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Telesaurus v. Power, Petition Rehearing, 9th Circuit- void license can't cause FCC preemption

Telesaurus v. Power, Petition Rehearing, 9th Circuit- void license can't cause FCC preemption

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Telesaurus petition for rehearing in the US Ninth Circuit Court of Appeal, in Telesaurus v. Power. The Court denied this petition.

Plantiff Telesaurus is one of the supporters (by outright chari-table donations) to Skybridge Spectrum Foundation. The court denied this petition with no comment. Telesaurus will be submitting this to the US Supreme Court in a petitoin for writ of certiorari in or about April 2011.

The Ninth Circuit essentially held that a FCC license that was issued by mistate (and Telesaurus asserts by by fraud) can grant federal premption immunity to the party that held the defective license from state law claims of fraud, conversion, interference with prospective economic advantage, etc.

Eventually, SkyTel and its supporting LLCs believes the courts will get this and related issues right.

If they do not, that will effectively gut the rights Congress reserved in the Communications Act to allow court action to police serious violations of state and federal law by FCC licenses: That is the flip side of Congress's substantial de-regulation in the 1996 Telecom Reform Act. Federal de-reglation calls for access to courts for remedies to unlawful actions beyond the scope of the regulation.

Defendatns such as in this case, and MCLM, PSI and others in other cases brought by SkyTel entities, assert that their FCC licenses grant them FCC preemption immunity from any prosecuttion in court-- while before the FCC they argue that their acts cannot be challenged, at least not subject to any serious challenge including evidentiary hearings.

This makes a mockery of FCC licensing and due process of law.
Telesaurus petition for rehearing in the US Ninth Circuit Court of Appeal, in Telesaurus v. Power. The Court denied this petition.

Plantiff Telesaurus is one of the supporters (by outright chari-table donations) to Skybridge Spectrum Foundation. The court denied this petition with no comment. Telesaurus will be submitting this to the US Supreme Court in a petitoin for writ of certiorari in or about April 2011.

The Ninth Circuit essentially held that a FCC license that was issued by mistate (and Telesaurus asserts by by fraud) can grant federal premption immunity to the party that held the defective license from state law claims of fraud, conversion, interference with prospective economic advantage, etc.

Eventually, SkyTel and its supporting LLCs believes the courts will get this and related issues right.

If they do not, that will effectively gut the rights Congress reserved in the Communications Act to allow court action to police serious violations of state and federal law by FCC licenses: That is the flip side of Congress's substantial de-regulation in the 1996 Telecom Reform Act. Federal de-reglation calls for access to courts for remedies to unlawful actions beyond the scope of the regulation.

Defendatns such as in this case, and MCLM, PSI and others in other cases brought by SkyTel entities, assert that their FCC licenses grant them FCC preemption immunity from any prosecuttion in court-- while before the FCC they argue that their acts cannot be challenged, at least not subject to any serious challenge including evidentiary hearings.

This makes a mockery of FCC licensing and due process of law.

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Published by: Skybridge Spectrum Foundation on Feb 20, 2011
Copyright:Attribution Non-commercial

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11/03/2012

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IN
THEUNITED
STATESCOURT
OF
APPEALS
FOR
THE
NINTH
CIRCUIT
Case
No.
09-15446TELESAURUSVPC,
LLC,
a
Delaware
Limited
Liability
Company,
Plaintiff-Appellant,
VS.
RANDY
POWER,
an
individual;PATRICIA
A.
POWER,
an
individual;
RADIOLINK
CORPORATION,
Defendants-Appellees,
vs.
INDUSTRIALTELECOMMUNICATIONSASSOCIATION,
INC.,
a
Virginia
Corporation;
EWA,
INC.,
a
Virginia
Corporation,
DBA
EnterpriseWireless
Alliance,
Third-party-defendants.OnAppeal FromThe
U.S.
District
Court
District
of
Arizona
(Phoenix
Division)
CASE NO.
O7-CV-01
3
1
I-NVW
APPELLANT
TELESAURUS
VPC'S
REQUESTFOR
PANELREHEARING,
OR
IN
THE
ALTERNATIVE
REHEARING
EN
BANC
NOSSAMAN
LLP
PATRTCK
J.
RICHARD(SBN13t046)
prichard
@
nossaman.
coln
TAMIR
DAMARI
tclamari
@
nossaman.
com
50
Califomia
Street,
Thirty-FourthFloor
S
an
Francisco, Californ
ia
9
41
1
I-41
07
Telephone:(415)
398-3600
Facsimile:
(415)398-2438Attorneys
for
Appellant
TELESAURUS
VPC,
LLC.
Case: 09-15446 10/29/2010 Page: 1 of 53 ID: 7527972 DktEntry: 35
SkyTel Note:Plantiff Telesaurus is one of thesupporters (by outright chari-table donations) to SkybridgeSpectrum Foundation.The court denied this petitionwith no comment.
Telesaurus will be submitting this to the US Supreme Court in a petitoin for writ of certiorari in or about April 2011.
 The Ninth Circuit essentiallyheld that a FCC license thatwas issued by mistate (andTelesaurus asserts by by fraud)can grant federal premptionimmunity to the party that heldthe defective license from statelaw claims of fraud, conversion,interference with prospectiveeconomic advantage, etc.Evetually, SkyTel and itssupporting LLCs believes thecourts will get this and relatedissues right.If they do not, that willeffectively gut the rightsCongress reserved in theCommunications Act to allowcourt action to police seriousviolations of state and federallaw by FCC licenses: That is theflip side of Congress'ssubstantial de-regulation in the1996 Telecom Reform Act.Federal de-reglation calls foraccess to courts for remedies tounlawful actions beyond thescope of the regulation.Defendatns such as in thiscase, and MCLM, PSI andothers in other cases brought bySkyTel entities, assert that theirFCC licenses grant them FCCpreemption immunity from anyprosecuttion in court-- whilebefore the FCC they argue thattheir acts cannot be challenged,at least not subject to anyserious challenge includingevidentiary hearings.This makes a mockery of FCClicensing and due process oflaw.
 
