A.2d 445, 454 n.9 (Md.

1992). 

Sixth, the Pinney plaintiffs allege that Nokia engaged in fraud by

misinforming and misleading the public as to the safety of wireless

telephones. These claims are brought under the laws of Georgia,

Maryland, New York, and Pennsylvania. To make out a claim for

fraud, a plaintiff must establish the following elements: (1) the defendant made a false representation, (2) the defendant knew the representation was false or was recklessly indifferent to its truth or falsity, (3)

the defendant made the representation with the intent to defraud the

plaintiff, (4) the plaintiff justifiably relied on the false representation,

and (5) the plaintiff suffered damages as a result. See Rhone v. Bolden, ___ S.E.2d ___, 2004 WL 2567343 (Ga. Ct. App. 2004); Martens Chevrolet, Inc. v. Seney, 439 A.2d 534, 537 (Md. 1982); P.

Chimento Co. v. Banco Popular de Puerto Rico, 617 N.Y.S.2d 157,

158 (N.Y. App. Div. 1994); Gibbs v. Ernst, 647 A.2d 882, 889 (Pa.

1994). Concealment of a material fact, with intent to deceive, satisfies

the false representation element of fraud. See Paul v. Desito, 550

S.E.2d 739, 744 (Ga. Ct. App. 2001); Hoffman v. Stamper, 843 A.2d

153, 186 (Md. Ct. Spec. App. 2004); Nasaba Corp. v. Harfred Realty

Corp., 39 N.E.2d 243, 245 (N.Y. 1942); De Joseph v. Zambelli, 139

A.2d 644, 647 (Pa. 1958). 

Seventh, the Pinney plaintiffs allege that Nokia engaged in a civil

conspiracy to market unsafe wireless telephones by improper and

wrongful means, and, in doing so, both defrauded the plaintiffs and

failed to warn them of the health risks of using wireless telephones.

These claims are brought under the laws of Georgia and Maryland.

In a claim for civil conspiracy a plaintiff must establish that two or

more defendants, acting in concert, engaged in conduct constituting

a tort. Damages are assessed on the basis of the defendants’ tortious

conduct, not on the basis of their agreement to engage in such conduct. See Miller v. Lomax, 596 S.E.2d 232, 242 (Ga. Ct. App. 2004);

Alleco, Inc. v. Harry & Jeannette Weinberg Found., Inc., 639 A.2d

173, 176-77 (Md. Ct. Spec. App. 1994). 

PINNEY v. NOKIA, INC. 15
We have thoroughly examined the claims asserted by the Pinney

plaintiffs in their complaints, and one thing is clear: the elements of

each of the claims depend only on the resolution of questions of state

law. There is no "substantial, disputed question of federal law [that]

is a necessary element of [any] of the well-pleaded state claims."

Franchise Tax Bd., 463 U.S. at 13. The district court, however, 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. See In Re Wireless Tel. Radio Frequency Emissions

Prods. Liab. Litig., 216 F. Supp. 2d 474, 488 (D. Md. 2002) (In re

Wireless I). The ultimate objective of these complaints, according to

the district court, "is to attack the lack of a headset requirement under

the federal RF safety rules." Id. Although the court acknowledged that

the complaints contain no allegations attacking the federal RF 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. Id. at 488, 491-92.1

The district court erred by not recognizing that its inquiry was limited by the well-pleaded complaint rule. It should have considered

only whether a disputed question of federal law is an essential element of one of the well-pleaded state claims. See Franchise Tax Bd.,

463 U.S. at 13. The district court went beyond this restricted inquiry

and in effect anticipated (1) that Nokia would raise the affirmative

defense that the state law claims are preempted by the FCA and federal RF radiation standards and (2) that the Pinney plaintiffs would be

called upon to rebut that defense. The cases could be decided, the

court concluded, only by resolving whether the claims are preempted

by the FCA and the federal RF radiation standards. Even if that is so,

a preemption defense "that raises a federal question is inadequate to

confer federal jurisdiction." Merrell Dow Pharms., Inc. v. Thompson,

478 U.S. 804, 808 (1986). Again, "a case may not be removed to fed1The dissent makes the same argument as the district court — that a

substantial federal question exists because "the effect of [the Pinney

plaintiffs’] allegations" is to "challenge the sufficiency of the FCC standard." Post at 37. As we explain in the text that follows, this argument

cannot be sustained. 

16 PINNEY v. NOKIA, INC.
eral court on the basis of a federal defense, including the defense of

preemption," even if the complaint begs the assertion of the defense,

and even if "the defense is the only question truly at issue in the case."

Franchise Tax Bd., 463 U.S. at 14. 

The thrust of the claims is that Nokia violated state law by manufacturing and selling a product that it knew, or should have known,

was dangerous and by not adequately warning of the dangers. As was

the case in Franchise Tax Board, state law establishes a set of elements, without reference to federal law, that the plaintiffs must establish in order to a make out "valid claim[s] for relief." 463 U.S. at 13.

Federal law becomes relevant only as a defense, and only after the

Pinney plaintiffs have made out the elements of their state law claims.

In this situation, as the Supreme Court has observed, "[t]he most one

can say is that a question of federal law is lurking in the background."

Gully v. First Nat’l Bank, 299 U.S. 109, 117 (1936). The lurking

question of federal law is, of course, the affirmative defense of preemption, but that does not make the claims into ones arising under

federal law. 

B.

It becomes even clearer that the Pinney plaintiffs’ claims do not

contain a disputed question of federal law when we consider Nokia’s

arguments. Nokia argues that an issue of federal law must be resolved

for the Pinney plaintiffs to establish the necessary elements for two

of their claims. Nokia first points to the claim of strict liability due

to a design defect. As discussed above, see supra at 12-13, one element a plaintiff must establish is that the product suffered from a

design defect. A design defect is established by proving that the product is unreasonably dangerous, as determined by the risk-utility standard. Nokia argues that the FCC’s RF radiation standards establish

the relevant "duty" with regard to RF radiation emissions from wireless telephones, and therefore the unreasonably dangerous inquiry

depends on the resolution of a federal question. Br. for Appellees at

26. Nokia’s use of the term "duty" is misplaced because the term is

more commonly employed in a negligence context, not a strict liability context. In any event, the nub of Nokia’s argument is that a wireless telephone’s compliance (or noncompliance) with the federal RF

radiation standards determines whether the telephone is unreasonably

PINNEY v. NOKIA, INC. 17
dangerous. Nokia is wrong. Under the laws of Georgia, Maryland,

and New York, compliance with the federal RF radiation standards is

only one factor in assessing whether a wireless telephone is unreasonably dangerous under the risk-utility standard. See Doyle v. Volkswagenwerk Aktiengesellschaft, 481 S.E.2d 518, 521 (Ga. 1997); Beatty

v. Trailmaster Prods., 625 A.2d 1005, 1014 (Md. 1993); Denny, 662

N.E.2d at 735-36; Sherman v. M. Lowenstein & Sons, Inc., 282

N.Y.S.2d 142, 143-44 (N.Y. App. Div. 1967). And because Pennsylvania law rejects the importation of negligence concepts into its strict

liability doctrine, compliance with the federal RF radiation standards

is not relevant in determining whether Nokia is strictly liable under

Pennsylvania law for selling a product that suffers from a design

defect. See Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d

590, 593-94 (Pa. 1987) (holding that product compliance with industry standards is irrelevant in strict liability case based on defective

design). Thus, even if Nokia’s wireless telephones comply with the

federal RF radiation standards, the Pinney plaintiffs could still establish the defective design element of the their strict liability claim.

