Farina v. Nokia, Inc.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 08-4034

FRANCIS J. FARINA, individually and on behalf
of all those similarly situated

v.

NOKIA INC.; NEC AMERICA;
ERICSSON WIRELESS COMM., INC.;
MOTOROLA, INC.; SPRINT PCS, L.P.;
AUDIOVOX COMMUNICATIONS CORPORATION;
NEXTEL COMMUNICATIONS
OF THE MID-ATLANTIC, INC.;
MATSUSHITA CORPORATION OF AMERICA,
also known as PANASONIC CORPORATION;
PHILIPS ELECTRONIC NORTH AMERICA CORP.;
QUALCOMM INCORPORATED
also known as QUALCOMM, INC;
SAMSUNG TELECOMMUNICATIONS AMERICA, L.P.;
SANYO NORTH AMERICA, INC. also known as
SANYO NORTH AMERICA GROUP;
SONY ELECTRONICS, INC.;
 AT&T WIRELESS SERVICES, INC.;
CELLCO PARTNERSHIP,
also known as VERIZON WIRELESS;
CINGULAR WIRELESS LLC, also known as
SOUTHWESTERN BELL WIRELESS formally known as
SOUTHWESTERN BELL MOBILE SYSTEMS, NC.;
CELLULAR ONE GROUP,
also known as CELLULAR ONE;
VOICESTREAM WIRELESS CORPORATION,
also known as VOICESTREAM WIRELESS;
LG ELECTRONICS MOBILECOMM U.S.A.., INC.;
CELLULAR TELECOMMUNICATION
INDUSTRY ASSOCIATION, also known as TIA;
JOHN DOES NOS. 1-100

Francis J. Farina,
Apellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 06-cv-0724
(Honorable John R. Padova)

2
 Argued April 19, 2010
Before: SCIRICA, AMBRO
and ALARCÓN * , Circuit Judges.

(Filed: October 22, 2010)

KENNETH A. JACOBSEN, ESQUIRE (ARGUED)
12 Orchard Lane
Wallingford, Pennsylvania 19086

MICHAEL D. DONOVAN, ESQUIRE
Donovan Searles
1845 Walnut Street , Suite 1100
Philadelphia, Pennsylvania 19103

JOSEPH A. O'KEEFE, ESQUIRE
O'Keefe & Sher
15019 Kutztown Road
Kutztown, Pennsylvania 19530
Attorneys for Appellant

DAVID C. FREDERICK, ESQUIRE (ARGUED)
Kellogg Huber Hansen Todd Evans & Figel
1615 M Street, N.W., Suite 400
Washington, D.C. 20036

*
The Honorable Arthur L. Alarcón, United States Circuit
Judge for the Ninth Judicial Circuit, sitting by designation.

3
SEAMUS C. DUFFY, ESQUIRE
Drinker Biddle & Reath
One Logan Square
18th & Cherry Streets
Philadelphia, Pennsylvania 19103
Attorneys for Appellees,
AT&T Wireless Services, Inc.
n/k/a New Cingular Wireless Services, Inc.;
Cingular Wireless LLC n/k/a AT&T Mobility LLC

JOHN BEISNER, ESQUIRE
Skadden Arps Slate Meagher & Flom
1440 New York Avenue, N.W.
Washington, D.C. 20005

ROBERT C. HEIM, ESQUIRE
RICHARD D. WALK, JR., ESQUIRE
Dechert
Cira Centre, 18th Floor
2929 Arch Street
Philadelphia, Pennsylvania 19104
Attorneys for Appellee,
Cellco Partnership d/b/a Verizon Wireless

ANDREW G. McBRIDE, ESQUIRE
JOSHUA S. TURNER, ESQUIRE
Wiley Rein
1776 K Street, N.W.

4
Washington, D.C. 20006
Attorneys for Appellees,
Cellco Partnership d/b/a Verizon Wireless;
Nokia Inc.

DANIEL T. FITCH, ESQUIRE
Stradley Ronon Stevens & Young
2600 One Commerce Square
2005 Market Street
Philadelphia, Pennsylvania 19103

JOHN B. ISBISTER, ESQUIRE
Tydings & Rosenberg
100 East Pratt Street, 26th Floor
Baltimore, Maryland 21202
Attorneys for Appellee,
Samsung Telecommunications America, LLC

SUSAN K. HERSCHEL, ESQUIRE
Hoyle Fickler Herschel & Mathes
One South Broad Street, Suite 1500
Philadelphia, Pennsylvania 19107

EUGENE A. SCHOON, ESQUIRE
Sidley Austin
One South Dearborn Street
Chicago, Illinois 60603
Attorneys for Appellee,

5
 Voicestream Wireless Corporation
n/k/a T-Mobile USA, Inc.

EDWARD M. CRANE, ESQUIRE
Skadden Arps Slate Meagher & Flom
155 North Wacker Drive
Chicago, Illinois 60606

STEVEN A. HABER, ESQUIRE
Obermayer Rebmann Maxwell & Hippel
One Penn Center, 19th Floor
1617 John F. Kennedy Boulevard
Philadelphia, Pennsylvania 19103
Attorneys for Appellees,
Nextel Communications of the Mid-Atlantic, Inc.;
Nextel Boost of the Mid-Atlantic LLC; Nextel West
Corp.; Nextel Boost West LLC

JAMES P. ULWICK, ESQUIRE
Kramon & Graham
Commerce Place, Suite 2600
One South Street
Baltimore, Maryland 21202
Attorney for Appellee,
NEC Corporation of America

FRANCIS A. CITERA, ESQUIRE
Greenberg Traurig

6
77 West Wacker Drive, Suite 2500
Chicago, Illinois 60601

BRIAN T. FEENEY, ESQUIRE
Greenberg Traurig
2700 Two Commerce Square
2001 Market Street
Philadelphia, Pennsylvania 19103

FRANCINE F. GRIESING, ESQUIRE
Griesing Law
1717 Arch Street, Suite 360
Philadelphia, Pennsylvania 19103
Attorneys for Appellees,
Qualcomm, Inc.;
Sony Electronics, Inc.

HOWARD D. SCHER, ESQUIRE
Buchanan Ingersoll & Rooney
Two Liberty Place, Suite 3200
50 South 16th Street
Philadelphia, Pennsylvania 19102
Attorney for Appellee,
Cellular One Group

WALTER H. SWAYZE, III, ESQUIRE
Segal McCambridge Singer & Mahoney
United Plaza, Suite 1700

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30 South 17th Street
Philadelphia, Pennsylvania 19103
Attorney for Appellee,
Panasonic Corp. of North America f/k/a
Matsushita Electric Corporation of America

DAVID G.C. ARNOLD, ESQUIRE
915 Montgomery Avenue, Suite 109
Narberth, Pennsylvania 19072

LINDA B. EPSTEIN, ESQUIRE
Hughes Hubbard & Reed
1775 I Street, N.W., Suite 600
Washington, D.C. 20006
Attorneys for Appellee,
LG Electronics Mobilecomm U.S.A., Inc.

ROCHELLE M. FEDULLO, ESQUIRE
Wilson Elser Moskowitz Edelman & Dicker
The Curtis Center, Suite 1130 East
Independence Square West
601 Walnut Street
Philadelphia, Pennsylvania 19106
Attorney for Appellee,
Sanyo North America, Inc.

ASHLEY R. ADAMS, ESQUIRE
Akin Gump Strauss Hauer & Feld

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1111 Louisiana Street, 44th Floor
Houston, Texas 77002

FRED I. WILLIAMS, ESQUIRE
Akin Gump Strauss Hauer & Feld
300 West Sixth Street, Suite 2100
Austin, Texas 78701

STEVEN M. ZAGER, ESQUIRE
Akin Gump Strauss Hauer & Feld
One Bryant Park
New York, New York 10036
Attorneys for Appellee,
Nokia, Inc.

WALTER L. McDONOUGH, ESQUIRE
Swartz Campbell
Two Liberty Place, 28th Floor
50 South 16th Street
Philadelphia, Pennsylvania 19102
Attorney for Appellee,
Sprint Corp.

STEPHAN G. WEIL, ESQUIRE
Dickstein Shapiro
1825 Eye Street, N.W.
Washington, D.C. 20006

9
CRAIG E. ZIEGLER, ESQUIRE
Montgomery McCracken Walker & Rhoads
123 South Broad Street, 24th Floor
Philadelphia, Pennsylvania 19109
Attorneys for Appellee,
Audiovox Communications Corporation

MARK A. ARONCHICK, ESQUIRE
ROBERT L. EBBY, ESQUIRE
Hangley Aronchick Segal & Pudlin
One Logan Square, 27th Floor
18th & Cherry Streets
Philadelphia, Pennsylvania 19103

CHARLES L. BABCOCK, ESQUIRE
DAVID T. MORAN, ESQUIRE
Jackson Walker
901 Main Street, Suite 6000
Dallas, Texas 75202
Attorneys for Appellee,
Ericsson Inc.

RAYMOND B. BIAGINI, ESQUIRE
LISA M. NORRETT, ESQUIRE
McKenna Long & Aldridge
1900 K Street, N.W.
Washington, D.C. 20006

10
MARY C. DOHERTY, ESQUIRE
Marshall Dennehey Warner Coleman & Goggin
1845 Walnut Street, 21st Floor
Philadelphia, Pennsylvania 19103
Attorneys for Appellee,
Philips Electronics North America Corporation

ROBERT E. WELSH, JR., ESQUIRE
Welsh & Recker
2000 Market Street, Suite 2903
Philadelphia, Pennsylvania 19103
Attorney for Appellee,
Cellular Telecommunication Industry Association

TERRENCE J. DEE, ESQUIRE
MICHAEL B. SLADE, ESQUIRE
Kirkland & Ellis
300 North LaSalle Street, Suite 2400
Chicago, Illinois 60654
Attorneys for Appellee,
Motorola Inc.

JAMES M. MESNARD, ESQUIRE
Seyfarth Shaw
975 F Street, N.W.
Washington, D.C. 20004
Attorney for Appellee,
Telecommunications Industry Association

11
 OPINION OF THE COURT

SCIRICA, Circuit Judge.

Appellant Francis J. Farina brought this class action
against various cell phone manufacturers and retailers of
wireless handheld telephones. He appeals from the dismissal of
his complaint on the ground that his claims are preempted by
regulations promulgated by the Federal Communications
Commission. We will affirm.

I.

Farina represents a putative class consisting of all past,
current, and future Pennsylvania purchasers and lessees of cell
phones who have not been diagnosed with an injury or illness
resulting from their cell phone usage. Farina’s claims are based
on the allegation that cell phones, as currently manufactured, are
unsafe to be operated without headsets because the customary
manner in which they are used—with the user holding the phone
so that the antenna is positioned next to his head—exposes the
user to dangerous amounts of radio frequency (“RF”) radiation.
Farina alleges the marketing of cell phones as safe for use
without headsets violates several provisions of Pennsylvania
law.

12
 A.

A cell phone functions by transmitting information
between its low-powered radio transmitter and a base station,
usually a tower containing a large antenna. See generally
Pinney v. Nokia, Inc., 402 F.3d 430, 439–40 (4th Cir. 2005).
Each base station reaches a relatively small area, or cell, and as
a user moves from cell to cell, the signal must transfer from base
station to base station. Id. at 440. When cell phones
communicate with base stations, they emit RF energy. Id. The
strength of a cell phone signal, and hence its range, has been
positively correlated with the intensity of its RF emissions. See
In re Rural Telephone Cos., 18 F.C.C.R. 20802, 20829 & n.114
(2003) [hereinafter NPR Rural] (notice of proposed
rulemaking).1

1
The power level of a cell phone, measured in watts, is
correlated with the range of a cell phone signal. See NPR Rural,
18 F.C.C.R. at 20829 (“One way to increase the range of radio
systems is by increasing power levels.”); id. at 20830
(“[R]eceived signal levels decrease exponentially as the receiver
moves farther from the transmitter . . . .”). The intensity of RF
radiation is measured in watts per kilogram. See 47 C.F.R. §
2.1093(d). Thus, the intensity of RF radiation is correlated with
the power level and, therefore, range. See generally FCC,
Office of Engineering & Technology, Questions and Answers
about Biological Effects and Potential Hazards of
Radiofrequency Electromagnetic Fields, OET Bull. No. 56, 5–6

13
 The science is clear that at high levels RF radiation can
cause adverse “thermal” effects resulting from the heating of
human tissue. See generally FCC, Office of Engineering &
Technology, Questions and Answers about Biological Effects
and Potential Hazards of Radiofrequency Electromagnetic
Fields, OET Bull. No. 56, 6–7 (4th ed. Aug. 1999) [hereinafter
O E T B u l l e t i n ] , a v a i l a b l e a t
http://www.fcc.gov/Bureaus/Engineering_Technology/Docum
ents/bulletins/oet56/oet56e4.pdf. More controversial is the
purported existence of “non-thermal” effects caused by lower
levels of RF radiation. Farina alleges that over the past five
decades “dozens of peer reviewed research papers were
published which, individually and collectively, raised serious
and credible questions regarding whether the RF[ radiation] to
which [cell phone] users were and are exposed posed a risk or
threat to their health.” Third Am. Compl. ¶ 51; see also id. ¶¶
79–86, 90–98 (describing findings from numerous studies and
laboratory tests). According to the FCC, however, “the evidence
for production of harmful biological effects [from low-level RF
radiation] is ambiguous and unproven.” OET Bulletin 8.
Results from studies have been “inconclusive,” and “while the
possibility of ‘non-thermal’ biological effects may exist,
whether or not such effects might indicate a human health
hazard is not presently known.” Id. In light of the present state

(4th ed. Aug. 1999), available at
http://www.fcc.gov/Bureaus/Engineering_Technology/Docum
ents/bulletins/oet56/oet56e4.pdf.

