No.

__________

In the
Supreme Court of the United
States

Telesaurus VPC, LLC

v.

Randy Power, Patricia A. Power and

Radiolink Corporation

On Petition for a Writ of Certiorari to

the United States Court of Appeals for the
Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Tamir Damari
(Counsel of Record)
Patrick Richard
Nossaman, LLP
50 California Street, 34th Floor
San Francisco, CA 94111
(415) 438-7278
tdamari@nossaman.com
 ii
Counsel for Telesaurus
 i
QUESTIONS PRESENTED
The parties are FCC licensees regulated under
the Telecommunications Act of 1996, Pub. L. No.
104-104, 110 Stat. 56 (1996) (the “FCA”) and Arizona
state law. Telesaurus VPC, LLC (“Telesaurus”)
alleges that Respondents Randy Power, Patricia A.
Power and Radiolink Corporation (collectively
“Radiolink”) competed unfairly by fraudulently
procuring and using for profit common-carrier radio
frequencies from the FCC that they knew had
already been licensed exclusively by the FCC to
Telesaurus, which had already outbid Radiolink for
these frequencies at auction. After recognizing this
error years later, the FCC “deleted” the frequencies
from the Radiolink license on the ground that “the
frequencies were not available” for licensing,
Thereupon, Telesaurus sued Radiolink alleging
state-law damage claims for conversion, unjust
enrichment, and tortious interference with
prospective economic advantage. The Ninth Circuit
found that all of Telesaurus’s state-law claims are
preempted by the FCA’s preemption clause,
47 U.S.C. § 332(c)(3)(A), which provides that:
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, except that this
paragraph shall not prohibit a State from
regulating the other terms and conditions of
commercial mobile services.
The Ninth Circuit further held that
Telesaurus’s state-law claims are not saved by the
FCA’s “savings clause,” contained at 47 U.S.C. §414.
 ii
The questions presented are:
1. Are Telesaurus’s state-law
damages claims for fraud, tortious interference
with contractual relations and conversion, state
“regulation” of rates and market entry, and,
thus preempted under U.S.C. § 332(c)(3)(A)?
2. Are Telesaurus’s state-law
damages claims for fraud, tortious interference
with contractual relations and conversion
against Radiolink, for procuring and using
Telesaurus’s exclusive FCC-licensed
frequencies, preempted under 47 U.S.C.
§ 332(c)(3)(A), even though, at the time suit was
initiated, the relevant licensed frequencies to
Radiolink had been revoked by the FCC and
recognized by the FCC as having been invalidly-
granted in the first instance?
3. Are Telesaurus’s state-law
damages claims for fraud, tortious interference
with contractual relations and conversion
against Radiolink (brought in federal court on
diversity grounds) state regulation of “rates” or
“market entry” under 47 U.S.C. § 332(c)(3)(A)?
4. What is the extent of recourse
that a plaintiff has under state law against a
defendant-FCC licensee, where a dispute exists
between the parties as to whether the
defendant is a common-carrier subject to
liability under federal law pursuant to 47
U.S.C. §206-207?
 iii

CORPORATE DISCLOSURE STATEMENT

There is no parent corporation of Telesaurus.
No publically-held company owns more than
10% or any of the stock of Telesaurus.
 iv

TABLE OF CONTENTS
QUESTIONS PRESENTED ......................................... i
CORPORATE DISCLOSURE STATEMENT ............... iii
TABLE OF AUTHORITIES ........................................ v
INTRODUCTION ...................................................... 1
OPINIONS BELOW ................................................... 2
JURISDICTION ........................................................ 2
STATUTES INVOLVED............................................. 2
STATEMENT OF THE CASE ..................................... 4
A. Facts Giving Rise To The
Dispute ............................................................ 4
B. Proceedings Below .................................... 6
REASONS FOR GRANTING THE WRIT ..................... 9
1. There Is A Split In
Authority Regarding The
Preemptive Scope Of
§ 332(c)(3)(A) ........................................... 9
a) Introduction .................................... 9
b) Review Should Be
Granted To Establish
Uniformity ..................................... 10
2. The Court Should Grant
Review To Settle An
Important Question Of Law. ................... 14
CONCLUSION ........................................................ 28
 v

