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Telesaurus Petition for Cert, US Supreme Court, Re Preemption of "Entry"Under 47 USC 332

Telesaurus Petition for Cert, US Supreme Court, Re Preemption of "Entry"Under 47 USC 332

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Telesaurus v. Power, Telesaurus petition for cert filed April 2011. This case is important since the US Supreme Court should correct the the US 9th Circuit (in this case) and other courts that err in finding (with a split as to courts that find otherwise) that wireless competitors and consumers cannot protect themselves, and fair competition, by suing under state-law torts and to protect contract rights, a FCC-licensed wireless operator, based on the preemption clause under section 332 of the Communications Act (47 USC § 332(c)(3)(A)) that preempts "state regulation" of "rates" and "entry" into the wireless market.
The questions the petition presents are:
1. Are Telesaurus’s state-law
damages claims for fraud, tortious interference
with contractual relations and conversion, state
“regulation” of rates and market entry, and,
thus preempted under U.S.C. § 332(c)(3)(A)?
2. Are Telesaurus’s state-law
damages claims for fraud, tortious interference
with contractual relations and conversion
against Radiolink, for procuring and using
Telesaurus’s exclusive FCC-licensed
frequencies, preempted under 47 U.S.C.
§ 332(c)(3)(A), even though, at the time suit was
initiated, the relevant licensed frequencies to
Radiolink had been revoked by the FCC and
recognized by the FCC as having been invalidly-
granted in the first instance?
3. Are Telesaurus’s state-law
damages claims for fraud, tortious interference
with contractual relations and conversion
against Radiolink (brought in federal court on
diversity grounds) state regulation of “rates” or
“market entry” under 47 U.S.C. § 332(c)(3)(A)?
4. What is the extent of recourse
that a plaintiff has under state law against a
defendant-FCC licensee, where a dispute exists
between the parties as to whether the
defendant is a common-carrier subject to
liability under federal law pursuant to 47
U.S.C. §206-207?
Telesaurus v. Power, Telesaurus petition for cert filed April 2011. This case is important since the US Supreme Court should correct the the US 9th Circuit (in this case) and other courts that err in finding (with a split as to courts that find otherwise) that wireless competitors and consumers cannot protect themselves, and fair competition, by suing under state-law torts and to protect contract rights, a FCC-licensed wireless operator, based on the preemption clause under section 332 of the Communications Act (47 USC § 332(c)(3)(A)) that preempts "state regulation" of "rates" and "entry" into the wireless market.
The questions the petition presents are:
1. Are Telesaurus’s state-law
damages claims for fraud, tortious interference
with contractual relations and conversion, state
“regulation” of rates and market entry, and,
thus preempted under U.S.C. § 332(c)(3)(A)?
2. Are Telesaurus’s state-law
damages claims for fraud, tortious interference
with contractual relations and conversion
against Radiolink, for procuring and using
Telesaurus’s exclusive FCC-licensed
frequencies, preempted under 47 U.S.C.
§ 332(c)(3)(A), even though, at the time suit was
initiated, the relevant licensed frequencies to
Radiolink had been revoked by the FCC and
recognized by the FCC as having been invalidly-
granted in the first instance?
3. Are Telesaurus’s state-law
damages claims for fraud, tortious interference
with contractual relations and conversion
against Radiolink (brought in federal court on
diversity grounds) state regulation of “rates” or
“market entry” under 47 U.S.C. § 332(c)(3)(A)?
4. What is the extent of recourse
that a plaintiff has under state law against a
defendant-FCC licensee, where a dispute exists
between the parties as to whether the
defendant is a common-carrier subject to
liability under federal law pursuant to 47
U.S.C. §206-207?

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Published by: Skybridge Spectrum Foundation on Apr 21, 2011
Copyright:Attribution Non-commercial

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04/21/2011

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No. __________
In theSupreme Court of the UnitedStates
Telesaurus VPC, LLCv.Randy Power, Patricia A. Power andRadiolink CorporationOn Petition for a Writ of Certiorari tothe United States Court of Appeals for theNinth CircuitPETITION FOR A WRIT OF CERTIORARITamir Damari(Counsel of Record)Patrick RichardNossaman, LLP50 California Street, 34th FloorSan Francisco, CA 94111(415) 438-7278tdamari@nossaman.com 
 
 ii
Counsel for Telesaurus
 
 i
QUESTIONS PRESENTED
The parties are FCC licensees regulated underthe Telecommunications Act of 1996, Pub. L. No.104-104, 110 Stat. 56 (1996) (the “FCA”) and Arizonastate law. Telesaurus VPC, LLC (“Telesaurus”)alleges that Respondents Randy Power, Patricia A.Power and Radiolink Corporation (collectively“Radiolink”) competed unfairly by fraudulentlyprocuring and using for profit common-carrier radiofrequencies from the FCC that they knew hadalready been licensed exclusively by the FCC toTelesaurus, which had already outbid Radiolink forthese frequencies at auction. After recognizing thiserror years later, the FCC “deleted” the frequenciesfrom the Radiolink license on the ground that “thefrequencies were not available” for licensing,Thereupon, Telesaurus sued Radiolink allegingstate-law damage claims for conversion, unjustenrichment, and tortious interference withprospective economic advantage. The Ninth Circuitfound that all of Telesaurus’s state-law claims arepreempted by the FCA’s preemption clause,47 U.S.C. § 332(c)(3)(A), which provides that:no State or local government shall have anyauthority to regulate the entry of or the ratescharged by any commercial mobile service orany private mobile service, except that thisparagraph shall not prohibit a State fromregulating the other terms and conditions of commercial mobile services.The Ninth Circuit further held thatTelesaurus’s state-law claims are not saved by theFCA’s “savings clause,” contained at 47 U.S.C. §414.

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