14
of the science, the FCC has stated that any cell phone legally
sold in the United States is a “safe” phone. App. 691.

B.

Federal regulation of radio communications can be traced
back a century, to the Wireless Ship Act of 1910, ch. 379, 36
Stat. 629. See Nat’l Broad. Co. v. United States, 319 U.S. 190,
210 (1943). Federal control over the medium was extended by
the Radio-Communications Act of 1912, ch. 287, 37 Stat. 302,
which mandated federal licensing of the use of radio
frequencies, Nat’l Broad. Co., 319 U.S. at 210, and was
cemented by the Federal Communications Act of 1934, ch. 652,
48 Stat. 1064 (“FCA”), Nat’l Broad. Co., 319 U.S. at 213–14.
The FCA was enacted “[f]or the purpose of regulating interstate
and foreign commerce in communication by wire and radio so
as to make available . . . a rapid, efficient, Nation-wide, and
world-wide wire and radio communication service with
adequate facilities at reasonable charges . . . .” 47 U.S.C. § 151.
To that end, the FCA established the FCC, which was endowed
with broad authority to license and regulate radio
communications. See Nat’l Broad. Co., 319 U.S. at 214–16.

The FCC’s jurisdiction extends to wireless telephone
service, see In re An Inquiry Into the Use of the Bands 825–845
MHz and 870–890 MHz for Cellular Communications Systems,
86 F.C.C.2d 469, 470 (1981) [hereinafter Cellular Commc’ns],
and FCC authority over the technical aspects of radio
communications is “exclusive,” Head v. N.M. Bd. of Exam’rs in

15
Optometry, 374 U.S. 424, 430 n.6 (1963). The FCC is charged
with fostering the development of an efficient wireless network,
47 U.S.C. § 151, and an essential characteristic of an efficient
network is nationwide accessibility and compatibility, see
Cellular Commc’ns, 86 F.C.C.2d at 503 (“Throughout the
cellular proceeding an essential objective has been for cellular
service to be designed to achieve nationwide compatibility. . . .
[A] cellular subscriber traveling outside of his or her local
service area should be able to communicate over a cellular
system in another city.”). Moreover, the FCC has long asserted
that uniformity in the technical standards governing wireless
services is necessary to ensure an efficient nationwide system.
See id. at 504–05 (“[W]e are asserting federal primacy over the
areas of technical standards and competitive market structure for
cellular service.”); see also In re Petition of the Conn. Dep’t
Pub. Util. Control, 10 F.C.C.R. 7025, 7034 (1995) (“Congress
intended . . . to establish a national regulatory policy for
[commercial mobile radio services], not a policy that is
balkanized state-by-state.” (footnote omitted)).

The FCC has regulated human exposure to RF emissions
only since 1985. See In re Responsibility of the F.C.C. to
Consider Biological Effects of Radiofrequency Radiation, 100
F.C.C.2d 543, 544 (1985) [hereinafter Responsibility]. The
FCC’s RF regulations were promulgated to satisfy the
Commission’s obligations under the National Environmental

16
Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 et seq.2
NEPA obligates all federal agencies—not just the FCC—to
consider and identify the environmental impact of any “major”
action that “significantly affect[s] the quality of the human
environment.” 42 U.S.C. § 4332(2)(C). Although the FCC does
not possess individual agency expertise with respect to the
development of public health and safety standards, see
Responsibility, 100 F.C.C.2d at 551, the Commission concluded
that NEPA obligated it to regulate RF radiation, see id. at 546.
After seeking input from other federal agencies 3 and interested
parties, the FCC adopted as its own standard the then-current
American National Standards Institute Committee (“ANSI”)
standard governing RF emissions. Id. at 551. Notably, these
regulations did not extend to cell phones. See id. at 561–62.

2
Although RF standards were issued to satisfy NEPA
obligations, the regulations were promulgated pursuant to the
FCC’s rulemaking authority under, inter alia, 47 U.S.C. §§
154(i) and 303(r).
3
In particular, the FCC has solicited guidance on its RF
regulations from the Food and Drug Administration, the
Environmental Protection Agency, the Occupational Safety and
Health Administration, the National Institute for Occupational
Safety and Health, the National Telecommunications and
Information Administration, and the Department of Defense.
See OET Bulletin 27.

17
 In 1993, prompted by ANSI’s revision of its standards in
collaboration with the Institute of Electrical and Electronic
Engineers, Inc. (“IEEE”), the FCC began rulemaking procedures
to determine whether it should strengthen its regulations. See In
re Guidelines for Evaluating the Environmental Effects of
Radiofrequency Radiation, 8 F.C.C.R. 2849, 2849 (1993)
[hereinafter NPR FCC First Order] (notice of proposed
rulemaking). Among the proposed changes was the extension
of RF regulations to cover cell phones. Id. at 2851. During the
pendency of this notice-and-comment period, Congress passed
the Telecommunications Act of 1996 (“TCA”), which directed
the FCC to “make effective rules regarding the environmental
effects of [RF] emissions” within 180 days of the TCA’s
enactment. Pub. L. No. 104-104, § 704(b), 110 Stat. 56, 152.
In addition, the TCA expanded the FCC’s authority to preempt
certain state and local regulations of RF emissions. See 47
U.S.C. § 332(c).

In response to the TCA, the FCC adopted a hybrid of the
ANSI/IEEE standard and the standard recommended by the
National Council on Radiation Protection and Measurements
(“NCRP”). See In re Guidelines for Evaluating the
Environmental Effects of Radiofrequency Radiation, 11
F.C.C.R. 15123, 15134–35, 15146–47 (1996) [hereinafter FCC
First Order]. These regulations, reflecting a “consensus view
of the federal agencies responsible for matters relating to the
public safety and health,” id. at 15124, limited RF emissions
from cell phones for the first time, id. at 15146–47. In

18
particular, the FCC adopted a maximum specific absorption rate
(“SAR”)—which measures the amount of energy absorbed in
human tissue—in “uncontrolled” 4 environments of 0.08
watts/kilogram (W/kg) as averaged over the whole-body and 1.6
W/kg spatial peak as averaged over any 1 gram of tissue, as
measured for frequencies between 100 kHz and 6 GHz. Id. at
15140–41, 15146–47; see also 47 C.F.R. § 2.1093(d)(2).5 The
Commission recognized that research on the safety of RF
radiation was ongoing, and pledged to monitor the science “in
order to ensure that our guidelines continue to be appropriate

4
The ANSI/IEEE and NCRP standards drew distinctions
between exposure in “occupational”/“controlled” environments
and exposure in “general population”/“uncontrolled”
environments, which were subsequently adopted by the FCC.
Id. at 15139. The occupational/controlled exposure standard
applies to individuals exposed as a result of their employment,
who are fully aware of possible exposure, and can exercise
control over it. Id. The general population/uncontrolled
exposure standard applies to the general public or those
individuals exposed as a result of their employment who are
either unaware of exposure or cannot exercise control over it.
Id.
5
The SAR maximum for general population/uncontrolled
exposure contains exemptions for exposure to the hands, wrists,
feet, and ankles, at which the spatial peak SAR is 4 W/kg, as
averaged over any 10 grams of tissue. 47 C.F.R. § 2.1093(d)(2).

19
and scientifically valid.” FCC First Order, 11 F.C.C.R. at
15125. The FCC reaffirmed the standards relevant to this case
one year later. See In re Procedures for Reviewing Requests for
Relief From State and Local Regulations, 12 F.C.C.R. 13494,
13505 (1997) [hereinafter FCC Second Order]. The current
standards are codified at 47 C.F.R. § 2.1093(d), and all cell
phones sold in the United States must comply with those
regulations, 47 C.F.R. §§ 2.803(a)(1), 24.51–.52.

C.

The complaint before us in this appeal is Farina’s Third
Amended Complaint. The procedural history of this case is
complex, winding through state court, two federal district courts,
and the Judicial Panel on Multidistrict Litigation. Because the
specifics of the procedural history are implicated by Farina’s
challenge to our subject matter jurisdiction, we set them out in
detail.

Farina initially brought this putative class action in the
Philadelphia County Court of Common Pleas, asserting claims
for: (1) civil conspiracy to market and sell defective cell phones
by collective means, including the suppression of information
regarding the health risks of RF emissions and the deliberate
misleading of the public as to those risks; (2) breach of implied
warranties of merchantability and fitness for a particular
purpose, on the ground that cell phones sold without headsets
were unsafe to use; (3) breach of express warranty of safe usage;
(4) violation of the Magnuson-Moss Warranty Improvement

20
Act, 15 U.S.C. §§ 2301–12, on the basis of breach of express
and implied warranties; (5) violation of the Pennsylvania Unfair
Trade Practices and Consumer Protection Law;6 and (6) a
judgment under the Pennsylvania Declaratory Judgments Act,
42 Pa. Cons. Stat. § 7531, et seq., declaring that defendants’
conduct violated Pennsylvania law and requiring defendants to
award the class members with headsets.

Farina filed his initial complaint on April 19, 2001.
Defendants subsequently removed the case to the United States
District Court for the Eastern District of Pennsylvania. Farina’s
case was one of a set of parallel cases alleging defects in cell
phones arising from the health risks of RF radiation that were
brought in state courts in Pennsylvania, Maryland, New York,
Georgia, and Louisiana. The cases were consolidated 7 by the
Judicial Panel on Multidistrict Litigation and transferred to the
United States District Court for the District of Maryland
(“Maryland court”). In re Wireless Tel. Radio Frequency

6
Farina has since voluntarily dismissed this claim, on the
basis of our holding in Hunt v. U.S. Tobacco Co., 538 F.3d 217
(3d Cir. 2008).
7
The Georgia case, Gimpelson v. Nokia, Inc., was pending at
the time of the initial consolidation, see In re Wireless Tel.
Radio Frequency Emissions Prods. Liab. Litig., 170 F. Supp. 2d
1356, 1357 n.2 (J.P.M.L. 2001), but was subsequently
consolidated as a tag-along action.

21
Emissions Prods. Liab. Litig., 170 F. Supp. 2d 1356, 1358
(J.P.M.L. 2001). Four of these cases, including Farina’s, were
removed to federal court on the basis of federal-question
jurisdiction. The Louisiana case, Naquin v. Nokia Mobile
Phones, Inc., was removed on the basis of diversity jurisdiction.
The plaintiffs in all cases, except for the Naquin plaintiffs, filed
a consolidated motion to remand before the Maryland court.
The court denied the motion, concluding that federal-question
jurisdiction was raised by the issue of federal preemption. In re
Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig.,
216 F. Supp. 2d 474, 491–92 (D. Md. 2002). The court then
granted the defendants’ motion to dismiss, concluding that FCC
regulations of RF emissions preempted the plaintiffs’ suit. In re
Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig.,
248 F. Supp. 2d 452, 467 (D. Md. 2003).

The plaintiffs appealed to the Court of Appeals for the
Fourth Circuit, which reversed. Pinney, 402 F.3d at 439. The
court found subject matter jurisdiction lacking for the
plaintiffs—including Farina—in the cases other than Naquin.
Id. at 451. In particular, the issue of federal preemption did not
arise on the face of a “well-pleaded complaint,” but merely
constituted an anticipated affirmative defense, which could not
confer jurisdiction. Id. at 445–46. It similarly rejected
application of the jurisdictional doctrine of complete
preemption. Id. at 451. However, for the Naquin plaintiffs, the
court reached the merits of the preemption issue—as it had
jurisdiction on the basis of diversity—and concluded the FCA,

22
as amended by the TCA, did not preempt these claims. Id. at
459.

Accordingly, because the Fourth Circuit concluded
federal jurisdiction did not exist over Farina’s claims, his case
was remanded back to the Court of Common Pleas. On
December 23, 2005, Farina filed a Second Amended Complaint,
adding, for the first time, LG Electronics, Inc., a Korean cell
phone manufacturer, and its American subsidiary, LG
Electronics U.S.A., Inc. (collectively, “LG defendants”). The
complaint was served on December 27, and no defendant sought
removal within thirty days, as required by 28 U.S.C. § 1446(b).

Shortly after the filing of the Second Amended
Complaint, LG defendants’ counsel allegedly approached
Farina’s counsel, seeking to drop the listed LG corporations
from the suit—who purportedly had no connection to the
manufacture or retail of cell phones—and substitute a different
American subsidiary, LG Electronics MobileComm U.S.A., Inc.
(“LG MobileComm”). According to Farina, his counsel
hesitated to amend the complaint, as it had filed the Second
Amended Complaint only three weeks prior, and sought instead
to file a Praecipe to Amend Caption and Substitute Party. But,
as Farina alleges, LG defendants’ counsel insisted upon a formal
amended complaint,8 and Farina acquiesced, filing the Third

8
This insistence was ostensibly due to Pa. R. Civ. P. 1714,
which requires court approval for the discontinuation of any
class action.

23
Amended Complaint on February 9, 2006. The Third Amended
Complaint was identical to the Second Amended Complaint in
all material respects, with the exception of the replacement of
LG defendants with LG MobileComm.

