Full opinion text
MEMORANDUM PADOVA, District Judge. This is a putative class action brought by Plaintiff Francis Farina and all others similarly situated against manufacturers, suppliers, vendors, and lessors of wireless handheld telephones (“cell phones”), those who provide wireless services for such devices, and two trade associations who represented that such devices were safe to use. Farina alleges: (1) Defendants participated in a civil conspiracy to market cell phones while suppressing knowledge of the adverse biological effects and health risks from radio frequency (“RF”) emissions resulting from their use; (2) breach of implied warranties; (3) breach of express warranty; (4) violation of the Mag-nuson-Moss Warranty Improvement Act, 15 U.S.C. §§ 2301-2312; and (5) violation of the Unfair Trade Practices and Consumer Protection Law, 73 Pa. Cons.Stat. Ann. §§ 201-2(xxi). Presently pending are motions by all Defendants arguing that the state law claims contained in Farina’s Third Amended Complaint (“TAC”) are preempted by federal law and they fail to state claims upon which relief may be granted under state law. Additionally, Defendant Cellular One moves to dismiss the TAC for lack of in personam jurisdiction. For the following reasons, we grant the Motion to Dismiss of Cellular One. We also grant the Defendants’ Motions based on federal preemption and, accordingly, do not reach their other Motions. I. PROCEDURAL HISTORY Farina commenced this action on April 19, 2001 in state court and seven years of complex proceedings have followed. The case was first removed to federal court on May 18, 2001, based on federal question jurisdiction, see 28 U.S.C. § -1331. A companion case, Naquin v. Nokia, was also removed to federal court by one of its defendants on the basis of complete diversity. See 28 U.S.C. § 1332. On October 31, 2001, by Order of the Judicial Panel on Multi-District Litigation, this case, Na-quin, and three other class actions were transferred to Judge Catherine Blake of the United States District Court for the District of Maryland for consolidated pretrial proceedings. See In re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig., 170 F.Supp.2d 1356 (J.P.M.L.2001). The Farina and Naquin plaintiffs then filed motions to remand, which Judge Blake denied. In re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig., 216 F.Supp.2d 474, 491-93 (D.Md.2002). Subsequently, Judge Blake granted motions to dismiss all of the consolidated cases based on federal preemption grounds. In re Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig., 248 F.Supp.2d 452 (D.Md.2003). Judge Blake’s ruling dismissing the cases was reversed by the United States Court of Appeal for the Fourth Circuit. See Pinney v. Nokia, Inc., 402 F.3d 430 (4th Cir.2005). Significantly, while the Fourth Circuit reversed the Naquin case because it disagreed with Judge Blake’s preemption determination, her decision dismissing the other consolidated cases, including Farina, was vacated on jurisdictional grounds. Specifically, the Fourth Circuit held that Judge Blake lacked jurisdiction over Farina and the other consolidated cases that were brought on the basis of federal question jurisdiction, finding that all of the claims raised in the complaints stated only state law grounds and failed to satisfy the “substantial federal question” doctrine: ■ The district' court erred by not recognizing that its inquiry was limited by the well-pleaded complaint rule. It should have considered only whether a disputed question of federal law is an essential element of one of the well-pleaded state claims. See Franchise Tax Bd. [of Cal. v. Constr. Laborer’s Vacation Trust], 463 U.S. [1,] 13, 103 S.Ct. 2841, 77 L.Ed.2d 420 [ (1983) ]. The district court went beyond this restricted inquiry and in effect anticipated (1) that Nokia would raise the affirmative defense that the state law claims are preempted by the [Federal Communications Act of 1934, 47 U.S.C. § 15 et seq. (“FCA”) ] and federal RF radiation standards and (2) that the Pinney plaintiffs would be called upon to rebut that defense. The cases could be decided, the court concluded, only by resolving whether the claims are preempted by the FCA and the federal RF radiation standards. Even if that is so, a preemption defense “that raises a federal question is inadequate to confer federal jurisdiction.” Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). Again, “a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption,” even if the complaint begs the assertion of the defense, and even if “the defense is the only question truly at issue in the case.” Franchise Tax Bd., 463 U.S. at 14, 103 S.Ct. 2841, 77 L.Ed.2d 420. Pinney, 402 F.3d at 445-46. Following remand, Farina filed a Second Amended Complaint, and then the TAC, ostensibly to correct the name of a defendant. On February 17, 2006, the newly added defendant, LG Mobilecomm, again removed the case to federal court by filing a Notice of Removal pursuant to 28 U.S.C. §§ 1332, 1441, 1446, and 1453. The Judicial Panel on Multi-District Litigation again transferred this case to the District of Maryland. On April, 25, 2007, Judge Blake held a hearing on, among other things, Farina’s “Motion to Remand.” Following the hearing, Judge Blake remanded the case to the Eastern District of Pennsylvania, without a decision on Plaintiffs Motion to Remand to state court. On February 4, 2008, we conducted a hearing on the remand Motion and on February 13, 2008, ruled: (1) that the Motion was untimely, and (2) that federal jurisdiction was proper under the Class Action Fairness Act, Pub.L. 109-2, 119 Stat. 4 (2005), codified, inter alia, at 28 U.S.C. §§ 1332(d) and 1453. II. THE PLAINTIFF’S ALLEGATIONS Farina alleges that there are over 190 million cell phone users in the United States. (TAC ¶ 30.) The Federal Communication Commission (“FCC”) grants licenses to service providers to broadcast wireless signals on specific frequency bands. (TAC ¶ 31.) This license determines the specifications for cell phones sold by each provider. (TAC ¶ 33.) Farina contends that during every incoming and outgoing call, a cell phone user is exposed to RF emissions as a result of holding the cell phone in the customary manner, with the phone’s antenna next to the user’s head. (TAC ¶¶ 34, 38.) He alleges that cell phones he purchased and used were sold without a headset and also lacked any instruction as to the benefits of using a headset. (TAC ¶ 36.) Farina contends that the proper utilization of a headset eliminates RF exposure to the cell phone user’s head. (TAC ¶ 41.) These headsets have been on the market during the period in question, but the Defendants marketed them only as an accessory of convenience. (TAC ¶ 41.) He avers that Defendants knew or should have known of the biological risks associated with cell phone use and the associated RF exposure. (TAC ¶42.) Additionally, Defendants knew or should have known of the decrease in biological risk associated with a greater distance between the cell phone and the user and that properly designed headsets would increase this distance. (TAC ¶¶ 43, 44.) However, despite this knowledge, Defendants designed and marketed inadequate headsets. (TAC ¶ 44.) Farina avers that scientific and medical research has demonstrated the harmful biological effects from exposure to RF emissions within the radio frequencies used by cell phones. (TAC ¶ 45.) He claims Defendants knew or should have known of these studies, which date to the 1920s, as well as research in the 1960s showing that RF emissions are absorbed by human tissue and can harm the body. (TAC ¶¶ 46, 48, 49.) Additionally, studies have shown that an antenna is an especially efficient device used to deposit RF emissions into the human body, particularly the ultra-sensitive temporal lobe of the brain. (TAC ¶ 50.) Despite this knowledge, Farina contends that Defendants acted to minimize the public’s knowledge of these studies and attempted to downplay the results in an effort to be free to mass produce cell phones without regulatory constraints. (TAC ¶¶ 52, 53.) Their primary method was assuming control of the American National Standards Institute (“ANSI”) Committee in charge of regulating devices emitting RF radiation. (TAC ¶ 53.) Also, Defendants publically agreed to fund research into potential health concerns associated with cell phones, only to revoke funding, and minimize exposure of the studies, after they found potential dangers. (TAC ¶ 54.) Through this period, Farina asserts, despite contrary knowledge, Defendants — ’themselves and through their trade associations — continued to publicly declare that cell phone use posed no health dangers. (TAC ¶¶ 55-66.) Farina alleges that Defendants have misrepresented the data and obscured information on the risks of cell phone use from the public by hiding and complicating specific absorption rate (“SAR”) information and claiming that cell phones are “safe” when they really mean that cell phones have not been proven unsafe. (TAC ¶¶ 87, 88, 89.) He avers that many peer reviewed studies disclose widespread complaints such