1/ The “carrier defendants” are Cellco Partnership d/b/a Verizon Wireless,

AT & T Wireless Services, Inc., and Sprint Spectrum L.P. d/b/a Sprint PCS.

03-2597.051-JCD June 3, 2005

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

Before the court are several motions: (1) defendants’ motion

for “partial” summary judgment; (2) defendants’ motion to dismiss

the amended complaint; (3) the carrier defendants’1 motion to

dismiss the amended complaint; (4) defendant Nokia, Inc.’s motion

to dismiss the amended complaint; and (5) defendant Nokia Corp.’s

motion to dismiss the amended complaint for insufficiency of

service of process. For the reasons stated below, defendants’

motion for partial summary judgment is granted in part and denied

in part; defendants’ motion to dismiss is granted in part and
- 2 -

2/ In re Revision of the Commission’s Rules to Ensure Compatibility with

Enhanced 911 Emergency Calling Systems, 14 F.C.C.R. 10954 (1999) (“Second Report

and Order”). 

denied in part; the carrier defendants’ motion to dismiss is

granted in part and denied in part; defendant Nokia, Inc.’s motion

to dismiss is granted; and defendant Nokia Corp.’s motion to

dismiss the amended complaint is denied.

BACKGROUND

In this multidistrict litigation, plaintiffs contend that the

wireless telephones manufactured and sold by defendants fail to

comply with the Second Report and Order of the Federal

Communications Commission (“FCC”) concerning the revision of the

FCC’s rules to ensure compatibility with Enhanced 911 emergency

calling systems.2 In the Second Report and Order, the FCC approved

three “call completion” methods for processing wireless calls (in

analog mode) to 911. One of those methods is called “Automatic A/B

Roaming-Intelligent Retry,” also known as “A/B-IR.” The FCC

required that a handset using the A/B-IR method meet two conditions

in order to address the problem of delays in connecting to 911: (1)

“provide effective feedback to inform the user when 911 call

processing is underway and has not finished”; and (2) “seek to

complete the call with the non-preferred cellular carrier if the

preferred cellular carrier has not successfully delivered the call

to the landline carrier within 17 seconds after the call is

placed.” (Second Report and Order, ¶¶ 39-41.) The primary
- 3 -

3/ Our statement in the Memorandum Opinion of September 3, 2003 that

“[p]laintiffs contend that defendants’ phones do not comply with . . . the ‘17-

Second Rule’” could be read to imply that plaintiffs did not contend that the

phones failed to provide effective feedback. Plaintiffs’ initial class action

complaint did allege, however briefly, that the phones “failed to provide an

audio notification that the 911 call was in progress.” (Class Action Complaint,

Aggarwal v. Nokia, 02 C 8808, ¶ 13.) The focus of the proceedings in this case

has been the 17-Second Rule and very little, if any, mention has been made of the

feedback requirement. Our referral of issues to the FCC concerned only the 17-

Second Rule, and therefore, the instant motion for partial summary judgment has

nothing to do with the feedback requirement. It is puzzling (but not exactly

surprising), then, that in addition to seeking “partial” summary judgment in

relation to the 17-Second Rule, defendants also contend that summary judgment is

“appropriate on all of Plaintiffs’ claims premised on the allegation that

wireless phones must provide visual and audio feedback that they are operating

in 911 mode.” (Motion for Summary Judgment at 7.) Defendants are incorrect; we

did not refer the feedback requirement issue to the FCC, we did not invite a

summary judgment motion on the issue, and it is not properly before the court as

a subject for summary judgment. In their consolidated amended class action

complaint, plaintiffs have abandoned any claim that the phones fail to provide

effective feedback. Plaintiffs confirm in their response to the summary judgment

motion that they “do not claim Defendants violated the ‘effective feedback’

rule.” (Memorandum in Opposition to Motion for Summary Judgment at 1-2 n. 2.)

It is well settled that an amended complaint supersedes the prior complaint,

rendering the latter a nullity. See Kelley v. Crosfield Catalysts, 135 F.3d

1202, 1204-05 (7th Cir. 1998); Lubin v. Chicago Title & Trust Co., 260 F.2d 411,

413 (7th Cir. 1958). Accordingly, defendants’ motion for summary judgment will

be denied to the extent that it seeks judgment on the feedback requirement issue.

contention of plaintiffs’ initial class action complaint was that

defendants’ phones did not comply with the second requirement--the

“17-Second Rule.”3

Defendants moved for a stay of this action pursuant to the

doctrine of primary jurisdiction, arguing that we should apply the

doctrine because the Second Report and Order is ambiguous as to

what “call completion” means and therefore ambiguous as to exactly

what act must be performed by the handset in 17 seconds.

Defendants argued that “call completion” occurs when a handset

receives a voice channel assignment. Plaintiffs, however,

contended that the Second Report and Order clearly and

unequivocally indicates that a call is “complete” when it is
- 4 -

delivered to the landline phone system. The relevant language of

the Second Report and Order is as follows:

• “In general terms, the handset should seek to

complete the call with the non-preferred cellular

carrier if the preferred cellular carrier has not

successfully delivered the call to the landline

carrier within 17 seconds after the call is

placed.” 

• “The 17-second period is also generally consistent

with the combined time periods for two basic call

processing tasks that must be performed and

completed if a call attempt is to be successful

after the call is sent: in the first task, a

handset waits up to 12 seconds to receive a voice

channel assignment from a base station; in the

second task, the base station waits up to 5 seconds

to receive a voice channel transmission from the

handset.”

• “After a handset receives a voice channel

assignment and begins transmission to a base

station on that channel, Conversation State is

reached. As noted, however, at this stage, the

handset’s voice channel transmission has not

necessarily been received at the base station, and

thus the handset may not necessarily be able to use

the voice channel to communicate with the base

station (and thence to the landline network). In

establishing a time limit for delivering the call

to the landline carrier, we are seeking to ensure

that communication between the handset and base

station on the voice channel goes beyond

Conversation State and reaches the point where the

handset’s voice channel transmission is indeed

received at the base station.”

(Second Report and Order, ¶ 41 & n.52.) 

We disagreed with plaintiffs and found that it is not clear

from the Second Report and Order exactly what act must be performed

by the handset in 17 seconds. The intricacies of cellular call
- 5 -

4/ We also denied plaintiffs’ motion for class certification without

prejudice to refiling once the stay was lifted. 

5/ We set forth relevant portions of the Clarification Order in our

Discussion, infra section A.

technology led us to conclude that resolving the ambiguities of the

Second Report and Order is not within our conventional expertise,

but is within the FCC’s field of expertise. The FCC was, after

all, the author of the very report whose meaning was in dispute.

Mindful of the possibility of inconsistent rulings, we reasoned

that a consistent and uniform rule is necessary and that judicial

economy would be served by having the FCC resolve the issue.

Therefore, we granted defendants’ motion to stay the action

pursuant to the doctrine of primary jurisdiction and referred the

issues of what is meant by “call completion” and “delivery of the

call to the landline carrier” and exactly what action must be

performed by the handset in 17 seconds to the FCC for its

consideration and decision.4

In an order dated July 22, 2004 (the “Clarification Order”),

the FCC issued its answers to our questions.5 Thereafter, we asked

the parties for statements of their positions regarding the impact

of the FCC’s order on the further conduct of this litigation.

According to defendants, the Clarification Order confirmed their

interpretation of the Second Report and Order and warranted

dismissal of plaintiffs’ cases. Plaintiffs filed a motion for

leave to file a consolidated amended complaint, which we granted.
- 6 -

In the amended complaint, plaintiffs now allege that defendants’

phones fail to satisfy at least one of the following requirements

of the Second Report and Order and the Clarification Order: (1) if

a cell phone attempting to place a 911 call does not detect a

signal from the preferred carrier, it must switch to the nonpreferred carrier and attempt to complete the call; (2) if the cell

phone detects a signal from the preferred carrier but is not

assigned a voice channel within 17 seconds, it must switch to the

non-preferred carrier and attempt to complete the call; and (3) if

a wireless 911 call is completed but dropped, the cell phone must

automatically retry the call. (Consolidated Amended Class Action

Complaint, ¶ 40.) 