Conversely, if Nokia’s wireless telephones do not comply with the

federal RF radiation standards, the Pinney plaintiffs would not automatically establish the defective design element. 

Nokia also argues that the Pinney plaintiffs "need to establish disputed federal-law propositions" to make out their fraud claims. Br. for

Appellees at 27. To make out a claim of fraud, a plaintiff must establish, among other elements, that the defendants made a false statement. Nokia asserts that the Pinney plaintiffs, in order to prove that

statements made by Nokia were false, must demonstrate that the "substantive content of federal wireless emissions regulations is inconsistent with [Nokia’s] alleged characterizations of those regulations." Id.

This is a mischaracterization of the fraud claims. The Pinney plaintiffs do not allege that Nokia fraudulently misrepresented the RF radiation standards. Rather, they allege that Nokia made false statements

by misrepresenting the general safety of wireless telephones and by

misrepresenting or failing to disclose the biological risks posed by

wireless telephones. To prove the falsity of these statements, the Pinney plaintiffs must establish that the RF radiation emissions from

wireless telephones create a health risk. This has nothing to do with

the substantive content of the federal regulations. In sum, there is no

18 PINNEY v. NOKIA, INC.
substantial question of federal law that is a necessary element of the

Pinney plaintiffs’ strict liability (design defect) or fraud claims.2

To get around this problem, Nokia advances a new theory — the

"sufficient connection" to a federal regulatory scheme theory — for

why the Pinney plaintiffs’ claims are removable pursuant to the substantial federal question doctrine. Nokia relies on our decision in

Ormet Corp. v. Ohio Power Co., 98 F.3d 799 (4th Cir. 1996), to argue

that "where a plaintiff’s state law complaint is sufficiently connected

to a federal regulatory regime as to which Congress has expressed a

2

In arguing for removal jurisdiction, the dissent points to one of the

many factual allegations made by the Pinney plaintiffs in support of their

fraud claims. The Pinney plaintiffs allege that Nokia engaged in fraud on

an occasion when it claimed that wireless telephones are safe and "fall

within [FCC] safety standards," but "deceitfully omitted the fact that the

FCC had declared that it does not consider itself the ‘expert agency’ for

evaluating health effects." J.A. 142 (emphasis in original). According to

the dissent, this allegation "call[s] into question the expertise of the

FCC." Post at 37. That is not the case. To establish that the safety statement made by Nokia was false, a necessary element for fraud, the Pinney

plaintiffs need only prove that the failure to disclose the FCC’s statement

was the concealment of a material fact or that Nokia’s safety statement

was false in light of the FCC’s statement. The plaintiffs will not have to

prove any lack of FCC expertise in the RF radiation area in order to

establish that Nokia made false statements about the safety of wireless

telephones. A "substantial, disputed question of federal law" is simply

not a necessary element of the fraud claims. Franchise Tax Bd., 463 U.S.

at 13. 

The dissent also relies on a general allegation in the Pinney plaintiffs’

complaint to support its argument that removal jurisdiction exists. This

allegation is that Nokia "obtain[ed] and exercised control over the American National Standards Institute (‘ANSI’) Committee responsible for

developing safety standards for RFR emitting devices." J.A. 140. ANSI’s

proposals regarding RF radiation standards were generally adopted in

FCC rulemaking. See In re Guidelines, 11 FCC Rcd. at 15123-25.

According to the dissent, the allegation about Nokia’s influence over

ANSI means that the plaintiffs "are . . . attacking the rule-making process

that the FCC used in developing [its RF radiation] standards." Post at 38.

The dissent, however, does not explain how the allegation about ANSI

raises a substantial question of federal law that is a necessary element of

any one of the plaintiffs’ state law claims. 

PINNEY v. NOKIA, INC. 19
need for uniform implementation and interpretation, that connection

can provide a basis for federal question jurisdiction even if no explicitly federal claim is pled." Br. for Appellees at 25. Nokia does not

suggest a standard for determining when a connection is sufficient to

render removal proper under its theory, but it nonetheless asserts that

a sufficient connection exists in the present cases. According to

Nokia, there is a comprehensive federal scheme to regulate wireless

telecommunications, and Congress has delegated to federal regulators

the exclusive authority over all technical aspects of wireless telecommunications. A sufficient connection exists between the telecommunications regulatory regime and the Pinney plaintiffs’ claims, Nokia

says, because the claims are premised on the amount of RF radiation

that emits from wireless telephones, a technical aspect of wireless

telephones that is regulated by the FCC. To begin with, Nokia’s sufficient connection theory, as applied to these claims, is similar to, if not

indistinguishable from, the argument that the Pinney plaintiffs’ claims

are removable under the substantial federal question doctrine because

they are preempted by the FCA and the federal RF radiation standards. Nokia, of course, avoids couching its argument in preemption

terms because it knows that the affirmative defense of preemption

cannot serve as a basis for removal under the substantial federal question doctrine. Regardless of whether Nokia’s sufficient connection

theory is at bottom a preemption argument, we reject it because it is

not supported by our Ormet decision, and it is inconsistent with

Supreme Court precedent. 

Ormet does not establish, or even support, Nokia’s sufficient connection theory. In Ormet one of the elements of the plaintiff’s state

commercial law claim contained a disputed question of federal law:

for the plaintiff to establish the element, it had to show that it was an

owner (as defined by the federal Clean Air Act) of tradeable emission

allowance permits. 98 F.3d at 807. Nokia relies on our statement,

"[w]here the resolution of a federal issue in a state-law cause of action

could, because of different approaches and inconsistency, undermine

the stability and efficiency of a federal statutory regime, the need for

uniformity becomes a substantial federal interest, justifying the exercise of jurisdiction by federal courts." Id. at 807 (citation omitted).

