Crossed Signals in a Wireless World: The Seventh Circuit’s Misapplication of the Complete Preemption Doctrine

By: Matthew J. Kleiman

As the number of wireless telephone users continues to proliferate, so does the number of lawsuits against wireless service providers. While consumers seek to utilize various consumer-friendly state law causes of action, the wireless industry continues to push for a uniform federal regulatory regime. Ambiguous language in the Federal Communications Act of 1934 (“FCA”) and disagreement among the federal circuits has led to much confusion over whether state law claims affecting wireless rates and market entry are removable to federal court by way of “complete preemption.” This iBrief argues that FCA’s preemption power is limited by its savings clause, failure to establish a comprehensive regulatory scheme, and provision of a significant role for state regulation. Accordingly, the Seventh Circuit erred in Bastien v. AT&T Wireless Services, Inc. when it concluded that the FCA completely preempts certain state law claims against wireless service providers and thereby requires their removal to federal court.

Cite: 2004 Duke L. & Tech. Rev. 0014