We held a status hearing on October 5, 2004 to discuss the

impact of the FCC’s ruling. We indicated to the parties that even

though plaintiffs were filing an amended complaint containing new

allegations that were not encompassed by the FCC’s Clarification

Order, we were inclined to enter some type of order recognizing the

FCC’s decision as the law of the case and of all the transferred

cases in this multidistrict litigation. We suggested that

defendants file a motion for partial summary judgment based on the

FCC’s decision, using the phrase “partial summary judgment” as

shorthand for a pretrial order to the effect that the FCC’s
- 7 -

6/ After denying a motion for summary judgment, a district court may,

pursuant to Rule 56(d), issue an order “specifying the facts that appear without

substantial controversy, including the extent to which the amount of damages or

other relief is not in controversy.” Fed. R. Civ. P. 56(d); see also Occidental

Fire & Cas. Co. v. Continental Bank, 918 F.2d 1312, 1320 (7th Cir. 1990) (noting

that under Rule 56(d) the trial court may enter a binding order “listing the

facts that are not in dispute”).

decision regarding the 17-Second Rule would be the law of the

case.6 

Defendants then filed a motion for summary judgment (actually

a motion for “partial” summary judgment), which is now pending

before us as well as four motions to dismiss the amended complaint.

DISCUSSION

A. Defendants’ Motion for Partial Summary Judgment

In response to our referral of the aforementioned issues to

the FCC for its consideration and decision, the FCC issued a

thoroughly reasoned and detailed order, the Clarification Order.

The FCC answered our questions as follows:

1. What is meant by “call completion?”

Within the context of the A/B-IR call processing mode,

“call completion” occurs when the handset receives a

valid voice or traffic channel assignment and tunes to

the assigned channel. If the handset has not received a

voice channel assignment within 17 seconds on the

preferred carrier’s system, the handset must attempt to

set up the call on the non-preferred carrier’s system.

2. What is meant by “delivery of the call to the

landline carrier?”

This refers to the further stage of call processing,

after the call is delivered to the wireless carrier’s

base station, when the call is routed by the wireless

carrier through its switch and onto trunks linking that

switch to facilities of the local wireline carrier. In
- 8 -

the case of 911 calls, the call will typically be routed

by the wireline carrier to a switch called a selective

router, which identifies the PSAP [Public Safety

Answering Point] designated to handle calls from the area

where the call was received and delivers the call to that

PSAP. The references to “delivery of the call to the

landline carrier” in the [Second Report and Order]

expressed the Commission’s expectation that the A/B-IR

mode would improve overall 911 call completion, including

improving the likelihood that 911 calls will be received

by the PSAP. However, the “delivery of the call to the

landline carrier” stage of call processing is not

relevant to the operation of A/B-IR mode or to compliance

with the 17 second condition.

3. What action must be performed by the handset in 17

seconds?

During the 17 second period, a handset using the A/B-IR

method must override any features which prevent scanning

of either the A side or B side carrier control channels,

and scan the control channels of the handset’s preferred

carrier setting, either A or B. If the handset does not

detect a signal from the preferred carrier, the handset

must then retry the call with the non-preferred carrier.

If the handset does detect a signal (i.e., forward

control channel) from the preferred carrier, the handset

must attempt to complete the call with the preferred

carrier by requesting assignment of a voice channel. If

the handset receives a voice or traffic channel

assignment and tunes to the assigned voice channel, the

call is deemed completed. If the initial call set-up

attempts with the preferred carrier fail, because a voice

channel is not assigned within 17 seconds, the handset

must terminate its call set-up attempts with the

preferred carrier and retry to set up the call with the

non-preferred carrier. The handset may meet the 17

second condition in any of several ways, including

limiting the number of initial call attempts or setting

an overall time limit for initial call attempts to the

preferred carrier.

(Clarification Order, ¶¶ 31-33.) 

Defendants argue that the FCC’s ruling, which confirms their

interpretation of the 17-Second Rule, is binding on this court
- 9 -

7/ In their Reply, defendants also maintain that “by adopting the FCC’s

explanation of the 17 Second Condition in the Amended Complaint, Plaintiffs have

conceded that the FCC’s rationale in the Clarification Order is reasonable” and

that this is a “judicial admission” by plaintiffs. (Reply at 4.) The argument

is specious. It is too much of a leap to transform the amended complaint’s

simple description of what the FCC purported to do in the Second Report and Order

and the Clarification Order into a “concession” or “judicial admission” that the

FCC’s rationale was reasonable. 

8/ Plaintiffs are correct that we referred issues to the FCC under the

“second” form of primary jurisdiction described in Arsberry v. Illinois, 244 F.3d

558, 563 (7th Cir. 2001). The Seventh Circuit distinguished the “central and

original form” of primary jurisdiction, “exclusive agency jurisdiction,” from the

second form of primary jurisdiction as follows: 

The doctrine of primary jurisdiction is sometimes defined quite

differently, as a doctrine that allows a court to refer an issue to

an agency that knows more about the issue, even if the agency hasn’t

been given exclusive jurisdiction to resolve it. So, for example,

we read . . . that “the doctrine of primary jurisdiction allows a

federal court to refer a matter extending beyond the ‘conventional

experiences of judges’ or ‘falling within the realm of

administrative discretion’ to an administrative agency with more

specialized experience, expertise, and insight.” . . . In such

cases, either court and agency have concurrent jurisdiction to

decide an issue, or only the court has the power to decide it, and

seeks merely the agency’s advice.

244 F.3d at 563-64 (emphasis added). We are unsure about whether the FCC’s

answers to our questions are subject to our review or if so, what is the

appropriate standard of review. 

In the case of In re Starnet, Inc., 355 F.3d 634, 639 (7th Cir. 2004), the

Seventh Circuit itself referred a matter to the FCC under the primary

jurisdiction doctrine to “resolve the ambiguity created by the word ‘location’”

pursuant to the doctrine of primary jurisdiction, warranting

partial summary judgment.7 Plaintiffs, on the other hand, contend

that we are not bound by the FCC’s ruling, but rather that the

ruling is subject to review for reasonableness. In plaintiffs’

view, the FCC’s answers in the Clarification Order are unreasonable

because they contradict the “clear language” of the Second Report

and Order. (Memorandum in Opposition to Motion for Summary

Judgment at 8.) 

It is not necessary to decide the question of whether we are

bound by the Clarification Order;8 assuming we are not bound, and
- 10 -

in the Telecommunications Act and a Report and Order implementing the statutory

provision. The Court noted: “Only the FCC can disambiguate the word ‘location’;

all we could do would be to make an educated guess. And although the FCC’s

position would be subject to review by the judiciary for reasonableness, the

agency’s views are the logical place for the judiciary to start.” 355 F.3d at

639. Plaintiffs cite Starnet for the proposition that this court should review

the Clarification Order for reasonableness. Defendants point out that Courts of

Appeals have exclusive jurisdiction to enjoin, set aside, suspend, or determine

the validity of all final FCC orders made reviewable by 47 U.S.C. § 402(a). See

28 U.S.C. § 2342(1). 47 U.S.C. § 402(a) provides that “[a]ny proceeding to

enjoin, set aside, annul, or suspend any order of the [FCC] under this chapter

. . . shall be brought as provided by and in the manner prescribed in chapter 158

of Title 28.” We question whether the exclusive jurisdiction provision would

even apply here, though, because the referral to the FCC and these subsequent

proceedings to determine the effect of the FCC’s answers do not appear to qualify

as a “proceeding to enjoin, set aside, annul, or suspend” an FCC order. 47

U.S.C. § 402(a) does not seem to contemplate or apply to the type of FCC “order”

we have in this case that was generated by a referral to the agency pursuant to

the doctrine of primary jurisdiction. In any case, we need not decide the issue,

as explained infra. 

thus required to review the Clarification Order for reasonableness,

the Order passes muster. We reject plaintiffs’ argument that the

Clarification Order is inconsistent with the “unequivocal” Second

Report and Order and represents a “change” in FCC rulemaking. In

fact, in our previous memorandum opinion that referred these

matters to the FCC, we already rejected plaintiffs’ argument that

the Second Report and Order is “clear.” The language of the Second

Report and Order is ambiguous regarding what a handset must do in

17 seconds (and we explained the ambiguity in our memorandum

opinion); that was the whole point of the referral. To determine

what the FCC meant, there was no better resource than the FCC

itself. 