Nokia claims this language stands for the proposition that a nexus (or,

in Nokia’s words, a "sufficient connection") between a plaintiff’s

claim for relief and a federal regulatory scheme is sufficient to estab20 PINNEY v. NOKIA, INC.
lish removal jurisdiction. Nokia’s reliance on the quoted statement

from Ormet is completely off the mark because the statement specifically addresses the issue of whether a federal question is substantial

enough to justify removal jurisdiction, not the threshold issue of

whether a federal question must be resolved in order for the plaintiff

to establish a necessary element of his claim. Nowhere in Ormet did

we ever suggest that some "sufficient connection" between a federal

regulatory regime and a state claim is enough to establish removal

jurisdiction. In short, Ormet did not slacken in any way the principle

that the substantial federal question doctrine applies only when a disputed issue of federal law is an essential element of at least one of the

plaintiffs’ state claims. 

Ormet aside, Nokia’s sufficient connection theory is inconsistent

with Supreme Court precedent. By Nokia’s reasoning, even if the Pinney plaintiffs can establish the necessary elements of their claims

without resolving a question of federal law, the cases are still removable under the substantial federal question doctrine because of a connection between the federal scheme regulating wireless

telecommunications and the Pinney plaintiffs’ state claims. That is not

enough. The Supreme Court has been quite clear that for removal to

be proper under the substantial federal question doctrine, a plaintiff’s

ability to establish the necessary elements of his state law claims must

rise or fall on the resolution of a question of federal law. See Merrell

Dow, 478 U.S. at 813 ("[T]he mere presence of a federal issue in a

state cause of action does not confer federal question jurisdiction.").

In sum, removal of these cases cannot be sustained on the basis of the

substantial federal question doctrine. 

C.

Having determined that these cases do not arise under federal law

pursuant to the substantial federal question doctrine, we consider

whether they arise under federal law through the doctrine of complete

preemption. Under complete preemption a state claim arises under

federal law when Congress "so completely pre-empt[s] a particular

area that any civil complaint raising th[e] select group of claims is

necessarily federal in character." Metro. Life Ins. Co. v. Taylor, 481

U.S. 58, 63-64 (1987). There is, of course, a difference between the

doctrine of complete preemption and the affirmative defense of fedPINNEY v. NOKIA, INC. 21
eral preemption. "As a defense, [federal preemption] does not appear

on the face of a well-pleaded complaint, and, therefore, does not

authorize removal to federal court." Id. at 63 (citation omitted). In

contrast, the doctrine of complete preemption "converts an ordinary

state common law complaint into one stating a federal claim," id. at

65, and the federal claim is deemed to appear on the face of the complaint. Darcangelo v. Verizon Communications, Inc., 292 F.3d 181,

187 (4th Cir. 2002). To remove an action on the basis of complete

preemption, a defendant must establish that the plaintiff has a "discernible federal [claim]" and that "Congress intended [the federal

claim] to be the exclusive remedy for the alleged wrong." King v.

Marriott Int’l, Inc., 337 F.3d 421, 425 (4th Cir. 2003). 

In assessing the removal of these cases on the basis of complete

preemption, our basic inquiry is whether the FCA establishes the

exclusive claim for consumers alleging injury by wireless telephones.

Nokia argues that §§ 201 and 207 of the FCA provide the exclusive

claim for the Pinney plaintiffs. Section 207 allows private parties to

sue common carriers and recover damages resulting from a common

carrier’s breach of its obligations under the FCA. 47 U.S.C. § 207.

Nokia argues that the Pinney plaintiffs’ exclusive claim is to allege

that Nokia violated § 201(b), which imposes on common carriers the

obligation that "[a]ll charges, practices, classifications, and regulations for and in connection with [wire or radio] communication service, shall be just and reasonable." 47 U.S.C. § 201(b). Specifically,

Nokia argues that the sale of dangerous wireless telephones constitutes a "practice in connection with" wireless service. Nokia is wrong

in saying that the FCA provides the exclusive claim. 

First off, § 207 does not provide any claim against a number of the

defendants in these cases. Sections 201 and 207 allow recovery only

against common carriers. Under the FCA "‘common carriers’ are entities that must provide [transmission] service[s] to the public without

discrimination and are heavily regulated by the FCC." In re Application of the United States for an Order Authorizing the Roving Interceptions of Oral Communications, 349 F.3d 1132, 1137 n.9 (9th Cir.

2003) (citations omitted); see also 47 U.S.C. § 153(10). In the wireless telecommunications arena, "[a] person engaged in the provision

of" wireless service is treated as a common carrier. See 47 U.S.C.

§ 332(c)(1)(A). In their complaints the Pinney plaintiffs name two

22 PINNEY v. NOKIA, INC.
groups of defendants: providers of wireless service (that also market

and distribute wireless telephones) and manufacturers of wireless telephones. As to the second group, the plaintiffs allege that these defendants "engaged in the design, manufacture, marketing, and sale of"

wireless telephones. See, e.g., J.A. 122-127. There are no allegations

that these manufacturer-defendants are engaged in providing any

wireless service, and we therefore conclude that these defendants cannot be treated as common carriers. As a result, they cannot be sued

under §§ 201 and 207. 

As to the first group of defendants (certain wireless service providers), Nokia does not cite to any authority that supports the proposition

that §§ 201 and 207 provide wireless telephone users with a claim

against wireless service providers for their role in marketing and distributing wireless telephones. An interpretation of § 201 that would

construe the selling of dangerous wireless telephones as a "practice in

connection with" wireless service would be dubious at best. A "practice in connection with" wireless service does not even include tortious conduct such as deceptive advertising and billing by wireless

service providers in the provision of wireless telephone service. See

Marcus v. AT & T Corp., 138 F.3d 46, 54 (2d Cir. 1998). Further,

even if we were to broadly construe § 201 as Nokia urges, there is

simply no evidence that Congress intended §§ 201 and 207 to be the

exclusive claim for plaintiffs alleging injury from wireless telephones.

Nokia fails to identify any evidence in the statute or legislative history

that Congress intended §§ 201 and 207 to preempt completely state

law claims that are based on a wireless service provider’s sale and

promotion of wireless telephones. The single authority to which

Nokia cites is an FCC statement claiming that individual states should

not be permitted to add additional requirements to the standards the

FCC imposes for cellular systems. See Br. for Appellees at 36 (citing

In re An Inquiry into the Use of the Bands 825-845 MHz and 870-890

MHz for Cellular Communications Sys.; and Amendment of Parts 2

and 22 of the Commission’s Rules Relative to Cellular Communication Sys., 89 F.C.C.2d 58 (1982)). This statement is not evidence of

congressional intent, and we accord it no weight. 

The FCA also contains a savings clause: "Nothing contained in this

chapter shall in any way abridge or alter the remedies now existing

at common law or by statute, but the provisions of this chapter are in

PINNEY v. NOKIA, INC. 23
addition to such remedies." 47 U.S.C. § 414. The presence of a savings clause counsels against a finding that Congress intended to

sweep aside all state claims in a particular area. Indeed, at least two

circuits have recognized in other contexts that § 414 precludes such

a finding. See Smith v. GTE Corp., 236 F.3d 1292, 1313 (11th Cir.