I.INTROpUCTTON
ANp
STATEMENT
PURSUANT
TO
FRAP 3s(bx1)
Appellant
Telesaurus
VPC
LLC
("Telesaurus")
requests
panelrehearing
or
in
thealternative
rehearing
en
banc.
Telesaurus
seeks
review of
this
Court's
determination
in
its
opinion
dated
October
8,
2010r(the
"Opinion")
thatTelesaurus's
state
law
claims
against appelleesRandy
Power,Patricia Power
and
Radiolink
Corporation
(collectively
"Radiolink")
are
preempted
by
the Federal
Communications
Act,
at
47
USC$332(cX3XA).'
Federal
Rule
of
Appellate
Procedure
40(a)(2)
authorizespanel
reconsideration
where
a
panel
has
overlookedor
misapprehended
a
pointof law
or
fact.
As
described
below,
there
are
factual
and
legal
errors
in
the
Opinionwhich
appear
to
have
formed
the basis
for
this
Court's
preemption
finding.
To
summarize:
First,
the
Opinion's
preemptionconclusion
was
informed
byits incorrectthreshold determinationthat
Radiolink
operated
"under
a
valid
FCClicense,"
with
respect
to
the
VPC
frequencies
at issue
in
this
case
(the
"VPCFrequencies").
In
actuality,
the
recordreflects
that
Radiolink's
purportedrights to
the
VPC
Frequencies
were void ab
initío,
and
thus
"defective"
and
'
This opinion
is
attached
hereto
as
Exhibit
I.
2
Inlight
of
the
Opinion's
reversal
of
the
trial
court's
dismissal
of
Telesaurus's
claims
under
41U.S.C.
$$206-207,
Petitioner
does
not
address
the
scope
of
the
Opinionin
that
regard, other
than
as
it
mayimpact
the
Court's
decision
as
tofederalpreemption.
Case: 09-15446 10/29/2010 Page: 2 of 53 ID: 7527972 DktEntry: 35
 
invalid
from
thestart,
afact which
the
FCC
itself
recognized
in
the
administrative
proceedings
which
preceded
this lawsuit.
Second, the
Opinionincorrectly
characterizes
Telesaurus's
state-law
claims
as
amounting
to
a
"collateralchallenge"
of
the
FCC's
grant
of
a
license to
Radiolink.
In
fact,
there is
nothing
about
Telesaurus's
claims
which
challenges
an
FCC
determination.To
the
contrary,
Telesaurus's
claims
are
based,
in
part,
upon
the
FCC's
determination that
"theRadiolink
applicationshould not
have beengranted
to
theextent that
it
requested
VPCfrequencies,"
and
that"the
grant
of
a
license
[toRadiolink]
was defectivetothe extent that
it
included authorization to
use
VPC
frequencies." ER
0084-0085.
Third,
the
Opinionincorrectly
determined that adjudication of
Telesaurus's
claims
would
be"equivalentto
second-guessing the FCC's
issuance
of
the
license."
Id., at
17024.
This legalconclusionisnot
consonant
with
$332preemption
jurisprudence
from
this
Court
and
other
FederalCircuits.3
'The
Court
also
assumes
that
$332(cX3Xa)'sadmonition
"no
State
or
local
government
shallhave
any authority to
regulate the
entry
of
or the
rates
charged
by
any
commercial
mobile
service
or
any
private
mobile
service"
(emphasisadded)
restricts
the
authority
of
a
fudetølcourt sitting in diversity to
adjudicate
a
state-law
claim.
For
the
reasons discussed
below,
Telesaurus
respectfully
submits
that thisbroad
view
of
$332
preemption
is
not
consonant
with
precedent
from
the
United
States
Supreme
Court.
Nonetheless,
given
the
other
errors
in
the
Opinion's
preemption
analysis,
the Court
need
not resolve this
collateral
issue
in
order the
grant
the
relief
requested herein.
Case: 09-15446 10/29/2010 Page: 3 of 53 ID: 7527972 DktEntry: 35

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