Opinion
CIVIL ACTION NO: 03-CV-2009, SECTION: "R"
January 5, 2004
ORDER AND REASONS
Plaintiff America First Communications, Inc. moves the Court to remand this matter to the 24th Judicial District Court for the Parish of Jefferson. Defendant Shadowlands Communications, L.L.C. opposes the remand. Defendant Shadowlands additionally moves the Court to dismiss plaintiff's claim for failure to state a claim upon which relief may be granted. For the following reasons, the Court GRANTS plaintiff's motion for remand.
I. Background
Plaintiff, America First Communications, Inc., d/b/a WASO AM 730, is the owner and operator of WASO AM 730, a radio station that broadcasts into the St. Tammany, Jefferson, and Orleans Parish areas. America First alleges that it discovered a distortion of its signal as a result of another signal bleeding into WASO's frequency in July 2002. Although the distorting signal emanated from WWL 870 AM, America First asserts that the cause of the bleed-over was a transmitter belonging to defendant, Shadowlands Communications, L.L.C., d/b/a WSHO AM 800. Allegedly, Shadowlands' transmitter picked up WWL's signal, mixed it with WSHO's second harmonic, and sent it over WASO's frequency. America First notified Shadowlands of the problem, that it received complaints from listeners and advertisers, and that it lost audience and advertising. Shadowlands did not remove the transmitter, and the alleged bleed-over continued.
In June 2003, America First sued Shadowlands in the 24th District Court for the Parish of Jefferson. Shadowlands removed the suit to federal court in July 2003 pursuant to 28 U.S.C. § 1441 and 1446. Shadowlands grounds federal jurisdiction under 28 U.S.C. § 1331. Shadowlands argues the Communications Act of 1934, 47 U.S.C. § 151, et seq., completely preempts plaintiff's state law claims.
In July 2003, America First filed a motion to remand. Also in July 2003, Shadowlands filed a motion to dismiss plaintiff's claim for failure to state a claim upon which relief may be granted. Both motions are opposed.
II. Discussion
A. Motion to Remand
Federal district courts have jurisdiction over cases "arising under the Constitution, law, or treaties of the United States." 28 U.S.C. § 1331. The question whether a claim arises under federal law "must be determined by reference to the `well-pleaded complaint.'" Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983)); Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). "Since a defendant may remove a case only if the claims could have been brought in federal court, . . . the question for removal jurisdiction must also be determined by reference to the `well-pleaded complaint.'" Merrel Dow, 478 U.S. at 808 (citation omitted). The well-pleaded complaint rule "requires disclosure of the federal question on the face of the complaint." Torres v. Southern Peru Copper Corp., 113 F.3d 540, 542 (5th Cir. 1997).
"A corollary to the well-pleaded complaint doctrine `is that Congress may so completely preempt a particular area that any civil complaint raising this select group of claims is necessarily federal in character.'" Johnson v. Baylor University, 214 F.3d 630, 632 (5th Cir. 2000) (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987)). "`Complete preemption,' which creates federal removal jurisdiction, differs from more common `ordinary preemption' . . . which does not." Id. The Fifth Circuit has distinguished between the two types of preemption:
Ordinarily, the term federal preemption refers to ordinary preemption, which is a federal defense to the plaintiff's suit and may arise either by express statutory term or by a direct conflict between the operation of federal and state law. Being a defense, it does not appear on the face of a well-pleaded complaint, and, thus, does not authorize removal to federal court. By way of contrast, complete preemption is jurisdictional in nature rather than an affirmative defense to a claim under state law. As such, it authorizes removal to federal court even if the complaint is artfully pleaded to include solely state law claims for relief or if the federal issue is initially raised solely as a defense.Id. (quoting Heimann v. Nat'l Elevator Indus. Pension Fund, 187 F.3d 493, 500 (5th Cir. 2000), overruled on other grounds by Arana v. Ochsner Health Plan, 338 F.3d 433, 440 (5th Cir. 2003)).
The Fifth Circuit has held, however, that complete preemption is a narrow exception to the well-pleaded complaint rule. See Id. "`The Supreme Court has clearly sanctioned the rule only in the area of federal labor relations and the Employee Retirement Income Security Act of 1974.'" See Id. (quoting Waste Control Specialists, LLC v. Envirocare, Inc., 199 F.3d 781, 784 (5th Cir.), opinion withdrawn and superceded in part on reh'g on other grounds, 207 F.3d 225 (5th Cir. 2000)). To establish complete preemption, defendant Shadowlands must show that
(1) the statute contains a civil enforcement provision that creates a cause of action that both replaces and protects the analogous area of state law; (2) there is a specific jurisdictional grant to the federal courts for enforcement of the right; and (3) there is a clear Congressional intent that claims brought under the federal law be removable.Id. (quoting Heimann, 187 F.3d at 500). As the Fifth Circuit has noted, "`few federal statutes can meet such an exacting standard." Id.
