PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1872

ROBERT JOHNSON; MARY JOHNSON,

Plaintiffs - Appellants,

v.

AMERICAN TOWERS, LLC; FARMERS TELEPHONE COOPERATIVE, INC.; 

CELLCO PARTNERSHIP, d/b/a Verizon Wireless; SPRINT CELLULAR 

COMPANY OF SOUTH CAROLINA; SPRINT COMMUNICATIONS COMPANY 

L.P.; ALLTEL COMMUNICATIONS, LLC; T-MOBILE USA TOWER LLC; TMOBILE USA INC.; AT&T INC.; AT&T MOBILITY LLC; AT&T MOBILITY 

SERVICES, LLC; VERIZON WIRELESS, LLC; VERIZON WIRELESS 

SERVICE LLC; VERIZON WIRELESS OF THE EAST LP; TRACFONE 

WIRELESS, INC.,

Defendants – Appellees,

and

CELLCO TELEPHONE COMPANY OF THE SOUTHEAST, LLC; ALLTEL 

COMMUNICATIONS, INCORPORATED; ALLTEL MOBILE COMMUNICATIONS 

OF SOUTH CAROLINA, INC.,

Defendants.

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Cameron McGowan Currie, Senior

District Judge. (3:13-cv-00789-CMC)

Argued: October 29, 2014 Decided: March 25, 2015

Before SHEDD and FLOYD, Circuit Judges, and DAVIS, Senior 

Circuit Judge.
2

Affirmed by published opinion. Judge Floyd wrote the opinion,

in which Judge Shedd and Senior Judge Davis joined.

ARGUED: John E. Parker, PETERS, MURDAUGH, PARKER, ELTZROTH &

DETRICK, PA, Hampton, South Carolina, for Appellants. Scott H. 

Angstreich, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, 

P.L.L.C., Washington, D.C.; Jeremy Cook Hodges, NELSON MULLINS 

RILEY & SCARBOROUGH LLP, Columbia, South Carolina, for 

Appellees. ON BRIEF: William F. Barnes, III, PETERS, MURDAUGH, 

PARKER, ELTZROTH & DETRICK, PA, Hampton, South Carolina, for 

Appellants. John M.S. Hoefer, WILLOUGHBY & HOEFER, P.A., 

Columbia, South Carolina; Andrew E. Goldsmith, KELLOGG, HUBER, 

HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C., for 

Appellees Cellco Partnership, Sprint Cellular Company of South 

Carolina, Alltel Communications, LLC, Verizon Wireless, Verizon 

Wireless Service LLC, and Verizon Wireless of the East LP. 

Robert W. Foster, Jr., NELSON MULLINS RILEY & SCARBOROUGH LLP, 

Columbia, South Carolina, for Appellee Farmers Telephone 

Cooperative, Inc. Daniel R. Settana, Jr., Janet Brooks Holmes, 

MCKAY, CAUTHEN, SETTANA & STUBLEY, P.A., Columbia, South 

Carolina, for Appellees AT&T Inc., AT&T Mobility LLC, and AT&T 

Mobility Services, LLC. Eric G. Fosmire, THE FOSMIRE LAW FIRM, 

LLC, Columbia, South Carolina, for Appellees T-Mobile USA Tower 

LLC and T-Mobile USA, Incorporated. Elbert S. Dorn, Myrtle 

Beach, South Carolina, Burl F. Williams, NEXSEN PRUET, LLC, 

Greenville, South Carolina, for Appellee American Towers, LLC. 

David S. Cox, Matthew E. Tillman, WOMBLE CARLYLE SANDRIDGE & 

RICE, LLP, Charleston, South Carolina, for Appellee Sprint 

Communications Company L.P. Daniel B. White, GALLIVAN, WHITE & 

BOYD, P.A., Greenville, South Carolina, for Appellee TracFone 

Wireless, Inc.
3

FLOYD, Circuit Judge:

This suit presents a novel but flawed legal theory applied 

to admittedly tragic facts. Robert Johnson, a prison guard in 

Bishopville, South Carolina, was shot multiple times in his 

home. The ensuing investigation revealed that the attack was 

ordered by an inmate at the prison where Mr. Johnson worked 

using a contraband cell phone. Mr. Johnson survived the attack 

and, with his wife, later brought suit. The Johnsons did not, 

however, sue the typical defendants – i.e., the shooter or any 

prison inmate or employee. Rather, the Johnsons sued several

cellular phone service providers and owners of cell phone 

towers. According to the Johnsons, these defendants are liable 

for Mr. Johnson’s injuries because they were aware that their 

services facilitated the illegal use of cellphones by prison 

inmates and yet failed to take steps to curb that use.