TABLE OF AUTHORITIES
Page(s)
F EDERAL C ASES
Allis-Chalmers Corp. v. Lueck,
471 U.S. 202 (1985)............................................14
Altria Group, Inc. v. Good,
129 S. Ct. 538 (2008)........................10, 14, 19, 20
Aubrey v. Ameritech Mobile Communications,
Inc.,
2002 U.S. Dist. LEXIS 15918 (E.D. Mich.
June 17, 2002)....................................................11
Bastien v. AT&T Wireless Services,
205 F.3d 983 (7th Cir. 2000) .......................10, 13
Bates v. Dow Agrosciences LLC,
544 U.S. 431 (2005)......................................23, 27
Bates v. Dow Agrosciences, LLC,
544 US 431 (2005)..............................................15
Beckett v. Mellon Investor Servs. LLC,
329 Fed. Appx. 721 (9th Cir. 2009) ...................15
BriteSmile, Inc. v. Discus Dental, Inc.,
2005 U.S. Dist. LEXIS 30855 (N.D. Ca.
November 18, 2005) ...........................................25
Cellular Telecom Indus. v. FCC,
168 F.3d 1332 (D.C. Cir. 1999)..........................10
Cipollone v. Liggett Group,
505 U.S. 504 (1992)................................14, 15, 18
Cooperative Commc’ns, Inc. v. AT&T Corp.,
867 F. Supp. 1511 (D. Utah 1994).....................26
Dimension One Spas, Inc. v. Coverplay, Inc.,
2008 U.S. Dist. LEXIS 69526 (S.D. Ca.
September 5, 2008) ............................................25
 vi
Farina v. Nokia,
578 F. Supp. 2d. 740 (E.D. Pa. 2008), aff’d
625 F.3d 97 (3rd Cir. 2010).................................11
Geier v. American Honda Motor Co., Inc.,
529 U.S. 861 (2000)............................................26
Global Crossing Telecommunications, Inc. v.
Metrophones Telecommunications, Inc.
550 U.S. 45 (2007)..............................................27
GMP Technologies, LLC v. Zicam, LLC,
2009 U.S. Dist. LEXIS 115523 (N.D. Ill.
December 9, 2009) .............................................25
GTE Mobilnet Ohio v. Johnson,
111 F.3d 469 (6th Cir. 1997) .............................12
In re Coleman Enterprises, Inc.,
14 FCC Rcd 13786 (1999) ..................................27
In re NOS Communications, Inc.,
18 FCC Rcd 6952 22 (2003) ...............................27
In re: Silv Communication, Inc.,
25 FCC Rcd 5178 13 (2010) ...............................27
In Re: Southwestern Bell Mobile Systems,
Inc.,
14 FCC Rcd 19898 (1999) ..................................16
In Re: Wireless Consumers Alliance, Inc.,
15 FCC Rcd 17021 (2000) ..............................1, 16
Landmark Graphics Corp. v. Seismic Micro
Technology, Inc.,
470 F. Supp. 2d. 757 (S.D. Tex. 2007)...............25
Medtronic Inc. v. Lohr,
518 U.S. 470 (1996)................................15, 23, 27
Pinney v. Nokia,
402 F.3d 430 (4th Cir. 2005) ...........12, 13, 20, 26
 vii
Rice v. Santa Fe Elevator Corp.,
331 U.S. 218 (1947)............................................14
Riegel v. Medtronic, Inc.,
552 U.S. 312 (2008)................................15, 23, 27
Shelley v. Kraemer,
334 U.S. 1 (1948)................................................17
Shryoer v. New Cingular Wireless Services,
Inc.,
606 F.3d 658 (9th Cir. 2010).................7, 8, 11, 14
Sprietsma v. Mercury Marine,
537 U.S. 51 (2002)........................................18, 19
Telesaurus VPC, LLC v. Power,
2009 U.S. Dist. LEXIS 12296 (D. Ariz.
2009) .................................................2, 5, 7, 11, 14
Telesaurus VPC, LLC v. Power,
623 F.3d 998 (9th Cir. 2010).............................2, 7
The Dow Chemical Co. v. Exxon Corp.,
139 F.3d 1470 (Fed. Cir. 1998)....................23, 25
TPS Utilicom Servs. v. AT&T Corp.,
223 F. Supp. 2d. 1089 (C.D. Ca. 2002)..............22
WHW Enterprises, Inc. v. FCC,
753 F.2d 1132 (D.C. Cir. 1985)..........................23
Wyeth v. Levine,
129 S. Ct. 1187 (2009)........................................14
S TATE C ASES
Bryceland v. AT&T,
114 S.W.3d 552 (Tex. App. 2002) ......................13
In re: Cellphone Fee Termination Cases,
193 Cal. App. 4th 298 (2011) ..............................12
Murray v. Motorola, Inc.,
982 A.2d 764 (D.C. 2009).............................11, 19
 viii
New-Par v. PUC of Ohio,
98 Ohio St. 3d. 277 (2002) .................................12
Pacific Bell Wireless, LLC v. Public Utilities
Commission,
140 Cal. App. 4th 718 (2006) ........................12, 14
Tenore v. AT&T Wireless Services,
962 P.2d 104 (Wash. 1998) ..............12, 13, 19, 26
Union Ink, Co., Inc. v. AT&T Corp,
801 A.2d 361 (N.J. Super. 2002) .................13, 17
F EDERAL S TATUTES
28 U.S.C. § 1254 ........................................................2
46 U.S.C. § 4306 ......................................................17
47 U.S.C. § 201 ..................................................26, 27
47 U.S.C. § 201(b)....................................................27
47 U.S.C. § 202 ........................................................27
47 U.S.C. § 206 .......................................i, 6, 7, 26, 27
47 U.S.C. § 207 ...............................i, 6, 20, 21, 26, 27
47 U.S.C. § 208 ..................................................20, 27
47 U.S.C. § 332 8, 9, 10, 12, 13, 15, 16, 17, 19, 21, 26
47 U.S.C. § 332(c)(1)................................................27
47 U.S.C. § 332(c)(3)(A)......... ii,i, 1, 2, 6, 7, 9, 10, 11,
....................................................12, 13, 15, 19, 22
47 U.S.C. § 414 ..................................... ii, 1, 3, 25, 26
Airline Deregulation Act, 49 U.S.C. §
41713(b)(1) .........................................................19
U.S.C. § 332(c)(3)(A)? .................................................i
R EGULATIONS
47 C.F.R. § 80.123 .....................................................4
O THER A UTHORITIES
 ix
Conference Report, Telecommunications Act of
1996, H.R. 104-458, at p. 1 (1996).......................9
Lewis v. Brunswick Corp.,
No. 97-288 ....................................................17, 18
Telecommunications Act of 1996, Pub. L. No.
104-104, 110 Stat. 56 (1996) (the “FCA”) .......... ii
 1
INTRODUCTION
Telesaurus respectfully petitions for a writ of
certiorari to review the Ninth Circuit’s decision that
Telesaurus’ adds state-law claims are preempted by
47 U.S.C. §332(c)(3)(A). The principal question
presented is whether Telesaurus’s state-law
damages claims for fraud, tortious interference with
contractual relations and conversion against
Radiolink, for procuring and using Telesaurus’s
exclusive FCC-licensed frequencies, are preempted
under 47 U.S.C. § 332(c)(3)(A), even though, at the
time suit was initiated, the relevant licensed
frequencies to Radiolink had been revoked by the
FCC and recognized by the FCC as having been
invalidly-granted in the first instance.
There is a conflict among appellate courts
regarding the extent to which such state-law claims
are preempted. The better reasoned line of authority
and the FCC have concluded that “[i]f ... providers
are to conduct business in a competitive
marketplace, and not in a regulated environment,
then state contract and tort law claims should
generally be enforceable . . .” In Re: Wireless
Consumers Alliance, Inc., 15 FCC Rcd 17021, 17034
(2000). This approach also better effectuates the
intent of the savings clause contained in 47 U.S.C.
§414, which states 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.”
This Court should grant review to resolve the
conflict.
 2
OPINIONS BELOW
The opinion of the trial court was reported at
2009 U.S. Dist. LEXIS 12296 (D. Ariz. February 5,
2009) and is reproduced at App. 29-44. The opinion
of the Court of Appeals is reported at 623 F.3d 998
(9th Cir. 2010) and is reproduced at App. 1-28. The
decision of the Ninth Circuit denying Telesaurus’s
Petition for Panel Rehearing or in the Alternative
Rehearing En Banc is unreported and is reproduced
at App. 45-46.
JURISDICTION
The judgment of the Ninth Circuit was
entered on October 8, 2010. On October 29, 2010,
Telesaurus filed a timely Petition for Panel
Rehearing, or, in the Alternative, Rehearing En
Banc with the Ninth Circuit. On December 28, 2010,
the Ninth Circuit denied this Petition. On March 18,
2011, Telesaurus timely filed an Application to this
Court for an Extension of Time (up until April 11,
2011) to file a Petition for a Writ of Certiorari. This
Application was granted on March 23, 2011.
Accordingly, this Court has jurisdiction under
28 U.S.C. §1254.
STATUTES INVOLVED
47 U.S.C. § 332(c)(3)(A), the FCA’s preemption
provision, provides in relevant part:
[N]o 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, except that this
paragraph shall not prohibit a State from
 3
regulating the other terms and conditions of
commercial mobile services.
47 U.S.C. § 414 provides:
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.
 4
STATEMENT OF THE CASE
A. Facts Giving Rise To The Dispute
Telesaurus obtains FCC licenses to provide
advanced wireless telecommunications services
essential for Intelligent Transportation Systems
App. 50 ITS is a unique, new wireless market in the
United States. Id. Telesaurus uses its FCC licenses
to serve the nation’s pubic safety, critical
infrastructure, and large commercial vehicle fleet
operations.
In 1999, Warren Havens, Telesaurus’
predecessor in interest, competed against Radiolink
in a public FCC auction to obtain a license for
certain VHF public coast frequencies (the “VPC
Frequencies”) in the Phoenix, Arizona area.1 App.
48-51. Mr. Havens outbid Radiolink to win the
frequencies and was awarded a license for exclusive
use of the VPC Frequencies (the “VPC License”).
1
As noted on the FCC’s website (
http://wireless.fcc.gov/services/index.htm?job=ser
vice_home&id=coast_stations): “Public coast
stations . . . [permit] ships to send and receive
[wireless] messages and to interconnect with the
public switched telephone network. VHF public
coast stations . . . generally provide short-range
communications for vessels not more than 30
nautical miles from shore . . . [and] have
obligations to monitor distress frequencies and to
relay messages free of charge to search and
rescue personnel . . .” These licenses may also be
used for land services under 47 C.F.R. §80.123.
ITS involves maritime and land operations.
 5
App. 50-51.
Only three months later, Randy Power
submitted a sworn application to the FCC to obtain
most of the VPC Frequencies contained in the VPC
License, even though he knew the VPC License had
been awarded to Mr. Havens. App. 51; see also
Telesaurus VPC, LLC v. Power, 2009 U.S. Dist.
LEXIS 12296, *4 (D. Ariz. 2009). In that
application, Power falsely represented to the FCC
that the VPC Frequencies were not already sold and
licensed. App. 51. Specifically, Power did not
disclose the fact that the VPC Frequencies were
included in Telesaurus’ exclusive VPC License, but
rather misrepresented to the FCC that the VPC
Frequencies were available for licensing. App. 51.
The FCC requires applicants to certify that all facts
stated in licensing applications are true and correct,
and it generally relies on these certifications. It
therefore believed Power’s misrepresentations and
issued to Power the VPC Frequencies that Mr.
Havens had previously bought at auction. App. 51.
Radiolink used Telesaurus’s VPC Frequencies
for at least six years. App. 51 During that time,
Telesaurus tried to find wireless communications
companies to partner with using the VPC
Frequencies. App. 52-53. Telesaurus subsequently
learned from prospective business partners that the
VPC Frequencies were already in use by Radiolink,
blocking Telesaurus’s use thereof and thereby
causing Telesaurus to lose out on valuable business
opportunities. Id.
After potential business partners informed
Telesaurus that the VPC Frequencies were being
 6
used by Radiolink, Telesaurus investigated and
found this allegation to be true. App. 53.
Telesaurus reported this fraudulent and invalid use
to the FCC, and, in March 2004, the FCC issued a
preliminary order in which it recognized that the
“Radiolink application should not have been granted
to the extent that it requested VPC frequencies.”
App. 5, 83. The March 2004 Order was finalized in
an Order issued on July 7, 2005, under which the
VPC Frequencies were deleted from Radiolink’s
license and restored to Telesaurus. App. 6, 84. In
both the March 2004 and July 2005 Orders, the FCC
noted that the VPC frequencies should not have been
granted to Radiolink to the extent it requested the
VPC frequencies; i.e., that the grant of these
frequencies was, in effect, void ab initio. App. 5-6,
83-84.
B. Proceedings Below
Telesaurus filed its complaint on July 6, 2007,
alleging that Radiolink willfully and wrongfully used
Telesaurus’s spectrum and licenses for six years (the
First Amended Complaint (“FAC”), the operative
pleading in this case, was filed on October 10, 2008
and is included in the Appendix at App. 47-56).
Telesaurus alleged violations of the FCA (under 47
U.S.C. §§ 206-207), and state common-law causes of
action for conversion, unjust enrichment, and
interference with prospective economic advantage.
App. 53-55. Radiolink moved to dismiss, contesting
that it was not a common carrier subject to federal
liability under 47 U.S.C. §§206-207 and that
Telesaurus’s state-law claims were preempted under
47 U.S.C. §332(c)(3)(A). App. 57-73.
 7
On February 5, 2009, the District Court
dismissed Telesaurus’ FAC in its entirety, holding
that “Telesaurus states no cause of action under
federal law” for violation of 47 U.S.C. § 206, and that
the “state [law] claims are preempted.” Telesaurus,
supra, 2009 U.S. Dist. LEXIS 12296, * 2. In
connection with the latter determination, the
District Court held that all of Telesaurus’ state-law
claims are preempted by 47 U.S.C. § 332(c)(3)(A),
which provides in part that states shall not “regulate
the entry of or the rates charged by any commercial”
mobile service. 47 U.S.C. § 332(c)(3)(A).
The Ninth Circuit affirmed in part and
reversed in part. Telesaurus VPC, LLC v. Power,
623 F.3d 998 (9th Cir. 2010). With respect to the
trial court’s dismissal of Telesaurus’ state-law
claims, the Ninth Circuit affirmed in all respects,
holding that Telesaurus’s claims in effect challenged
an FCC licensing determination and, as such, are
preempted under §332(c)(3)(A)’s prohibition against
state regulation of “market entry.” Id., at 1009-11.
The Court noted that Shryoer v. New Cingular
Wireless Services, Inc., 606 F.3d 658, 662 (9th Cir.
2010), a case involving preemption of state rate
regulation, informed its preemption analysis. In
particular, the Court held that: (i) “Licensing [is] the
FCC's core tool in the regulation of market entry . . .
[as it] directly involves agency determinations of
public interest, safety, efficiency, and adequate
competition, all inquiries specially within the
expertise of the FCC;” and (ii) “§ 332(c)(3)(A)
preempts state tort actions that require a court to
substitute its judgment for the agency’s with regard
 8
to a licensing decision.” Id., at 1008-09 (internal
citations omitted).
Applying the Shroyer standard, the Ninth
Circuit concluded that Telesaurus’s state-law claims
are preempted under §332. In the Court’s view,
“Each of Telesaurus’s state-law claims requires
adjudication of whether Radiolink’s use of the VPC
Frequencies was improper [requiring] the court to
substitute its judgment for the FCC's with regard to
a licensing decision, a core determination regarding
market entry.” Id., at 1010. The Ninth Circuit also
concluded that “Telesaurus’s tort claims amount to a
collateral challenge to the validity of the license
initially granted to Radiolink by the FCC . . .
Because an adjudication of [these] claims would be
necessarily equivalent to second-guessing the FCC's
issuance of a license, they are expressly preempted.”
2
Id. The Ninth Circuit acknowledged that the
subject VPC Frequencies had been deleted from
Radiolink’s license. Nevertheless, the Court failed to
specifically how prosecution of a state-law claim
arising out of the misuse of a license could have any
practical effect upon (let alone constitute state
regulation of) market entry, where the license had
already been revoked by the licensing authority at
the time the relevant complaint was filed.