2001) (concluding that § 414 counsels against a determination that the

FCA completely preempts telecommunications customers’ claims

against a telecommunications service provider’s fraudulent conduct in

leasing telephones and related equipment); Marcus, 138 F.3d at 54

(concluding that § 414’s savings clause counsels against a determination that the FCA completely preempts wireless service customers’

claims against a wireless service provider based on the provider’s

deceptive billing and false advertising). Because there is no evidence

that Congress intended the FCA to provide the exclusive remedy for

claims like those of the Pinney plaintiffs, and because there is evidence that Congress intended to preserve state law claims such as the

ones asserted in these cases, we conclude that these claims do not

arise under federal law through the doctrine of complete preemption.

Because the Pinney plaintiffs’ claims do not arise under federal law,

the district court lacked jurisdiction over them, making removal

improper. 

III.

After the district court denied the Pinney plaintiffs’ motion to

remand their four cases to state court, it dismissed all five cases,

including the one brought by the Naquin plaintiffs, on the ground that

the claims are preempted by the FCA. Because the district court

lacked subject matter jurisdiction over the four cases brought by the

Pinney plaintiffs, the district court had no power to dismiss them.

However, as we noted earlier, the district court has diversity jurisdiction over the case brought by the Naquin plaintiffs. See 28 U.S.C.

§ 1332(a). We must therefore review the district court’s order granting Nokia’s motion to dismiss the claims of the Naquin plaintiffs. 

A.

Before we address the substance of the dismissal, we consider the

Naquin plaintiffs’ argument that the district court erred in taking up

Nokia’s motion to dismiss their case. They first contend the dismissal

24 PINNEY v. NOKIA, INC.
should be vacated because there is no subject matter jurisdiction over

the other four cases (the Pinney plaintiffs’ cases) that were consolidated with their case. The Naquin plaintiffs argue that if the district

court had not erred in failing to recognize that it lacked jurisdiction

over the cases of the Pinney plaintiffs, only the Naquin case would

have remained, and Nokia’s motion to dismiss would not have been

considered due to lack of venue over the lone remaining case.

According to the Naquin plaintiffs, the district court’s error also

denied them the procedural right to petition the JPML or the district

court for a re-transfer of their case to the transferor court, the United

States District Court for the Eastern District of Louisiana. Finally, the

Naquin plaintiffs argue that the district court should not have considered the motion to dismiss because it had been denied by the transferor court prior to transfer. 

There is no merit to the argument that venue over the Naquin plaintiffs’ case in the District of Maryland was improper due to the lack

of federal jurisdiction over the other four consolidated cases. The statute authorizing transfer (and consolidation) of multidistrict actions, 47

U.S.C. § 1407, is a venue statute that allows the JPML to override a

plaintiff’s choice of forum when three factors are present: (1) "one or

more common questions of fact are pending in different districts," (2)

a transfer would serve "the convenience of parties and witnesses," and

(3) a transfer would "promote the just and efficient conduct of [the]

actions." 28 U.S.C. § 1407(a); see also In re Vernitron Secs. Litig.,

462 F. Supp. 391, 394 (J.P.M.L. 1979) ("Nor can the policies behind

venue provisions designed to operate in the context of single independent actions prevail, in a multidistrict context, over the Panel’s statutory mandate to weigh the interests of all the plaintiffs and all the

defendants and to consider multidistrict litigation as a whole in light

of the purposes of the law."). Transfer, of course, may be ordered

only for the purpose of "coordinated or consolidated pretrial proceedings." 28 U.S.C. § 1407(a). 

In the present cases, the JPML, after noting the presence of common questions of fact, found that "[c]entralization . . . in the District

of Maryland [would] serve the convenience of the parties and witnesses and [would] promote the just and efficient conduct of the litigation, while accordingly being necessary in order to avoid

duplication of discovery, prevent inconsistent pretrial rulings, and

PINNEY v. NOKIA, INC. 25
conserve the resources of the parties, their counsel, and the judiciary."

In Re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig.,

No. 1421 (J.P.M.L. Oct. 31, 2001) (order consolidating and transferring the cases to the District of Maryland). Because these findings satisfied the prerequisites for transfer, and because the proceedings were

still in the pretrial stage, venue in the District of Maryland was

proper. The Naquin plaintiffs essentially seek to add an additional

requirement that subject matter jurisdiction must exist over all transferred and consolidated cases for venue to be proper in the transferee

court. There is no basis for this requirement in either the multidistrict

litigation statute or the case law. 

The Naquin plaintiffs next argue that they were denied their procedural right to request a remand to the Eastern District of Louisiana as

a result of the district court’s error in finding subject matter jurisdiction over the cases brought by the Pinney plaintiffs. We disagree. At

any point in the district court proceedings, the Naquin plaintiffs could

have petitioned the JPML directly for a remand, or they could have

requested that the district court suggest a remand to the JPML.

J.P.M.L. Rule 7.6(c)(i), (ii); see also In re Roberts, 178 F.3d 181, 184

(3d Cir. 1999) (noting that once a case is transferred, only the JPML,

and not the transferee court, has the authority to remand the case to

the transferor court). The Naquin plaintiffs never moved the JPML for

a remand nor asked the district court to suggest remand to the JPML.

Because these plaintiffs failed to raise the remand issue with either

the JPML or the district court, we consider the issue waived for purposes of this appeal. See Holland v. Big River Minerals Corp., 181

F.3d 597, 605 (4th Cir. 1999) ("Generally, issues that were not raised

in the district court will not be addressed on appeal."). 

Finally, the Naquin plaintiffs argue that the district court’s dismissal order should be vacated because Judge Lemelle of the Eastern

District of Louisiana had denied, prior to transfer, motions to dismiss

filed by some of the defendants. The Naquin plaintiffs claim that a

transferee court may reconsider a prior order of a transferor court only

when: (1) there is an intervening change in the law, (2) there is newly

discovered (material) evidence, or (3) reconsideration is necessary to

correct a clear error of law or prevent manifest injustice. The two

cases relied on by the Naquin plaintiffs do not support such a constricted view of a transferee court’s authority. In each of the cases,

26 PINNEY v. NOKIA, INC.
Microbix Biosys., Inc. v. Biowhittaker, Inc., 184 F. Supp. 2d 434, 436

(D. Md. 2000), and Potter v. Potter, 199 F.R.D. 550, 552 (D. Md.

2001), the district court was ruling on a motion for reconsideration of

its own order. The rules of constraint urged by the Naquin plaintiffs

make sense when a district court is asked to reconsider its own order.