In this appeal by the Johnsons, we address two issues: (1) 

whether the district court properly concluded that it had 

federal jurisdiction over the Johnsons’ state-law claims; and 

(2) if so, whether the district court properly dismissed the 

Johnsons’ claims on the merits. For the reasons set forth 

below, we affirm the judgment.
4

I.

A.

Captain Robert Johnson was an employee of the Lee 

Correctional Institution in Lee County, South Carolina. As a 

correctional officer, Mr. Johnson was responsible for seizing 

cell phones and other contraband from inmates.

In March 2010, an assailant entered Mr. Johnson’s home and 

shot him six times in the chest and stomach. His wife, Mary 

Johnson, witnessed the attack. Mr. Johnson survived but 

underwent eight surgeries and months of rehabilitation.

The U.S. Attorney for the District of South Carolina

concluded after a thorough investigation that a group of inmates 

ordered the attack in retaliation for Mr. Johnson’s prior 

confiscation of their contraband cell phones and other goods.1

 

The U.S. Attorney further found that an unnamed inmate had used 

a cell phone to communicate with the shooter, Sean Echols. That

inmate also paid Echols. Echols eventually pleaded guilty to 

conspiracy to use interstate facilities in murder-for-hire under

18 U.S.C. § 1958(a). United States v. Echols, No. 3:13-cv-

 1 Press Release, U.S. Attorney’s Office, District of South 

Carolina, Man Pleads Guilty to Conspiracy to Commit Murder-forHire in Shooting of Correctional Officer (Apr. 9, 2014), 

available at http://www.fbi.gov/columbia/pressreleases/2014/man-pleads-guilty-to-conspiracy-to-commit-murderfor-hire-in-shooting-of-correctional-officer.
5

00211-JFA (D.S.C. Aug. 13, 2014) (judgment of the district 

court).

B.

In February 2013, the Johnsons filed suit in South Carolina

state court seeking to recover under state-law negligence and 

loss of consortium theories. They seek to recover against two 

groups of Defendants: (1) wireless service providers;2 and (2)

owners of towers that lease space to those providers for the 

provisions of wireless service.3 The Johnsons alleged that both 

sets of Defendants “were aware of the illegal use of cellphones 

by inmates using signals emitted and received at the defendants’ 

towers” and that “this use created an unreasonable risk of harm 

 2 The wireless service providers named in this case are: 

Sprint Cellular Company of South Carolina, Sprint Communications 

Company, L.P, Alltel Communications, LLC, Alltel Communications, 

Inc., Alltel Mobile Communications of South Carolina, Inc., TMobile USA Tower LLC, T-Mobile USA, Inc., AT&T Inc., AT&T 

Mobility LLC, AT&T Mobility Services, LLC, Verizon Wireless 

(VAW) LLC, Verizon Wireless Services, LLC, Verizon Wireless of 

the East LP, and TracFone Wireless, Inc. The Johnsons also 

named Alltel Mobile Communications of South Carolina, Inc. and 

Alltel Communications, Inc., neither of which are parties to 

this appeal because they no longer exist. J.A. 28-32.

3 The tower owner defendants named in this case are: 

American Towers, LLC, Farmers Telephone Cooperative, Inc., 

Cellco Telephone Company of the Southeast, LLC, Cellco 

Partnership d/b/a Verizon Wireless, and T-Mobile USA. The 

Johnsons also named Cellco Telephone Company of the Southeast, 

LLC, which is not a party to this appeal because it no longer 

exists. J.A. 26-27.
6

to others.” Appellants’ Br. at 6. The Johnsons sought

compensatory and punitive damages.

The Defendants timely removed the case to federal court, 

asserting both federal question jurisdiction under 28 U.S.C. 

§ 1331 and complete diversity under 28 U.S.C. § 1332. In April 

2013, the Johnsons moved to remand the case to state court. The 

district court denied the Johnsons’ motion on two grounds. 

First, the district court concluded it had federal question 

jurisdiction because the Federal Communications Act

(“Communications Act”) completely preempted all of the Johnsons’ 

state law claims. Second, the district court found that it had 

diversity jurisdiction because the only non-diverse defendants 

were fraudulently joined and the amount in controversy exceeded

$75,000.

On June 19, 2013, the district court consolidated the 

Defendants’ motions to dismiss and granted the motion under Rule 

12(b)(6) of the Federal Rules of Civil Procedure. It did so for 

three reasons: (1) the Johnsons’ claims were barred by express 

and conflict preemption; (2) South Carolina law did not impose a 

duty on Defendants to prevent inmates from illegally using their 

cell phone services; and (3) the Johnsons’ claims were

implausible and so did not meet pleading standards. This appeal 

followed.
7

II.