2
As to Telesaurus’s federal claims, the Ninth Circuit
found that the trial court properly dismissed those
claims, but erred in failing to grant Telesaurus leave
to amend its complaint. Id., at 1003-06. The federal
claim is not at issue in this petition.
 9
REASONS FOR GRANTING THE WRIT
1. There Is A Split In Authority
Regarding The Preemptive
Scope Of § 332(c)(3)(A)
a) Introduction
One the major purposes of the
3
telecommunications laws is to promote competition.
As the telecommunications industry has expanded to
wireless service, some industry participants have
resorted to unfair business practices, engendering
allegations of misrepresentations and failures to
disclose, and sparking lawsuits from consumers and
competitors in federal and state courts across the
country. Courts have therefore had to address the
preemptive scope of § 332(c)(3)(A). The law on §332
preemption varies widely from jurisdiction to
jurisdiction. As explained below, in the absence of a
clear pronouncement from this Court, courts will
continue to adjudicate claims of § 332 preemption ad
hoc, exacerbating a patchwork of inconsistent
results, stemming from differing theories of
preemption.

3
Conference Report, Telecommunications Act of
1996, H.R. 104-458, at p. 1 (1996) (purpose of bill
was “to provide for a pro-competitive, deregulatory
national policy framework designed to accelerate
rapidly private sector deployment of advanced
services and information technologies and services to
all Americans by opening all telecommunications
markets to competition....”)
 10
Preemptive intent may be expressly stated in
the language of the statute or it “may be inferred if
the scope of the statute indicates that Congress
intended federal law to occupy the legislative field,
or if there is an actual conflict between state and
federal law.” Altria Group, Inc. v. Good, 129 S. Ct.
538, 543 (2008). Section 332 of the FCA poses
particular challenges with respect to the preemption
doctrine “because it leaves its key terms undefined.
It never states what constitutes rate and entry
regulation or what comprises other terms and
conditions of wireless service.” Cellular Telecom
Indus. v. FCC, 168 F.3d 1332, 1336 (D.C. Cir. 1999).
As a result, courts are split regarding §332(c)(3)(A)’s
preemptive scope. This split has manifested itself
with respect to the question of which preemption
category is applicable to state-law claims asserted
against FCC licensees (that is, express, conflict, or
field) and with respect to the types of substantive
state-law claims that are preempted within a given
category.
b) Review Should Be
Granted To Establish
Uniformity
As noted, there is a split in authority
regarding the preemptive scope of § 332(c)(3)(A). On
one end of the spectrum, the Seventh Circuit has
held that § 332(c)(3)(A) establishes complete
preemption. Bastien v. AT&T Wireless Services, 205
F.3d 983, 986-87 (7th Cir. 2000) (“Congress intended
complete preemption” by passing § 332(c)(3)(A))
(emphasis added). Under this line of authority,
virtually any state-law claim having any nexus to an
 11
FCC licensee’s business activities is “federalized,”
and, therefore, federal courts have exclusive federal
question jurisdiction over such claims. Id. In other
words, the Seventh Circuit not only holds that
§ 332(c)(3)(A) broadly preempts state law claims, but
also that federal courts are the only tribunals
empowered to assess the preemption issue.
The Third , Ninth and D.C. Circuits, and
numerous state appellate courts), have rejected
complete preemption, but have nonetheless found
claims preempted under § 332(c)(3)(A) under the
rubrics of implied or conflict preemption. See, e.g.,
Murray v. Motorola, Inc., 982 A.2d 764 (D.C. 2009)
(customers’ suit against service providers alleging
injury through cell phone use barred under implied
preemption to the extent these customers sought to
hold the defendants liable for injuries caused by cell
phones that met FCC radio frequency radiation
standards); Farina v. Nokia, 578 F. Supp. 2d. 740
(E.D. Pa. 2008) (state claims barred on an implied
preemption theory, because, in order to prevail, the
plaintiff necessarily would have to seek a
determination by the trier of fact that FCC
standards for RF emissions were inadequate), aff’d
625 F.3d 97, 120 (3rd Cir. 2010) (conflict preemption
principles barred the plaintiff’s claims); Aubrey v.
Ameritech Mobile Communications, Inc., 2002 U.S.
Dist. LEXIS 15918 (E.D. Mich. June 17, 2002). The
Ninth Circuit’s decision below also seemed to rely on
an implied conflict preemption theory. Telesaurus
VPC, LLC, at 1010 (“there is an irreconcilable
conflict between the FCC’s exclusive licensing
authority . . . and Telesaurus’s allegations that
 12
Radiolink ‘wrongfully’ or ‘unlawfully’ operated under
its FCC license.”); see also, Shroyer (“Elements of
Shroyer’s unfair competition claim, however, depend
on the assessment of the public benefit of the
merger. That determination has already been made
by the FCC, and reexamination of that issue under
state law is preempted either by § 332 or by the
ordinary principles of conflict preemption.”).
Finally, a third category of courts, including
the Eighth, Fourth, and Sixth Circuits, have taken a
narrow view of §332 preemption, rejecting complete
preemption and implied preemption as a rubric for
evaluating §332, and instead holding that claims can
be barred if at all only under § 332(c)(3)(A) on the
basis of express preemption. Pinney v. Nokia, 402
F.3d 430, 450 (4th Cir. 2005) (“there is simply no
evidence that Congress intended ... to preempt
completely state law claims that are based on a
wireless service provider’s sale and promotion of
wireless telephones.”); GTE Mobilnet Ohio v.
Johnson, 111 F.3d 469, 479 (6th Cir. 1997) (The
language of § 332(c)(3)(A) “does not compel the
conclusion that ... the states may no longer
adjudicate individual cases involving specific
allegations of anti-competitive or discriminatory
conduct.”). State appellate courts have reached
similar conclusions. See, e.g., Tenore v. AT&T
Wireless Services, 962 P.2d 104 (Wash. 1998)
(customers’ claims that providers committed fraud
by not disclosing a billing practice of rounding up
calls to the next minute were not completely
preempted); New-Par v. PUC of Ohio, 98 Ohio St. 3d.
277 (2002) (price discrimination claim by a reseller
 13
against a service provider not completely
preempted). In re: Cellphone Fee Termination
Cases, 193 Cal. App. 4th 298 (2011); Pacific Bell
Wireless, LLC v. Public Utilities Commission, 140
Cal. App. 4th 718, 735 (2006) (holding that “the
doctrine of complete preemption is inapplicable in
this case.”)
Given these conflicting preemption theories, it
is not surprising that courts assessing similar claims
have reached divergent conclusions as to whether
such claims are preempted. This split in authority is
particularly pronounced with respect to state-law
claims arising out of misrepresentations, such as
those asserted by Telesaurus here. Compare Bastien
(claim by wireless consumer that provider had
committed fraud by misleading the plaintiff about
the nature of service completely preempted by § 332)
with Pinney (plaintiffs’ claims based on
misrepresentations and failures to disclose regarding
the level of radio frequency radiation emitted by cell
phones were not preempted under express, conflict
or field preemption) and Tenore, 962 P.2d at 345 (a
claim by cellular customers that wireless providers
had committed fraud by not disclosing a billing
practice of rounding up calls to the next minute was
not preempted under § 332(c)(3)(A)); see also Union
Ink, Co., Inc. v. AT&T Corp, 801 A.2d 361, 369-78
(N.J. Super. 2002) (“We . . . determine ... the extent
to which the statutory language expressly pre-empts
a state court from awarding damages against
providers of cellular telephone service based upon
state statutes dealing with consumer fraud or under
the state’s common law regarding fraud or negligent
 14
misrepresentation ... [the trial court] erred in
holding that plaintiffs’ state law ... fraud ... claims
are pre-empted by federal law ... [in light of] this
State’s public policies affording broad protection to
consumers against deceptive commercial practices ...
we conclude that plaintiffs’ State law claims ... are
not barred by federal law.”) Bryceland v. AT&T, 114
S.W.3d 552 (Tex. App. 2002).
Indeed, even within the same geographic
region (e.g., California), federal and state appellate
courts have reached seemingly opposite conclusions
on the appropriate preemption rubric. Compare
Shroyer and Telesaurus VPC LLC (seemingly
resolving claims, at least in part, on the basis of
implied conflict preemption) with Pacific Bell
Wireless, LLC (holding inter alia that “the doctrine
of implied preemption is inapplicable in this case.”).
Further clarity is needed.
2. The Court Should Grant
Review To Settle An Important
Question Of Law.
Preemption is primarily a question of
statutory construction, and, thus the Court should
inquire into the objective or purpose of Congress in
enacting the relevant statute. Allis-Chalmers
Corp. v. Lueck, 471 U.S. 202, 208 (1985); Cipollone,
505 U.S. at 516. Moreover, several doctrines place
limits on preemption. First, there is an “assumption
that the historic police powers of the States [are] not