"Were it otherwise, then there would be no conclusion to motions

practice, each motion becoming nothing more than the latest installment in a potentially endless serial that would exhaust the resources

of the parties and the court — not to mention its patience." Potter,

199 F.R.D. at 553. This same constraint is not always justified in the

multidistrict litigation context, where there is a need for consistent

treatment of consolidated cases. See Astarte Shipping Co. v. Allied

Steel & Expert Svc., 767 F.2d 86, 87 (5th Cir. 1985) ("The transferee

court has the power and the obligation to modify or rescind any orders

in effect in the transferred case which it concludes are incorrect.");

Degulis v. LXR Biotech., Inc., 928 F. Supp. 1301, 1309 (S.D.N.Y.

1996) ("A transferee court in a multi-district litigation thus has the

power to modify interlocutory orders entered by the transferor court

prior to transfer under 28 U.S.C. § 1407.") (citation omitted). Here,

Judge Lemelle, in denying the motions to dismiss, denied them without prejudice and explicitly acknowledged that the issue of federal

preemption could be revisited later in the litigation. In sum, the district court did not err in considering Nokia’s motion to dismiss the

Naquin case. 

B.

In their amended complaint the Naquin plaintiffs allege both state

and federal claims and seek the same remedy as the Pinney plaintiffs,

headsets for wireless telephones.3 We now consider whether the

3For their federal claims the Naquin plaintiffs allege that Nokia has

violated the Magnuson-Moss Warranty Improvement Act, 15 U.S.C.

§ 2310. More specifically, they allege that Nokia breached the implied

warranty of fitness for a particular purpose by failing to provide headsets

and by engaging in deceptive trade practices in failing to disclose the

harmful effects of RF radiation from wireless telephones. This failure to

disclose renders the manufacturers’ express warranties for wireless telephones misleading, the amended complaint alleges. The district court

appeared to dismiss the Naquin plaintiffs’ amended complaint entirely on

preemption grounds, even though federal claims are also alleged. 

PINNEY v. NOKIA, INC. 27
Naquin plaintiffs’ state law claims are preempted by the FCA. Under

the Supremacy Clause a state law that "interferes with, or is contrary

to" federal law is invalid. Free v. Bland, 369 U.S. 663, 666 (1962).

There are three theories under which Congress preempts state law.

First, under express preemption Congress expressly declares its intent

to preempt state law. S. Blasting Svcs., Inc. v. Wilkes County, 288

F.3d 584, 590 (4th Cir. 2002) (citing Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985)). Second, under

field preemption Congress impliedly preempts state law when "federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the states to

supplement it." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516

(1992) (internal quotation marks and citations omitted). Third, under

conflict preemption Congress impliedly preempts state law when it

"actually conflicts with federal law." Hillsborough, 471 U.S. at 713.

We must remember that "the purpose of Congress is the ultimate

touchstone in every pre-emption case." Medtronic, Inc. v. Lohr, 518

U.S. 470, 485 (1996) (internal quotation marks and citations omitted).

Further, "[c]onsideration under the Supremacy Clause starts with the

basic assumption that Congress did not intend to displace state law."

Maryland v. Louisiana, 451 U.S. 725, 746 (1981) (citation omitted).

This presumption against preemption is particularly strong when Congress legislates "‘in a field which the States have traditionally occupied,’" such as health and safety.4 Medtronic, 518 U.S. at 485

(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

4The district court decided that the presumption against preemption

does not apply here because the Naquin plaintiffs’ claims relate to wireless telecommunications, an area where, according to the court, "‘there

has been a history of significant federal presence.’" In re Wireless Tel.

Radio Frequency Prods. Liab. Litig., 248 F. Supp. 2d 452, 463 (D. Md.

2003) (quoting United States v. Locke, 529 U.S. 89, 108 (2000)). In

Locke the Supreme Court concluded that the State of Washington’s oil

tanker regulations were not entitled to the presumption against preemption because the regulations governed national and international maritime

commerce, an area long regulated by Congress. 529 U.S. at 108. The district court’s reliance on Locke is misplaced because there is not the same

federal presence in the wireless telecommunications area as there is in

the area of maritime commerce. States continue to have considerable

authority in the wireless telecommunications area. See, e.g., 47 U.S.C.

§ 332(c)(3)(A) (providing that states may not regulate "the entry of or

rates charged by" wireless service providers, but that they may regulate

28 PINNEY v. NOKIA, INC.
1.

Nokia argues that the Naquin plaintiffs’ claims are expressly preempted by two provisions of the FCA. The first provision appears in

§ 332(c)(7), which is aimed at the "[p]reservation of local zoning

authority" over "decisions regarding the placement, construction, and

modification of personal wireless service facilities." 47 U.S.C.

§ 332(c)(7)(A). Nokia asserts that the claims are expressly preempted

by § 332(c)(7)(B)(iv), which limits the general authority of local

bodies as follows: "No State or local government or instrumentality

thereof may regulate the placement, construction, and modification of

personal wireless service facilities on the basis of the environmental

effects of radio frequency emissions" if the facilities comply with the

FCC’s RF radiation standards. 47 U.S.C. § 332(c)(7)(B)(iv). This section applies only to "personal wireless service facilities," a term

defined in circular fashion as "facilities for the provision of personal

wireless services." 47 U.S.C. § 332(c)(7)(C)(ii). The statute does not

define the term "facilities" or "facility." We must therefore determine,

as a matter of first impression, whether a wireless telephone constitutes a "facility" for purposes of § 332(c)(7)(B)(iv). We conclude that

it does not. 

"If the ‘statutory language is unambiguous and the statutory

scheme is coherent and consistent,’ our inquiry ends." Alexander S.

v. Boyd, 113 F.3d 1373, 1383 (4th Cir. 1997) (quoting Robinson v.

Shell Oil Co., 519 U.S. 337, 342 (1997)). "The plainness or ambiguity

of statutory language is determined by reference to the language

itself, the specific context in which the language is used, and the

"other terms and conditions" of wireless service); 47 U.S.C. § 332(c)(7)

(providing that state authority to regulate the "placement, construction,

and modification of personal wireless service facilities" is preserved

except in specific circumstances). While wireless telephones must meet

the FCC’s specifications and be authorized by the FCC before they can

be sold, see 47 C.F.R. § 2.803, these provisions do not provide a remedy

to someone injured by a defective wireless telephone. "The presumption

against preemption is even stronger against preemption of state remedies,

like tort recoveries, when no federal remedy exists." Abbot v. Am. Cyanamid Co., 844 F.2d 1108, 1112 (4th Cir. 1988) (citation omitted). 

PINNEY v. NOKIA, INC. 29
broader context of the statute as a whole." Robinson, 519 U.S. at 341.