In the Clarification Order, the FCC undertook a diligent,

reasoned, and comprehensive examination of its own language. Its

answers to our questions, quoted supra, make sense to us,
- 11 -

especially in light of the FCC’s sound analysis of its own language

and intent:

[W]e clarify that the 17 second condition requires that

the handset retry an initial 911 call attempt with the

non-preferred carrier if the handset is not assigned a

voice channel by the preferred carrier within 17 seconds.

. . .

[I]n general, under the analog standard . . ., as well as

under the A/B-IR algorithm, when the handset receives a

valid voice or traffic channel assignment and tunes to

the assigned voice channel, call set-up is considered

“completed.” In other words, the call completion has

occurred. In the [Second Report and Order], the

Commission did not change this common understanding of

when the completion of call set-up occurs, but rather

took notice of it as a concern.

. . .

[I]t is reasonable to conclude that the Commission did

not mandate that the handset, after completing the call

set-up, monitor the channel and ensure that the call

indeed transmitted to the landline. Such a requirement

would necessitate technical changes to analog operations

and existing standards as well as changes to wireline or

wireless network control procedures and functions which

the Commission clearly did not intend.

. . .

The Commission concluded . . . that “a time limit should

be placed on the initial attempt to set-up the call with

the preferred carrier,” and that 17 seconds would be “a

reasonable and achievable maximum time period.” . . .

The Commission explained that in general, a call would

take a maximum of 17 seconds to process, (i.e., 12

seconds to receive a voice channel assignment from the

base station and 5 seconds for the base station to

receive a voice channel assignment transmission from the

handset). Because of that, the 17 seconds is also a

sufficient amount of time to adequately determine whether

a call could have been delivered to the landline carrier,

by the preferred carrier . . . . Accordingly, the

Commission found that waiting a maximum of 17 seconds

before triggering the obligation to retry the call with

the non-preferred carrier is a reasonable and achievable

maximum time period.

. . .
- 12 -

The 17 second time limit applies to the initial “call

set-up” attempts between the handset and the preferred

carrier’s base station, not to the further stages of call

processing (i.e., delivery of the call to the landline

from the base station). 

. . .

Although the court found that the Second Report and Order

is ambiguous, it is reasonable to conclude that the

Commission did not mandate that the call must be

delivered to the landline carrier within 17 seconds nor

require that the handset verify that its voice channel

transmission is indeed received at the preferred

carrier’s base station. The Commission did mention

delivery of the call to the landline carrier in two

places in the discussion of the A/B-IR method, but in

context, those represent general statements describing

911 call completion objectives and the expected effect of

the A/B-IR method. At no point, however, do these

statements clearly indicate that the Commission was

conditioning the approval of A/B-IR method on the

successful development and incorporation into the A/B-IR

method of all the technical changes necessary for a

handset to monitor the call until it is successfully

“delivered to the landline carrier.”

. . .

In paragraph 41 [of the Second Report and Order], the

Commission said that “[i]n general terms, the handset

should seek to complete the call with the non-preferred

carrier if the preferred cellular carrier has not

successfully delivered the call to the landline carrier

within 17 seconds after the call is placed.” But using

the phrase “[i]n general terms” as a preamble indicates

that this language is descriptive of what the Commission

expected that the A/B-IR call-processing mode would

achieve in most circumstances, not a technical

prescription of how the 17-second condition must operate.

The use of the word “should” in this sentence, rather

than “must” or “is required to,” further establishes that

this sentence was not intended to set a technical

requirement for how the 17-second condition was to be

met.

Footnote 52 in the [Second Report and Order] also refers

to a time limit for delivering the call to the landline

network, but this language similarly does not indicate

that the Commission was prescribing a specific method by

which the 17 second condition is to be achieved. The

footnote says that “we are seeking to ensure that

communication between the handset and base station on the
- 13 -

voice channel goes beyond Conversation State and reaches

the point where the handset’s voice channel transmission

is indeed received at the base station.” As discussed

before, this language intended to explain the

reasonableness of the 17 seconds as a maximum time

sufficient to achieve a call set-up, in general, not to

set a required technical procedure or method to determine

that the call has been delivered to the landline carrier.

Furthermore, the Commission expected that A/B-IR, as

approved, could be implemented through limited changes in

handset programming and operations. In evaluating A/BIR, the Commission concluded that the method “requires

only relatively modest changes in handset software that

should not be unduly expensive and should not take long

to incorporate into mobile units.” In setting an

implementation schedule, the Commission similarly

understood that it would be relatively easy to begin to

manufacture handsets incorporating such minor programming

changes. . . . [R]equiring handsets to monitor whether a

call has been transmitted and received by the wireline

carrier would require substantial revamping of network

equipment and practices as well as of wireless handsets.

Such changes were neither contemplated nor required by

the Commission in its approval of the A/B-IR method.

Although the language in paragraph 41 of the [Second

Report and Order] might be considered ambiguous, it is

reasonable to conclude that the Commission did not

mandate that the call must be delivered to the landline

carrier within 17 seconds, or the handset must have

capability to verify that its voice channel transmission

is indeed received at the base station. Such a

requirement might have further improved 911 call

completion rate, but the successful implementation of

such a method would necessitate changes to wireless and

wireline networks. We believe that the controlling

language for the 17-second requirement is found in

paragraph 38 [of the Second Report and Order] stating

that the time limit may be met in several ways including

a limit on the number of call attempts, and in paragraph

40 and elsewhere that the Commission sets a time limit

(i.e., 17 seconds) “on the initial attempt to set-up the

call with the preferred carrier.” 

 

(Clarification Order, ¶¶ 9, 15, 17, 19-22, 22 n.64, 23-24

(citations omitted).) After carefully reviewing both the Second
- 14 -

Report and Order and the Clarification Order, we find the FCC’s

answers to the questions we referred to it to be eminently

reasonable. 

Plaintiffs also assert that defendants’ motion for summary

judgment should be denied pursuant to Federal Rule of Civil

Procedure 56(f) because they have not been given the opportunity to

take appropriate discovery. Plaintiffs contend that they are

“entitled to discovery regarding Defendants’ compliance with the 17

Second Requirement” and “wish to examine materials” “to assist in

determining if the FCC’s Answers to the Court’s questions are

reasonable.” (Memorandum in Opposition to Motion for Summary

Judgment at 14.) Plaintiffs are entitled to discovery regarding

compliance with the 17-Second Rule, but only in relation to what

they allege in the amended complaint about the Rule as it has been

clarified in the Clarification Order, and the summary judgment

motion does not go to the allegations of the amended complaint. No

amount of additional discovery, though, would be appropriate or

necessary in relation to our determination of whether the FCC’s

interpretation of its own language is reasonable. The type of

discovery proposed by plaintiffs--documents tending to show

defendants’ or the FCC’s prior “understanding” of the 17-Second

Rule--is not material to the issue of the reasonableness of the

Clarification Order and would not assist the court. 
- 15 -

9/ Counts I, IV, V, IX, and X are asserted by all plaintiffs, individually

and on behalf of the classes, against all defendants. Counts II, VI, and VII are

asserted by all plaintiffs, individually and on behalf of the classes, against

the carrier defendants. Count III is asserted by plaintiffs Advanced Systems

We will adopt the FCC’s Clarification Order as the law of the

case. Defendants’ motion for partial summary judgment thus will be

granted to the extent that it relates to the FCC’s clarification of

the 17-Second Rule, but it will be denied to the extent that it

seeks judgment on the abandoned allegations regarding the feedback

requirement, see supra n.2. 

B. Defendants’ Motion to Dismiss

We move on to defendants’ motion to dismiss the complaint that

is presently pending, the Consolidated Amended Class Action

Complaint. The amended complaint contains eleven counts:

violation of the Communications Act of 1934 (the “Communications

Act”), seeking injunctive relief under 47 U.S.C. § 401(b) (Count

I); violation of the Communications Act, seeking damages under 47

U.S.C. §§ 206 and 207 (Count II); violation of California’s unfair

competition law (Counts III and XI); breach of the implied warranty

of merchantability (Count IV); breach of the implied warranty of

fitness for a particular purpose (Count V); breach of contract

(Count VI); breach of the implied covenant of good faith and fair

dealing (Count VII); violation of state consumer fraud statutes

nationwide (Count VIII); seeking restitution for unjust enrichment

(Count IX); and seeking “injunctive and equitable relief” (Count

X).9 
- 16 -

Integration, Inc. (“ASI”), Hubbard, Viengvilay, Lee, Nguyen, McAneny, and

Freeland, individually and on behalf of the subclasses (except the Kyocera

subclass) and the general public of the state of California and affected members

thereof, against all defendants except Kyocera Corporation (“Kyocera”). Count

VIII is asserted by all plaintiffs (except for ASI), individually and on behalf

of the classes, against all defendants. Count XI is asserted by plaintiff

Clarke, individually and on behalf of the Kyocera class and the general public

of the state of California and affected members thereof, against Kyocera. 