The Johnsons contend that the district court lacked subject 

matter jurisdiction over their state law claims, and thus erred 

in denying their motion to remand. We review questions of 

subject matter jurisdiction de novo, including questions related 

to the propriety of removal. Lontz v. Tharp, 413 F.3d 435, 439 

(4th Cir. 2005). As set forth below, we find that the

Communications Act does not completely preempt the Johnsons’ 

claims. Accordingly, the district court erred in finding the 

existence of federal question jurisdiction. Nevertheless, 

because the district court properly exercised jurisdiction on 

the basis of diversity of citizenship of the parties, however, 

we affirm the district court’s denial of the Johnsons’ motion to 

remand.

A.

We first consider whether the district court correctly 

found federal question jurisdiction. 28 U.S.C. § 1331. The 

district court determined it had jurisdiction on this basis

because the Johnsons’ claims were completely preempted by the 

Communications Act. In doing so, the district court relied on 

three provisions of the Act: (1) Section 332, the Act’s 

preemption provision; and (2) Sections 201 and 207, which when 

read in conjunction allow private parties to recover damages 
8

resulting from a common carrier’s breach of its obligation to

ensure that “all . . . practices . . . for and in connection 

with communication service” are “just and reasonable.” 47 

U.S.C. §§ 201(b), 207, 332. This was error.

At the outset, we note that complete preemption only 

applies in a “very narrow” range of cases. Marcus v. AT&T 

Corp., 138 F.3d 46, 54 (2d Cir. 1998). “The limited 

applicability of the complete preemption doctrine is evidenced 

by the fact that the [Supreme] Court has only approved its use 

in three areas,” none of them pertinent to the Communications 

Act. Id. In fact, we have recognized a presumption against 

finding complete preemption. Lontz, 413 F.3d at 440 (citing 

Custer v. Sweeney, 89 F.3d 1156, 1167 (4th Cir. 1996)). This

presumption — of course a rebuttable one — exists, in part,

because “[f]ederalism concerns strongly counsel against imputing 

to Congress an intent to displace ‘a whole panoply of state law

in [a certain] area’ absent some clearly expressed direction.”

Custer, 89 F.3d at 1167 (quoting Painters of Phila. Dist.

Council No. 21 Welfare Fund v. Price Waterhouse, 879 F.2d 1146, 

1153 n.7 (3d Cir. 1989)). 

The foundation of the district court’s complete preemption 

finding is § 332 of the Communications Act. See 47 U.S.C. 

§ 332(c)(3)(A) (“[N]o State or local government shall have any 

authority to regulate the entry of or the rates charged by any 
9

commercial mobile service or any private mobile service 

. . . .”); Farina v. Nokia, Inc., 625 F.3d 97, 105-06 (3d Cir. 

2010) (“The FCC’s jurisdiction extends to wireless telephone 

service, and FCC authority over the technical aspects of radio 

communications is ‘exclusive.’” (citations omitted)). As set 

forth in Section III.A, infra, we agree that Section 332 

expressly preempts the Johnsons’ claims on the merits. But 

complete preemption and express preemption are different 

animals.

Complete preemption and ordinary preemption on the merits

“are not as close kin jurisprudentially as their names suggest.” 

Lontz, 413 F.3d at 440. Unlike ordinary preemption, which does 

not create federal subject matter jurisdiction, complete 

preemption has the effect of “transform[ing]” a state-law cause 

of action into one arising under federal law because Congress 

has occupied the field so thoroughly as to leave no room for 

state-law causes of action at all. Caterpillar Inc. v. 

Williams, 482 U.S. 386, 399 (1987). Put differently, complete 

preemption is a “jurisdictional doctrine,” while “ordinary

preemption simply declares the primacy of federal law, 

regardless of the forum or the claim.” Lontz, 413 F.3d at 440. 

Complete preemption applies only when “Congress has clearly 

manifested an intent to make causes of action . . . removable to 
10

federal court.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66 

(1987).

As we have repeatedly recognized, “‘the sine qua non of 

complete preemption is a pre-existing federal cause of action 

that can be brought in the district courts . . . .’” In re 

Blackwater Sec. Consulting, LLC, 460 F.3d 576, 584 (4th Cir. 