Although LG defendants had not removed the case within
thirty days of the date they were added to the Second Amended
Complaint, LG MobileComm removed the action on February
17, 2006—well within 30 days of the filing of the Third
Amended Complaint—asserting jurisdiction existed under the
Class Action Fairness Act, 28 U.S.C. § 1332(d). Defendants
then sought to stay the proceedings pending a transfer to the
Judicial Panel on Multidistrict Litigation, which the District
Court granted on March 22. The case returned to the Judicial
Panel on Multidistrict Litigation, which transferred the case
back to the Maryland court on June 20.9 Farina had filed a
Motion to Vacate Conditional Transfer Order prior to the
transfer to the Maryland court, based primarily on the absence
of federal subject matter jurisdiction. The Judicial Panel on
Multidistrict Litigation did not address the jurisdictional issue in
its transfer order, stating “[t]he pending motion to remand to
state court can be presented to and decided by the transferee
judge.” App. 331. On November 10, Farina filed an Amended

9
The District Court listed the date of the transfer as June 26.
According to the docket, the transfer order appears to have been
issued on June 20.

24
Motion to Remand before the Maryland court.10 After a hearing
on the motion to remand to state court, the Maryland court made
no decision on the issue, instead transferring the case back to the
Eastern District of Pennsylvania.

The District Court ultimately denied Farina’s motion.
The court held CAFA provided grounds for federal jurisdiction,
and Farina’s failure to move to remand within thirty days of LG
MobileComm’s removal waived the defects in defendants’
initial failure to remove within the required thirty-day period
after the filing of the Second Amended Complaint. In a separate
order, the District Court addressed the merits of the preemption
issue, concluding that the FCC’s regulations governing RF
emissions preempted Farina’s claims. Farina timely appealed.

II.

“[E]very federal appellate court has a special obligation
to ‘satisfy itself not only of its own jurisdiction, but also that of

10
As the District Court recognized, there is some
disagreement as to when the motion for remand was filed.
Defendants argued below that the November 10 motion
constituted the initial motion for remand. Farina, on the other
hand, contended this motion was merely an amended motion for
remand, and that the initial motion was included in the motion
to vacate the transfer order, which was docketed on April 12.
As discussed below, the difference between these dates is
immaterial.

25
the lower courts in a cause under review . . . .’” Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quoting
Mitchell v. Maurer, 293 US. 237, 244 (1934))). We review a
district court’s determination of its own subject matter
jurisdiction de novo. Emerald Investors Trust v. Gaunt
Parsippany Partners, 492 F.3d 192, 197 (3d Cir. 2007).

A.

There is no dispute that this case, in its current
incarnation, satisfies the substantive requirements of CAFA.11
See Def. LG MobileComm’s Notice of Removal 6–9. But
CAFA is not retroactively applicable. It applies only to civil
actions “commenced on or after the date of enactment,”
February 18, 2005. CAFA, Pub. L. No. 109-2, § 9, 119 Stat. 4,
14 (2005) (codified as Note to 28 U.S.C. § 1332).

CAFA itself provides no definition of commencement.
We have not yet addressed the issue, but most of our sister
circuits have looked to state law for the definition of
commencement. See Braud v. Transp. Serv. Co. of Ill., 445 F.3d
801, 803 (5th Cir. 2006) (“[T]he courts of appeals that have
examined the issue have unanimously held that when a lawsuit

11
CAFA grants federal jurisdiction over class actions in
which the aggregate amount in controversy exceeds $5,000,000,
the parties are minimally diverse, and the members of all
proposed plaintiff classes are equal to or greater than 100 in
number. 28 U.S.C. § 1332(d).

26
is initially ‘commenced’ for purposes of CAFA is determined by
state law. We agree.” (footnote omitted)); Schorsch v. Hewlett-
Packard Co., 417 F.3d 748, 750 (7th Cir. 2005) (“[S]tate rather
than federal practice must supply the rule of decision.”); see also
Smith v. Nationwide Prop. and Cas. Ins. Co., 505 F.3d 401, 405
(6th Cir. 2007); Plubell v. Merck & Co., 434 F.3d 1070, 1071
(8th Cir. 2006); Bush v. Cheaptickets, Inc., 425 F.3d 683, 686
(9th Cir. 2005); Natale v. Pfizer, Inc., 424 F.3d 43, 44 (1st Cir.
2005). But see Prime Care of Ne. Kan., LLC v. Humana Ins.
Co., 447 F.3d 1284, 1289 n.6 (10th Cir. 2006) (“[W]e do not
express an opinion as to whether federal or state law should
control.”).

We agree that state law should govern the inquiry.
CAFA operates as an expansion of diversity jurisdiction. See
Bush, 425 F.3d at 686. The Act expressly authorizes the
removal of qualifying class actions to federal court. See Pub. L.
No. 109-2, § 5, 119 Stat. 4, 12–13 (codified at 28 U.S.C. §
1453). It envisions and applies to cases that are initially filed in
state court and subsequently removed to federal court. For a
case initially brought in state court, state law should govern
when the case commences. Cf. Ragan v. Merchs. Transfer &
Warehouse Co., 337 U.S. 530, 533–34 (1949) (applying state
law to determine commencement for statute of limitations
purposes); Herb v. Pitcairn, 324 U.S. 117, 120 (1945)
(“Whether any case is pending in the Illinois courts is a question
to be determined by Illinois law . . . .”). Accordingly, we look
to Pennsylvania law.

27
 The filing of an original complaint in Pennsylvania court
commences an action. See Pa. R. Civ. P. 1007 (“An action may
be commenced by filing with the prothonotary (1) a praecipe for
a writ of summons, or (2) a complaint.”). As such, the filing of
the original complaint commenced a civil action for the
purposes of CAFA. Farina’s initial complaint was filed on April
19, 2001, clearly before CAFA’s enactment. But the Second
Amended Complaint, filed on December 23, 2005, and the Third
Amended Complaint, filed on February 9, 2006, were filed after
the date of CAFA’s enactment. If either of these complaints
constituted the commencement of a new action, CAFA’s
jurisdictional grant would apply. The issue before us, then, is
whether the amendment of the original complaint in the Second
Amended Complaint or the Third Amended Complaint
commenced a new case.

The case law has coalesced around three approaches to
the effect of amendments to complaints on CAFA
commencement. The first approach, adopted by the Court of
Appeals for the Ninth Circuit, ignores amendments and looks
only to the filing of the original complaint for commencement.
McAtee v. Capital One, F.S.B., 479 F.3d 1143, 1147–48 (9th
Cir. 2007) (interpreting California law to hold that an action “is
commenced for purposes of CAFA when a complaint is filed,
irrespective of any later amendment of that complaint. . . . Any
amendment of that complaint—whether to add new causes of
action, to add or replace plaintiffs, or to add or replace

28
defendants—does not change the commencement date”).12

The other two approaches both apply state-law principles
governing the relation-back of pleadings for statutes of
limitations to determine whether an amended complaint is
distinct enough from the original complaint to commence a new
case. See Prime Care, 447 F.3d at 1286. One approach,
adopted by the Courts of Appeals for the Sixth, Eighth, and
Tenth Circuits, applies ordinary relation-back rules to all
amendments, no matter what type of amendment is made (the
“Prime Care approach”). See id.; see also Smith, 505 F.3d at
405; Plubell, 434 F.3d at 1071. If the amendment would not
relate back to the pre-CAFA pleading, it constitutes a
commencement of a new case. Prime Care, 447 F.3d at 1286.
The final approach uses relation-back rules as well, but
categorically treats certain changes as commencing a new case
(the “Braud approach”). See Braud, 445 F.3d at 804–05;

12
Although McAtee is limited to CAFA cases filed in
California, id. at 1147, much of its discussion suggests this rule
has broader applicability than just to California law. The Ninth
Circuit argued that relation-back principles need not be used in
CAFA commencement because the substantive rights of parties
are not implicated, as they would be for a statute of limitations.
Id. Rather, CAFA commencement affects only the forum in
which the suit takes place. Id. These arguments are not limited
to an interpretation of California law, but would seemingly be
applicable to any state relation-back rules.

29
Knudsen v. Liberty Mut. Ins. Co., 411 F.3d 805, 807 (7th Cir.
2005). In particular, the addition of a new defendant—unless
the addition is done merely to correct a clerical error, see
Schillinger v. Union Pac. R.R. Co., 425 F.3d 330, 333 (7th Cir.
2005)—or the addition of a distinct claim, see Schorsch, 417
F.3d at 749, commences a new civil action.

We agree with the general approach of applying relation-
back rules to at least some amendments. In doing so, we reject
the approach of the Ninth Circuit in McAtee. As the Tenth
Circuit recognized:

[T]he unqualified disregard of any post-CAFA
pleading amendments . . . entails the practically
untenable result that once a pre-CAFA case is
filed, the plaintiff can tack on new causes of
action so substantively independent of the original
case that they would be properly treated as filed
after CAFA’s effective date for all legal purposes
. . . except for CAFA.

Prime Care, 447 F.3d at 1288 n.4. “Generally ‘a party brought
into court by an amendment, and who has, for the first time, an
opportunity to make defense to the action, has a right to treat the
proceeding, as to him, as commenced by the process which
brings him into court.’” Braud, 445 F.3d at 805 (quoting United
States v. Martinez, 195 U.S. 469, 473 (1904)). “It ‘would be a
novel and unjust principle to make the defendants responsible
for a proceeding of which they had no notice.’” Id. (quoting

30
Miller v. M’Intyre, 31 U.S. (6 Pet.) 61, 64 (1832)).

Moreover, although CAFA does not define
commencement, “Congress is presumed to enact legislation with
knowledge of the law and a newly-enacted statute is presumed
to be harmonious with existing law and judicial concepts.”
Prime Care, 447 F.3d at 1287 (internal quotation marks
omitted). Congress passed CAFA aware of the general
principles of relation-back analysis, both under state law and
Fed. R. Civ. P. 15(c). It is only natural that Congress would
intend to incorporate into CAFA the case law governing
amended pleadings. “Precisely because CAFA does not define
‘commencement’ of an action, it is obvious that CAFA is not
intended to replace caselaw deciding when a lawsuit is
considered ‘commenced . . . .’” Braud, 445 F.3d at 805.

But because the result is the same under either the Prime
Care approach or the Braud approach, we need not choose
between the two. 13 Under Pennsylvania law,14 a party “may at

13
In fact, it is unclear how distinct these approaches are.
Both the Courts of Appeals for the Fifth and the Seventh
Circuits—which follow the Braud approach—recognize an
exception to the categorical rule that an amendment adding a
new defendant commences a new civil action when that addition
is merely to correct a clerical misidentification of a party. See
Braud, 445 F.3d at 806–07; Schillinger, 425 F.3d at 333. In
dicta, Braud explained this “misnomer” exception by looking to
both Louisiana law as well as Rule 15(c)(3), governing when an

31
amendment adding a defendant will relate back to the prior
pleading. 445 F.3d at 806–08. If the “misnomer” exception
applies every time the addition of a defendant would relate back
under ordinary relation-back analysis, the two approaches are
coextensive.
14
Because state law governs the definition of commencement,
state law should also govern the relation-back of amendments.
In Braud, the Fifth Circuit used state law to define
commencement, 445 F.3d at 803–04, but did not specify
whether state or federal relation-back rules would apply to
amendments, id. at 807 n.14 (“It is less certain whether state law
provides the applicable rules for the relation back analysis. . . .
The result in this case is the same under either . . . .”). But
commencement is not alien to the relation-back analysis. See
Prime Care, 447 F.3d at 1288 (“Nor . . . are commencement and
amendment properly seen as utterly unrelated matters. Rather,
the relevant landscape in which both of these legal concepts
reside has for some time been governed by the relation-back
principle.” (footnote omitted)). Moreover, in these cases, state
law provides the applicable statute of limitations, see Ragan,
337 U.S. at 533–34, and Rule 15(c)(1)(A) expressly co-opts the
relation-back rules of “the law that provides the applicable
statute of limitations,” Fed. R. Civ. P. 15(c)(1)(A). An
amendment that does not relate back constitutes a
commencement under CAFA. Accordingly, if state law defines
the commencement of the initial civil action, it naturally should

32
any time change the form of action, correct the name of a party
or amend his pleading.” Pa. R. Civ. P. 1033. But a party may
not add a “new and distinct” party after the statute of limitations
has run. Tork-Hiis v. Commonwealth., 735 A.2d 1256, 1258
(Pa. 1999). In other words, if an added defendant is “new and
distinct” from the defendants named in the prior pleading, the
amendment will not relate back. The only exceptions to this
general rule apply where the assets subject to the risk of liability
would not change or where the amendment is made only to
correct the improper designation of a business entity. Id.

Under this standard, the Second Amended Complaint
commenced a new action. In a hearing before the District Court,
Farina’s counsel conceded that LG defendants were not a party
to the case prior to the Second Amended Complaint. App. 462.
Because they were unrelated to any of the named defendants, the
addition of LG defendants placed new assets at risk of liability
and went beyond merely correcting an improper designation of
a business entity. Accordingly, they constituted “new and
distinct” parties. Because the Second Amended Complaint was
filed after the enactment of CAFA, Farina’s claims became
subject to its provisions.

Farina raises several arguments counseling against
recognizing the Third Amended Complaint as the

provide the rules governing commencement via amendment—in
other words, the rules governing relation back.

33
commencement of a new action.15 Even assuming we were
persuaded by these arguments, they would only establish that the
Third Amended Complaint would relate back to the filing of the
Second Amended Complaint. They would not establish that the
Second Amended Complaint would relate back to the filing of
the original complaint. Because the Second Amended
Complaint was filed after the enactment of CAFA, CAFA
applies and confers federal jurisdiction.

B.