1. Injury

Defendants’ first contention is that all of plaintiffs’ claims

must be dismissed because plaintiffs have failed to allege a

legally cognizable injury. Defendants assert that “no plaintiff

here alleges that he or she ever even attempted to make a 911 call

with a phone manufactured or sold by defendants, let alone suffered

an injury as a result of a 911 call that was not processed in the

manner required by FCC regulations.” (Memorandum in Support of

Motion to Dismiss at 8.) In defendants’ view, “the Amended

Complaint amounts to a request for protection from, and

compensation for, possible future harm--the possibility that, one

day, a wireless telephone user might attempt to connect to a 911

operator and be unable to complete a call within a particular time

frame.” (Id. at 3.) Because none of the plaintiffs have alleged

that they tried to make a 911 call and failed to get through, the

argument goes, plaintiffs have failed to allege that defendants’

phones “exhibit” or “manifest” any defect. 

Plaintiffs argue that they have suffered injury under both

federal and state law because they “purchased phones that do not

function the way they are supposed to function, and an FCC-
- 17 -

compliant phone is worth more than an FCC-noncompliant phone. . .

. In this case the defect has ‘manifested’ in each and every phone

which does not contain the mandated software. The fact that this

defect has not resulted in a plaintiff’s failure to reach 911 does

not mean there is no damage.” (Memorandum in Opposition to Motion

to Dismiss at 10-11.)

We agree with plaintiffs. It is plain that they have

adequately alleged that they have been injured by purchasing cell

phones that do not operate in accord with FCC requirements for

processing 911 calls and are therefore worth less than compliant

phones. We certainly could not hold as a matter of law that a

noncompliant phone has as much value as a compliant one.

Plaintiffs are entitled to the opportunity of proving this

allegation of diminished value. The cases cited by defendants are

distinguishable because they involved products that are not

analogous to cell phones, such as automobiles, and/or products that

were alleged to be “prone” to defects but had not yet manifested a

defect. Here, plaintiffs have alleged that the phones at issue do

not process 911 calls in the required ways and thus are defective.

Any diminished value of such phones would not be “speculative,” as

defendants claim. We reject defendants’ contentions that

plaintiffs must actually have tried to dial 911 on their cell

phones and failed to get through in order to state a cognizable

injury.
- 18 -

2. Enforceable FCC Order

Defendants also argue that plaintiffs’ Communications Act

claims fail because the Second Report and Order “is prospective and

more akin to a general rulemaking than to a rule that requires

specific action by specific parties.” (Reply at 11.) Moreover,

defendants contend, plaintiffs do not have standing to assert a

Communications Act claim because they were not “parties” to the

proceedings that resulted in the Second Report and Order. Section

401(b) of the Communications provides:

If any person fails or neglects to obey any order of the

Commission other than for the payment of money, while the

same is in effect, the Commission or any party injured

thereby, . . . may apply to the appropriate district

court of the United States for the enforcement of such

order. If, after hearing, that court determines that the

order was regularly made and duly served, and that the

person is in disobedience of the same, the court shall

enforce obedience to such order by a writ of injunction

or other proper process, mandatory or otherwise, to

restrain such person or the officers, agents, or

representatives of such person, from further disobedience

of such order, or to enjoin upon it or them obedience to

the same.

47 U.S.C. § 401(b).

Defendants’ first argument, that the Second Report and Order

simply sets out rules of “general applicability” and does not

“contain any specific directive, explicit, or implicit, to any of

the defendants in this case,” (Memorandum in Support of Motion to

Dismiss at 10-11), thereby rendering it unenforceable, is simply

incorrect and in fact borders on the absurd. The Second Report and
- 19 -

10/ For a more detailed discussion regarding the carrier defendants, see

infra section C.

11/ In Illinois Bell Telephone Co. v. Illinois Commerce Commission, 740

F.2d 566 (7th Cir. 1984), the Seventh Circuit did not discuss the rulemaking/

adjudicatory distinction specifically, but it affirmed the entry of an injunction

under § 401(b) to enforce an order that was the product of rulemaking. Other

Courts of Appeals, such as the Sixth and Ninth Circuits, have expressly held that

a decision resulting from a rulemaking proceeding constitutes an “order” within

the meaning of § 401(b). See Alltel Tennessee, Inc. v. Tennessee Pub. Serv.

Comm’n, 913 F.2d 305, 308 (6th Cir. 1990); Hawaiian Tel. Co. v. Public Utils.

Comm’n, 827 F.2d 1264, 1271 (9th Cir. 1987). 

Order (read in conjunction with the Clarification Order) requires

that cell phones operating in analog mode process 911 calls in

specific ways. Whom does the Second Report and Order contemplate

is responsible for ensuring that the phones do so? Manufacturers

and, to some extent, carriers--those involved in the production and

design of the phones and their software.10 That the Second Report

and Order does not expressly refer to those entities by name does

not demonstrate that the Second Report and Order was not a

directive to certain parties to take specific actions, nor does it

render the Second Report and Order “poorly suited for enforcement,”

as defendants assert. 

Defendants’ second argument, that the plaintiffs do not

qualify under § 401(b) as “part[ies] injured thereby” because

plaintiffs were not parties to the FCC proceedings that produced

Second Report and Order, is really just a version of the first

argument. The thrust of both of defendants’ contentions is a

position that they claim to disavow (because it is the minority

view and contrary to Seventh Circuit precedent)11--that orders
- 20 -

produced by FCC “rulemaking” proceedings, as opposed to

“adjudicatory” proceedings, cannot be enforced pursuant to §

401(b). Defendants rely on New England Telephone & Telegraph Co.

v. Public Utilities Commission, 742 F.2d 1 (1st Cir. 1984), in

which the court held that the word “order” in § 401(b) does not

include FCC rulemaking decisions, for the proposition that

plaintiffs must have been parties to the FCC proceedings in order

to bring suit to enforce the Second Report and Order. At the same

time, though, defendants concede that “[t]his is not to say that

FCC rulemakings are never enforceable under Section 401(b). Most

enforceable rulemakings are cases involving rate-making or similar

activities, where the FCC has historically availed itself of

rulemaking processes.” (Memorandum in Support of Motion to Dismiss

at 9-10.) The Second Report and Order is different from those

“enforceable rulemakings,” say defendants, because it does not

require specific action of specific parties. We have rejected that

contention. 

3. Fraud

Defendants contend that plaintiffs’ state-law consumer fraud

claims in Counts III, VIII, and XI must be dismissed because they

are not pled with the particularity required by Federal Rule of

Civil Procedure 9(b). Rule 9(b) provides that “[i]n all averments

of fraud . . . , the circumstances constituting fraud . . . shall

be stated with particularity.” Plaintiffs respond that their
- 21 -

claims are “not necessarily subject to the strictures of Rule 9(b)”

because “plaintiffs must plead with particularity only those claims

which are grounded in fraud.” (Memorandum in Opposition to Motion

to Dismiss at 14-15.) Because the consumer fraud statutes

encompass a broad range of conduct, plaintiffs assert, fraud is not

a necessary element of recovery, and the claims need not be pled

with particularity. 

Counts III and XI of the amended complaint allege that

defendants engaged in “fraudulent business practices,” and Count

VIII alleges that defendants engaged in a “deceptive” practice.

Therefore, those claims are at least in part grounded in fraud, and

plaintiffs must plead them with particularity--the who, what, when,

where, and how of the alleged fraud, see Katz v. Household

International, Inc., 91 F.3d 1036, 1040 (7th Cir. 1996). Given

that “[a]ccusations of fraud can do serious damage to the goodwill

of a business firm,” the Seventh Circuit has commented that the

“true rationale” of Rule 9(b) is to discourage litigants “from

tossing such accusations into complaints in order to induce

advantageous settlements or for other ulterior purposes.” Bankers

Trust Co. v. Old Republic Ins. Co., 959 F.2d 677, 683 (7th Cir.