to be superseded by the Federal Act unless that was
the clear and manifest purpose of Congress.” Id.,
(quoting Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230 (1947)). Second, because of this
 15
“presumption against preemption,” Cipollone, 505
U.S. at 516, Congress’ intent to preempt must be
“clear and manifest” to preempt state law in a field
traditionally occupied by the states. Wyeth v.
Levine, 129 S. Ct. 1187, 1195 (2009)(emphasis
added); Altria Group, 129 S. Ct. at 543 (“[w]hen the
text of a pre-emption clause is susceptible of more
than one plausible reading, courts ordinarily ‘accept
the reading that disfavors pre-emption’”), (quoting
Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449
(2005)). Third, courts are required to assess
complaints on a claim-by-claim basis to determine
whether preemption applies. Cipillone, at 523;
Beckett v. Mellon Investor Servs. LLC, 329 Fed.
Appx. 721, 723 (9th Cir. 2009). Finally, violation of a
federal statute may give rise to a state law cause of
action without running afoul of preemption, where
state law simply supplies a remedy not available
under federal law. Riegel v. Medtronic, Inc., 552
U.S. 312 , 330 (2008) (“Thus [the Medical Device
Amendments Act] does not prevent a State from
providing a damages remedy for claims premised on
a violation of FDA regulations; the state duties in
such a case ‘parallel,’ rather than add to, federal
requirements.”);Bates v. Dow Agrosciences, LLC,
544 US 431, 447 (2005); Medtronic Inc. v. Lohr, 518
U.S. 470, 495 (1996).
The question of the extent to which
§ 332(c)(3)(A) preempts claims associated with an
FCC-issued license is an important one, because it
potentially affects many FCC licensees and because
it has been, and will continue to be, extensively
litigated. If, as the Ninth Circuit suggested, § 332
 16
preempts (under conflict preemption principles or
otherwise) any claims arising out of a misuse of an
FCC-issued license by a licensee (even when the
license is essentially deemed void ab initio) any
holder of an FCC license would be able to engage in
unlawful and anti-competitive practices against
competitors with impunity. This result would
frustrate the states’ established right to regulate
business activities within their jurisdictions. Simply
put, an FCC-issued license should not be a carte
blanche to commit state law torts.
For several reasons, Petitioners submit that
the line of case law taking a narrow view of § 332
preemption represents the better-reasoned line of
authority. First, the FCC itself, which is entrusted
with protecting the FCA’s regulatory scheme, takes
the position that § 332 generally does not preempt
state law tort claims. For example, in In Re
Wireless Consumers Alliance, Inc., 15 FCC Rcd at
17026-34, the FCC held that (i) although § 332
preempts actual rate-setting by states, it does not
preempt state contract or consumer fraud laws
relating to the disclosure of rates and rate practices;
(ii) § 332 generally does not preempt the award of
monetary damages based on state tort or contract
claims; (iii) state courts are not, as a general matter,
prevented by § 332 from awarding damages to
customers based on violations of state contract or
consumer fraud laws; and (iv) tort and contract law
have the function of compensating victims, which
distinguishes them from the direct forms of
regulation entrusted to the FCC. See also In Re:
Southwestern Bell Mobile Systems, Inc., 14 FCC Rcd
 17
19898 *26 (1999) (“We do not agree ... that state
contract or consumer fraud laws relating to the
disclosure of rates and rate practices have generally
been preempted.... Such preemption . . . is not
supported by its language or legislative history.
[T]he legislative history of Section 332 clarifies that
billing information, practices and disputes—all of
which might be regulated by state contract or
consumer fraud laws—fall within ‘other terms and
conditions’ which states are allowed to regulate.
Thus, state law claims stemming from state contract
or consumer fraud laws governing disclosure of rates
and rate practices are not generally preempted
under Section 332.”). Notably, in these decisions,
the FCC did not state or suggest that complete
preemption or implied preemption frameworks are
in any way applicable to §332. The FCC’s position is
entitled to significant deference, since courts
“should not sacrifice the public policies of the State
to some ephemeral view of the federal interest which
is at variance with the considered opinions of the
administrative agency charged with overseeing the
subject matter field, as well as those of most of the
courts which have addressed the issues.” Union Ink,
Co., Inc. at 375.
Second, under the plain language of § 332,
state governments are only denied “authority to
regulate the entry of or the rates charged . . . ” By
using the term “regulate,” Congress preempted only
the positive statutory and regulatory enactments of
those governments, and not state-law claims for
damages. Although a judicial decision is state action
for some purposes, cf. Shelley v. Kraemer, 334 U.S. 1
 18
(1948), that does not suggest that the ordinary
meaning of "State government" includes judges and
juries. In common parlance, one would not describe a
civil jury -- whose principal functions are to assess
liability and apply the law -- as a unit of a state or
local government. Likewise, that description would
be a very unusual way to refer to a judge. In fact, the
U.S. Solicitor General argued as much in a 1997
Supreme Court brief filed in Lewis v. Brunswick
Corp., No. 97-288. Lewis presented the question of
whether the express preemption clause of the
Federal Boat Safety Act, 46 U.S.C. § 4306 -- which
was directed at the actions of a "State or political
subdivision of a State" -- preempts common-law
damages claims. In arguing for a no-preemption
ruling in Lewis, the United States relied, among
other things, on the fact that "a court in a common
law damages action would not normally be thought
of as a 'State or political subdivision of a State.'"
Brief for the United States as Amicus Curiae in
Lewis, No. 97-288 (U.S. filed Dec. 1997), 1997 WL
799992, at *18.
Likewise, this Court has also made clear that
where a federal statute prohibits state “regulation,”
it “most naturally refers to positive enactments by
those [legislative or regulatory] bodies, not to
common-law damages actions.” Cipollone, 505 U.S.
at 519. This Court made the same point in
Sprietsma v. Mercury Marine, 537 U.S. 51, 62-63
(2002), where it held that the express preemption
clause of the Federal Boat Safety Act pre-empted
only positive enactments. If “law,” the Court noted,
“were read broadly so as to include the common law,
 19
it might also be interpreted to include regulations,
which would render the express reference to
‘regulation’ in the pre-emption clause superfluous.”
Id. at 63. This Court further explained that limiting
the preemption clause to positive law (and thereby
excluding state-law damages liability) “does not
produce anomalous results. It would have been
perfectly rational for Congress not to pre-empt
common-law claims, which-unlike most
administrative and legislative regulations-
necessarily perform an important remedial role in
compensating … victims.” Id. at 64. (emphasis
added).
Under this definition of “regulation,”
Telesaurus’s state-law claims are not preempted,
because they do not involve a positive statutory or
regulatory enactment by the State of Arizona. In
this respect, § 332 stands in marked contrast to
other preemption clauses. For example, the express
preemption clause in the Airline Deregulation Act,
49 U.S.C. § 41713(b)(1), contains statutory language
of “unusual breadth” because it prohibits states from
enacting or enforcing any law “relating to rates,
routes or services of any air carrier.” Altria Group,
129 S. Ct. at 548 (emphasis added). Unlike the
Airline Deregulation Act, § 332 does not use the
broad language of preemption of “any law relating
to” commercial or private mobile carriers. Instead,
this section preempts only those claims that
“regulate the entry of or the rates charged by” mobile
service providers. Indeed, as if to underscore this
narrow approach, states are expressly authorized to
regulate “the other terms and conditions of
 20
commercial mobile services.” See also Tenore (citing
to §332’s terms and conditions clause as grounds for
rejecting preemption); Murray, 982 A.2d at 774
(same, noting that the trial court’s “conclusion
cannot be reconciled with the second clause of
section 332 (c)(3)(A), which expressly permits states
to restrict ‘the other terms and conditions of
commercial mobile services’ without regard to
whether such terms and conditions may create
hurdles or burdens attendant to participating in the
market.”).
Third, the narrow approach best effectuates
the well-settled “assumption that the historic police
powers of the States [are] not to be superseded by
the Federal Act unless that was the clear and
manifest purpose of Congress.” Altria Group, 129 S.
Ct. at 543. This logic should hold particularly true
where, as here, the defendant contends that it is not
a common carrier subject to liability in a federal
4
court under 47 U.S.C. §§206-207 (or subject to FCC