Farina also argues that even if the Second Amended
Complaint would have established federal jurisdiction under
CAFA, the District Court lacked jurisdiction here because the
removal by LG MobileComm was untimely.16 CAFA has its
own removal statute, 28 U.S.C. § 1453, which, for all pertinent
purposes, imports the procedures of the general removal statute,

15
In particular, Farina argues the substitution of LG
MobileComm for LG defendants was merely a correction of an
improper designation of a business entity and that this
substitution occurred at the insistence of LG defendants.
16
Under CAFA, any defendant may remove the entire
case—not just the claims asserted against that particular
defendant—without the consent of any other defendant. 28
U.S.C. § 1453(b); Brown v. Jevic, 575 F.3d 322, 327 (3d Cir.
2009). If LG MobileComm properly removed the claims against
it, the removal of the entire class action was valid.

34
28 U.S.C. § 1446. Section 1446(b) requires a defendant to file
for removal within thirty days of receiving a copy of the
pleading setting forth the removable claim.17

If the substitution of LG MobileComm for LG defendants
in the Third Amended Complaint commenced a new case under
CAFA, there is no dispute that removal was timely. The Third
Amended Complaint was filed on February 9, 2006,18 and LG
MobileComm filed its notice of removal on February 17—well
within thirty days. But Farina argues the Third Amended
Complaint relates back to the Second Amended Complaint, see
supra note 15, and, therefore, does not constitute a
commencement. The § 1446(b) time limit would then run from
the date of the filing of the Second Amended Complaint,
December 23, 2005, and the notice of removal would be

17
If the claim is not initially removable, the thirty-day period
runs from the date of receipt of “a copy of the amended
pleading, motion, order or other paper from which it may first be
ascertained that the case is one which is or has become
removable.” Id.
18
Defendants state that LG MobileComm was served with the
Third Amended Complaint on January 20, 2006, but the record
indicates the Third Amended Complaint was dated January 27,
App. 213, and docketed on February 9, App. 306. The
difference between these dates is immaterial, however, as LG
MobileComm’s removal was timely under any of these dates.

35
untimely.

We need not decide whether the Third Amended
Complaint relates back to the Second Amended Complaint
because even if the Second Amended Complaint is the relevant
date and LG MobileComm’s removal was therefore untimely,
Farina waived his objection. 28 U.S.C. § 1447 provides the
procedures generally applicable after removal and is explicitly
adopted by CAFA, see 28 U.S.C. § 1453(c)(1). Section 1447(c)
stipulates that a remand motion made on the basis of “any defect
other than lack of subject matter jurisdiction” must be filed
within thirty days of the notice of removal. The failure to move
to remand results in a waiver of the objection. See Ariel Land
Owners, Inc. v. Dring, 351 F.3d 611, 613 (3d Cir. 2003). A
jurisdictional defect, on the other hand, may be raised at any
time. Id.

It is well settled that § 1446(b)’s thirty-day time limit for
removal is a procedural provision, not a jurisdictional one. Id.
at 614; see also McGlinchey v. Hartford Accident & Indem. Co.,
866 F.2d 651, 653 (3d Cir. 1989) (“[T]he failure to file a
removal petition within the 30 day statutory time limit [does not]
affect this Court’s jurisdiction.”); Albritton Commc’ns Co. v.
NLRB, 766 F.2d 812, 820 (3d Cir. 1985) (“[R]emoval
proceedings are in the nature of process, and thus defects in the
removal procedures are waivable . . . .”). A defect is considered
jurisdictional “only if the case could not initially have been filed
in federal court.” Ariel Land Owners, 351 F.3d at 614 (quoting
Korea Exch. Bank v. Trackwise Sales Corp., 66 F.3d 46, 50 (3d

36
Cir. 1995)). Federal jurisdiction over Farina’s suit arose on
December 23, 2005, when the Second Amended Complaint
commenced a new civil action and brought the case under
CAFA. Because at that moment the case could have been filed
in federal court, the failure to remove within thirty days of the
filing of the Second Amended Complaint was not a
jurisdictional defect.

LG MobileComm removed the case on February 17,
2006, and, accordingly, Farina had thirty days—until March
20—to seek a remand to state court on untimeliness grounds.
As the District Court recognized, the parties dispute when the
motion to remand was filed. Defendants argued below that
Farina sought a remand on November 10.19 Farina claims the
remand motion was included with his motion to vacate the
Judicial Panel on Multidistrict Litigation’s conditional transfer
order. But this motion was entered into the docket on April 12,
outside of the thirty-day time limit. Farina contends that he
waited to file for remand before the Judicial Panel on
Multidistrict Litigation because the motion for remand filed
after his original complaint was removed in 2001 was not

19
On appeal, defendants cite October 15 as the date of the
filing of the motion for remand. The case before the District
Court was stayed at this time, and there is no docket entry in the
Maryland court corresponding to this date. We assume this
reference is to the November 10 filing, docketed as “Amended
Motion to Remand and Memorandum for Remand.” App. 89.

37
decided by the District Court prior to the stay of the proceedings
pending transfer to the Judicial Panel on Multidistrict Litigation.
Instead, it was decided by the transferee Maryland court, and he
assumed a similar situation would occur once more. But
regardless of Farina’s assumption, he failed to file for remand
within thirty days of removal. The District Court’s stay was
issued on March 22, beyond the thirty-day time limit, and could
not have had an effect upon the timeliness of Farina’s remand
motion. The District Court, therefore, “had no authority to
remand, because [Farina’s] motion was filed more than 30 days
after the notice of removal.” Ariel Land Owners, 351 F.3d at
613.

Accordingly, federal jurisdiction exists over the case
whether or not Farina is correct that the Third Amended
Complaint relates back to the Second Amended Complaint. The
Second Amended Complaint, which added two unrelated
defendants, commenced a new civil action, as defined by
Pennsylvania law, which brought the case under CAFA’s
jurisdictional grant. Although the case was not removed within
thirty days of the filing of the Second Amended Complaint,
Farina’s failure to file for remand within thirty days of LG
MobileComm’s subsequent removal waived his objections to
this non-jurisdictional defect. Therefore, our review of
defendants’ motion to dismiss on the grounds of preemption is

38
proper.20

III.

The Supremacy Clause of the United States Constitution,
U.S. Const. art. VI, cl. 2, invalidates state law that “interferes
with or is contrary to federal law.” Free v. Bland, 369 U.S. 663,
666 (1962) (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210
(1824)). Federal law can preempt state law in three ways: (1)
express preemption, (2) field preemption, and (3) conflict
preemption. Hillsborough Cnty. v. Automated Med. Labs., Inc.,
471 U.S. 707, 713 (1985). Express preemption applies where
Congress, through a statute’s express language, declares its
intent to displace state law. Id. Field preemption applies where
“the federal interest is so dominant that the federal system will
be assumed to preclude enforcement of state laws on the same
subject.” Id. (internal quotation marks omitted). Conflict
preemption nullifies state law inasmuch as it conflicts with
federal law, either where compliance with both laws is
impossible or where state law erects an “obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.” Id. (internal quotation marks omitted).
Federal regulations preempt state laws in the same fashion as
congressional statutes. Fid. Fed. Sav. & Loan Ass’n v. De la

20
We have jurisdiction over the appeal under 28 U.S.C. §
1291. We review questions of preemption de novo. See
Deweese v. Nat’l R.R. Passenger Corp., 590 F.3d 239, 244 n.8
(3d Cir. 2009).

39
Cuesta, 458 U.S. 141, 153 (1982); see also Fellner v. Tri-Union
Seafoods, L.L.C., 539 F.3d 237, 243 (3d Cir. 2008) (“Where
Congress has delegated the authority to regulate a particular
field to an administrative agency, the agency’s regulations
issued pursuant to that authority have no less preemptive effect
than federal statutes, assuming those regulations are a valid
exercise of the agency’s delegated authority.”). Preemption can
apply to all forms of state law, including civil actions based on
state law. See Holk v. Snapple Beverage Corp., 575 F.3d 329,
331 (3d Cir. 2009).

In every preemption case, our inquiry is guided by two
principles. First, the intent of Congress is the “ultimate
touchstone” of preemption analysis. Medtronic, Inc., v. Lohr,
518 U.S. 470, 485 (1996) (internal quotation marks omitted). In
discerning this intent, we look not only to Congress’s express
statements, but also to the “structure and purpose of the statute
as a whole, as revealed not only in the text, but through the
reviewing court’s reasoned understanding of the way in which
Congress intended the statute and its surrounding regulatory
scheme to affect business, consumers, and the law.” Id. at 486
(citations and internal quotation marks omitted).

Second, we “start[] with the basic assumption that
Congress did not intend to displace state law.” Maryland v.
Louisiana, 451 U.S. 725, 746 (1981). “[B]ecause the States are
independent sovereigns in our federal system, we have long
presumed that Congress does not cavalierly pre-empt state-law
causes of action.” Lohr, 518 U.S. at 485. The Supreme Court

40
has referred to this as a “presumption against preemption.” See
Wyeth v. Levine, 129 S. Ct. 1187, 1195 n.3 (2009). The
presumption applies with particular force in fields within the
police power of the state, see Lohr, 518 U.S. at 485, but does not
apply where state regulation has traditionally been absent, see
Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347
(2001) (rejecting the presumption for state-law fraud claims
premised on alleged fraudulent statements made to the FDA
because “the relationship between a federal agency and the
entity it regulates . . . originates from, is governed by, and
terminates according to federal law”); United States v. Locke,
529 U.S. 89, 108 (2000) (rejecting the application of the
presumption to state regulation of maritime commerce because
“Congress has legislated in the field from the earliest days of the
Republic,” and “in this area there is no beginning assumption
that concurrent regulation by the State is a valid exercise of its
police powers”).

According to defendants, the presumption should not
apply to Farina’s claims. They argue that federal regulation of
radio communications mirrors the regulation of oil tankers at
issue in Locke. Similar to maritime commerce, radio
communications have been within the purview of Congress
since the advent of the technology. See Nat’l Broad. Co., 319
U.S. at 210–13 (describing the history of federal regulation of
radio communications). The FCC, in particular, has “exclusive”
control over the technical aspects of radio communications.
Head, 374 U.S. at 430 n.6. In addition to this longstanding

41
history of federal authority, defendants contend that radio
communications, like the maritime industry, are an
instrumentality of commerce. Accordingly, they maintain that
traditional state interests underpinning the presumption against
preemption are lacking.

But the presence of federal regulation, however
longstanding, does not by itself defeat the application of the
presumption. Rather, its application “accounts for the historic
presence of state law but does not rely on the absence of federal
regulation.” Wyeth, 129 S. Ct. at 1195 n.3; see also Lohr, 518
U.S. at 475-77, 485 (applying the presumption despite the
decades-long history of federal regulation of public health and
safety). While Congress has long exerted control over radio
communications, state governments have traditionally regulated
the field of public health and welfare. State-law actions based
on the risks associated with RF emissions fall squarely within
the traditional police power. See Fellner, 539 F.3d at 248 (“[I]t
is hard to imagine a field more squarely within the realm of
traditional state regulation than a state tort-like action seeking
damages for an alleged failure to warn consumers of dangers
arising from the use of a product.”).

M oreover, de f enda n ts’ c h a r a c te r iza tion of
telecommunications as an “instrumentality of commerce” is
immaterial. Nothing in the Supreme Court’s case law indicates
the application of the presumption turns on whether the field
regulated can be characterized as an instrumentality of
commerce. This language appears to be culled from the

42
jurisprudence governing the Commerce Clause of the United
States Constitution, see United States v. Lopez, 514 U.S. 549,
558 (1995) (“Congress is empowered to regulate and protect the
instrumentalities of interstate commerce . . . .”), and not the
doctrine of preemption. Moreover, because the presumption
turns on the presence of state law, the ability of Congress to
regulate radio communications as an instrumentality of
commerce is irrelevant in light of the long history of state
regulation of health and safety matters.

Accordingly, we apply the presumption against
preemption to our analysis here. But although we conclude the
presumption applies, we recognize it is “overcome where a
Congressional purpose to preempt or the existence of a conflict
is ‘clear and manifest.’” Fellner, 539 F.3d at 249 (quoting
Hillsborough Cnty., 471 U.S. at 715).