Although "facility" as used in § 332(c)(7)(B)(iv) is not defined, when

the specific and broader contexts of its use are considered, it becomes

plain that a wireless telephone is not a facility. The dictionary defines

"facility" as "something (as a hospital, machinery, plumbing) that is

built, constructed, installed, or established to perform some particular

function or serve or facilitate some particular end." Webster’s Third

New International Dictionary 812 (1993). If the dictionary definition

was used here, a facility would be something "built, constructed,

installed, or established" to provide personal wireless service. This

might arguably include a wireless telephone. We continue our

inquiry, however, and examine the specific statutory context in which

the term "facility" is used. Section 332(c)(7) is entitled, "Preservation

of local zoning authority" and provides, as the general rule, that

"nothing [in the statute] shall limit or affect the authority of a State

or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless

service facilities." 47 U.S.C. § 332(c)(7)(A). The section goes on to

provide limitations to the general rule, and in doing so attempts to

strike a balance between the states’ interests in regulating land use

and the federal government’s interest in facilitating the development

of wireless telephone service. See Omnipoint Communications

Enters., L.P. v. Newtown Township, 219 F.3d 240, 242-43 (3rd Cir.

2000); Town of Amherst v. Omnipoint Communications Enters., Inc.,

173 F.3d 9, 13 (1st Cir. 1999). Because § 332(c)(7) deals with the

authority of the states over zoning and land use, we conclude that

Congress intended the term "facility" to mean a structure or object,

such as a base station or a mobile telephone switching office (MTSO),

that falls within the states’ zoning or land use authority. This interpretation excludes devices, such as wireless telephones, that are completely portable and have no attachment to land. The broader context

in which the term "facility" is used also supports the interpretation

that the term does not include wireless telephones. As we discuss

below, see infra at 33, Congress enacted the entire § 332 to ensure the

availability of a nationwide network of wireless service coverage.

Consistent with this objective, a facility should, at the very least, be

part of the infrastructure (a base station or an MTSO, for example)

that provides wireless service coverage. A wireless telephone, however, only accesses a wireless service provider’s network of coverage;

30 PINNEY v. NOKIA, INC.
a wireless telephone itself is not part of the underlying infrastructure.

Because both the specific context of the use of the term "facilities"

in § 332(c)(7) and the broader context (and purpose) of § 332 reveal

that a wireless telephone is not a facility under § 332(c)(7)(B)(iv),

state tort claims relating to the manufacture and sale of wireless telephones are not expressly preempted by § 332(c)(7)(B)(iv). 

Nokia next argues that § 332(c)(3)(A) expressly preempts the

Naquin plaintiffs’ claims. This section prohibits a state or local government from regulating "the entry of or the rates charged by any

commercial mobile service," but allows it to regulate "other terms and

conditions of commercial mobile services." 47 U.S.C. § 332(c)(3)(A).

Nokia argues that the Naquin plaintiffs seek to use state law to regulate technical specifications for wireless telephones; this, Nokia says,

would hinder entry into the commercial mobile service market

because the FCC requires that wireless service providers certify that

they are using only FCC-authorized equipment. Because Nokia cites

to the licensing provisions dealing with personal communications services (PCS), a specific type of commercial mobile service, we understand Nokia’s argument to assert that state regulation of wireless

telephone specifications constitutes a barrier to entry for PCS providers.5

While § 332(c)(3)(A) is unclear as to what precisely constitutes a

barrier to entry into the PCS market, we conclude that the relief

sought by the Naquin plaintiffs (a headset requirement) is not such a

barrier. To begin with, the PCS market is a market for wireless service. Wireless service providers use base stations and MTSOs to

create a network of coverage, a network that wireless telephone users

5There are basically two competing modes of wireless communications, cellular services and PCS. Malcom J. Tuesly, Note, Not in My

Backyard: The Siting of Wireless Communications Facilities, 51 Fed.

Comm. L.J. 887, 888 (1999). Cellular systems operate in the 834-MHz

to 894-MHz range, and PCS systems operate in the 1850-MHz to 1990-

MHz range. Marshall Brain & Jeff Tyson, How Cell Phones Work, at

http://electronics.howstuffworks.com/cell-phone.htm/printable (last visited Jan. 24, 2005). "As demand for cellular service has outgrown the

available radio spectrum used for cellular signals, the wireless industry

has turned to PCS, which utilizes digital technology that triples the

capacity of traditional cellular systems." Tuesly, supra at 88. 

PINNEY v. NOKIA, INC. 31
generally pay a fee to access. The FCC licenses portions of the radio

spectrum to wireless service providers so they can provide PCS coverage, see 47 C.F.R. § 24.1(a), (b), and one of the main requirements

for the grant of a license is that the licensee must construct enough

base stations to provide coverage to the area for which it receives a

license. 47 C.F.R. §§ 24.103, 24.203. Accordingly, in order for state

law to constitute a barrier to entry, it must, at a minimum, obstruct

or burden a wireless service provider’s ability to provide a network

of wireless service coverage. See, e.g., Bastien v. AT&T Wireless

Svcs., Inc., 205 F.3d 983 (7th Cir. 2000) (concluding that an action

brought under state law to challenge the number of base stations in

a coverage area constitutes a barrier to entry and is prohibited by

§ 332(c)(3)(A)). 

A headset requirement for wireless telephones would not constitute

a barrier to entry into the PCS market because wireless telephones are

only used to access a wireless service provider’s network of coverage;

the telephones themselves do not provide the actual coverage. It is

true that wireless service providers commonly market wireless telephones in conjunction with wireless service packages, and the wireless telephones that they sell must comply with federal RF radiation

standards. See 47 C.F.R. § 24.52. Nevertheless, a wireless service

provider’s choice to bundle service packages and telephones does not

mean that a headset requirement would affect its ability to enter into

the wireless service market or to provide a network of wireless service coverage. Furthermore, notwithstanding Nokia’s assertion, we

find nothing in the regulations that requires a wireless service provider to certify, as a condition for obtaining a license to provide PCS,

that the wireless telephones used within its coverage area comply with

the FCC’s RF radiation standards. This certification is generally

undertaken by the manufacturer of the telephones when it requests

equipment authorization. See 47 C.F.R. §§ 24.51(b); 24.52. Because

the relief sought by the Naquin plaintiffs would not be a barrier for

wireless service providers seeking to enter the PCS market,

§ 332(c)(3)(A) does not expressly preempt the claims of the Naquin

plaintiffs. 

2.

We also hold that the Naquin plaintiffs’ claims are not preempted

under the doctrines of conflict preemption and field preemption. As

32 PINNEY v. NOKIA, INC.
noted above, a state statute can be set aside by conflict preemption

"when compliance with both federal and state regulations is a physical impossibility, or when state law stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of

Congress." Hillsborough, 471 U.S. at 713 (internal quotation marks

and citations omitted). Again, there is a strong presumption against

preemption when the federal government regulates in areas traditionally left to the states, such as health and safety. Medtronic, 518 U.S.

at 485. 