1992). This rationale applies equally to both common-law and

statutory fraud claims. See Petri v. Gatlin, 997 F. Supp. 956, 973

(N.D. Ill. 1997) (Grady, J.). 
- 22 -

12/ Attached to plaintiffs’ memorandum in opposition to the motion to

dismiss is a survey of the law of fifty states and the District of Columbia

regarding the privity requirement. 

Accordingly, Counts III, VIII, and XI of the amended complaint

will be dismissed without prejudice because they do not comply with

Rule 9(b). Plaintiffs will be given leave to amend the complaint

to allege fraud with specificity.

 4. Implied Warranty of Merchantability/

Fitness for a Particular Purpose

Defendants maintain that plaintiffs’ claims for breach of the

implied warranty of merchantability and breach of the implied

warranty of fitness for a particular purpose should be dismissed

for lack of privity. According to defendants, the “general rule”

is that privity of contract is required in an action for breach of

implied warranty. Defendants cite case law and statutes from

several states supporting this proposition. Plaintiffs concede

that ten states require privity of contract between consumer and

manufacturer, but they argue that the majority of states either

have abolished the privity requirement or recognize exceptions to

the requirement that would apply here.12

It is clear to us that the laws of the states on the privity

requirement differ and that because of the exceptions to the

requirement in some states, it would be impossible for us to state

a general rule that would be useful. We see no need, then, for us,

the transferee court in this MDL, to address the issue on a stateby-state basis. It is a case-specific question that should await
- 23 -

the attention of the transferor courts on remand. We will,

however, address the issue as it arises in our own case that is

part of the MDL, Aggarwal v. Nokia, 02 C 8808. 

The Aggarwal case involves the application of Illinois law.

Defendants cite Seventh Circuit case law stating that privity is a

prerequisite to recover economic damages for breach of implied

warranty, Voelker v. Porsche Cars N. Am., Inc., 353 F.3d 516, 525

(7th Cir. 2003). Plaintiffs argue that the Illinois Supreme Court,

in Rothe v. Maloney Cadillac, Inc., 518 N.E.2d 1028 (Ill. 1988)

(relying on Szajna v. General Motors Corp., 503 N.E.2d 760 (Ill.

1986)), has interpreted federal law--the Magnuson-Moss Act--to

allow suits for implied warranties by plaintiffs who, as here, have

been issued express warranties by the manufacturer. 

The weight of authority in this district has rejected the

Illinois courts’ interpretation of federal law. We adopt the

analysis of our colleague, Judge Bucklo, who recently confronted

this issue: 

[W]hile I must follow the Illinois Supreme Court’s

interpretation of Illinois law, Highsmith v. Chrysler

Credit Corp., 18 F.3d 434, 442 (7th Cir. 1994), I need

not be bound by its interpretation of federal law. RAR,

Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th

Cir. 1997). The Seventh Circuit in Voelker held that

privity was required. 353 F.3d at 525. While plaintiffs

argue that Voelker did not explicitly address the issue

raised by Szajna, I must follow Seventh Circuit

pronouncements. In addition, several district courts

have rejected the Szajna Court’s interpretation of

Magnuson-Moss. E.g., Kutzler v. Thor Indus., Inc., No.

03-C2389, 2003 WL 21654260, at *6 (N.D. Ill. July 14,

2003) (Schenkier, J.); Soldinger v. Aston Martin LaGonda
- 24 -

13/ “To prove a breach of an implied warranty of fitness for particular

purpose, a plaintiff must show (1) a sale of goods, (2) that the seller had

reason to know of any particular purpose for which the goods are required, (3)

that plaintiff, as buyer of the goods, was relying upon seller’s skills or

judgment to select suitable goods, and (4) that the goods were not fit for the

particular purpose for which they were used.” Maldonado v. Creative Woodworking

Concepts, Inc., 796 N.E.2d 662, 666 (Ill. App. Ct. 2003).

of N.A., Inc., No. 97-C7792, 1999 WL 756174, at *6-10

(N.D. Ill. Sept. 13, 1999) (Pallmeyer, J.). I agree with

their conclusion.

Finch v. Ford Motor Co., 327 F. Supp. 2d 942, 945-46 (N.D. Ill.

2004) (holding that plaintiffs lacked the necessary privity of

contract with the manufacturer for a breach of implied warranty

claim); see also Soldinger, 1999 WL 756174 at *6-10 (explaining why

the privity requirement is not eliminated under the Magnuson-Moss

Act if it is required for a breach of implied warranty claim under

Illinois law). The breach of implied warranty claims in the

Aggarwal case, therefore, will be dismissed with prejudice for lack

of privity. 

In addition to the privity issue, defendants present related

arguments for dismissal of the implied warranty claims, none of

which is persuasive. Defendants first imply that plaintiffs fail to

allege that defendants’ phones are not fit for the ordinary

purposes for which they are used because making 911 calls is not an

“ordinary purpose.”13 As plaintiffs point out, it is a stretch to

argue that making 911 calls is not an ordinary purpose for which

cell phones are used. The amended complaint alleges that

defendants’ phones do not comply with FCC regulations and are
- 25 -

therefore not fit for making 911 calls. (Consolidated Amended

Class Action Complaint, ¶ 70.) That is sufficient. We also reject

defendants’ contention that plaintiffs’ claims fail because there

is no express allegation that the cell phones in question do not

make 911 calls; a reasonable inference from the allegation that the

phones do not comply with FCC regulations is that the phones do not

properly make 911 calls. We also reject defendants’ argument that

plaintiffs have not adequately alleged that they relied on the

defendants’ knowledge for purposes of the warranty of fitness for

a particular purpose. That the plaintiffs relied upon defendants’

skills or judgment to provide suitable phones is a reasonable

inference from the language of the complaint, which alleges that

defendants were obligated to use their skill and knowledge and that

plaintiffs were entitled to rely on it. (Consolidated Amended

Class Action Complaint, ¶ 68.) 

Defendants’ motion to dismiss the implied warranty claims will

be denied without prejudice to renewal of the motions in the

transferor districts after remand, except as to the implied

warranty claims in the Aggarwal case, which will be dismissed with

prejudice. 

C. Carrier Defendants’ Motion to Dismiss

In addition to the arguments set forth in defendants’ general

motion to dismiss, the “carrier defendants,” Cellco Partnership

d/b/a Verizon Wireless, AT & T Wireless Services, Inc., and Sprint
- 26 -

Spectrum L.P. d/b/a Sprint PCS, argue that the FCC has “made it

clear” that the Second Report and Order applies only to the

manufacturer defendants and not to them. The carriers seize upon

the text of the regulation that was amended by the Second Report

and Order:

Mobile telephones manufactured after February 13, 2000

that are capable of operating in [ ] analog mode . . .

must incorporate a special procedure for processing 911

calls. Such procedure must recognize when a 911 call is

made and, at such time, must override any programming in

the mobile unit that determines the handling of a non-911

call and permit the call to be transmitted through the

analog systems of other carriers. This special procedure

must incorporate one or more of the 911 call system

selection processes endorsed or approved by the FCC.

47 C.F.R. § 22.921 (emphasis added). In the carriers’ view, this

language unambigously imposes duties only “at the handset

manufacturing stage and not on the sale of the handsets or the

provision of wireless cellular services.” (Memorandum in Support

of Carrier Defendants’ Motion to Dismiss at 3-4.) The carriers

contend that there is no provision in the Second Report and Order

assigning them responsibility for “implementation or roll out of

the new 911 call-processing technologies,” and they quote from

passages in the Second Report and Order and related orders that

refer to imposing 911 call-processing requirements on “handset

manufacturers” and allowing reasonable time for “handset

manufacturers” to comply with the requirements. (Id. at 4-7.)

Another indication that the Second Report and Order applies only to

manufacturers, say the carriers, is the fact that the FCC has
- 27 -

issued orders subsequent to the Second Report and Order granting

manufacturers’ requests for alternative call-processing

technologies, but no such orders with respect to carriers. 

We find the carriers’ arguments unpersuasive. The language of

the pertinent FCC regulation, 47 C.F.R. § 22.921, refers to phones

“manufactured after” a certain date; this is simply a limitation on

the phones to which the regulation applies. It does not give us

much insight on whether the Second Report and Order imposes any

duties on carriers, and it certainly does not “clearly” indicate

that the FCC intended the Second Report and Order to apply to

manufacturers only. 