4
In this regard, 47 U.S.C. §207 states that “Any
person claiming to be damaged by any common
carrier subject to the provisions of this chapter may
either make complaint to the Commission as
hereinafter provided for, or may bring suit for the
recovery of the damages for which such common
carrier may be liable under the provisions of this
chapter, in any district court of the United States of
competent jurisdiction; but such person shall not
have the right to pursue both such remedies.”
 21
5
regulation under 47 U.S.C. §208). Under such
circumstances, state law remedies are absolutely
vital, because they comprise the only bases under
which a party such as Radiolink can be held to
account for its actions. Pinney, 402 F.3d at n.4
(preemption inapplicable to telecommunications-
related claims because “[s]tates continue to have
considerable authority in the wireless
telecommunications area,” and because “[t]he
presumption against preemption is even stronger
against preemption of state remedies, like tort
recoveries, when no federal remedy exists.”). The
Ninth Circuit’s conclusion (finding Telesaurus’s
state-law claims to be preempted under §332, while
nevertheless leaving open the possibility that
Radiolink is not a common carrier subject to federal
liability under §§206-207), creates the very real
potential of an anomalous and manifestly unjust
result under which a party such as Telesaurus is left
with no cause of action (under federal or state law)
by which to remedy anticompetitive actions such as
6
those undertaken by Radiolink in the instant case.

