In connection with defendants’ motion for partial summary judgment, 1/

plaintiffs requested that the court take judicial notice of several documents.

That request is denied as moot in light of our referral of the substantive issues

to the FCC.

03-2597.062-JCD September 20, 2006

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

 )

In re WIRELESS TELEPHONE ) MDL-1521

911 CALLS LITIGATION ) 03 C 2597

)

__________________________________ )

)

VISHAL AGGARWAL and BRIDGET )

BYRNE, on behalf of themselves )

and all others similarly situated, )

)

Plaintiffs, )

)

v. ) 02 C 8808

)

NOKIA CORPORATION and AT & T )

WIRELESS SERVICES, INC., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

For the reasons indicated in our Memorandum Opinion of August

11, 2006, the defendants’ motion for partial summary judgment is

entered and continued generally, and proceedings in this case will

be stayed sua sponte pursuant to the doctrine of primary

jurisdiction while the parties resort to the FCC for resolution of

seven issues raised by defendants in their summary judgment

briefing. 

1
- 2 -

The following seven issues regarding interpretation of the

FCC’s Second Report and Order and Clarification Order, as well as

the Nokia, Motorola, and Ericsson Orders, are referred to the FCC

for its consideration and decision:

(1) Is a wireless handset manufacturer in compliance with

47 C.F.R. § 22.921 if it utilizes a call-processing

method, or some combination of methods, proposed by other

wireless handset manufacturers and approved by the FCC?

(2) Are handsets manufactured on or before the effective

date of the Second Report and Order (or as to any

particular defendant, any extensions granted to that

defendant) subject to the FCC’s 911 call-processing

compliance requirements?

(3) Do the FCC’s 911 call-processing requirements apply

to handsets manufactured for customers outside the United

States?

(4) Does the 17-second time limit in the Second Report

and Order apply only to the initial attempt to connect a

911 call on the preferred carrier’s system, or does it

also apply to any further attempts to connect the call?

(5) Does the Second Report and Order require handsets to

both switch and connect to the non-preferred carrier in

any particular time period (including 17 seconds)?

(6) Is a handset utilizing one of the 911 call-processing

methods approved in the Motorola Order and in the Nokia

Order required to automatically retry a dropped call?

(7) Is a handset that automatically retries a dropped 911

call required to retry on the non-preferred carrier, or

may it retry the dropped 911 call on the preferred

carrier?

The parties are directed to proceed before the FCC without

unnecessary delay and to seek resolution of these issues. The

court directs defendants to take the initiative in obtaining the

desired action of the FCC. Defendants shall file with the FCC a

Petition for Declaratory Relief within ten days of the entry of

this order and provide the court with a copy of the Petition. 
- 3 -

Plaintiffs seek leave to continue pursuing limited discovery

in this court. Their renewed request for leave to pursue discovery

relating to defendants’ own interpretations, analysis, or

understanding of the FCC’s orders is denied (except to the extent

these interpretations are contained in defendants’ communications

to the FCC, see infra). However, the parties are to update their

exchanges of discovery relating to communications between

defendants and the FCC with regard to the relevant FCC orders and

compliance therewith. (This discovery is not limited to material

emanating from the FCC but also encompasses, as previously ordered,

communications by the defendants to the FCC.) 

Further proceedings in this case are stayed pending resolution

of these issues by the FCC. 

A status hearing is set for June 6, 2007, at 11:00 a.m.

DATE: September 20, 2006

ENTER: ___________________________________________

John F. Grady, United States District Judge