2006) (quoting Lontz, 413 F.3d at 441). Indeed, the Supreme 

Court has emphasized that for the purposes of complete 

preemption, the preempting statute must provide “the exclusive

cause of action” for claims in the area that the statute 

preempts. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 9

(2003) (emphasis added). The district court relied on §§ 201 

and 207 of the Communications Act, which, in the district 

court’s view, provide a federal cause of action that is the 

exclusive remedy for the Johnsons’ claims. 47 U.S.C. §§ 201,

207.4 We disagree.

As an initial matter, §§ 201 and 207 allow recovery only 

against common carriers. Under the Communications Act, “‘common 

carriers’ are entities that must provide [transmission] 

 4 Section 207 provides a remedy for the subject matter in § 

201(b), which includes “all charges, practices, classifications 

and regulations for and in connection with such communication 

service.” 47 U.S.C. § 201(b); Global Crossing Telecomms., Inc. 

v. Metrophones Telecomms., Inc., 550 U.S. 45, 53 (2007) (“[T]he 

purpose of § 207 is to allow persons injured by § 201(b) 

violations to bring federal-court damages actions.”).
11

service[s] to the public without discrimination and are heavily 

regulated by the FCC.” Pinney v. Nokia, Inc., 402 F.3d 430, 450 

(4th Cir. 2005) (citation omitted). The parties do not contend 

that the tower owners provide any wireless service, and we 

therefore conclude that these defendants cannot be treated as 

common carriers. As a result, they cannot be sued under 

Sections 201 and 207.

On the other hand, the wireless service provider defendants 

are common carriers and so can be sued under §§ 201 and 207. 

But nothing suggests that Congress intended these sections to 

provide the exclusive remedy for the Johnsons’ state-law claims

against those defendants. See Beneficial Nat’l Bank, 539 U.S. 

at 8. Rather, the Communication Act’s savings clause suggests 

just the opposite. 47 U.S.C. § 414 (“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.”). As we have held, 

this savings clause counsels against a finding that Congress 

intended to sweep aside all state claims in a particular area. 

Pinney, 402 F.3d at 450. This conclusion is consistent with 

that of other courts addressing this issue. See In re NOS 

Commc'ns, MDL No. 1357, 495 F.3d 1052, 1058 (9th Cir. 2007)

(stating that the Communication Act’s savings clause “is 

fundamentally incompatible with complete field preemption; if 
12

Congress intended to preempt the entire field of 

telecommunications regulation, there would be nothing for 

section 414 to ‘save’ and the provision would be mere 

surplusage” (citing Marcus, 138 F.3d at 54)); accord Smith v. 

GTE Corp., 236 F.3d 1292, 1313 (11th Cir. 2001). Consistent 

with these decisions and our precedent in Pinney, we hold that

the Communications Act does not “wholly displace[]” state law in 

this area because it explicitly preserved state-law remedies. 

Beneficial Nat'l Bank, 539 U.S. at 8.

As the district court noted, Pinney concerned wireless 

devices, not wireless service.5 In our view, however, this is a 

distinction without a difference. The savings clause applies to 

the entirety of Chapter 5 of the Communications Act, including 

§ 332 – the section at issue here regarding wireless service.

 5 The district court observed that in Pinney, we 

distinguished wireless device claims, which are not preempted by 

the Communications Act, and claims that would “obstruct or 

burden a wireless service provider’s ability to provide a 

network of wireless service coverage.” 402 F.3d at 456. 

Although § 332(c)(3)(A) preempts state regulation of “the entry 

of or the rates charged by any commercial mobile service,” our 

statement in Pinney appears in the context of a discussion of 

express preemption, not complete preemption. We concluded that 

§ 332 does not expressly preempt claims about wireless devices 

while not deciding the exact contours of the Communications 

Act’s express preemption of state-law barriers to market entry. 

This analysis was separate from our discussion of complete 

preemption in Pinney.
13

The savings clause demonstrates that congressional intent to 

completely preempt this area of law is neither clear nor

manifest.6 Accordingly, we hold that the district court erred in

its reliance on complete preemption principles when it denied

the motion to remand.7

B.

We now turn to diversity jurisdiction. The Johnsons named 

two non-diverse defendants in their complaint: Charleston-North 

Charleston MSA and Farmers Telephone Cooperative. Normally, 

this would defeat removal on the basis of diversity jurisdiction

under 28 U.S.C. § 1332 because complete diversity of citizenship

 6 A close reading of § 207 similarly suggests that Congress 

did not intend for that provision to be the exclusive remedy for 

claims against common carriers. The section states that a person 

“may either” bring a complaint to the FCC or “may bring suit” in 

district court, but “such person shall not have the right to 

pursue both such remedies.” 47 U.S.C. § 207. The section 

states that a party may bring an action to the FCC or district 

court, but cannot seek relief from both, rather than suggesting 

that the FCC and the district court are the sole places to bring 

an action.

7 The district court relied on Bastien v. AT&T Wireless 

Servs., Inc., 205 F.3d 983, 986-87 (7th Cir. 2000), which held 

that at least some areas of state regulation in the wireless 

service context are completely preempted by federal law. 