5
As noted above, Telesaurus contests this contention
by Radiolink, and this issue is currently on remand
before the District Court of Arizona.
6
Also, it should be noted that state-law causes of
action allowing for relief of the sort Telesaurus has
sought in the case sub judice are typically far better
conceptually-developed and clear, and far better
understood by courts, than the permissible scope of
 22
When construing the scope of § 332
preemption, it is also important to define exactly
what is meant by the term “market entry.”
Telesaurus was not seeking to regulate market entry
in this case. It did not, at any point, attempt to
challenge the criteria under which FCC licenses
were issued to Radiolink in the first instance, nor did
it second-guess the FCC’s initial grant of the VPC
Frequencies to Radiolink. Furthermore,
Telesaurus’s claims neither sought to regulate the
competitive auction bidding process nor sought to
challenge eligibility requirements for obtaining FCC
licenses.
As noted, it was the FCC that ultimately
determined in March 2004 that the “Radiolink
application should not have been granted” to the
extent that it requested the VPC Frequencies,
thereby prompting the FCC to cancel Radiolink’
licenses with respect to those frequencies. The
instant case was not filed until after this
cancellation. As such, there was no likelihood that
the adjudication of Telesaurus’ state-law claims
would have impinged upon the FCC’s authority to
issue licenses, among other reasons because, with
respect to the VPC Frequencies, Radiolink was not
an FCC licensee at the time Telesaurus filed suit.
The principal issue here was whether Telesaurus’s
claims sought to “second-guess” an FCC license
determination. This is a practical assessment that
examines whether these claims may impinge on or