Defendant Shadowlands argues that removal is proper because the Communications Act preempts state law with regard to radio frequency interference ("RFI"). Shadowlands argues that § 303(f), which requires the Federal Communication Commission to "make such regulations not inconsistent with law as it may deem necessary to prevent interference between stations," preempts state law. 47 U.S.C. § 303(f). Shadowlands quotes at length the Conference Report that accompanied the 1982 amendments to the FCA:
The Conference Substitute is further intended to clarify the reservation of exclusive jurisdiction to the Federal Communications Commission over all matters involving RFI. Such matters shall not be regulated by local or state law, nor shall radio transmitting apparatus be subject to local or state regulation as part of any effort to resolve an RFI complaint . . . [T]he Conferees intend that regulation of RFI phenomena shall be imposed only by the Commission.
(Def.'s Mem. Supp. Mot. Dismiss, at 3 (quoting H.R. Report No. 765, 97th Cong., 2d Sess. 33 (1982))). Shadowlands argues that federal jurisdiction exists because Congress has granted the FCC exclusive jurisdiction to regulate RFI. Shadowlands does not attempt to meet the exacting standard above for removal jurisdiction.
Here, Shadowlands points to no civil enforcement provision that both replaces and protects the analogous areas of state law. Although 47 U.S.C. § 401 provides that the district courts of the United States shall have jurisdiction to hear suits for violation of the provisions of the FCA, see 47 U.S.C. § 401(a), 47 U.S.C. § 414 also provides that "[n]othing 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. As the Eleventh Circuit has noted, "the existence of this type of `savings' clause which `contemplates the application of state-law and the exercise of state-court jurisdiction to some degree . . . counsels against a conclusion that the purpose behind the . . . Act was to replicate the `unique preemptive force'" of the Labor Management Relations Act and ERISA. Smith v. GTE Corp., 236 F.3d 1292, 1313 (11th Cir. 2001). The existence of § 414 weighs against a finding of complete preemption.
Nor does Shadowlands provide any support for the proposition that Congress clearly intended that claims brought pursuant to § 303 be subject to removal jurisdiction. "Complete preemption is not triggered merely because a defendant successfully raises a federal preemption defense." In re Wireless Telephone Radio Frequency Emissions Products Liab. Litig., 216 F. Supp.2d 474, 494 (D. Md. 2002). Indeed, most appellate and district courts that have considered the provisions of the FCA have found that the FCA does not completely preempt state law so as to provide removal jurisdiction. See, e.g., Smith v. GTE Corp., 236 F.3d 1292, 1312-13 (11th Cir. 2001) (holding that the FCA does not provide a basis for removal jurisdiction pursuant to the complete preemption doctrine); Marcus v. ATT Corp., 138 F.3d 46, 53 (same); Russell v. Sprint Corp., 264 F. Supp.2d 955, 960-61 n. 1 (D. Kan. 2003) (listing cases that have declined to allow removal pursuant to the FCA); In re Wireless, 216 F. Supp.2d at 496 (same). Merely because there is an irreconcilable conflict between the FCC's exclusive jurisdiction over the regulation of RFI and the imposition of common law standards in a damages action supports only the proposition that conflict (or ordinary) preemption may apply here. It does not support the proposition that complete preemption exists for purposes of removal.
In short, Shadowlands confuses complete preemption and ordinary preemption. The doctrine of complete preemption is inapplicable here, and although ordinary conflict preemption may apply, Shadowlands may assert this doctrine only as a defense. As a defense, conflict preemption does not support removal because there is no federal claim on the face of plaintiff's complaint. This Court therefore lacks jurisdiction to entertain this action.
The Court recognizes that state courts have consistently held that the FCA preempts state common law nuisance actions when a defendant asserts federal conflict preemption as a defense. See, e.g., Monfort v. Larson, 693 N.Y.S.2d 286 N.Y. App. Div. 1999) (holding that the FCA, its legislative history and related case law "compel[led] the conclusion that the FCC has jurisdiction over complaints involving radio frequency interference."); Still v. Michaels, 803 P.2d 124 (Ariz.Ct.App. 1991) (same); Helm v. Louisville Two-Way Radio Corp., 667 S.W.2d 691 (Ky. 1984) (same); Blackburn v. Doubleday Broad. Co., Inc., 353 N.W.2d 550 (Minn. 1984) (same); Smith v. Calvary Educ. Broad. Network, 783 S.W.2d 533 (Mo. Ct. Cpp. 1990) (same); Fetterman v. Green, 689 A.2d 289 (Pa.Super. 1997) (same). The Court is therefore confident that the state court, pursuant to the overwhelming weight of federal and state precedent, will be able to recognize the validity of the preemption defense and dismiss the action.
B. Motion to Dismiss
Because the Court finds that it lacks subject matter jurisdiction over this matter, the Court does not reach defendant's motion to dismiss.
III. Conclusion
For the reasons state above, the Court GRANTS plaintiff's motion for remand.