Bastien reads the savings clause in § 414 narrowly in order to 

find that § 332 completely preempts state law in the areas of 

market entry or rates. Id. Because Bastien is fundamentally 

inconsistent with our decision in Pinney, however, we decline to 

adopt its analysis here.
14

- meaning a plaintiff cannot be a citizen of the same state as 

any defendant – is necessary for a federal court to exercise 

diversity jurisdiction. Mayes v. Rapoport, 198 F.3d 457, 464

(4th Cir. 1999). The district court, however, found it could 

properly retain subject matter jurisdiction under the fraudulent 

joinder doctrine. Under that doctrine, naming non-diverse 

defendants does not defeat diversity jurisdiction. Rather, the 

fraudulent joinder doctrine “effectively permits a district 

court to disregard, for jurisdictional purposes, the citizenship 

of certain nondiverse defendants, assume jurisdiction over a 

case, dismiss the nondiverse defendants, and thereby retain 

jurisdiction.” Id. at 461.

“The party alleging fraudulent joinder bears a heavy 

burden—it must show that the plaintiff cannot establish a claim 

even after resolving all issues of law and fact in the 

plaintiff's favor.” Hartley v. CSX Transp., Inc., 187 F.3d 422, 

424 (4th Cir. 1999). The removing party must show either 

“‘outright fraud in the plaintiff’s pleading of jurisdictional 

facts’ or that ‘there is no possibility that the plaintiff would 

be able to establish a cause of action against the in-state 

defendant in state court.’” Id. (quoting Marshall v. Manville 

Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)).

The Defendants in this action rely on the latter, “no 

possibility” formulation, in which a plaintiff’s claim against a 
15

non-diverse defendant “need not ultimately succeed to defeat 

removal; only a possibility of a right to relief need be 

asserted.” Marshall, 6 F.3d at 233. This standard heavily 

favors the Johnsons, who must show only a “glimmer of hope” of 

succeeding against the non-diverse defendants. Mayes, 198 F.3d 

at 466. Moreover, when considering whether the Johnsons have

satisfied this standard, we must resolve all legal and factual 

issues in their favor. Id. at 465. “[T]his standard is even 

more favorable to the plaintiff than the standard for ruling on 

a motion to dismiss under Fed. R. Civ. P. 12(b)(6).” Id.

(quoting Hartley, 187 F.3d at 424). Even under this rigorous 

standard, however, we conclude that the Johnsons have no 

possibility of succeeding against either of the non-diverse

defendants.

It is undisputed that the first non-diverse defendant –

Charleston-North Charleston MSA Limited Partnership (formerly 

the Sprint Cellular Company of South Carolina) – has no federal 

license to provide cell phone service in Lee County, South 

Carolina, where the prison is located.8 Because Charleston-North 

Charleston MSA could not have carried the alleged cell phone 

call ordering the attack on Mr. Johnson, it could not possibly 

 8 The Johnsons do not appear to contest this issue on appeal 

and did not dispute the Defendants’ showing in district court. 
16

be liable under the Johnsons’ legal theories.9 There is thus no 

possibility that the Johnsons could succeed against CharlestonNorth Charleston. Hartley, 187 F.3d at 424. Accordingly, the 

district court properly disregarded Charleston-North Charleston

MSA for diversity purposes. 

C.

The Johnsons’ claims against the second non-diverse 

defendant, Farmers Telephone Cooperative, present a more complex 

question on fraudulent joinder. Farmers Telephone Cooperative

(Farmers) leases a tower to wireless carriers, who in turn place 

equipment on the tower to transmit wireless signals. The tower 

does not itself transmit signals. The district court found that 

the Communications Act preempts state law, and so the Johnsons 

could not prevail on their state-law claim against Farmers as a 

matter of law. The Johnsons therefore did not have a glimmer of 

hope of success against Farmers in state court.

We agree that a finding of federal preemption would mean 

that the Johnsons would have “no possibility” of success on 

 9 It is possible that Charleston-North Charleston MSA could 

have completed a call from another wireless service provider, 

but in that instance, it could not know that the call originated 

from inside the prison. The Johnsons’ theory of liability 

hinges on the Defendants’ awareness of an unreasonable risk of 

contraband cell phone calls.
17

their state-law complaint against Farmers. Accordingly, we now 

turn to the federal preemption question underlying this case. 

In doing so, we conclude that the Communications Act preempts 

the Johnsons’ claims against Farmers. Because Farmers was 

fraudulently joined, the district court did not err in denying 

the Johnsons’ motion to remand.

The Supremacy Clause of the Constitution provides, “the 

Laws of the United States . . . shall be the supreme Law of the 

Land; . . . any Thing in the Constitution or Laws of any State 

to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. 