damages claims under 47 U.S.C. §§206-207, which is

still being developed by courts.
 23
contradict rights granted to an FCC licensee. The
risk of such a conflict is non-existent where license
rights have been revoked and the issuing agency has
itself determined that the rights should not have
been granted in the first place. Even those courts
which have dismissed claims on §332(c)(3)(A)
grounds have recognized this fact. See, e.g., TPS
Utilicom Servs. v. AT&T Corp., 223 F. Supp. 2d.
1089, 1109 n. 19 (C.D. Ca. 2002) (“If TPS brought the
unfair practices and tortious interference claims . . .
after a determination that a party had wrongfully
participated in an FCC license auction, such claims
might escape FCA preemption”). In short,
vindication of the state law claims at issue in this
case would have the effect of bolstering (rather than
adding to or conflicting with) the FCA’s policies
(including the FCC’s interest in ensuring that
7
licensees act with candor towards the Commission ).
Riegel, at 330; Bates, at 447; Lohr, at 495.
Telesaurus respectfully submits that however broad
the scope of the FCC’s interest in regulating rates or
market entry might be, this interest does not extend
to effectively protecting a party’s ability to illegally
use another party’s spectrum, via federal
preemption.
For similar reasons, the Ninth Circuit was
incorrect in asserting that Telesaurus’s claims
“collaterally challenge” a Radiolink license. Once
the FCC determined that the VPC Frequencies
should not have been licensed to Radiolink, there

