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IN RE COMCAST CELLULAR TELCOMS. LITIG.

December 6, 1996

IN RE COMCAST CELLULAR TELECOMMUNICATIONS LITIGATION


The opinion of the court was delivered by: KELLY

 J. M. KELLY, J.

 DECEMBER 6, 1996

 Presently before the Court is Plaintiffs' Motion to Remand this case to the Court of Common Pleas for Philadelphia County pursuant to 28 U.S.C. § 1441(c)(1994), Defendant's response and Plaintiffs' reply. For the reasons set forth below, the Motion will be DENIED.

 BACKGROUND

 Defendant, AWACS, Inc. d/b/a Comcast Metrophone, ("Comcast"), a Pennsylvania Corporation, provides cellular telephone service to customers in Southeastern Pennsylvania and in surrounding areas of Delaware, Maryland, and New Jersey. On February 23, 1996, Robert J. Opalka and Michael J. Revness ("Plaintiffs"), Pennsylvania residents, individually and on behalf of others similarly situated, filed a class action complaint against Comcast in the Court of Common Pleas for Philadelphia County. The purported class consists of all persons who contracted with Comcast for cellular telephone services during the period of February 15, 1990 to the present. Companion class actions making similar allegations were filed against Comcast by different named plaintiffs in state courts in both Delaware and New Jersey.

 Plaintiffs' complaint arises from Comcast's practice of charging for the non-communication period from the time a call is initiated to the time when communication is actually established with the recipient. In addition, Plaintiffs also challenge Comcast's practice of "rounding-up" by billing in one minute increments. Plaintiffs assert that these policies are contrary both to standards in the communications industry and to consumer expectations and are inadequately disclosed to Comcast customers. In their original complaint filed with the Court of Common Pleas, Plaintiffs alleged only state causes of action: (1) violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Stat. Ann. § 201-1, et seq. (1993); (2) breach of contract; (3) breach of the implied duty of good faith and fair dealing; and (4) unjust enrichment and restitution. Plaintiffs seek a variety of remedies, including compensatory damages and preliminary and permanent injunctions against Comcast's practice of billing for non-communication time. While Plaintiffs assert that their complaint is simply directed at Comcast's failure to disclose to customers its practice of charging for non-communication time, Defendant asserts that the true gravamen behind the Plaintiffs' complaint is a challenge to the rates charged by Comcast for cellular telephone service.

 On March 25, 1996, Comcast removed both the Pennsylvania and New Jersey actions to federal court asserting federal jurisdiction under 28 U.S.C. § 1331 (1994) stating that Plaintiffs' claims arise under the Federal Communications Act of 1934, 47 U.S.C. §§ 151 et seq., (1994) as amended and federal common law. *fn1" On May 7, 1996, the Plaintiffs filed the instant motion to remand pursuant to 28 U.S.C. § 1447(c), asserting that this Court lacks subject matter jurisdiction over this action.

 PLAINTIFFS' MOTION FOR REMAND

 Plaintiffs' motion for remand is brought pursuant to 28 U.S.C. § 1447(c), which provides that an action removed to federal court may be remanded to state court, "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction." It is well settled that the burden of establishing federal jurisdiction falls upon the party seeking removal. See Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085, 112 L. Ed. 2d 1046, 111 S. Ct. 959 (1991). In this case it is undisputed that the requirements for the assertion of diversity jurisdiction under 28 U.S.C. § 1332 are not met. Consequently, the only available basis for federal subject matter jurisdiction is the presence of a federal question such that original jurisdiction in federal court could have been asserted pursuant to 28 U.S.C. § 1331. In its petition for removal, Defendant contended that federal question jurisdiction existed because Plaintiffs' cause of action arises under the Communications Act and under federal common law.

 FEDERAL REGULATION OF COMMERCIAL MOBILE RADIO SERVICES

 In recognition of the rapid growth of the wireless telecommunications services industry, in 1993, Congress amended the Communications Act of 1934, 47 U.S.C. §§ 151 et seq. ("the Act") to provide a comprehensive and uniform federal regulatory framework for all commercial mobile radio services ("CMRS"). See Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, § 6002, 107 Stat. 312, 387-97 (1993). Pursuant to its stated goals of regulatory uniformity and deregulation of CMRS, Congress amended Section 332 of the Act 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, except that this paragraph shall not prohibit a state regulating the other terms and conditions of commercial mobile services.

 47 U.S.C.A. § 332(c)(3)(A) (West Supp. 1996) States wishing to enforce existing regulations or impose new restrictions on CMRS rates must apply to the Federal Communications Commission ("FCC") for such authority. 47 U.S.C.A. § 332(c)(3)(A), (B). Congress gave the FCC the exclusive authority to rule on such applications. To date, the FCC has denied all such applications for regulatory authority. See, e.g., Petition of New York State Public Service Commission to Extend Rate Regulation, Report and Order, 10 F.C.C.R. 8187, 8202 (1995); Petition of the Connecticut Department of Public Utility Control to Retain Regulatory Control of the Rates of Wholesale Cellular Service Providers in the State of Connecticut, Report and Order, 10 F.C.C.R. 7025 (1995). The FCC has stated the federal policy as follows:

 "our preemption rules will help promote investment in the wireless infrastructure by preventing burdensome and unnecessary state regulatory practices that impede our federal mandate for regulatory parity." Implementation of Sections 3(n) and 332 of the Communications Act Regulatory Treatment of Mobile Services, Second Report and Order, 9 F.C.C.R. 1411, 1421 (1994) [hereinafter CMRS Second Report and Order ].

 In furtherance of its goal of fostering rapid and uniform development of the CMRS industry through deregulation, Congress gave the FCC plenary authority to forbear from regulating CMRS providers under many of the common carriage provisions of the Act. 47 U.S.C.A. § 332(c)(1)(C). In addition, sole authority to address violations of the Act by CMRS providers was vested with the FCC and the federal district courts. Congress did, however, direct the FCC to continue to enforce Sections 201 (requiring just and reasonable rates, charges and practices), 202 (prohibiting unjust or unreasonable discrimination in charges and practices), and 208 (authorizing the filing of complaints against common carriers with the FCC). The FCC has stated:

 
Compliance with Sections 201, 202, and 208 is sufficient to protect consumers in the event that a challenged carrier violated Section 201 or 202, the Section 208 complaint process would permit challenges to a carrier's rates or practices and full compensation for any harm due to violations of the Act. Although we will forbear from enforcing our refund and prescription authority, described in Sections 206 and 205, we do not forbear from Sections 206, 207, and 209, so that successful complainants could collect damages.

 CMRS Second Report and Order, 9 F.C.C.R. at 1479.

 Section 201(b) of the Communications Act provides that, "all charges, practices, classifications, and regulations for and in connection with such communications service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is declared to be unlawful." Section 207 of the Act provides that any person alleging harm by a carrier under Section 201(b) may make a complaint to the FCC under Section 208 or bring suit in federal court. 47 U.S.C. § 207. In either case, damages are available to aggrieved parties under the terms of the Communications Act. 47 U.S.C. §§ 207-209. Consequently, Congress and the FCC have ensured that an elaborate federal regulatory framework remains ...


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