“Preemption fundamentally is a question of congressional intent, 

and when Congress has made its intent known through explicit 

statutory language, the courts’ task is an easy one.” English 

v. Gen. Elec. Co., 496 U.S. 72, 79-80 (1990) (citation omitted).

Here, Congress made its intent known when in 1996 it 

amended the Communications Act of 1934 to provide, “no State or 

local government shall have any authority to regulate the entry 

of or the rates charged by any commercial mobile service or any 

private mobile service.” 47 U.S.C. § 332(c)(3)(A). The 

Communications Act also grants the FCC “control . . . over all 

the channels of radio transmission.” Id. § 301; see also

Farina, 625 F.3d at 105 (“The FCC’s jurisdiction extends to 

wireless telephone service, and FCC authority over the technical 
18

aspects of radio communications is ‘exclusive.’” (citations 

omitted)).

We have acknowledged that in amending the Communications 

Act, Congress preempted state laws that not only regulate market 

entry, but also state laws that “obstruct or burden a wireless 

service provider’s ability to provide a network of wireless 

service coverage.” Pinney, 402 F.3d at 456 (citing Bastien v. 

AT&T Wireless Servs., Inc., 205 F.3d 983, 987 (7th Cir. 2000)).

State law is taken here to include common-law tort duties. 

Riegel v. Medtronic, Inc., 552 U.S. 312, 324 (2008) (“‘[C]ommonlaw liability is ‘premised on the existence of a legal duty,’ 

and a tort judgment therefore establishes that the defendant has 

violated a state-law obligation.”).10 State common-law duties, 

 10 We emphasize that the Communications Act does not preempt 

all claims that might give rise to an award of damages in the 

wireless service context. In other words, the Communications 

Act does not completely immunize wireless service providers from 

all civil suits under state law. The D.C. Circuit held, for 

example, that not all state laws having the effect of increasing

the cost of doing business constitute state regulation of 

telecommunications. Cellular Telecomms. Indus. Ass’n v. F.C.C., 

168 F.3d 1332, 1336 (D.C. Cir. 1999). The FCC agrees. In re 

Wireless Consumers Alliance, Inc., 15 F.C.C.R. 17021, ¶¶ 33-34 

(2000). Not all tort suits against wireless carriers are 

prohibited by the Communications Act. Id. at ¶ 34 (“Such 

litigation costs and awards are simply a cost of doing 

business.”). In this case, however to find in the Johnsons’ 

favor, we would be compelled to articulate a common-law tort 

duty that would have a real effect on the provision of wireless 

service in South Carolina, something expressly prohibited by the 

Communications Act.
19

such as the one that the Johnsons propose, that conflict with 

federal laws or regulations, are therefore preempted. Gibbons 

v. Ogden, 22 U.S. 1, 37-38 (1824).

In Pinney, we held that § 332 preempts state laws that 

“obstruct or burden a wireless service provider’s ability to 

provide a network of wireless service coverage.” Pinney, 402 

F.3d at 456 (citing Bastien, 205 F.3d at 987). We find that the 

Johnsons’ putative state-law duty on Farmers is consequently

preempted by the express language of the Communications Act. A 

common-law tort duty on the part of Farmers would “obstruct or 

burden a wireless service provider’s ability” to provide 

coverage. Cell phone tower owners would be forced to actively 

monitor wireless networks and prevent any calls, or perhaps only 

calls initiated on contraband devices, coming from inside a 

South Carolina prison, limiting the provision of wireless 

service in those areas. Pinney, 402 F.3d at 456.

Similarly, finding a duty on the part of the wireless 

service providers would override the FCC’s authority in granting 

licenses to provide wireless service. The Communications Act 

authorizes the FCC to “establish areas or zones to be served by” 

wireless service providers. 47 U.S.C. § 303(h). Although it is 

true that the Communications Act does not disturb state and 

local authority to zone and regulate land use, a common-law tort 

duty is not zoning or land use. See id. § 332(c)(7)(A) 
20

(“[N]othing in this chapter 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.”). As 

legislative history makes clear, Congress intended for the 

Communications Act to refrain from preempting local land use 

regulations, not common-law tort duties. Murray v. Motorola, 

Inc., 982 A.2d 764, 773-74 (D.C. 2009). Although the 

Communications Act grants wide latitude to states and localities 

to enact land use and zoning laws, a common-law tort duty simply 

stretches § 332(c)(7)(A) too far. Instead, the Johnsons’ legal 

theory would force cell phone tower owners to impede the FCC’s

authority in establishing wireless service areas.