7
See, e.g., WHW Enterprises, Inc. v. FCC, 753 F.2d
1132, 1140 (D.C. Cir. 1985).
 24
was simply nothing left for Telesaurus to “challenge”
before the FCC. Telesaurus’s claims, far from
collaterally “challenging” an FCC determination,
were actually based, in substantial part, on the
FCC's determination that Radiolink had no right to
the VPC Frequencies in the first place.
A useful analogue can be drawn to patent
cases. It is well-established that that a party can
assert a state-law claim against a patent licensee
arising out of the wrongful procurement of a patent,
where it is alleged that the patent was procured by
fraud or in bad faith. The seminal case on the issue
is The Dow Chemical Co. v. Exxon Corp., 139 F.3d
1470 (Fed. Cir. 1998), in which the plaintiff (Dow)
asserted state-law unfair competition claims against
the defendant (Exxon), arising out of Exxon’s
inequitable conduct in procuring patents from the
U.S. Patent and Trademark Office. The trial court
concluded that Dow’s state-law claims were
preempted by federal patent law. On appeal, the
Federal Circuit reversed, holding:
[A] state law claim is not preempted by
the federal patent law, even if it
requires the state court to adjudicate a
question of federal patent law, provided
the . . . cause of action includes
additional elements not found in the
federal patent law cause of action. . .
The state law cause of action at issue
here does not present an obstacle to the
execution and accomplishment of the
patent laws. . . While it is true that . . .
the state court would be required to
 25
make a determination of an issue of
patent law in reaching its judgment on
the underlying tort, this determination
would only be ancillary to its central
purpose . . . The instant case. . .
concerns an allegation of bad faith
enforcement of a reputedly
unenforceable patent. . .[thus] [t]he tort
claim at issue here is not premised
upon bad-faith misconduct in the PTO,
but rather is premised upon bad-faith
misconduct in the marketplace. . . A
state has every right to protect its
citizens and residents in their
contractual relations from acts of
wrongful interference . . . by any party,
including a patentee . . . Any award of
damages, then, would be based on local
conduct that the state has a right to
regulate; proof of acts before the PTO in
such a trial are merely evidence of the
patentee’s bad-faith.
Id., at 1473-78.
See also BriteSmile, Inc. v. Discus Dental,
Inc., 2005 U.S. Dist. LEXIS 30855 *16-17 (N.D. Ca.
November 18, 2005); GMP Technologies, LLC v.
Zicam, LLC, 2009 U.S. Dist. LEXIS 115523 *10
(N.D. Ill. December 9, 2009); Dimension One Spas,
Inc. v. Coverplay, Inc., 2008 U.S. Dist. LEXIS 69526
*48-58 (S.D. Ca. September 5, 2008); Landmark
Graphics Corp. v. Seismic Micro Technology, Inc.,
470 F. Supp. 2d. 757, 759 (S.D. Tex. 2007) (“SMT’s
unfair competition counterclaim alleges that
 26
Landmark has sought to enforce the 570 Patent
against SMT with knowledge that the patent is
unenforceable due to inequitable conduct. This
counterclaim does not rest entirely on actions before
the PTO but alleges ‘marketplace misconduct.’. . .”).
The logic of these cases applies with even
greater force to this case. Unlike the patent cases, in
which the courts were required to resolve “ancillary”
issues of patent law, the District Court in this case
need not have adjudicated any FCC licensing issues.
The issue in this case, as in the above-cited
authorities, is whether the putative tortfeasor
asserted, in bad faith, a federally-conferred right
that it knew it did not have. As in Dow Chemical,
the allegations contained in Telesaurus’s complaint
are premised on bad-faith misconduct in the
marketplace and proof of acts before the FCC at trial
would simply be evidence of Radiolink’s bad-faith.
Finally, the approach proposed by Telesaurus
best effectuates the intent of the § 414 savings
clause which states 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.” The inclusion of the savings clause
“assumes that there are some significant number of
common-law liability cases to save,” and mandates a
narrow reading of §332’s preemption provision.
Geier v. American Honda Motor Co., Inc., 529 U.S.
861, 868 (2000). Courts have specifically recognized
the important interplay between § 414 and § 332,
and have held that it “preserves causes of action for
breaches of duties distinguishable from those created
 27
under the [FCA].” Cooperative Commc’ns, Inc. v.
AT&T Corp., 867 F. Supp. 1511, 1516 (D. Utah
1994). In Pinney, the Fourth Circuit held that the
“savings clauses counsel against any broad
construction of the goals of § 332 . . . that would
create an implicit conflict with state tort law.”
Pinney, 402 F.3d at 450. And in Tenore, the
Washington Supreme Court held that the existence
of the § 414 precluded a finding that preemption
barred claims by customers against providers
alleging that providers committed fraud by not
disclosing a practice of “rounding up”. Telesaurus
respectfully asks: If the §414 savings clause does not
save and protect claims against a party that is
alleged to have wrongfully obtained and used
another entity’s frequencies associated with a valid
FCC license, then what does it in fact save?
Finally, to the extent the state-law claims
asserted by Telesaurus against Radiolink are
parallel to federal-law claims that could be asserted
by Telesaurus under 47 U.S.C. §§ 201 and 206-207 if
8
Radiolink were deemed to be a common carrier,
logic dictates that these claims should not be
preempted. See Riegel, at 330; Bates, at 447; Lohr,
at 495. In other words, Telesaurus maintains that
it would be anomalous for a party that has engaged
in unjust and unreasonable practices that would

8
Under 47 U.S.C. §332(c)(1), common carriers
cannot be exempted from sections 201, 202 or 208 of
the FCA. As such, all common carriers are
potentially liable for unjust and unreasonable
practices under 47 U.S.C. §201.
 28
typically be actionable under both the FCA and state
common-law, to escape all liability, simply on
account of the fact that it claims not to be a common
carrier.
Fraudulent and misleading practices have
been deemed by the FCC to be per se unjust and
unreasonable practices under §201. See, e.g., In re:
Silv Communication, Inc., 25 FCC Rcd 5178 13
(2010); In re NOS Communications, Inc., 18 FCC
Rcd 6952 22 (2003); In re Coleman Enterprises, Inc.,
9
14 FCC Rcd 13786, 13802 (1999). As discussed,
Radiolink is alleged to have engaged in false and
misleading practices by fraudulently obtaining the
VPC Frequencies from the FCC. Accordingly,
Telesaurus should have been permitted to proceed
with state-law claims arising out of Radiolink’s false
and misleading practices.
For each of these reasons, the conflict of
authority with respect to the scope of FCA
preemption should be resolved in favor of a narrow
view of preemption.
CONCLUSION
For the reasons stated above, this petition
should be granted.

9
Furthermore, this Court has held that actions
deemed to be “unjust and unreasonable” practices
under §201(b) of the FCA may give rise to a cause of
action under §206-07. See Global Crossing
Telecommunications, Inc. v. Metrophones
Telecommunications, Inc. 550 U.S. 45 (2007).
29
Respectfully submitted,

/s/Tamir Damari
Tamir Damari
(Counsel of Record)
Patrick Richard
Nossaman, LLP
50 California Street
34th Floor
San Francisco, CA 94111
(415) 438-7278
tdamari@nossaman.com
Counsel for Telesaurus