A.21

21
At the outset, Farina asserts that our preemption analysis is
bound by the Fourth Circuit’s decision in Pinney because its
rejection of conflict preemption became law of the case. The
law of the case doctrine “posits that when a court decides upon
a rule of law, that decision should continue to govern the same
issues in subsequent stages in the same case.” Arizona v.
California, 460 U.S. 605, 618 (1983). The doctrine only applies
within the same case—an identical issue decided in a separate
action does not qualify as law of the case. See 18B Charles
Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal

43
Practice and Procedure § 4478, at 637–39 (2d ed. 2002); see
also Harbor Ins. Co. v. Essman, 918 F.2d 734, 738 (8th Cir.
1990) (refusing to recognize a denial of a motion to dismiss in
a case later dismissed without prejudice as law of the case in a
subsequent suit between the same parties).
Farina’s contention that Pinney’s holding binds us here
is misplaced for that reason. The Fourth Circuit made no
decision on preemption for the claims brought by Farina.
Although Farina’s claims were initially consolidated with the
other cases, they were subsequently dismissed for lack of subject
matter jurisdiction. Pinney, 402 F.3d at 451. The decision on
conflict preemption, then, was made only with respect to the
Naquin claims. Id. (“We must therefore review the district
court’s order granting Nokia’s motion to dismiss the claims of
the Naquin plaintiffs.”); id. at 459 (“We . . . reverse the district
court’s order dismissing the Naquin plaintiffs’ case as
preempted by the FCA.”). Without jurisdiction, the Fourth
Circuit “had no power” to render a decision on preemption of
Farina’s claims, id.; see also Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 101–02 (1998) (“For a court to pronounce
upon the meaning or the constitutionality of a state or federal
law when it has no jurisdiction to do so is, by very definition, for
a court to act ultra vires.”), and we are not bound by its holding.
Moreover, the Fourth Circuit’s rejection of the
jurisdictional doctrine of complete preemption, Pinney, 402 F.3d
at 451, also does not constrain our analysis. Complete

44
 Defendants’ first argument for dismissal asserts that
Farina’s claims are expressly preempted by the TCA. As noted,
express preemption applies where Congress explicitly states in
the language of the statute its intent to preempt state law.
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992). But
the presence of an express preemption provision does not end
the inquiry. While it means we need not inquire whether
Congress intended to preempt some state law, we still must
examine congressional intent as to the scope of the preemption
provision. See Lohr, 518 U.S. at 485–86 (“[A]ny understanding
of the scope of a pre-emption statute must rest primarily on a
fair understanding of congressional purpose.” (emphasis and
internal quotation marks omitted)). Although we look primarily
to the text of an express preemption provision to discern

preemption confers federal jurisdiction over a state claim where
Congress “‘so completely preempt[s] a particular area that any
civil complaint raising th[e] select group of claims is necessarily
federal in character.’” Id. at 449 (quoting Metro. Life Ins. Co.
v. Taylor, 481 U.S. 58, 63–64 (1987)) (alterations in the
original). Law of the case only extends to issues that were
actually decided in prior proceedings. See 18B Wright, Miller
& Cooper, supra, § 4478, at 649. “There is . . . a difference
between the doctrine of complete preemption and the
affirmative defense of federal preemption.” Pinney, 402 F.3d at
449. Accordingly, the decision on complete preemption does
not constitute an actual decision on the issue of conflict
preemption.

45
congressional intent, we also look to the context of the
regulatory scheme as a whole, including its purposes and the
way in which Congress intended it to affect the public and the
law. Id. at 486. Moreover, because we start with a presumption
against preemption, “when the text of a pre-emption clause is
susceptible of more than one plausible reading, courts ordinarily
‘accept the reading that disfavors pre-emption.’” Altria Group,
Inc. v. Good, 129 S. Ct. 538, 543 (2008) (quoting Bates v. Dow
Agrosciences LLC, 544 U.S. 431, 449 (2005)).

Defendants argue 47 U.S.C. § 332(c)(7)(B)(iv) expressly
preempts Farina’s claims. It provides:

No State or local government or instrumentality
thereof may regulate the placement, construction,
and modification of personal wireless service
facilities on the basis of the environmental effects
of radio frequency emissions to the extent that
such facilities comply with the Commission’s
regulations concerning such emissions.

Defendants argue cell phones fall within the definition of
“personal wireless service facilities.” The statute itself does not
provide a clear definition. “Personal wireless service facilities”
are defined as “facilities for the provision of personal wireless
services,” § 332(c)(7)(C)(ii), and “personal wireless services”
are in turn defined as “commercial mobile services, unlicensed
wireless services, and common carrier wireless exchange access
services,” § 332(c)(7)(C)(i).

46
 Defendants instead urge us to adopt a dictionary
definition of “facilities” as “[t]hat which promotes the ease of
any action, operation, transaction, or course of conduct.”
Black’s Law Dictionary 591 (6th ed. 1990);22 see also Webster’s
Third New International Dictionary 812 (1993) (defining facility
as “something that promotes the ease of any action, operation,
transaction, or course of conduct”). Because cell phones enable
wireless communications, defendants allege cell phones
“promote the ease” of personal wireless service. But Farina
cites to his own dictionary definition for “facility,” one which he
argues implies a sense of permanence, as with a physical
structure. See Webster’s Third New International Dictionary
812–13 (defining facility as “something (as a hospital,
machinery, plumbing) that is built, constructed, installed, or
established to perform some particular function or to serve or
facilitate some particular end”); see also Black’s Law Dictionary
591 (defining facility as “[s]omething that is built or installed to
perform some particular function”).

Because the term itself is ambiguous, we look to the
broader context in which “facility” is used. That context
supports Farina’s reading. Section 332(c)(7), in which
subsection (B)(iv) is included, is titled “Preservation of local
zoning authority,” and subsection (B)(iv) is expressly limited to
the “placement, construction, and modification” of facilities.

22
The current Ninth edition of Black’s Law Dictionary does
not contain an entry for “facility.”

47
This language suggests that the statute is directed at preempting
state and local decisions with respect to the physical location of
“facilities,” a reading which, as Farina contends, requires
permanence. See Pinney, 402 F.3d at 455 (finding the
subsection “deals with the authority of the states over zoning
and land use”); H.R. Rep. No. 104-204(I), at 94 (1995),
reprinted in 1996 U.S.C.C.A.N. 10, 61 (“[C]urrent State and
local requirements, siting and zoning decisions by non-federal
units of government, have created an inconsistent and, at times,
conflicting patchwork of requirements . . . .” (emphasis added)).
The fair reading of this statute, then, focuses on state and local
decisions with respect to the physical infrastructure of the
wireless network, not cell phones.23

Defendants argue that even if § 332(c)(7)(B)(iv) applies
only to physical infrastructure, because cell phones are the
means by which that infrastructure is accessed, regulation of cell
phones on the basis of RF emissions imposes restrictions on the
wireless infrastructure. Defendants argue this constitutes a

23
Defendants allege that if Congress intended only to preempt
regulation of infrastructure, it would have said so, instead of
“broadly preempt[ing] all state regulation” based on RF
emissions. Appellees’ Br. at 68. This argument proves too
much. Had Congress intended to preempt state regulation of
cell phones, it could certainly have said so as well. Congress’s
statement is only “broad” if “facilities” is read to cover more
than just infrastructure. We conclude it should not be.

48
“back-door” regulation of infrastructure, in violation of the
principles of Rowe v. New Hampshire Motor Transport Ass’n,
552 U.S. 364 (2008). In Rowe, the state of Maine enacted a law
intended to prevent the sale of tobacco to minors by imposing
duties on retailers of tobacco products, including requiring the
use of a delivery service that abided by mandated procedures for
verifying the identity of recipients. Id. at 368–69. Several
transport carrier associations challenged the law, arguing it was
preempted by 49 U.S.C. § 14501(c)(1), which provides: “[A]
state . . . may not enact or enforce a law . . . related to a price,
route, or service of any motor carrier . . . with respect to the
transportation of property.” Rowe, 552 U.S. at 368–69. The
Supreme Court agreed, finding that although the Maine law did
not directly impose duties on carriers, by imposing duties on
recipients, the law effectively placed restrictions on carriers.
Id. at 372.

But Rowe is inapposite here. First, the language of the
preemption provision in Rowe was much broader than the
language at issue here. That preemption provision applied to all
laws “related to” motor carrier services, id. at 368, language that
was read broadly enough to reach all laws having even an
indirect connection with or reference to motor carrier services,
id. at 370 (citing Morales v. Trans World Airlines, Inc., 504 U.S.
374, 384 (1992)); see also Altria Group, 129 S. Ct. at 548–49
(distinguishing the phrase “based on” from “relating to”). The
language of § 332(c)(7)(B)(iv) is not so broad, covering only
regulations of the “placement, construction, and modification of

49
personal wireless service facilities,” not regulations “relating to”
the “placement, construction, and modification of personal
wireless service facilities.” That suggests a narrower scope for
this preemption provision than the one in Rowe.

Second, the burden placed on the wireless infrastructure
through regulating cell phones is distinct from the burden
resulting from regulating the infrastructure itself. Requiring
shippers to use only those carriers who follow certain
procedures is no different than requiring carriers to adopt those
same procedures. See Rowe, 552 U.S. at 372 (“[T]he effect of
the regulation is that carriers will have to offer tobacco delivery
services that differ significantly from those that . . . the market
might dictate. And that being so, treating sales restrictions and
purchase restrictions differently for pre-emption purposes would
make no sense.” (internal quotation marks omitted)). State-law
actions imposing liability on the basis of RF emissions from cell
phones do not impose identical burdens on the “placement,
construction, and modification” of the wireless infrastructure, as
they would only require alterations to cell phones, not to the
infrastructure itself. Accordingly, it would appear that §
332(c)(7)(B)(iv) does not expressly preempt Farina’s suit.24

24
Although defendants do not raise it on appeal, they argued
before the District Court that § 332(c)(3)(A) also expressly
preempted Farina’s claims. That subsection provides, in
pertinent part:
[N]o State or local government shall have any

50
 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.
47 U.S.C. § 332(c)(3)(A). According to defendants’ argument
below, state-law standards that add requirements with which cell
phones must comply—whether in the form of specific
components (i.e., headsets) or additional warnings—before
being sold constitute regulations of “entry.”
Section 332 does not define what constitutes a regulation
of entry, and it appears that the FCC has not clearly defined the
term either. See Peck v. Cingular Wireless, LLC, 535 F.3d
1053, 1056–57 (9th Cir. 2008). The Fourth Circuit concluded
it referred to regulations that obstruct the ability to provide
wireless coverage. Pinney, 402 F.3d at 456. Although
§ 332(c)(3)(A) is ambiguous, we think that reading is the proper
one. “Entry” must be read in a somewhat limited fashion in
order to give effect to the savings provision present in §
332(c)(3)(A). According to defendants’ reading, any
requirement placed upon wireless service providers would
constitute a regulation of entry because providers would have to
comply with that requirement prior to selling their goods, or
“entering” the market. But almost all regulations of commercial
goods set standards or requirements which must be complied

51
with prior to selling those goods, and § 332(c)(3)(A) specifically
reserves a place for state regulation of at least some of the
“terms and conditions” of wireless service. As even the FCC
has recognized, accepting defendants’ reading would eviscerate
that savings provision. See In re Wireless Consumers Alliance,
Inc., 15 F.C.C.R. 17021, 17040 (2000) (finding that an “award
of monetary damages based on state contract or tort causes of
action” should fall under the other “terms and conditions
provisions of [§] 332”); cf. Cellular Telecomms. Indus. Ass’n v.
FCC, 168 F.3d 1332, 1336 (D.C. Cir. 1999) (“To equate state
action that may increase the cost of doing business with rate
regulation would . . . forbid nearly all forms of state regulation,
a result at odds with the ‘other terms and conditions’ portion of
[§ 332(c)(3)(A)].”).
Pinney’s limited reading of “entry” is more consistent
with the entire text of § 332(c)(3)(A). Moreover, it is also
consistent with other provisions of the TCA. 47 U.S.C. § 253,
entitled “Removal of barriers to entry,” is directed at preventing
state or local regulations that “prohibit the ability of any entity
to provide any interstate or intrastate telecommunications
service.” Id. § 253(a); see also S. Rep. No. 104-230, at 126
(1996) (Conf. Rep.) (referring to federal prohibition of “State
and local statutes and regulations, or other State and local legal
requirements, that may prohibit or have the effect of prohibiting
any entity from providing interstate or intrastate
telecommunications services”). Regulation of entry, then,

52
 B.

Defendants also argue that Congress’s delegation of
“exclusive authority” over the field of RF emission regulation 25
preempts all state laws premised on the sufficiency of those
regulations. The doctrine of field preemption applies where “the
scheme of federal regulation is sufficiently comprehensive to

appears to refer to laws that erect obstacles to the provision of
wireless services. This term would not encompass regulations
of cell phones because they only reach devices that access the
wireless network, not devices that provide the actual wireless
coverage.
25
We have recognized that “although the term ‘field
preemption’ suggests a broad scope, the scope of a field deemed
preempted by federal law may be narrowly defined.” Abdullah
v. Am. Airlines, Inc., 181 F.3d 363, 367 (3d Cir. 1999).
Although there appears to be a difference in breadth between a
field defined as regulation of RF emissions and a field defined
as regulation of aviation safety, see id. at 367–68, or nuclear
safety, see Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 249
(1984), other cases have used narrow conceptions of the relevant
field, see Hillsborough Cnty., 471 U.S. at 714 (plasmapheresis
regulation); Hughes v. Att’y Gen. of Fla., 377 F.3d 1258,
1267–68 (11th Cir. 2004) (commercial airline pilot safety).
Because we reject defendants’ field preemption claim, we adopt
their characterization of the relevant field without consideration.

53
make reasonable the inference that Congress ‘left no room’ for
supplementary state regulation” or where “the field is one in
which ‘the federal interest is so dominant that the federal system
will be assumed to preclude enforcement of state laws on the
same subject.’” Hillsborough Cnty., 471 U.S. at 713 (quoting
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
“The question whether the regulation of an entire field has been
reserved by the Federal Government is, essentially, a question
of ascertaining the intent underlying the federal scheme.” Id. at
714. With respect to agency regulations, “we must consider
whether the regulations evidence a desire to occupy a field
completely.” R.J. Reynolds Tobacco Co. v. Durham Cnty., 479
U.S. 130, 149 (1986). “Pre-emption should not be inferred,
however, simply because the agency’s regulations are
comprehensive.” Id.