In short, we find that the Communications Act clearly 

preempts the Johnsons’ state-law tort claim against Farmers as a 

matter of law. Consequently, the Johnsons do not have a 

“glimmer of hope” of succeeding in state court on their claim 

against Farmers. The parties are in complete diversity, and 

consequently, the district court had jurisdiction over the 

remaining Defendants.

III.

Having determined that the district court properly 

exercised jurisdiction over the Johnsons’ claims, we next 
21

consider whether it also correctly held that those claims failed 

to state a claim as a matter of law. We review the district 

court’s grant of the defendants’ motion to dismiss de novo. See

Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 776 (4th Cir. 

2013).

As discussed below, we affirm the district court on three

grounds. First, the Communication Act’s express language 

preempts the Johnsons’ claims. Second, the Johnsons’ claims are 

barred by conflict preemption. Third and finally, the Johnsons’ 

claims are implausible.11

A. 

As we discussed above, the Communications Act provides for 

a comprehensive federal scheme to ensure access to wireless 

telecommunications services. Pinney, 402 F.3d at 457 (“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.”). 

Section 332(c)(3)(A) of the Communications Act provides, “no 

State or local government shall have any authority to regulate 

 11 The district court also found that there is no state-law 

duty under South Carolina law. We do not need to address the 

state-law issues to resolve the case and so decline to do so 

here.
22

the entry of or the rates charged by any commercial mobile 

service or any private mobile service.” 47 U.S.C. 

§ 332(c)(3)(A). We found in Pinney that § 332 preempts state

laws that “obstruct or burden a wireless service provider’s 

ability to provide a network of wireless service coverage.” 402 

F.3d at 456 (citation omitted). Consistent with our discussion 

in Section II.C., supra, we find that the Johnsons’ putative 

state-law duty on the part of the other Defendants is also 

preempted by the Communications Act. A common-law tort duty 

would obstruct or burden a wireless service provider’s ability 

to provide coverage because wireless service providers would be 

forced to actively monitor their networks and prevent any calls 

coming from inside a South Carolina prison, limiting the 

provision of wireless service in those areas.

B.

The district court also concluded that the Johnsons’ claim 

is implicitly preempted as a matter of conflict preemption. 

Conflict preemption applies to state law “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.” 

Pinney, 402 F.3d at 457 (quoting Hillsborough Cnty. v. Automated 

Med. Labs., Inc., 471 U.S. 707, 713 (1985)).
23

The Communications Act establishes a comprehensive federal 

scheme for the provision of wireless service coverage.12 47 

U.S.C. § 332. The federal scheme’s purpose is to “ensure the 

availability of a nationwide network of wireless service 

coverage . . . [and] to develop the infrastructure necessary to 

provide wireless services.” Pinney, 402 F.3d at 457. To 

further this purpose, some (but not all) areas of state law are 

preempted. Id. To ensure the availability of service coverage, 

the Act prohibits a person from willfully interfering with 

wireless signals without authorization from the FCC. 47 U.S.C. 

§ 333. (“No person shall willfully or maliciously interfere with 

or cause interference to any radio communications of any station 

 

12 In Pinney we described the federal scheme as follows:

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 and 

local zoning authorities to regulate the 

“placement, construction, and modification” 

of facilities that provide wireless service, 

47 U.S.C. § 332(c)(7).

402 F.3d at 457.
24

licensed or authorized by or under this chapter or operated by 

the United States Government.”).

The district court concluded that a state-law obligation to 

block calls originating from contraband cell phones inside the 

prison would necessarily conflict with § 333. The FCC has 

repeatedly interpreted § 333 to prohibit any form of “jamming” 

of wireless signals, even by prison authorities. In a recent 

rulemaking, the FCC has undertaken to make it easier for prisons 

to address the problem of contraband cell phones.13 The FCC was 

responding to a petition by the South Carolina Department of 

Corrections and other states’ prison authorities, which 

requested that it be given the power to jam signals inside 

prisons. The FCC declared, “[T]he manufacture, importation, 

marketing, sale, or operation of radio signal jamming devices 

within the United States is prohibited, except for the sale to 

or use by the Federal Government.” Id. at ¶ 19 (emphasis 

added). The FCC is considering other means to address the 

problem of contraband cell phones without allowing prison 

authorities to jam wireless signals themselves, such as making 

 13 Notice of Proposed Rulemaking, Promoting Technological 

Solutions to Combat Contraband Wireless Device Use in 

Correctional Facilities, 28 FCC Rcd. 6603 (2013) (“Contraband 

Wireless Device NPRM”), available at 

http://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0

502/FCC-13-58A1.pdf.
25

it easier for wireless service providers to remotely deactivate 

contraband cell phones. Id. at ¶ 3. This method does not 

involve jamming the wireless signals themselves.14

The Johnsons argue that the prohibition against 

interference does not apply if the wireless service provider is 

interfering with its own signals. In support, they cite two 

cases for the proposition that § 333 applies only to third 

parties and not the actual service providers. United States v. 