The district court concluded that the Naquin plaintiffs’ claims are

preempted because their cases stand as an obstacle to "Congress’

objectives of achieving national uniformity in wireless telecommunications services and striking a balance between the proliferation of

wireless services and the need to protect the public from any harmful

effects of RF exposure." In re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig., 248 F. Supp. 2d 452, 463 (D. Md. 2003).

Reasoning that the plaintiffs were essentially seeking to impose a

headset requirement or a stricter RF radiation standard, the district

court concluded that allowing the cases to go forward would usurp the

regulatory authority Congress entrusted to expert federal agencies that

had already confronted these issues. Id. The district court relied on

§ 332 of the FCA to find a sweeping congressional objective of ensuring that all equipment used in connection with wireless telecommunications be subject to exclusive national RF radiation standards that

have the effect of precluding state regulation on the subject. Id. at 464

(citing In re Wireless I, 216 F. Supp.2d at 483-87). 

We conclude that the district court erred because the FCA provides

no evidence of such an objective. Congress enacted § 332 to ensure

the availability of a nationwide network of wireless service coverage,

more specifically, to develop the infrastructure necessary to provide

wireless services. Thus, § 332 (1) provides factors that the FCC must

consider in managing the spectrum used for wireless services, 47

U.S.C. § 332(a); (2) classifies wireless service providers that provide

wireless service to the public for profit as "common carriers" (subjecting them to numerous duties under the FCA), 47 U.S.C.

§ 332(c)(1)(A); (3) prevents states from regulating "the entry of or the

rates charged by" wireless service providers, 47 U.S.C.

§ 332(c)(3)(A); and (4) limits in certain respects the ability of states

PINNEY v. NOKIA, INC. 33
and local zoning authorities to regulate the "placement, construction,

and modification" of facilities that provide wireless service, 47 U.S.C.

§ 332(c)(7). 

We do not infer from § 332 the congressional objective of achieving preemptive national RF radiation standards for wireless telephones. First, § 332 does not address the subject of wireless

telephones, let alone the more specific issue of the permissible

amount of RF radiation from wireless telephones. The FCC’s RF radiation standards for wireless telephones were not promulgated pursuant to a mandate contained in § 332 of the FCA, but rather pursuant

to the National Environmental Policy Act’s mandate that all agencies

assess the environmental impact of their actions. For the FCC, the

action was authorizing transmitters that emit RF radiation. In re

Guidelines for Evaluating the Envt’l Effects of Radiofrequency Radiation, 11 FCC Rcd. 15123, 15125 (1996). The complete absence of any

provision addressing wireless telephones counsels against a finding

that § 332 evidences a congressional goal of achieving preemptive

national RF radiation standards for wireless telephones. 

Second, in pursuing its objective of ensuring the availability of a

nationwide network of wireless service coverage, Congress has been

very careful to preempt expressly only certain areas of state law, preserving the remainder for state regulation. For example,

§ 332(c)(3)(A) prohibits states from regulating "the entry of or the

rates charged by" wireless service providers, but explicitly provides

that states may still regulate "the other terms and conditions of commercial mobile service." 47 U.S.C. § 332(c)(3)(A). And § 332(c)(7)

preserves a good measure of the states’ authority over decisions

regarding "placement, construction, and modification of personal

wireless service facilities." 47 U.S.C. § 332(c)(7)(A). Consistent with

this conscious and careful effort to carve out the areas of state laws

that it wants to preempt, Congress has specifically allowed for preemptive national RF radiation standards only for personal wireless

service facilities. Section 332(c)(7)(B)(iv) provides that state and

local zoning authorities may not "regulate the placement, construction, and modification of personal wireless service facilities" on the

basis of RF emissions as long as the facilities comply with the FCC’s

RF radiation standards. This specificity as to the preemptive nature of

federal RF radiation standards for personal wireless service facilities

34 PINNEY v. NOKIA, INC.
weighs against a finding that Congress has an implicit goal of making

preemptive the RF radiation standards for all other types of wireless

telecommunications equipment, including wireless telephones. 

Third, there are two applicable savings clauses. There is the general

savings clause of the FCA, which provides that "[n]othing contained

in this chapter shall in any way abridge or alter the remedies now

existing at common law or by statute, but the provisions of this chapter are in addition to such remedies." 47 U.S.C. § 414. And there is

the savings clause in section 601(c)(1) of the Telecommunications

Act of 1996. This Act added 47 U.S.C. § 332(c)(7), which preempts

some of the states’ authority to regulate the location of base stations

(not wireless telephones); the savings clause, however, provides that

the Act "shall not be construed to modify, impair, or supersede Federal, State, or local law unless expressly so provided . . . ." Telecommunications Act of 1996, Pub. L. No. 104-104, § 601(c)(1), 110 Stat.

56, 143. These savings clauses counsel against any broad construction

of the goals of § 332 and § 332(c)(7) that would create an implicit

conflict with state tort law. 

Having determined that the FCA provides no evidence of a congressional objective to ensure preemptive national RF radiation standards for wireless telephones, we next examine whether the relief

sought by the Naquin plaintiffs would stand as an obstacle to Congress’ actual goal of establishing a nationwide network of wireless

telephone service coverage. We conclude that it would not. It is difficult to understand how a headset requirement (the specific relief

sought) would affect the establishment of a nationwide wireless service network or the availability of wireless service coverage. Wireless

service providers generally provide wireless service coverage through

a network of base stations that are coordinated by MTSOs. A wireless

telephone user purchases a service plan from a wireless service provider, and the provider assigns the user a MIN and a SID, which

allow the user to access this network of base stations and MTSOs.

While wireless telephones access the network, they are not part of the

infrastructure; accordingly, a headset requirement would not stand as

an obstacle to Congress’s goal of achieving nationwide coverage. 

Finally, we reject Nokia’s argument that the Naquin plaintiffs’

claims are preempted on the basis of field preemption. As our previPINNEY v. NOKIA, INC. 35
ous discussion indicates, the FCA does not "so thoroughly occup[y]

[the] legislative field [of wireless telecommunications] as to make

reasonable the inference that Congress left no room for the states to

supplement it." Cipollone, 505 U.S. at 516. There is no evidence that

Congress intended that state law claims, such as those asserted by the

Naquin plaintiffs, be swept aside. 

IV.