While the FCC may have “primacy over the areas of
technical standards and competitive market structure for cellular
service,” Cellular Commc’ns, 86 F.C.C.2d at 504–05, neither
Congress nor the FCC has evinced an intent to occupy the entire
field. The TCA and the FCA both contain a savings provision.
See Pub. L. No. 104-104, § 601(c)(1), 110 Stat. 56, 143
(codified as Note to 47 U.S.C § 152) (stating that the TCA
“shall not be construed to modify, impair, or supersede Federal,
State, or local law unless expressly so provided”); 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

54
remedies.”). These provisions indicate Congress envisioned
some role for state law in the field. The presence of a savings
provision “is fundamentally incompatible with complete field
preemption; if Congress intended to preempt the entire field . .
. there would be nothing . . . to ‘save,’ and the provision would
be mere surplusage.” In re NOS Commc’ns, 495 F.3d 1052,
1058 (9th Cir. 2007); see also Holk, 575 F.3d at 338; Time
Warner Cable v. Doyle, 66 F.3d 867, 878 (7th Cir. 1995).
Furthermore, the FCC has repeatedly disclaimed preemptive
authority over the entire field of RF regulation. See FCC
Second Order, 12 F.C.C.R. at 13529; FCC First Order, 11
F.C.C.R. at 15183; Cellular Commc’ns, 86 F.C.C.2d at 505.
Given Congress’s and the FCC’s demonstrated hesitation to
override all state law and recognition of a role for state
regulation within the field of RF emissions, we cannot conclude
that federal law “so thoroughly occupies a legislative field ‘as to
make reasonable the inference that Congress left no room for the
States to supplement it.’” Cipollone, 505 U.S. at 516 (quoting
De la Cuesta, 458 U.S. at 153).

C.

Defendants’ final asserted ground for dismissal is conflict
preemption. Conflict preemption exists (1) “where it is
impossible for a private party to comply with both state and
federal requirements,” or (2) “where state law stands as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Fellner, 539 F.3d at 251
(internal quotation marks omitted). It is likely that compliance

55
with both federal RF standards as well as any hypothetical
stricter state standard is possible. Therefore, the basis of
defendants’ conflict preemption defense is the contention that
Farina’s suit would erect an obstacle to the accomplishment of
the objectives of Congress.

Farina’s claims rest on the allegation that defendants
warranted that their cell phones were safe to operate, but that
these phones were, in fact, unsafe to operate without headsets
because of their emission of RF radiation—despite the fact that
their emission levels were in compliance with FCC standards.
Farina attempts to characterize his claims as consumer claims
based only on false and misleading statements. See Appellant’s
Br. at 52; Tr. of Oral Argument at 3; id. at 11; id. at 38. But
although he disavows any challenge to the FCC’s RF standards,
see Appellant’s Br. at 53–54; Tr. of Oral Argument at 4; id. at
11, that is the essence of his complaint. The representations in
the advertising and instructional literature that Farina has
identified as false or misleading are warranties that the phones
are “safe to operate without the use of a headset and that they
were and would be free from defects.” Third Am. Compl. ¶
149; see also id. ¶ 141. In order for Farina to succeed, he
necessarily must establish that cell phones abiding by the FCC’s
SAR guidelines are unsafe to operate without a headset. In
other words, Farina must show that these standards are
inadequate—that they are insufficiently protective of public
health and safety. See Murray v. Motorola, Inc., 982 A.2d 764,
775 (D.C. 2009) (agreeing with the district court that “by urging

56
a jury to find that defendants’ cell phones emit unreasonably
dangerous levels of RF radiation even though the phones’
emissions are within the SAR guidelines adopted by the FCC,
plaintiffs are effectively seeking to lower the FCC’s current
SAR standard”). Whether or not Farina intends to expressly
challenge the FCC standards at trial, the inescapable effect of
his complaint is to do so.26 Accordingly, we must determine

26
In this way, Farina’s claims differ from those brought in
Murray under the District of Columbia Consumer Protection
Procedures Act (“CPPA”). There, the plaintiffs alleged cell
phone manufacturers and retailers violated District of Columbia
law by falsely representing that scientific research established
“absolutely no risk of harm associated with the use of cell
phones,” and by failing to inform consumers that certain
measures could be taken to limit RF exposure. Id. at 784
(internal quotation marks omitted). The court concluded these
claims were not preempted, as the FCC has acknowledged there
is no scientific proof that cell phones have absolutely no risk of
harm, id., and there is no indication that nonuniformity in
disclosures to consumers would hinder FCC regulations, id. at
788–89.
Farina’s claims do not mirror the CPPA claims, however.
The alleged representations made by defendants did not state
that there is absolutely no risk of harm from RF radiation; they
merely stated that cell phones were compliant with FCC
guidelines and free from defects. See Third Am. Compl. ¶¶ 141,
149. Similarly, Farina’s allegations do not posit a failure to

57
whether suits challenging the adequacy of the FCC’s RF
regulations are preempted.

The Supreme Court’s preemption case law indicates that
regulatory situations in which an agency is required to strike a
balance between competing statutory objectives lend themselves
to a finding of conflict preemption. See, e.g., Buckman, 531
U.S. at 348 (“The conflict stems from the fact that the federal
statutory scheme amply empowers the FDA to punish and deter
fraud against the Administration, and that this authority is used
by the Administration to achieve a somewhat delicate balance of
statutory objectives. The balance . . . can be skewed by allowing
. . . claims under state tort law.”); City of Burbank v. Lockheed
Airport Terminal Inc., 411 U.S. 624, 638–39 (1973) (“The
Federal Aviation Act requires a delicate balance between safety
and efficiency. . . . The interdependence of these factors requires
a uniform and exclusive system of federal regulation if the
congressional objectives underlying the . . . Act are to be
fulfilled.”); cf. Lohr, 518 U.S. at 501 (refusing to find
preemption where the federal law at issue was not one “in which
the Federal Government has weighed the competing interests
relevant to the particular requirement in question, reached an

disclose information enabling users to mitigate risk, but simply
that defendants failed to disclose a defect in their phones—the
level of RF emissions—that made them unsafe to operate.
Murray’s refusal to preempt the CPPA claims, therefore, does
not affect our analysis.

58
unambiguous conclusion about how those competing
considerations should be resolved . . . , and implemented that
conclusion via a specific mandate on manufacturers or
producers”).

The reason why state law conflicts with federal law in
these balancing situations is plain. When Congress charges an
agency with balancing competing objectives, it intends the
agency to use its reasoned judgment to weigh the relevant
considerations and determine how best to prioritize between
these objectives. Allowing state law to impose a different
standard permits a re-balancing of those considerations. A state-
law standard that is more protective of one objective may result
in a standard that is less protective of others.

In Geier v. American Honda Motor Co., for example, the
Supreme Court found a suit alleging that an automobile was
defectively designed because it lacked an airbag conflicted with
a Department of Transportation (“DOT”) regulation authorizing
manufacturers to choose between a range of passive restraint
devices. 529 U.S. 861, 886 (2000). In setting its standard, the
DOT was required to consider not only safety, but also the cost
to consumers of additional safety measures, the encouragement
of technological development, and consumer preferences. Id. at
875; id. at 877–79 (detailing the specific considerations behind
the DOT standard). Because the DOT was required to factor in
all of these considerations, permitting alternative state standards
to arise via the imposition of liability in a tort suit would conflict
with the DOT’s deliberate policy choice. Id. at 881; see also

59
Wyeth, 129 S. Ct. at 1203 (“Examining the rule itself and the
DOT’s contemporaneous record, which revealed the factors the
agency had weighed and the balance it had struck, we
determined that state tort suits presented an obstacle to the
federal scheme.”).

Similarly, in Buckman, the Court preempted a tort suit
premised on the de fe nda nt’s a lle ge d fra udule nt
misrepresentations made to the FDA in seeking approval to
market orthopedic bone screws. 531 U.S. at 353. The Court
found Congress had “amply empower[ed]” the FDA to punish
misrepresentations and that the FDA had used this punitive
authority in cases to balance between its statutory objectives. Id.
at 348. In particular, the FDA was required to “ensure both that
medical devices are reasonably safe and effective and that . . .
[an approved device] is on the market within a relatively short
period of time.” Id. at 349–50. “[F]lexibility” in “pursu[ing]
difficult (and often competing) objectives” was essential to the
FDA’s mandate. Id. at 349. Altering the balance struck by the
FDA to protect safety to a greater degree would “dramatically
increase the burdens” on industry by requiring compliance with
various state standards and diminish the expediency of the
approval process. Id. at 350–51.

Defendants argue that Farina’s suit conflicts with FCC
regulations in a similar way, claiming a finding of liability
would upset the balance struck by the FCC in setting its RF
standards. Defendants contend that Congress delegated
authority to the FCC to ensure the creation of a uniform and

60
efficient nationwide wireless service. Allowing a jury decision
to potentially set stricter RF standards, they say, would upset the
FCC’s delicate balancing of efficiency and uniformity with the
health and safety of the public.

The stated purpose behind the FCA is to “regulat[e]
interstate and foreign commerce in communication by wire and
radio so as to make available . . . a rapid, efficient, Nation-wide,
and world-wide wire and radio communication service with
adequate facilities at reasonable charges . . . .” 47 U.S.C. § 151.
In setting standards for wire and radio communications, the FCC
must also consider the promotion of “the safety of life and
property.” 47 U.S.C. § 332(a)(1). An essential element of an
efficient wireless network is a system that is subject to uniform
technical standards. See Fed. Radio Comm’n v. Nelson Bros.
Bond & Mortg. Co., 289 U.S. 266, 279 (1933) (“No state lines
divide the radio waves, and national regulation is not only
appropriate but essential to the efficient use of radio facilities.”);
H.R. Rep. No. 104-204(I), at 95, reprinted in 1996
U.S.C.C.A.N. at 61–62 (“A high quality national wireless
telecommunications network cannot exist if each of its
component[s] must meet different RF standards in each
community.”). As the House Committee on Commerce declared
in approving the TCA:

[I]t is in the national interest that uniform,
consistent requirements, with adequate safeguards
of the public health and safety, be established as
soon as possible. Such requirements will ensure

61
 an appropriate balance in policy and will speed
deployment and the availability of competitive
wireless telecommunications services which
ultimately will provide consumers with lower
costs as well as with a greater range and options
for such services.

H.R. Rep. No. 104-204(I), at 94, reprinted in 1996
U.S.C.C.A.N. at 61.

Moreover, uniformity in regulation helps ensure that
adequate service is accessible throughout the country at a low
cost. See Cellular Commc’ns, 86 F.C.C.2d at 503. “[U]niversal
service is a cornerstone of the Nation’s communication system.”
S. Rep. No. 104-23, at 25 (1995). “[O]ne of the fundamental
concerns” of wireless regulation is the need to further
universality, id. at 4, and this goal is to be served, in part, by
“providing quality services at just, reasonable, and affordable
rates[ and] providing access to advanced telecommunications
and information services in all regions of the nation . . . .” Id. at
5. Accordingly, the FCC was tasked not only with protecting
the health and safety of the public, but also with ensuring the
rapid development of an efficient and uniform network, one that
provides effective and widely accessible service at a reasonable
cost.

How precisely to serve these objectives “is a policy
question, not a legal one.” Cellular Phone Taskforce v. FCC,
205 F.3d 82, 91 (2d Cir. 2000). In order to satisfy both its

62
mandates to regulate the safety concerns of RF emissions and to
ensure the creation of an efficient and uniform nationwide
network, the FCC was required to weigh those considerations
and establish a set of standards that limit RF emissions enough
to protect the public and workers while, at the same time, leave
RF levels high enough to enable cell phone companies to
provide quality nationwide service in a cost-effective manner.
The FCC itself recognized: “We believe our decisions provide
a proper balance between the need to protect the public and
workers from exposure to potentially harmful RF
electromagnetic fields and the requirement that industry be
allowed to provide telecommunications services to the public in
the most efficient and practical manner possible.” FCC Second
Order, 12 F.C.C.R. at 13496. The SAR guidelines, therefore,
represent the FCC’s considered judgment about how to protect
the health and safety of the public while still leaving industry
capable of maintaining an efficient and uniform wireless
network.

The FCC concluded that requiring exposure to be
kept as low as reasonably achievable in the face
of scientific uncertainty would be inconsistent
with its mandate to balance between the need to
protect the public . . . and the requirement that
industry be allowed to provide
telecommunications services to the public in the
most efficient and practical manner possible.

Cellular Phone Taskforce, 205 F.3d at 92 (internal quotation

63
marks omitted).

This is a situation “in which the Federal Government has
weighed the competing interests relevant to the particular
requirement in question, reached an unambiguous conclusion
about how those competing considerations should be resolved
in a particular case or set of cases, and implemented that
conclusion via a specific mandate on manufacturers or
producers.” Lohr, 518 U.S. at 501. Here, the FCC has weighed
the competing interests relevant to RF regulations—safety and
efficiency. It has reached an unambiguous conclusion by
adopting the hybrid ANSI/IEEE-NCRP set of standards, see 47
C.F.R. § 2.1093(d), and it has implemented that conclusion via
a specific mandate, requiring every cell phone sold in the United
States to comply with those standards, see 47 C.F.R. §§
2.803(a)(1); 24.51–.52.

Allowing juries to impose liability on cell phone
companies for claims like Farina’s would conflict with the
FCC’s regulations. A jury determination that cell phones in
compliance with the FCC’s SAR guidelines were still
unreasonably dangerous would, in essence, permit a jury to
second guess the FCC’s conclusion on how to balance its
objectives. Were the FCC’s standards to constitute only a
regulatory floor upon which state law can build, juries could re-
balance the FCC’s statutory objectives and inhibit the provision
of quality nationwide service. Because the intensity of RF
emission levels and the strength and range of cell phone signals
are positively correlated, allowing additional state-law

64
restrictions on these levels could impair the efficiency of the
wireless market. But given the current state of the science, the
FCC considers all phones in compliance with its standards to be
safe. See FCC First Order, 11 F.C.C.R. at 15184 (“We believe
that the regulations . . . represent the best scientific thought and
are sufficient to protect the public health.”). These standards
represent a “consensus view” of the agencies with jurisdiction
over RF emissions and incorporate the views of numerous
expert organizations and interested parties. Id. at 15124. As an
agency engaged in rulemaking, the FCC is well positioned to
solicit expert opinions and marshal the scientific data to ensure
its standards both protect the public and provide for an efficient
wireless network. Allowing juries to perform their own risk-
utility analysis and second-guess the FCC’s conclusion would
disrupt the expert balancing underlying the federal scheme. See
Buckman, 531 U.S. at 348 (finding preemption where “a
somewhat delicate balance of statutory objectives” could be
“skewed by allowing . . . claims under tort law”); cf. Riegel, 552
U.S.at 325 (“State tort law that requires a manufacturer’s
catheter to be safer, but hence less effective, than the model the
FDA has approved disrupts the federal scheme . . . .”).

