Blab TV Mobile v. Comcast Cable Communications, 97-6804

• Decision Date: 30 July 1999
• Docket Number: No. 97-6804,97-6804
• Citation: 182 F.3d 851
• Parties: (11th Cir. 1999) BLAB T.V. OF MOBILE, INC. d.b.a. Bay T.V., Plaintiff-Appellant, v. COMCAST CABLE COMMUNICATIONS, INC., Comcast Cablevision Corporation of Mobile, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 851

182 F.3d 851 (11th Cir. 1999)

BLAB T.V. OF MOBILE, INC. d.b.a. Bay T.V., Plaintiff-Appellant, v. COMCAST CABLE COMMUNICATIONS, INC., Comcast Cablevision Corporation of Mobile, Inc., Defendants-Appellees.

No. 97-6804.

United States Court of Appeals, Eleventh Circuit.

July 30, 1999.

Appeal from the United States District Court for the Southern District of Alabama. (No. 96-0286-RV-S), Richard W. Vollmer, Jr., Judge.

Before HATCHETT and BIRCH, Circuit Judges, and KEITH^*, Senior Circuit Judge.^**

BIRCH, Circuit Judge:

In this appeal, we determine, as a matter of first impression, whether section 612 of the Cable Communications Policy Act of 1984 completely preempts state-law tort and breach of contract claims involving "leased access" cable channels such that the claims are removable to federal court. The district court ruled that section 612 converted the state-law claims into claims arising under federal question jurisdiction, and thus denied a motion to remand the claims to state court. For the reasons set forth in this opinion, we conclude that Congress has not manifested sufficient intent to displace completely state-law claims pursuant to section 612. The district court therefore erred in determining that it possessed jurisdiction over this case on complete preemption grounds.

I. Background

On August 1, 1987, BLAB-TV of Mobile ("Bay TV") became Mobile, Alabama's first and only locally owned and operated television station. At that time, Comcast Cable Communications, Inc. ("Comcast"), was the cable operator for Mobile as defined under the Cable Communications Policy Act of 1984, codified at 47 U.S.C. 521 et seq. ("Cable Act"). Bay TV leased commercial air time from Comcast in which Bay TV broadcasted its programs over the cable service. Initially, Bay TV and Comcast executed a four-year contract that was to expire on July 31, 1991. The parties later disagreed about the terms of a new contract. Bay TV claims that the parties had entered into a verbal agreement to honor the terms of the original contract until the new contract was finalized and that the parties in fact entered into a new contract, while Comcast claims that the parties never executed the second contract.

In September 1993, Bay TV filed a complaint in the Circuit Court of Mobile County, Alabama, asserting claims of fraud and breach of contract.¹ Bay TV included a demand for a jury trial and demands for both compensatory and punitive damages.

In March 1996, Comcast removed the case to federal district court, asserting that section 612 of the Cable Act, codified at 47 U.S.C. 532, extended federal jurisdiction over Bay TV's claims even though they were based on state law. Section 612 regulates the manner in which cable operators like Comcast make "leased access" cable channels available to unaffiliated local broadcasters like Bay TV, requiring a cable operator with thirty-six or more channels to set aside ten percent of its capacity for use by unaffiliated programmers. Cable Act 612(b)(1)(A), 47 U.S.C. 532(b)(1)(A). Section 612 also creates a federal cause of action in district courts for unaffiliated programmers who are aggrieved by the failure or refusal of cable operators to make the commercial leased access channels available, authorizing the courts to award injunctive relief as well as actual damages if appropriate. Id. 612(d), 47 U.S.C. 532(d). The provision states:

Any person aggrieved by the failure or refusal of a cable operator to make channel capacity available for use pursuant to this section may bring an action in the district court of the United States for the judicial district in which the cable system is located to compel that such capacity be made available. If the court finds that the channel capacity sought by such person has not been made available in accordance with this section, or finds that the price, terms, or conditions established by the cable operator are unreasonable, the court may [award certain injunctive relief and actual damages, if appropriate].

Id.