Gerritsen, 571 F.3d 1001 (9th Cir. 2009); United States v. 

Baxter, 841 F. Supp. 2d 378 (D. Me. 2012). Although those cases 

indeed addressed claims in which third parties interfered with 

wireless service, they did not hold that § 333 applied only to 

third parties.

Section 333 states that “no person” shall interfere with

“any radio communications.” 47 U.S.C. § 333. The Defendants 

argue that “no person” includes first parties and therefore 

prohibits self-interference. A more persuasive reading of this 

section of the Communications Act is to read the entire sentence 

together: no person shall interfere with any radio 

communications, including his or her own. The use of the word 

 14 Notably, Congress has passed legislation making cell 

phones contraband in federal prisons but has not permitted any 

jamming of wireless signals. Cell Phone Contraband Act of 2010, 

Pub. L. No. 111-225, 124 Stat. 2387 (2010) (codified at 18 

U.S.C. § 1791).
26

“any” includes one’s own communications. If the statute 

intended to exclude self-interference, the statute would state 

“any other radio communications” rather than “any radio 

communications.”

In sum, it would be impossible for the Defendants to 

simultaneously comply with federal prohibitions on blocking 

wireless signals and a putative state-law duty to block wireless 

signals to and from certain cell phones inside the prison. This 

is the very definition of conflict preemption. Compliance with 

both a putative common-law duty and federal law would be a 

“physical impossibility” and therefore the former is preempted 

by the Communications Act. Fla. Lime & Avocado Growers, Inc. v. 

Paul, 373 U.S. 132, 142-143 (1963).

C.

Finally, we affirm the district court’s finding that the 

Johnsons’ claims would also fail due to the “speculative nature 

of their allegations.” J.A. 369. In the district court’s view, 

“the Johnsons’ argument suggests only a desire to conduct a 

fishing expedition to determine if there is any factual basis 

for asserting claims against any Defendants . . . . This is not 

enough.” J.A. 370. Although we review rulings on motions to 

dismiss de novo, accept all the factual allegations in the 

complaint as true, and draw all reasonable inferences in the 
27

Johnsons’ favor, the complaint must still meet applicable

pleading standards. Spaulding, 714 F.3d at 776. The Johnsons 

have failed to allege sufficient facts to set forth a plausible 

claim for relief; consequently, we affirm the district court.

“A complaint must be dismissed if it does not allege 

‘enough facts to state a claim to relief that is plausible on 

its face.’” Id. (quoting Bell Atl. Corp v. Twombly, 550 U.S. 

544, 570 (2007)). A properly pleaded complaint must offer more 

than “‘naked assertions’ devoid of ‘further factual 

enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(brackets omitted) (quoting Twombly, 550 U.S. at 557). “A claim 

has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Id.

In other words, a complaint must include “more than an 

unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. 

The Johnsons’ complaint contains the bare assertion that 

“an inmate at the prison using a cellphone ordered a coconspirator outside of the prison to kill Captain Johnson.” 

J.A. 23. The Johnsons have failed to offer any further factual 

enhancement to support their claims against the Defendants. For 

example, the Johnsons’ complaint does not identify the wireless 

service provider who carried the alleged call or when the 

alleged call occurred. Without more factual allegations, it is 
28

impossible for a district court to assess the Johnsons’ claims.

See Twombly, 550 U.S. at 565 n.10 (noting that the defective 

complaint “mentioned no specific time, place, or person involved 

in” the alleged illegal activity); Kendall v. Visa U.S.A., Inc., 

518 F.3d 1042, 1048 (9th Cir. 2008) (complaint must “answer the 

basic questions: who, did what, to whom (or with whom), where, 

and when?”); see also Fed. R. Civ. P. 84 & App. Form 11 

(providing a blank space for the “date” and “place” of the 

injury in model complaint form for negligence). A wireless 

service provider would likely be unable to determine whether it 

carried the alleged call without more identifying information.

We acknowledge, however, that the recent conclusion of the 

U.S. Attorney’s investigation into the attack may provide 

additional information bolstering the Johnsons’ claims. The 

Johnsons are free, if additional information supportive of one 

or more non-preempted claims exists, to file a new lawsuit, as 

the district court dismissed their complaint on this ground 

without prejudice. As currently drafted, however, the complaint 

resembles a prohibited fishing expedition rather than a properly

pleaded complaint. Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 8 

(1st Cir. 2011).
29

IV.

For the foregoing reasons, the judgment is

AFFIRMED.