Moreover, the resulting state-law standards could vary
from state to state, eradicating the uniformity necessary to
regulating the wireless network. The wireless network is an
inherently national system. In order to ensure the network
functions nationwide and to preserve the balance between the
FCC’s competing regulatory objectives, both Congress and the

65
FCC recognized uniformity as an essential element of an
efficient wireless network. See H.R. Rep. 104-204 (I), at 94–95,
reprinted in 1996 U.S.C.C.A.N. at 61–62; Cellular Commc’ns,
86 F.C.C.2d at 503; cf. Thomas W. Hazlett, Federal Preemption
in Cellular Phone Regulation, in Federal Preemption 113,
124–25 (Richard A. Epstein & Michael S. Greve eds., 2007)
(describing the benefits of uniform federal regulation in other
aspects of the wireless network). Subjecting the wireless
network to a patchwork of state standards would disrupt that
uniformity and place additional burdens on industry and the
network itself. Cf. Buckman, 531 U.S. at 350 (“As a practical
matter, complying with the FDA’s detailed regulatory regime in
the shadow of 50 States’ tort regimes will dramatically increase
the burdens facing potential applicants . . . .”). This would
hinder the accomplishment of the full objectives behind wireless
regulation.

In concluding that state-law causes of action like Farina’s
may disturb the FCC’s balance of its statutory objectives, we
afford some weight to the views of the FCC itself. While we do
not defer to an agency’s legal conclusion that state law is
preempted, where “the subject matter is technical and the
relevant history and background are complex and extensive” we
defer to “an agency’s explanation of how state law affects the
regulatory scheme.” Wyeth, 129 S. Ct. at 1201 (alteration and
internal quotation marks omitted). Because agencies “have a
unique understanding of the statutes they administer[, they
possess] an attendant ability to make informed determinations

66
about how state requirements may pose an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.” Id. (internal quotation marks omitted).
“The weight we accord the agency’s explanation . . . depends on
its thoroughness, consistency, and persuasiveness.” Id. The
FCC, in its notice of rulemaking, explicitly stated the adoption
of its SAR guidelines constituted a balancing of safety and
efficiency. FCC Second Order, 12 F.C.C.R. at 13496. It has
also cautioned, in an amicus brief before the Court of Appeals
for the District of Columbia in Murray, that state-law claims
would upset that balance. Both of these views support a finding
of preemption.

Farina objects, arguing we should afford no deference to
the FCC’s statements because the FCC’s position on preemption
is inconsistent with its prior statements on the issue. In Wyeth,
the Supreme Court refused to defer to the FDA’s view
advocating its preemptive authority because the agency had
previously asserted that state law did not erect an obstacle to the
agency’s objectives. 129 S. Ct. at 1201–02; see also Riegel, 552
U.S. at 326 (stating that “the degree of deference [given to an
agency explanation] might be reduced by the fact that the
agency’s earlier position was different”). Farina highlights
statements by the FCC that purport to disclaim the authority to
promulgate safety standards and to reject the preemptive
authority of its RF regulations. See FCC First Order, 11
F.C.C.R. at 15101 (recognizing that “[t]he FDA has general
jurisdiction for protecting the public from potentially harmful

67
radiation from consumer and industrial devices and in that
capacity is expert in RF exposures”); Responsibility, 100
F.C.C.2d at 551 (“[W]e have neither the expertise nor the
jurisdiction to develop our own radiation exposure guidelines .
. . .” (emphasis omitted)); see also FCC Second Order, 12
F.C.C.R. at 13529 (refusing to decide whether or not state and
local regulations of RF emissions should be preempted); FCC
First Order, 11 F.C.C.R. at 15183 (same); Responsibility, 100
F.C.C.2d at 558 (“[W]e do not believe it is necessary at this time
to resolve the issue of federal preemption of state and local RF
standards.”) .

To the extent Farina argues these statements evince the
FCC’s rejection of preemption, he overreads them. First, the
fact that the FCC does not possess sole jurisdiction over health
and safety standards does not preclude a finding of preemption.
See City of Burbank, 411 U.S. at 638–39 (finding preemption
where authority over regulating airplane noise was vested in
both the EPA and the Federal Aviation Administration).
Second, the FCC has been consistent in its position on
preemption. Although it has previously refused to express a
view on whether state and local RF regulations are preempted,
its refusal was explicitly based on the fact that no significant
conflict between state law and its regulations existed. See, e.g.,
FCC First Order, 11 F.C.C.R. at 15182 (“To date the
Commission has declined to preempt on health and safety
matters. However, the Commission has noted that should non-
Federal RF radiation standards be adopted that adversely affect

68
a licensee’s ability to engage in Commission-authorized
activities, the Commission would consider reconsidering
whether Federal action is necessary.”); Responsibility, 100
F.C.C.2d at 558 (same). The FCC has always reserved the
question of the preemptive authority of its RF regulations
pending the existence of an actual conflict, and its current
position is consistent with that approach. Accordingly, we think
the FCC’s position on preemption merits deference.27

27
Farina also contends Wyeth precludes deference to agency
statements made outside of notice-and-comment rulemaking
procedures. In Wyeth, the Supreme Court refused to defer to the
FDA’s views in part because they were expressed in a preamble
to an FDA regulation whose notice of proposed rulemaking had
declared it would not contain preemptive regulations. 129 S. Ct.
at 1201. The FDA’s views were “inherently suspect in light of
this procedural failure.” Id.
We do not read this passage as standing for the
proposition that only statements made pursuant to notice-and-
comment rulemaking can be afforded deference. The deference
at issue in Wyeth was Skidmore deference, see Skidmore v. Swift
& Co., 323 U.S. 134 (1944), not Chevron deference, see
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837 (1984). The latter level of deference applies only to
statements carrying the force of law, but Skidmore deference is
not so limited. See United States v. Mead Corp., 533 U.S. 218,
234–35 (2001) (applying Skidmore deference to an advisory
ruling letter). Instead, we read the Court’s reference to the

69
 Farina raises several objections to a finding of
preemption. First, he argues preemption is unwarranted because
the FCC lacks authority to regulate the safety effects of RF

FDA’s “procedural failure” to be more properly considered a
defect in the thoroughness of the FDA’s views. Having
disavowed any intent to issue preemptive regulations in its
notice of proposed rulemaking, the FDA would not have
received and considered the comments of all interested parties.
In light of the lack of exposure to conflicting views, the FDA’s
position would lack thoroughness. Here, in contrast, the FCC
received numerous comments regarding preemption, see FCC
First Order, 11 F.C.C.R. at 15128 (“[A] significant number of
parties addressed the issue of Federal preemption of state and
local regulations for RF exposure.”), and did not disavow
issuing preemptive regulations in its notice of proposed
rulemaking prior to the FCC First Order, see NPR FCC First
Order, 8 F.C.C.R. 2849.
Although the fact that an agency’s views on preemption
are expressed informally can limit the deference given, see
Fellner, 539 F.3d at 250–51, at least here, where the FCC was
exposed to conflicting views, we do not think deference is
unwarranted, cf. id. at 250 n.8 (citing the agency’s lack of
exposure to competing views as a rationale for refusing to defer
to an informal agency statement). Regardless, the FCC’s
recognition of the balance behind its RF regulations was also
expressed in a formal proceeding, and we believe that deserves
deference. FCC Second Order, 12 F.C.C.R. at 13496.

70
emissions. Because the FCC is not an agency in the field of
health and safety, Farina contends it cannot pass preemptive
safety regulations. Moreover, he argues that, in passing its RF
standards, the FCC acted pursuant to its obligations under
NEPA. See, e.g., FCC Second Order, 12 F.C.C.R. at 13499
(“To meet its responsibilities under NEPA, the Commission has
adopted requirements for evaluating the environmental impact
of its actions. One of several environmental factors addressed
by these requirements is human exposure to RF energy . . . .”
(footnote omitted)). Because NEPA applies broadly to all
federal agencies and is not a statute within the FCC’s exclusive
purview, he argues it cannot have preemptive effect.

But although the FCC’s RF regulations were triggered by
the Commission’s NEPA obligations, health and safety
considerations were already within the FCC’s mandate, 47
U.S.C. §§ 151, 332(a), and all RF regulations were promulgated
under the rulemaking authority granted by the FCA, see, e.g.,
FCC Second Order, 12 F.C.C.R. at 13562; FCC First Order, 11
F.C.C.R. at 15185.28 Furthermore, while the FCC arguably

28
The district court concluded that the FCC regulated cell
phone RF emissions pursuant only to its authority under NEPA.
The court in Murray did not believe that whether the FCC
promulgated its RF regulations under NEPA or “pursuant to
specific radio-communications legislation,” Murray, 982 A.2d
at 778 n.19, was important because, in the TCA, Congress
explicitly instructed the FCC to “make effective rules regarding

71
lacks the expertise to design its own scientific health and safety
standards, see Responsibility, 100 F.C.C.2d at 551, it does
possess the expertise to select a standard developed by other
expert agencies and organizations and balance that against
efficiency, see id. (recognizing the FCC “does have the expertise
and authority to recognize technically sound standards
promulgated by reputable and competent organizations”
(emphasis omitted)). The FCC need not be expert enough to
devise its own SAR standard to adopt a preemptive regulation.
In City of Burbank, the Supreme Court evaluated FAA
regulations of airplane noise control under the Noise Control
Act of 1972. 411 U.S. at 628–29. These regulations were
promulgated only after the EPA submitted to the FAA proposed
regulations “necessary to protect the public health and welfare.”
Id. at 630. Despite the fact that the EPA assisted in the
formulation of federal standards, the Court held the FAA’s
authority preempted state law. Id. at 640.

Farina’s second argument is that the Supreme Court’s
recent opinion in Wyeth requires us to reject preemption here.

the environmental effects of [RF] emissions.” Pub. L. No. 104-
104, § 704(b), 110 Stat. 56, 152. The Murray court concluded
that § 704(b) delegated authority to the FCC to regulate RF
radiation from cell phones. See Murray, 982 A.2d at 786 n.37.
This interpretation has some force, but we do not rely on §
704(b).

72
In Wyeth, the plaintiff, Diana Levine, suffered injuries resulting
from the administration of phenergan, an antihistamine, by the
IV-push method. 129 S. Ct. at 1191. Phenergan can be
administered in two possible ways—either through the IV-push
method, in which the drug is injected directly into the vein, or
through its introduction into saline solution that drips into the
vein via a catheter. Id. Levine alleged the drug’s labeling,
although approved by the FDA, was inadequate because it failed
to instruct practitioners not to use the riskier IV-push method.
Id. at 1191–92.

The Court held Levine’s suit was not preempted by the
FDA’s approval of phenergan’s label. Id. at 1204. The Court
first found that Congress had long recognized a complementary
role for state-law causes of action under the Food, Drug, and
Cosmetic Act (“FDCA”). Id. at 1199–1200. This awareness,
when paired with Congress’s refusal to enact an express
preemption provision dealing with prescription drugs, indicated
Congress did not intend to displace state law. Id. at 1200.
Moreover, the Court refused to defer to the FDA’s current
position on preemption, id. at 1201–02, and the agency itself had
traditionally regarded state law as a complement to federal
regulations, id. at 1202. Finally, the FDA’s approval of
phenergan’s label did not reflect a balancing of competing
objectives, as in cases like Geier, because the FDA had not even
considered requiring a warning against the IV-push method. Id.
at 1203 n.14.

Farina argues these aspects of Wyeth support his

73
argument against preemption. We disagree. First, there is no
indication, as there was in Wyeth, that either Congress or the
FCC traditionally viewed state regulation of RF emissions as a
necessary complement to federal regulation. The FCC has
acknowledged that traditionally little state regulation of RF
emissions existed. FCC First Order, 11 F.C.C.R. at 15183 (“It
would appear from the comments that a few [state and local RF]
regulations have been imposed . . . .”). The Commission has
historically recognized a role for state law only to the extent it
does not conflict with federal law, and has taken the position
that state-law suits like Farina’s would conflict with its
regulations.29

29
Farina also emphasizes that the Wyeth Court recognized
state law as a necessary complement because the FDA lacked
the resources to monitor all new information about the vast
amount of pharmaceuticals on the market. See id. at 1202 &
n.11. Farina argues this counsels against finding preemption
here because the FDA has stated that it lacks adequate resources
to regulate the health and safety effects of RF radiation. It is not
clear how the sufficiency of the FDA’s resources would have an
effect upon the preemptive authority of FCC regulations. Farina
makes no corresponding argument that the FCC lacks sufficient
resources to monitor the risks of RF emissions. Moreover, the
costs of monitoring the adequacy of a generally applicable set of
RF standards would presumably be far less than those of
monitoring the adequacy of the labels for thousands of distinct
pharmaceuticals.