Bay TV did not object to the removal of its state-law claims to federal court. One year later, Comcast filed a motion to strike Bay TV's demand for a jury trial and demand for punitive damages, arguing that neither is permitted for claims under section 612. In response, Bay TV filed a motion to remand, arguing that its claims arose under state law and thus did not confer removal jurisdiction. After hearing argument, the district court agreed with Comcast and held that section 612 fell within the "complete preemption" doctrine and therefore converted Bay TV's state-law claims into claims arising under section 612. The court denied Bay TV's motion to remand and granted Comcast's motion to strike Bay TV's demands for a jury trial and for punitive damages.

Upon a motion for reconsideration, the district court certified for interlocutory appeal the question whether section 612 completely preempts Bay TV's state-law claims and confers removal jurisdiction upon the district court. We agreed to resolve this question.

II. Discussion

The issue raised in this appeal is whether the district court possessed jurisdiction to consider the case on the merits. Whether a federal court possesses jurisdiction is a question of law that we review de novo, see Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.1998), and an argument that the court lacks jurisdiction may be raised at any time during the course of the proceedings. See Lucero v. Trosch, 121 F.3d 591, 598 (11th Cir.1997).

The district court asserted jurisdiction over this case pursuant to the removal statute codified at 28 U.S.C. 1441(a). The removal statute provides that any civil action brought in state court may be removed to federal court by the defendant so long as the federal court has original jurisdiction over the case under either federal question or diversity jurisdiction. 1441(a). The parties agree that no diversity jurisdiction exists in this case, and therefore the case was removable only if the suit raises a federal question, that is, if the suit is an action "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. 1331.

When evaluating whether this case arises under federal law, we are guided by the "well-pleaded complaint" rule, which provides that the plaintiff's properly pleaded complaint governs the jurisdictional determination. See Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). A case thus may be removed based on federal question jurisdiction "only when the plaintiff's statement of his own cause of action shows that it is based" on federal law. Id. The presence of a federal defense does not make the case removable, even if the defense is preemption and even if the validity of the preemption defense is the only issue to be resolved in the case. See Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 2430, 96 L.Ed.2d 318 (1987). In short, the plaintiff is the "master of the claim" and may prevent removal by choosing not to plead an available federal claim. Id. at 392, 107 S.Ct. at 2429.

Defendant argues that this case falls within an "independent corollary" to the well-pleaded complaint rule known as the "complete preemption" doctrine. See id. at 393, 107 S.Ct. at 2430. According to the Supreme Court, complete preemption occurs when "the pre-emptive force of a statute is so 'extraordinary' that it converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Id. (internal quotation marks and citation omitted). "Because they are recast as federal claims, state law claims that are held to be completely preempted give rise to 'federal question' jurisdiction and thus may provide a basis for removal." McClelland v. Gronwaldt, 155 F.3d 507, 512 (5th Cir.1998); see also Arthur R. Miller, Artful Pleading: A Doctrine in Search of Definition, 76 Tex. L.Rev. 1781, 1794 (June 1998) (hereinafter "Miller") ("The stated rationale for this deviation from what is one of the fundamental cornerstones of federal subject matter jurisdiction is that, in these cases, federal law not only preempts a state law to some degree but also substitutes a federal cause of action for the state cause of action.") (internal quotation marks omitted).

The inclusion of the term "preemption" within the doctrine's label, while not inaccurate, has enkindled a substantial amount of confusion between the complete preemption doctrine and the broader and more familiar doctrine of ordinary preemption. Stated simply, complete preemption functions as a narrowly drawn means of assessing federal removal jurisdiction while ordinary preemption operates to dismiss state claims on the merits and may be invoked in either federal or state court. As summarized by the Fifth Circuit,

"complete preemption" is less a principle of substantive preemption than it is a rule of federal jurisdiction. In other words, complete preemption principally determines not whether state or federal law governs a particular claim, but rather whether that claim will, irrespective of how it is characterized by the complainant, [serve as the basis for federal question jurisdiction].

McClelland, 155 F.3d at 516-17.

The Supreme Court published the opinion credited with originating the complete preemption doctrine more than 30 years ago. See Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560, 88 S.Ct. 1235, 1237, 20 L.Ed.2d 126 (1968). In Avco, the Court held with little elaboration that a state court lawsuit to enjoin a defendant union from striking actually arose under section 301 of the Labor Management Relations Act ("LMRA"), codified at 29 U.S.C. 185, which grants federal jurisdiction for suits alleging violations of collective bargaining agreements. 390 U.S. at 560, 88 S.Ct. at 1237. The Court therefore concluded that the case was removable to federal court. Id.

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