Hueter v. AST Telecomm LLC
| Citation | 557 F.Supp.3d 1101 |
| Decision Date | 31 August 2021 |
| Docket Number | Civ. No. 21-00077 JMS-KJM |
| Parties | Steven Jay Pincus HUETER, aka Tao, et al., Plaintiffs, v. AST TELECOMM LLC, et al., Defendants. |
| Court | U.S. District Court — District of Hawaii |
Michael S. Kirk, Pago Pago, AS, Pro Se.
Steven Jay Pincus Hueter, Pago Pago, AS, Pro Se.
Faamuli Pete Faamuli, Pago Pago, AS, Pro Se.
Christian K. Adams, Adams Krek, LLP, Honolulu, HI, for Defendants AST Telecom LLC, Raj Deo, Paul Michael Young, Justin Tuiasosopo.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS, ECF NO. 31
Plaintiffs, residents of American Samoa, bring this pro se action alleging that Defendants AST Telecomm d/b/a Bluesky Communications ("AST"), a telecommunications carrier in American Samoa, and several AST employees (collectively, "Defendants"), are in violation of various provisions of the Telecommunications Act of 1996 ("TCA"), as well as various Federal Communications Commission ("FCC") "[l]aws, [r]ules, and [r]egulations." ECF No. 5 at PageID # 47. Currently before the court is Defendants’ Motion to Dismiss for Lack of Jurisdiction ("Motion to Dismiss"), ECF No. 31. Defendants argue that Plaintiffs have failed to point to any statutory provision that affords them a federal private right of action. The court agrees. As set forth in more detail to follow, Plaintiffs have failed to state a cognizable federal claim. Consequently, the court lacks subject matter jurisdiction over the case. Defendants’ Motion to Dismiss is GRANTED.
On February 8, 2021, pro se Plaintiffs Steven Jay Pincus Hueter, Faamuli Pete Faamuli, and Michael S. Kirk ("Plaintiffs") filed a Verified Amended Complaint in this action against Defendants.1 ECF No. 5. Plaintiffs are residents of Alega Village, American Samoa. Id. at PageID ## 39-40. They are also officers of the Alega Preservation Institute, a 501(c)(3) public charity responsible for stewardship of the Alega Marine and Wildlife Sanctuary and Reserve, a private marine reserve in Alega Village. Id. Plaintiff Faamuli Pete Faamuli is also the Sa'O (Chief) of Alega Village. Id. at PageID # 40. Defendant AST is an FCC-licensed telecommunications carrier doing business in American Samoa. Id. at PageID ## 40-41; ECF No. 31-1 at PageID # 250.
In the Verified Amended Complaint, Plaintiffs assert claims under 47 U.S.C. §§ 206 and 207—provisions of the TCA that authorize injured parties to bring private suits against common carriers for substantive violations of other provisions of the Act. ECF No. 5 at PageID ## 42-43; see also 47 U.S.C. §§ 206, 207. The Complaint does not, however, indicate which provisions of the TCA Defendants are allegedly violating. Instead, the Complaint asserts generally that "Defendant AST Telecomm LLC has violated FCC Laws, Rules, and Regulations to the injury of the Plaintiffs by ... [i]mproperly hanging and attaching Defendant's telecommunication cables on Plaintiffs’ trees, on Plaintiffs’ land, and on the official private Alega Marine and Wildlife Sanctuary and Reserve." ECF No. 5 at PageID ## 47-48. Plaintiffs claim that they are harmed by "being improperly irradiated by the low-hanging cables by Defendants in violation of FCC laws, rules, and regulations" and by "revenue loss, tree damage, and tree death due to the improper hanging of cables on Plaintiffs’ trees in violation of FCC Rules and Regulations that require hanging of cables on poles, or appropriately placed underground." Id. at PageID # 48.
On February 9, 2021, Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary Injunction ("Motion for TRO"), ECF No. 9. The court denied the TRO component of the Motion without prejudice, finding that Plaintiffs failed to satisfy the notice requirements of Federal Rule of Civil Procedure 65. ECF No. 10. On February 16, 2021, Plaintiffs filed a "Second" Motion for Temporary Restraining Order and Preliminary Injunction ("Second Motion for TRO"), ECF No. 16, along with proof of service on Defendants, ECF No. 17. The Second Motion for TRO is substantively identical to the original Motion for TRO. And like the Complaint, neither the first nor the Second Motion for TRO state which FCC "laws, rules, and regulations" Defendants are allegedly violating.
On March 5, 2021, Defendants filed the instant Motion to Dismiss, along with a memorandum in support of the Motion to Dismiss and in opposition to Plaintiffs’ Second Motion for TRO. ECF Nos. 31, 31-1. Essentially, Defendants argue that Plaintiffs have failed to identify any violation of the TCA that affords them a private right of action, and thus have failed to establish federal subject matter jurisdiction. See ECF No. 31-1 at PageID # 259.