Similarly, we believe that the FCC’s subsequent orders

pertaining to manufacturers’ alternative call-processing requests

are of little relevance. That no carriers have filed requests for

approval does not tend to show that FCC intended the Second Report

and Order not to apply to carriers at all. And in fact, the

carriers’ argument is undercut by the FCC’s invitation to both

manufacturers and carriers to submit such requests: “Manufacturers

or carriers wishing to incorporate new or modified 911 call

processing modes may submit such requests to the Wireless

Telecommunications Bureau, and we delegate authority to the Bureau

to act on such requests.” (Second Report and Order, ¶ 88.) 

The best way to tackle this issue is to look at the Second

Report and Order itself and the realities of 911 call processing it
- 28 -

14/ Page 36 of the Second Report and Order states: “As required by Section

603 of the Regulatory Flexibility Act, the Commission has prepared a Final

Regulatory Flexibility Analysis of the expected impact on small entities of the

changes in our rules adopted herein. The Final Regulatory Flexibility Analysis

is set forth in Appendix C.” 

contemplates. The excerpts quoted by the carriers do not indicate

that only manufacturers are bound by the order. Moreover, several

portions of the Second Report and Order refute the carriers’

argument that they are not subject to the order. Appendix C to the

Second Report and Order, the “Final Regulatory Flexibility

Analysis,” states under the heading “Description and Estimate of

Small Entities Subject to the Rules”14 (emphasis added):

Cellular Equipment Manufacturers. The actions taken in

the [Second Report and Order] will chiefly apply to

manufacturers of cellular equipment offering analog

services or digital equipment also offering analog

services. 

. . .

Cellular Carriers. Cellular carriers are also impacted

by the Commission’s decision in this proceeding.

The section does not include any other categories of entities

“[s]ubject to the Rules.” Thus, it appears that although the FCC

contemplated that manufacturers would be primarily responsible for

implementing the call-processing modes, carriers would also have

implementation duties. Other language of the Second Report and

Order that refers to carriers supports this conclusion:

• [W]e . . . anticipate that other methods [of

complying with these rules] could be developed in

the future. Thus, no manufacturer or carrier is

required to employ any specific patented

technology.
- 29 -

• A nine month deadline should allow manufacturers to

make the programming changes in handsets, test the

updated handsets, and revise the handset manuals. .

. . We also believe the nine month period will

allow carriers and PSAPs sufficient time to plan

for changes in 911 calling patterns and make any

other needed adjustments. 

• We encourage carriers and manufacturers to act

voluntarily, based upon the objectives we have

stated in this Order, to extend 911 performance

improvements. 

(Second Report and Order, ¶¶ 66, 87, 90 (emphasis added).)

The Second Report and Order also describes the realities of

the complex wireless phone industry, in which manufacturers and

carriers work in conjunction to provide phones that comply with FCC

regulations:

One reason access to emergency 911 systems is not always

available for wireless handsets is that there are gaps in

the signal coverage provided by wireless carriers.

. . .

Two cellular carriers usually provide service in each

market, referred to as the A carrier and the B carrier.

Each A carrier uses one set of assigned frequencies and

each B carrier another, but both use compatible

technology and air interface standards for analog

service. Cellular handsets are manufactured to be used

for both A and B carrier systems, and software programs

in these handsets permit them to operate in several

modes. 

. . .

[C]arriers are major distributors of handsets . . . .

[D]irect sales from carriers account for about 24 percent

of cellular sales . . . .

(Second Report and Order, ¶¶ 14, 20, 83.) As plaintiffs point out,

the language of the Second Report and Order shows that carriers

play a role in bringing cell phones to market (the extent of that

role, however, is a factual question). Given the text of the
- 30 -

Second Report and Order, especially the provisions quoted supra, we

must reject the carriers’ contention that the Second Report and

Order does not apply to carriers.

Regarding plaintiffs’ state-law claims, the carriers assert

what appears to be a preemption argument: “[P]laintiffs’ attempt to

invoke state law would contravene the FCC’s manufacturer-focused

911 call-processing regime.” (Memorandum in Support of Carrier

Defendants’ Motion to Dismiss at 9.) The problem is that the

carriers cite no case law supporting their argument, and they fail

to explain why the following “saving clause” provision of the

Communications Act does not apply: “Nothing in this chapter

contained shall in any way abridge or alter the remedies now

existing at common law or by statute, but the provisions of this

chapter are in addition to such remedies.” 47 U.S.C. § 414. The

preemption argument is therefore rejected. 

The carriers also contend that three of the state-law claims

--breach of contract, breach of the implied covenant of good faith

and fair dealing, and unjust enrichment--must be dismissed as

improperly pled. The carriers cite case law from several states.

As with defendants’ general motion to dismiss, these are casespecific questions that will best be handled by the transferor

courts on remand. We will deny the motion on these issues, without

prejudice to renewal. We will address these claims only as to our

own case, Aggarwal, which involves Illinois law. 
- 31 -

As for breach of contract, the carriers cite only California

and Texas law for their contention that to assert a claim of breach

of contract, a plaintiff must allege a breach of some obligation

arising out of the contract. Plaintiffs respond that their claim

is proper because their contracts with the carriers incorporate, by

implication, the FCC’s cellular phone regulations. Plaintiffs cite

Illinois law for the proposition that law existing at the time and

place of the making of a contract “necessarily enters into and

forms part of every contract as if specifically incorporated

therein.” Schiro v. W.E. Gould & Co., 165 N.E.2d 286, 290 (Ill.

1960). The carriers attempt to avoid this rule by arguing that the

FCC’s regulations should not be incorporated into the contracts

because they do not apply to carriers, but we have already

considered and rejected that argument. 

The carriers also maintain that Illinois does not recognize an

independent cause of action for breach of the implied covenant of

good faith and fair dealing. It is true that Illinois does not

recognize such an independent cause of action in tort, but a

contractually-based claim for breach of the implied covenant does

exist. See, e.g., Puthusserill v. Shell Oil Co., No. 02 C 2289,

2003 WL 22494790, at *2-3 (N.D. Ill. Nov. 4, 2003). The claim,

however, boils down to breach of contract: “[T]he obligation to

deal in good faith is implied by Illinois law into every contract

and breach of that duty is simply a breach of the underlying
- 32 -

contract.” Batteast Constr. Co. v. Public Bldg. Comm’n, 195 F.

Supp. 2d 1045, 1051 (N.D. Ill. 2001). Plaintiffs have already

asserted a separate breach of contract claim in Count VI. Their

claim for breach of the implied covenant of good faith and fair

dealing, then, is superfluous, see id., and will be dismissed from

the Aggarwal case. 

The carriers’ final argument regarding the state-law claims is

that an unjust enrichment claim does not lie where there is a

contract between the parties. Plaintiffs contend that they may

plead unjust enrichment in the alternative. In the amended

complaint, however, unjust enrichment is not pled in the

alternative, nor is it pled in the alternative in the Aggarwal

case. Plaintiffs’ unjust enrichment claim will be dismissed

without prejudice, and plaintiffs will be given leave to replead

unjust enrichment in the alternative. 

We decline to address the carriers’ argument that plaintiffs’

failure to identify a specific violation of the Communications Act

dooms their §§ 206 and 207 claims, because it is raised for the

first time in their reply brief and is therefore waived. See APS

Sports Collectibles, Inc. v. Sports Time, Inc., 299 F.3d 624, 631

(7th Cir. 2002); Petri, 997 F. Supp. at 981 n.18. 

Accordingly, the carrier defendants’ motion to dismiss will be

granted in part, to the extent that plaintiffs’ unjust enrichment

claim will be dismissed without prejudice and that the claim in
- 33 -

Aggarwal for breach of the implied covenant of good faith and fair

dealing will be dismissed with prejudice. The remainder of the

motion is denied. 

D. Nokia, Inc.’s Motion to Dismiss

There are two Nokia entities involved in this litigation:

Nokia, Inc., a U.S. corporation (“Nokia, Inc.”), and Nokia

Corporation, a Finnish corporation (“Nokia Corp.”). Nokia, Inc.

moves to dismiss the amended complaint on the basis that it is not

subject to the Second Report and Order. (The motion of Nokia

Corp., which is discussed infra section E, is premised on

insufficiency of service of process.)