74
 Moreover, the lack of an express preemption provision
covering claims like Farina’s does not necessarily mean
Congress intended to preserve conflicting state law. We do not
read Wyeth’s reference to Congress’s decision not to enact an
express preemption provision, see id. at 1200 (“If Congress
thought state-law suits posed an obstacle to its objectives, it
surely would have enacted an express pre-emption provision at
some point during the FDCA’s 70-year history.”), as standing
for the proposition that conflict preemption should not be found
absent an express preemption provision. Such a reading would
come too close to subsuming conflict preemption into express
preemption analysis, and is inconsistent with the axiom that an
express preemption provision does not “bar the ordinary
working of conflict pre-emption principles,” Geier, 529 U.S. at
869. In any case, we recognize that Congress did pass two
express preemption provisions in the TCA. See 47 U.S.C. §§
332(c)(3)(A), (c)(7)(B)(iv). While they do not cover Farina’s
claims, they do manifest Congress’s express intent to preempt
some state law, which distinguishes this case from Wyeth.

Finally, as the Court itself recognized, Wyeth was not a
balancing case. 129 S. Ct. at 1203. State-law actions seeking to
impose liability for inadequate warnings would not conflict with
the FDA’s labeling approval because both were designed to
serve the same objective—protecting public safety. Id. at
1199–1200. State tort law would merely provide additional
protection. Protecting public safety is clearly within the
mandate of the FCC. See 47 U.S.C. § 332(a)(1); H.R. Rep. No.

75
104-204(I), at 94, reprinted in 1996 U.S.C.C.A.N. at 61
(discussing the need for “adequate safeguards of the public
health and safety” in RF regulations). But the Commission was
not charged only with protecting the public from RF emissions;
it was also required to ensure the development of an efficient
wireless network. The Commission’s balance of these interests
would be skewed by additional state restrictions on RF
emissions in a manner that the objectives behind pharmaceutical
labels would not be. Accordingly, Wyeth does not provide
sufficient grounds to alter our conclusion.

Farina’s third argument posits that the presence of a
savings provision in the TCA limits the preemptive authority of
FCC regulations. Section 601(c)(1) of the TCA provides: “This
Act and the amendments made by this Act shall not be construed
to modify, impair, or supersede Federal, State, or local law
unless expressly so provided in such Act or amendments.” Pub.
L. No. 104-104, §601(c)(1), 110 Stat. 56, 143 (codified as Note
to 47 U.S.C. § 152). It is entitled “No Implied Effect.” Farina
argues this section demonstrates Congress’s intent to limit the
preemption of state law to only those situations covered by an
express preemption provision. See H.R. Rep. No. 104-458, at
201 (1996) (Conf. Rep.) (“This provision prevents affected
parties from asserting that the bill impliedly preempts other
laws.”). Because neither § 332(c)(7)(B)(iv) nor § 332(c)(3)(a)
reach Farina’s claims, he would have us conclude his suit cannot
be preempted.

Farina’s argument is not without some force. It is a

76
possible reading of § 601(c)(1) to conclude Congress made a
conscious effort to limit the scope of any subsequent preemption
analysis. And because congressional intent is the “ultimate
touchstone” of our inquiry, Lohr, 518 U.S. at 485 (internal
quotation marks omitted), it is conceivable that § 601(c)(1)
could be dispositive, see Pinney, 402 F.3d at 458 (concluding
that the presence of § 601(c)(1) counseled against a finding of
conflict preemption). But it is a general rule in preemption
analysis that a savings provision does not “bar the ordinary
working of conflict pre-emption principles.” Geier, 529 U.S. at
869. Moreover, where the federal regulatory scheme reflects a
careful balancing, savings provisions should not be given broad
effect, id. at 870, lest they “permit[ a] law to defeat its own
objectives, or potentially . . . to ‘destroy itself.’” Id. at 872
(quoting AT&T Co. v. Cent. Office Tel., Inc., 524 U.S. 214, 228
(1998)).

Why, in any event, would Congress not have
wanted ordinary pre-emption principles to apply
where an actual conflict with a federal objective
is at stake? Some such principle is needed. In its
absence, state law could impose legal duties that
would conflict directly with federal regulatory
mandates . . . . [I]t would take from those who
would enforce a federal law the very ability to
achieve the law’s congressionally mandated
objectives that the Constitution, through the
operation of ordinary pre-emption principles,

77
 seeks to protect.

Id. at 871–72.

Such a reading would be odd, then, given the fact that the
FCC’s RF regulations represent a balance of competing
objectives. In cases where an agency’s regulation reflects a
single objective, it may make sense for Congress to declare that
state law is displaced only in the specific situations covered by
an express preemption provision. By doing so, Congress could
ensure state law serves as a complement to federal regulation,
which would further advance the agency’s statutory objective.
But where the agency’s regulations represent a balance, the
presence of state-law regulations does not serve as a
complement, but rather re-balances the relevant considerations.
See Buckman, 531 U.S. at 348. This is precisely the type of
situation where a broad reading of a savings provision could
allow the law to “defeat its own objectives.” Geier, 529 U.S. at
872.

Accordingly, we hesitate to read § 601(c)(1) in a way that
disclaims preemption even in the face of an actual conflict. “We
do not claim that Congress lacks the constitutional power to
write a statute that mandates such a complex type of
state/federal relationship.” Id. But where the language permits
another reasonable reading, it may be more prudent to adopt that
alternative rather than the one that could do violence to the
statute’s objectives. It is not clear that § 601(c)(1) indicates
Congress was willing to preserve state law that created actual

78
conflicts with federal law. Even assuming that Congress may
have been clarifying its intent not to preempt some state law, a
clarification of intent not to preempt some state law is not a
statement of intent to permit actual conflicts between state and
federal law.

While the presence of a savings provision does not affect
the actual workings of conflict preemption, it can provide an
indication of congressional intent as to a statute’s objectives. As
such, a savings provision could inform our analysis of whether
a conflict exists without offending the principles of conflict
preemption. Section 601(c)(1), then, could indicate that
Congress’s objectives are more limited than they might
otherwise be characterized. While an actual conflict would still
be preempted, such a conflict would be harder to find under this
less expansive view of the statute’s objectives.

But this is merely one data point out of many we use to
discern congressional intent, and “a narrow focus on Congress’
intent to supersede state law is misdirected, for a pre-emptive
regulation’s force does not depend on express congressional
authorization to displace state law.” City of New York v. FCC,
486 U.S. 57, 64 (1988) (alterations and internal quotation marks
omitted); see also Geier, 529 U.S. at 884. Moreover, the broad
instruction in the TCA to promulgate rules governing RF
emissions appears sufficient to authorize the FCC to pass
preemptive regulations. See De la Cuesta, 458 U.S. at 153–54
(recognizing that when an agency issues preemptive regulations,
the question of congressional intent focuses on whether those

79
regulations fall within the agency’s delegated authority).

In addition, Congress has already shown the intention to
override nonuniform state-law RF standards that conflict with
federal regulation of the wireless infrastructure. In passing §
332(c)(7)(B)(iv), Congress recognized that “current State and
local requirements, siting and zoning decisions by non-federal
units of government, have created an inconsistent and, at times,
conflicting patchwork of requirements which will inhibit . . . the
rebuilding of a digital technology-based cellular
telecommunications network.” H.R. Rep. No. 104-204(I), at 94,
reprinted in 1996 U.S.C.C.A.N. at 61. The presence of
inconsistent state-law regulations of the infrastructure created
conflicts with the FCC’s RF regulations and led to the
enactment of an express preemption provision. Congress,
therefore, was clearly concerned with state-law RF standards
applicable to infrastructure that threatened to limit the efficiency
and uniformity of the wireless network. Cell phones are as
integral to the wireless network as the infrastructure, and
regulations of phones can have similar effects on the
effectiveness of wireless service as regulations of the
infrastructure. Cf. NPR Rural, 18 F.C.C.R. at 20830 (stating
that the biggest limitations on the ability of a base station to
reach a cell phone are the power level of the signal and the
location of the phone in relation to the base station). We think
Congress would be equally concerned with state regulations of
cell phones that could impose similar limitations on the range
and efficiency of the wireless network. Section 601(c)(1),

80
therefore, does not bar the preemption of Farina’s suit.30

Farina’s final argument is that even if the FCC did strike
a balance to protect safety and efficiency, the precise relief he
seeks—requiring cell phones to carry headsets—would have no
effect upon the efficiency of the wireless network.31 The Fourth
Circuit found this argument convincing. See Pinney, 402 F.3d
at 458 (“It is difficult to understand how a headset requirement
(the specific relief sought) would affect the establishment of a
nationwide wireless service network or the availability of
wireless service coverage. . . . [A]ccordingly, a headset
requirement would not stand as an obstacle to Congress’s goal
of achieving nationwide coverage.”).

But we think the focus on the headset requirement is

30
Farina also points to an additional savings provision in 47
U.S.C. § 414, providing: “Nothing in this chapter contained
shall in any way abridge or alter the remedies now existing at
common law or by statute . . . .” This provision applies
generally, and as such, does not provide strong evidence of the
congressional objectives bound up with the regulation of RF
emissions. We decline to read this provision in a way that limits
our conflict preemption analysis.
31
Although Farina primarily requests the provision of
headsets or compensation for the cost of headsets, his complaint
requests several additional forms of relief, including money
damages, punitive damages, and a declaratory judgment.

81
misplaced. For the purposes of preemption analysis, it is the
cause of action, and not the specific relief requested, that
matters. Preemption speaks in terms of claims, not in terms of
forms of relief. See, e.g., Wyeth, 129 S. Ct. at 1191 (“The
question we must decide is whether the FDA’s approvals
provide Wyeth with a complete defense to Levine’s tort claims.”
(emphasis added)); Riegel, 552 U.S. at 323 (reading Lohr to
have held that “common-law causes of action for negligence and
strict liability” were subject to preemption by certain federal
regulations (emphasis added)); see also Wood v. Prudential Ins.
Co. of Am., 207 F.3d 674, 678 (3d Cir. 2000) (noting that
preemption “does not depend on the type of relief requested in
a complaint”). Any form of relief shapes a defendant’s
behavior, which can conflict with federal law objectives. See
Cipollone, 505 U.S. at 521 (Stevens, J., concurring) (“[S]tate
regulation can be as effectively exerted through an award of
damages as through some form of preventative relief. The
obligation to pay compensation can be . . . a potent method of
governing conduct and controlling policy.” (quoting San Diego
Bldg. Trades Council v. Garmon, 359 U.S. 236, 247 (1959))
(alteration omitted)); see also Riegel, 552 U.S. at 324; cf. N.Y.
Times Co. v. Sullivan, 376 U.S. 254, 277 (1964) (“What a State
may not constitutionally bring about by means of a criminal
statute is likewise beyond the reach of its civil laws . . . .”).

Furthermore, although Farina attempts to characterize his
suit as setting a headset requirement, this misapprehends the
effect a finding of liability would have in this kind of suit. The

82
nature of jury decisions is not to prescribe a specific prospective
remedy. It is merely to say that defendants’ conduct does not
abide by the operative legal standard—in this case, that
defendants’ cell phones are unsafe—and to provide relief for the
specific case or cases before the court. How defendants
achieved safe levels of SAR exposure for cell phones sold in the
future would be left up to them.32 Whether they complied by
reducing RF emissions or by bundling headsets with phones—or
by some other means—would be irrelevant for the purposes of
the new state-law standard. In both situations, the phones would
be considered “safe” under state law. Nor should the specific
means of compliance matter for preemption purposes.

Accordingly, we conclude that Farina’s claims are

32
We do not imply that a state statute or regulation
prescribing a specific means of reducing or eliminating SAR
exposure—such as one requiring a headset for all cell phones
sold within a state—would not be preempted. We merely
recognize that a distinction exists between the two forms of state
regulation. See Riegel, 552 U.S. at 325 (“Indeed, one would
think that tort law, applied by juries . . . , is less deserving of
preservation. A state statute, or a regulation adopted by a state
agency, could at least be expected to apply cost-benefit analysis
similar to that applied by the experts at the FDA . . . .”). We
reference this distinction only because Farina’s characterization
of his suit as setting a headset requirement insinuates no
distinction is present.

83
preempted by the FCC’s RF regulations. The inexorable effect
of allowing suits like Farina’s to continue is to permit juries to
second-guess the FCC’s balance of its competing objectives.
The FCC is in a better position to monitor and assess the science
behind RF radiation than juries in individual cases. Regulatory
assessments and rulemaking call upon a myriad of empirical and
scientific data and medical and scientific opinion, especially in
a case, such as RF radiation, where the science remains
inconclusive. Though we foreclose relief for the members of
this putative class, this does not render them devoid of
protection. The FCC has pledged to serve an ongoing role in the
regulation of RF radiation and to monitor the science in order to
ensure its regulations remain adequate to protect the public.
OET Bulletin at 8; see also EMR Network v. FCC, 391 F.3d
269, 273 (D.C. Cir. 2004) (noting the FCC’s “determination to
keep an eye on developments” and accommodate changes in the
science). Allowing juries to determine instead whether those
regulations are adequate to protect the public would “stand[] as
an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Hillsborough Cnty., 471
U.S. at 713 (internal quotation marks omitted).33

33
Farina also alleges defendants’ cell phones are defective
because they represent a safety risk when used without headsets
while driving. Third Am. Compl. ¶ 151. But whether or not the
FCC has authority over the matter of driver safety, the effect of
Farina’s suit would be to require the redesign of cell phones.
This presents the same conflict as his other claims. We

84
 IV.

For the foregoing reasons, we will affirm the District
Court’s dismissal of Farina’s complaint.

therefore reject Farina’s driver safety argument for the same
reasons as his other claims.

85