Plaintiffs submitted an Opposition to the Motion to Dismiss on March 12, 2021. ECF No. 32. In this Opposition, Plaintiffs specify which "FCC laws, rules, and regulations" Defendants are allegedly violating. They allege that Defendants are violating (1) the Pole Attachment Act, 47 U.S.C. § 224, and the FCC's "One-Touch Make-Ready" order issued pursuant to that Act; (2) FCC regulations related to antenna height and power requirements, 47 C.F.R. § 90.205, and FCC regulations related to radiofrequency ("RF") radiation, 47 C.F.R. § 1.1307 ; and (3) standards set forth in the National Electrical Safety Code ("NESC"), the National Electrical Code ("NEC"), and by the National Council on Radiation Protection & Measurements ("NCRP"). See ECF No. 32 at PageID ## 279-93.
On March 16, 2021, the court ordered Defendants to submit a Reply addressing whether the TCA contains a private right of action for violations of the provisions identified by Plaintiffs. ECF No. 35. Defendants submitted their Reply on March 26, 2021, ECF No. 37, and Plaintiffs submitted an Opposition to that Reply on March 30, 2021, ECF No. 40. In this Opposition, Plaintiffs assert that an additional private right of action under 47 U.S.C. § 332(c)(7)(B)(iv)-(v). ECF No. 40 at PageID ## 925-28.
After careful review of the statutory provisions and regulations at issue, the court invited the FCC to participate in the case as amicus curiae, recognizing that because the FCC is " ‘uniquely qualified’ " to interpret the TCA's statutory and regulatory framework, " ‘the agency's own views should make a difference.’ " ECF No. 44 at PageID ## 1400-01 (quoting Geier v. Am. Honda Motor Co., Inc. , 529 U.S. 861, 883, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) ). Specifically, the court invited the FCC to address the following questions:
Id. at PageID # 1401.
The court asked the FCC to respond to the invitation by April 27, 2021, but provided that the FCC could ask for an extension if needed. Id. The FCC did request, and was granted, extensions until July 15, 2021. See ECF Nos. 54, 55, 77, & 78.
Meanwhile, on May 19, 2021, Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary Injunction pertaining to several allegedly low-hanging wires in Alega Village, ECF No. 56 ("May 19 Motion for TRO"). The court held a status conference on May 21, 2021. ECF No. 62. At the conference, the court raised concerns about the basis for federal jurisdiction and directed Plaintiffs to file a new motion addressing these jurisdictional issues. See ECF No. 70.
On May 30, 2021, Plaintiffs filed a Second Motion for Temporary Restraining Order and Preliminary Injunction ("May 30 Motion for TRO"), ECF No. 63, which superseded the May 19 Motion for TRO. See ECF No. 70. Rather than clarifying the issues before the court, the May 30 Motion broadened them, asserting that the court should exercise supplemental jurisdiction over unspecified violations of American Samoa law and "common sense." ECF No. 63 at PageID # 2556. In addition, the Motion requests that the American Samoa Power Authority be joined as a necessary party, and that sanctions issue against all Defendants. Id. at PageID # 2558. Defendants submitted an Opposition to the May 30 Motion for TRO on June 11, 2021, ECF No. 74, and Plaintiffs submitted a Reply on June 12, 2021, ECF No. 75.
On July 15, 2021, the FCC submitted a Statement of Interest setting forth its view that none of the authorities Plaintiffs rely upon affords them a private right of action. ECF No. 84. The court ordered the parties to submit responses to the FCC's Statement of Interest, addressing, among other things, the level of deference the court should afford the FCC's views. ECF No. 85. Plaintiffs submitted their Response on July 17, 2021, ECF No. 87, and Defendants submitted their Response on July 30, 2021, ECF No. 88.
Thus, currently before the court are (1) Plaintiffs’ February 16, 2021 Motion for TRO, ECF No. 16;3 (2) Plaintiffs’ May 30, 2021 Motion for TRO, ECF No. 63, and (3) Defendants’ Motion to Dismiss, ECF No. 31. These Motions are decided without a hearing pursuant to Local Rule 7.1(c).
A federal court's subject matter jurisdiction may be challenged by motion pursuant to Federal Rule of Civil Procedure 12(b)(1). "[The] party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction." Thompson v. McCombe , 99 F.3d 352, 353 (9th Cir. 1996) (per curiam).
"A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). Here, Defendants raise a facial attack—they "assert[ ] that the [complaint's] allegations ... are insufficient on their face to invoke federal jurisdiction." Id. The court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6) : accepting ...
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