In the Second Report and Order, as quoted supra section C, the

FCC invited manufacturers and carriers wishing to incorporate new

or modified 911 call-processing modes to submit such requests to

the Wireless Telecommunications Bureau (the “Bureau”), and the FCC

delegated authority to the Bureau to act on such requests. Nokia,

Inc. filed such a request, which was approved by the Bureau in a

January 28, 2000 order that we will call the “Nokia Order.” Nokia,

Inc. contends that all claims against it must be dismissed because

its handsets are governed solely by the Nokia Order and the amended

complaint alleges that defendants violated only the Second Report

and Order with no mention of the Nokia Order. 

Plaintiffs, on the other hand, contend that the Second Report

and Order does apply to Nokia even though the alternative call-
- 34 -

processing mode was approved in the Nokia Order. Plaintiffs argue

that “[w]hile Nokia is correct in stating that its 911 calling

obligations are governed by the Nokia Order, Nokia’s corollary

contention--that it is not subject to any of the requirements set

forth in the Second Report and Order--is erroneous.” (Memorandum

in Opposition to Nokia, Inc.’s Motion to Dismiss at 2.) In

plaintiffs’ view, the Nokia Order incorporated the three tasks

required of cellular phones by the Second and Report and Order, as

set forth in the amended complaint. Paragraphs 40 and 41 of the

amended complaint allege:

40. Under the Second Report and Order and the

[Clarification Order], when an emergency call is placed:

a) If a cell phone attempting to place a 911 call

does not detect a signal from the preferred carrier, it

must switch to the non-preferred carrier and attempt to

complete the call; 

b) If the cell phone detects a signal from the

preferred carrier but is not assigned a voice channel

within 17 seconds, it must switch to the non-preferred

carrier and attempt to complete the call; and

c) If a wireless 911 call is completed but dropped,

the cell phone must automatically retry the call.

41. Many of the cell phone models manufactured after

February 13, 2000 and marketed to the U.S. public by

defendants have failed, and continue to fail, to satisfy

at least one of the requirements set forth above. At all

times relevant hereto, defendants have concealed from

purchasers of the cell phone models in question, and have

not disclosed to them or any of them, that the said cell

phone models were non-compliant. 

(Consolidated Amended Class Action Complaint, ¶¶ 40-41.) 
- 35 -

To determine whether Nokia, Inc. is subject to the Second

Report and Order, we turn to the relevant language of the Nokia

Order:

In its Second Report and Order in the Wireless E911

Rulemaking, . . . the Commission adopted Section 22.921

of its rules, 47 C.F.R. § 22.921. To help improve 911

call completion, this rule requires new analog wireless

handsets, and multimode handsets when operating in analog

mode, to be able to complete 911 calls to either analog

carrier in an area, regardless of the programming of the

handset for non-911 calls. . . . Further, the Commission

approved three proposed 911 call processing modes, while

stating general principles for other acceptable modes and

encouraging the development of further improvements in

911 call completion . . . .

. . .

On October 27, 1999, Nokia, Inc. filed a letter with the

Bureau requesting approval for an alternate 911 call

completion method for Nokia’s multi-mode products . . .

. Nokia describes its method as based on the Automatic

A/B Roaming-Intelligent Retry (A/B-IR) method approved in

the Second Report and Order, but going further to attempt

call completion on all systems on which a handset is

capable of operating, including both analog and digital

modes. 

. . .

In a Public Notice in this docket, the Bureau sought

comment on this proposal, in particular on whether the

proposed method is consistent with the Commission’s rules

and the principles set out by the Commission for 911 call

processing modes. 

. . .

Based on our review of the Nokia request and the record,

we approve Nokia’s proposed 911 call completion method,

subject to the same two conditions that the Commission

imposed in the Second Report and Order to address lock-in

concerns associated with the A/B-IR call completion

method. First, the handset must provide effective

feedback . . . .

Second, the Commission required that handsets employing

A/B-IR seek to complete the call with the non-preferred

cellular carrier if the preferred cellular carrier has

not successfully delivered the call to the landline

carrier within 17 seconds after the call is placed. . .

. Nokia’s original proposal did not specifically provide
- 36 -

15/ Nokia, Inc. requests that we take judicial notice of several documents-

-those relating to past FCC proceedings, the docket and file in some of the

pending MDL cases, and a patent issued for a particular calling technology.

Plaintiffs request that we take judicial notice of the Request for Approval that

led to the Nokia Order. We recognize that we can take judicial notice of matters

of public record, but we do not find these documents relevant to the question of

whether the Second Report and Order applies to Nokia, Inc. The question is not

very complex and is answered by a simple review of the Nokia Order. In fact,

Nokia, Inc., has inundated the court with numerous exhibits in relation to this

motion that are of marginal relevance. 

that the call be delivered to the landline carrier within

17 seconds. . . . Subsequently, Nokia clarified that its

multi-mode handsets will comply with the time limits for

access attempts approved by the Commission for the A/B-IR

method, specifically the 17-second limit . . . .

Applying the same 17-second limit to Nokia’s proposal as

that applied by the Commission to the substantially

similar A/B-IR method should similarly address lock-in

concerns.

. . .

[W]ith Nokia’s proposed method, if attempts to complete

the 911 call via the [Preferred Roaming List] fail, the

handset would then attempt to complete the call with nonpreferred carriers, including the local non-preferred

analog carrier.

. . .

Subject to the two conditions, we find that Nokia’s

proposed method will satisfy both the Commission’s

general principles for 911 call processing modes and the

specific conditions the Commission imposed upon the

Automatic A/B Roaming-IR mode on which the Nokia proposal

is based.

. . .

Accordingly, we approve the proposed Nokia 911 call

completion method for multimode handsets, subject to the

conditions imposed by the Commission for feedback and

time limits for the Automatic A/B Roaming-IR mode.

 

(Nokia Order, ¶¶ 1-5, 10-12 (emphasis added).)15 

Thus, the language of the Nokia Order refutes Nokia, Inc.’s

contentions that the Second Report and Order does not apply to

Nokia handsets. The Nokia Order explicitly incorporates the Second

Report and Order and the 17-Second Rule, which is one of the three
- 37 -

requirements for call processing cited by plaintiffs in paragraph

40 of the amended complaint. The argument that this lawsuit is

“groundless” as against Nokia, Inc. because the Second Report and

Order does not apply to it (and the corollary argument that

attorneys’ fees and costs are warranted) is without merit. 

We do believe, however, that the amended complaint requires

some clarification with respect to Nokia, Inc. We view the Nokia

Order as an extension or amplification of the Second Report and

Order. Because the Nokia Order approves an alternative callprocessing method for Nokia, Inc., it changes the parlance of call

processing with regard to Nokia, Inc.’s method. (For example,

Nokia, Inc.’s call-processing method encompasses different

concepts, such as the “presently acquired system” and the

“preferred roaming list.”) Because the amended complaint does not

allege that Nokia, Inc. violated the Nokia Order and does not even

refer to the Nokia Order, it is unclear from the allegations

exactly what requirements plaintiffs believe are applicable to

Nokia handsets and what violations of those requirements are

alleged. Nokia, Inc. is entitled to adequate notice of the claims

against it in light of the applicability of the Nokia Order.

Therefore, Nokia, Inc.’s motion to dismiss will be granted, and

plaintiffs’ claims will be dismissed without prejudice as against

Nokia, Inc. Plaintiffs will be given leave to amend the complaint

to re-allege their claims as against Nokia, Inc., taking into
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account the existence and language of the Nokia Order and

conforming the allegations accordingly. 

Nokia, Inc. also raises essentially the same preemption

argument that was asserted by the carriers and that we rejected

supra section C. We reject it again.

E. Nokia Corp.’s Renewed Motion to Dismiss

for Insufficiency of Service of Process

Nokia Corp. contends that its has not been properly served as

a foreign corporation. Prior to the consolidation of these matters

by the Judicial Panel on Multidistrict Litigation, Nokia Corp. was

named as a defendant in two of the underlying lawsuits: the

Aggarwal case, which we have already mentioned, is pending before

this court, and McMurry v. Nokia Corp., a case from the Western

District of Washington. On December 16, 2002, plaintiffs attempted

to serve Nokia Corp. in the Aggarwal case by serving a copy of the

complaint on National Registered Agents, Inc. (“National”).