For the foregoing reasons, we reverse the district court’s order

denying the consolidated motion to remand made by the plaintiffs in

the Pinney, Farina, Gilliam, and Gimpelson cases. Because federal

subject matter jurisdiction does not exist over these four cases, we

return them to the district court for remand to the state courts in which

they originated. We also reverse the district court’s order dismissing

the Naquin plaintiffs’ case as preempted by the FCA. That case is

remanded to the district court for further proceedings. 

REVERSED AND REMANDED

KISER, Senior District Judge, dissenting: 

I dissent because, like the district court in its well-researched and

well-reasoned opinion, I believe the case cannot be resolved without

proving that the FCC’s RF radiation emission standards are too high

to protect the consuming public. This conclusion stems from a reading of the plaintiffs’ complaint — not from any defense that the

defendants may assert. 

The majority opinion reviews in some detail what elements of the

seven claims must be proved and concludes that none of the claims

are dependent on whether or not the wireless telephones comply with

the FCC standards. Apparently, the majority believes that the plaintiffs can prove their prima facie case of all seven claims without reference to the FCC standards regulating RF radiation emissions in

wireless telephones and without proving that those standards are

insufficient and invalid. I disagree. The plaintiffs are not trying this

case in a vacuum. The FCC has enacted a uniform, nationwide regulatory scheme pertaining to wireless telephones which is the result of

36 PINNEY v. NOKIA, INC.
a thorough and complex rule-making process. The final rules reflect

what the FCC believes will maintain the proper balance between the

interest in promoting wireless communication throughout the country

and the interest in protecting the health and safety of all consumers.

The plaintiffs will not be able to ignore these standards. In proving

their prima facie case for each claim, the plaintiffs will have to prove

the unreasonableness of the RF radiation emitted by FCC-compliant

wireless telephones. The plaintiffs will thus have to establish that the

FCC standards are insufficient. It is well-settled that a suit to invalidate a federal regulation arises under federal law. See Cahnmann v.

Sprint Corp., 133 F.3d 484, 488 (7th Cir. 1998). In this case, the FCC

standards’ validity vel non is a matter of plaintiffs’ proof by the very

words of the complaint which purport to attack the FCC regulations.

This thinly-disguised attack on the validity of the FCC standards

raises a substantial federal question. 

The plaintiffs attack the FCC standards in three ways. First, the

plaintiffs challenge the sufficiency of the FCC standard. The plaintiffs

allege that the defendants’ wireless telephones, which comply with

the FCC standard, do not give adequate protection from RF radiation.

Although the plaintiffs have not indicted the FCC standard by name,

that is the effect of their allegations. 

Second, the plaintiffs challenge the expertise of the FCC. The

plaintiffs allege that defendants were dishonest when they stated to

the public that "cell phones fall within the safety standards of the

[FCC]." ¶ 79. Plaintiffs arrive at the conclusion that the above statement is false because the defendants "omitted the fact that the FCC

had declared it does not consider itself the ‘expert agency’ for evaluating health effects," even though the FCC relied on experts in evaluating health effects, one of which was the FDA. See Cellular Phone

Task Force v. FCC, 205 F.3d 82, 88 (2nd Cir. 2000). This allegation

is incorporated by reference in all of the plaintiffs’ claims but is particularly pertinent to Count VI (Fraud) and Count VII (Fraud by Concealment). These allegations form a part of plaintiffs’ factual basis on

which these two counts are based. These are facts plaintiffs must

prove along with any other alleged misrepresentations to sustain the

allegations in the complaint. Therefore, the plaintiffs call into question the expertise of the FCC and the sufficiency of its standards. 

PINNEY v. NOKIA, INC. 37
Third, the plaintiffs question the procedure by which the FCC

developed the regulations. Specifically, the plaintiffs challenge the

data on which the FCC relied. In the rule-making process, the FCC

relied in part on standards of the American National Standards Institute ("ANSI"). Id. Plaintiffs allege that the defendants "obtain[ed] and

exercise[d] control over the [ANSI] Committee responsible for developing safety standards for RFR emitting devices." ¶ 71. The plaintiffs

are therefore attacking the rule-making process that the FCC used in

developing these standards. Because the plaintiffs are making a direct

attack upon the validity and sufficiency of the FCC regulations, their

claims arise under federal law. 

The majority finds that this case fails to raise a substantial federal

question because it does not rise or fall on the resolution of a question

of federal law. In support of this conclusion, the majority points out

the holding of the Supreme Court that the "mere presence of a federal

issue in a state cause of action does not confer federal question jurisdiction." Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S.

804, 813 (1986). The situation in Merrell Dow, however, is inapposite

to the one in this case. In Merrell Dow, the plaintiffs were supporting

the Federal Food, Drug, and Cosmetic Act and claiming a violation

of that act was negligence. Here, the plaintiffs are seeking to completely undo the FCC standard. Claims with the potential for severely

limiting or eliminating a federal regulatory scheme raise a much more

substantial federal question than those that merely seek to inure to the

benefit of such a scheme. On the other hand, I find this case very similar to our holding in Ormet Corp. v. Ohio Power Co. In Ormet, the

plaintiff’s claim was couched in traditional commercial litigation language, but we held that because the plaintiffs had to make reference

to the Clean Air Act to define one of the terms of the contract there

was a sufficient nexus to the Clean Air Act to support federal question

jurisdiction. Ormet Corp. v. Ohio Power Co., 98 F.3d 799, 807 (4th

Cir. 1996). The same logic applies here. Although the FCC regulation

must be dealt with by the plaintiffs in a negative manner, its inadequacy is a fact that plaintiffs must prove. This provides a sufficient

nexus to support federal question jurisdiction. 

Moreover, the need for uniformity in a federal regulatory scheme

heightens the importance of the federal question. In Ormet, we held

that "[w]here the resolution of a federal issue in a state-law cause of

38 PINNEY v. NOKIA, INC.
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." Id. (citing Martin

v. Hunter’s Lessee, 14 U.S. 304, 347-48 (1816)). Here, plaintiffs are

not merely raising a claim which may undermine a federal regulatory

scheme through inconsistent interpretations; rather they are raising

claims which, if successful, will result in the complete invalidation of

federal regulatory standards. This presents a substantial federal question. 

This Court has repeated the call by Justice Cardozo for "principled,

pragmatic distinctions" in determining federal question jurisdiction.

Columbia Gas Transmission Corp. v. Drain, 191 F.3d 552, 558 (4th

Cir. 1999). In the words of Justice Cardozo, "[w]hat is needed is

something of that common-sense accommodation of judgment to

kaleidoscopic situations which characterizes the law in its treatment

of causation . . . a selective process which picks the substantial causes

out of the web and lays the other ones aside." Id. (quoting Gully v.

First National Bank, 299 U.S. 109, 117-18 (1936)). Although we

have affirmed our commitment to Justice Cardozo’s words, the majority today does not adhere to the principles espoused in these words.

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.

PINNEY v. NOKIA, INC. 39