National, however, is the registered agent for service of process

in Illinois for Nokia, Inc., not Nokia Corp. Plaintiffs concede

that the Aggarwal complaint was “inadvertently served on” Nokia,

Inc. rather than on Nokia Corp. (Opposition to Nokia Corp.’s

Renewed Motion to Dismiss at 1.) On January 21, 2003, Nokia Corp.

filed a motion to dismiss the Aggarwal case for insufficient

service of process. In February 2003, plaintiffs requested Nokia

Corp. to waive service of process, but Nokia Corp. did not agree.

On March 19, 2003, we ordered plaintiffs to obtain service on Nokia
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Corp. by May 30, 2003. Plaintiffs did not do so. Thereafter, we

decided defendants’ primary jurisdiction motion, and in light of

our referral of issues to the FCC, we denied Nokia Corp.’s motion

to dismiss without prejudice to filing a renewed motion at a later

time.

After the FCC issued the Clarification Order, plaintiffs filed

the Consolidated Amended Class Action Complaint. Nokia Corp. then

filed a renewed motion to dismiss for insufficient service of

process. Plaintiffs contend that Nokia Corp. has waived any

jurisdictional objections due to its “active[] participat[ion] in

these proceedings for purposes other than objecting to

jurisdiction.” (Opposition to Nokia Corp.’s Renewed Motion to

Dismiss at 3.) Plaintiffs cite five instances of such

“participation”: (1) seeking and agreeing to a June 26, 2003

protective order; (2) defendants’ November 2004 general motion to

dismiss the amended complaint (the motion that is discussed supra

section B); (3) defendants’ liaison counsel’s July and August 2004

letters to the court; (4) defendants’ October 2004 discovery

requests to plaintiffs; and (5) defendants’ January 31, 2003 motion

to transfer and consolidate the cases into this MDL proceeding.

Federal Rule of Civil Procedure 12(h)(1) provides that “[a]

defense of . . . insufficiency of service of process is waived . .

. if it is neither made by motion under this rule nor included in

a responsive pleading.” Plaintiffs do not dispute that Nokia Corp.
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raised the defense timely by asserting it with its first filing.

The defense, nonetheless, may be waived “by submission through

conduct.” Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th

Cir. 1993). All of the conduct purportedly constituting waiver

occurred after Nokia Corp.’s filing of the motion to dismiss for

insufficiency of process. The question is whether Nokia Corp.’s

conduct led plaintiffs to believe that service was adequate and

that no such defense was being interposed or that the defense was

being abandoned. See Trustees of Cent. Laborers’ Welfare Fund v.

Lowery, 924 F.2d 731, 732-33 (7th Cir. 1991). We do not think that

any of the conduct cited by plaintiffs would lead anyone to believe

that Nokia Corp. was abandoning its insufficiency-of-service

defense. 

The January 2003 motion to consolidate the cases into an MDL

proceeding was not brought by Nokia Corp. or signed by anyone on

behalf of Nokia Corp. And we do not believe that the fact that the

other defendants’ motion sought transfer of the Aggarwal case

(which was brought against Nokia Corp. and not Nokia, Inc.) could

have been reasonably construed by plaintiffs as Nokia Corp.’s

abandonment of its insufficient-service defense. (In fact, it was

not construed by plaintiffs as such an abandonment because

plaintiffs later requested that Nokia Corp. agree to waive

service.)
- 41 -

Defendants’ general motion to dismiss was brought only “[o]n

behalf of all defendants who have been properly served and have

appeared in this litigation.” (Motion to Dismiss at 4.)

Plaintiffs argue that because the motion seeks to dismiss the

complaint in its entirety, we should find waiver because

“[a]ffirmative relief has . . . been sought on behalf of Nokia

[Corp.].” (Opposition to Nokia Corp.’s Renewed Motion to Dismiss

at 4.) We are unpersuaded. There is no indication in the motion

to dismiss that Nokia Corp. was abandoning its defense, and the

signature by liaison counsel only “[o]n behalf of all defendants

who have been properly served” is a clear signal that Nokia Corp.

was not joining in the motion or abandoning its defense. Indeed,

Nokia Corp. filed its renewed motion to dismiss for insufficient

service of process on the very same day that the general motion to

dismiss was filed. 

Liaison counsel’s use of the generic term “defendants” in

correspondence with the court and in discovery requests similarly

does not constitute waiver. Nor does the fact that the discovery

requests sought information from, among other plaintiffs,

plaintiffs who purchased Nokia phones. Neither of these actions by

liaison counsel, who has never purported to represent Nokia Corp.,

can reasonably be imputed to Nokia Corp. 

As for the protective order, page 6 of the signature pages to

the order does list counsel “for Nokia Corp., Nokia, Inc.” This
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16/ An equitable consideration weighing against waiver is that we denied

Nokia Corp.’s original motion without prejudice to renewal at a later time. We

had not addressed the merits of the motion and signalled our willingness to do

so at Nokia Corp.’s request.

signature to the protective order is the only “conduct” that can

fairly be attributed to Nokia Corp. for purposes of the waiver

inquiry. However, it is not conduct that rises to the level of

waiver. The protective order in question is narrowly focused: it

states that it is “for the sole purpose of facilitating the limited

discovery” we had permitted of the parties’ correspondence with the

FCC that was relevant to the primary jurisdiction issue. Nokia

Corp.’s participation in the case by virtue of signing the

protective order was for a very limited purpose that in our view

could not reasonably be viewed as an abandonment of its defense.

Moreover, as Nokia Corp. points out, while plaintiffs cite one

Illinois state court case supporting their argument, plaintiffs

cite no federal case law. This is an issue of federal, not state,

civil procedure. We find that Nokia Corp. did not waive its

insufficiency-of-service defense.16 

Plaintiffs contend that even if Nokia did not waive its

defense, service was sufficient because Nokia Corp. was properly

served with the complaint in the McMurry case and because liaison

counsel was served with the Consolidated Amended Class Action

Complaint. We disagree. The McMurry complaint was served on

National, which was not authorized to accept service on behalf of

Nokia Corp. in the state of Washington. Nokia Corp. submits the
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affidavit of Dennis E. Howarth, President of National, who states

that National is not and has never been authorized to accept

service on behalf of Nokia Corp. in the state of Washington (just

as it does not have that authorization in Illinois) and that all

service accepted by National in the McMurry case was as agent for

Nokia, Inc. and not for Nokia Corp. Plaintiffs do not offer any

evidence to the contrary. And as for service of the amended

complaint on defendants’ liaison counsel, liaison counsel is not

counsel of record for Nokia Corp. and has never been authorized to

accept service on Nokia Corp.’s behalf. 

Accordingly, we find that Nokia Corp. has not been properly

served with the summons and complaint in this matter. We decline,

however, to grant the motion to dismiss. Instead, pursuant to

Federal Rule of Civil Procedure 4(m), plaintiffs will be given

until September 6, 2005 to effect service of process on Nokia Corp.

CONCLUSION

Defendants’ motion for partial summary judgment is granted

insofar as it relates to the FCC’s clarification of the 17-Second

Rule. The decision of the FCC in the Clarification Order is

adopted as the law of the case. The motion for partial summary

judgment is denied insofar as it seeks judgment on the abandoned

allegations regarding the feedback requirement.

Defendants’ motion to dismiss the Consolidated Amended Class

Action Complaint is granted in part and denied in part. Counts
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III, VIII, and XI are dismissed without prejudice. In addition,

the breach of implied warranty claims asserted in the Aggarwal v.

Nokia case, 02 C 8808, are dismissed with prejudice. The remainder

of defendants’ motion to dismiss is denied. 

The carrier defendants’ motion to dismiss is granted in part

and denied in part. Plaintiffs’ unjust enrichment claim is

dismissed without prejudice. The claim for breach of the implied

covenant of good faith and fair dealing asserted in the Aggarwal

case is dismissed with prejudice. The remainder of the carrier

defendants’ motion to dismiss is denied.

Nokia, Inc.’s motion to dismiss is granted. Plaintiffs’

claims are dismissed without prejudice as against Nokia, Inc. 

Nokia Corp.’s motion to dismiss for insufficiency of service

of process is denied. Plaintiffs are given leave to serve Nokia

Corp. with process by September 6, 2005.

Plaintiffs are given leave to file an amended complaint by

July 5, 2005, to allege the fraud claims with specificity; to plead

unjust enrichment in the alternative; and to properly re-allege

their claims against Nokia, Inc. to account for the Nokia Order. 

DATE: June 3, 2005

ENTER: ___________________________________________

John F. Grady, United States District Judge