as headaches, sleep problems, and burning sensations in as little as fifteen minutes of cell phone use. (TAC ¶¶ 90, 91, 92.) Other studies have indicated potential changes in the blood-brain barrier, several types of damage to the brain, tumors, and cancer as results of exposure to microwave radiation. (TAC ¶¶ 94, 95.) Additional studies have shown the potential for acoustic neurinoma and brain cancer after extended use of analog cell phones and an increased risk for melanoma in the eye and neuroepitheliomatous for all cell phone use. (TAC ¶¶ 96, 97.) Farina alleges the- biological harm is even greater for children. (TAC ¶¶ 100-113.) He contends that the use of a cell phone without a headset while driving increases the risk of automobile accidents. (TAC ¶ 114.) As a result, the neighboring states of New Jersey and New York as well as the District of Columbia .have banned the use of cell phones while operating a motor vehicle. (Id.) Farina seeks to represent a class consisting of (a) all persons in the Commonwealth of Pennsylvania who purchased or leased cell phones and have not been diagnosed with any illness or injury resulting from the use of cell phones; and (b) all future purchases and lessees of cell phones who have not been diagnosed with any illness or injury resulting from the use of cell phones. (TAC ¶ 115.) Plaintiff asserts he is a member of the class along with potentially millions of others in the Commonwealth. (TACIffl 116-17.) Based on these factual averments, Farina asserts a claim of civil conspiracy, asserting that Defendants acted together to suppress the knowledge or risks associated with RF emissions from cell phone use and to sell and market defective cell phones which can adversely affect users, with intent to deceive the public by failing to warn of potential hazards. (TAC ¶¶ 125-35.) In Count II, he asserts a claim for breach of implied warranties based upon the facts that his cell phones did not come with headsets, their user manuals said they would be safe to use without a headset, and their warranties contained promises that the products were “free of defects.” (TAC ¶¶ 136-55.) In Count III, he asserts a claim for breach of express warranty based on the allegation that the cell phones sold by Defendants fail the express promise of safe operation because it is not certain that the RF emissions from the cell phones are safe without a headset. (TAC ¶¶ 157-58.) Count IV seeks to state a claim for violation of the Magnuson-Moss Warranty Improvement Act on the same grounds as Counts II and III. (TAC ¶¶ 159-65.) Lastly, in Count VT, Farina seeks to state a claim under the Pennsylvania Declaratory Judgment Act, 42 Pa. Cons.Stat. Ann. § 7531, that the Class is entitled to a declaration that Defendants’ conduct constitutes violations of Pennsylvania statutory and common law, and declaratory relief requiring Defendants to supply headsets for cell phones purchased by plaintiff and the Class. (TAC ¶¶ 171-73.) III. PERSONAL JURISDICTION OVER CELLULAR ONE GROUP In addition to the joint motions, Defendant Cellular One Group (“COG”) has moved to dismiss the TAC for lack of personal jurisdiction. COG argues that it is not subject to either specific or general jurisdiction. For the following reasons, this motion is granted. “[I]n reviewing a motion to dismiss under Rule 12(b)(2), we ‘must accept all of the plaintiffs allegations as true and construe disputed facts in favor of the plaintiff.’ ” Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 368 (3d Cir.2002) (quoting Carteret Sav. Bank, F.A. v. Shushan, 954 F.2d 141, 142 n. 1 (3d Cir.1992)). Nonetheless, a motion made pursuant to Rule 12(b)(2) “is inherently a matter which requires resolution of factual issues outside the pleadings, i.e. whether in personam jurisdiction actually lies.” Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n. 9 (3d Cir.1984). Accordingly, “[o]nce the [lack of personal jurisdiction] defense has been raised, then the plaintiff must sustain [his] burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence,” and may not “rely on the bare pleadings alone .... ” Id.; see also O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir.2007) (“Once challenged, the plaintiff bears the burden of establishing personal jurisdiction.” (citing General Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir.2001))). “Any disputes created by the affidavits, documents, or other records submitted for the court’s consideration are resolved in favor of the non-moving party.” Chin v. Multivac, Inc., Civ. A. No. 07-3436, 2007 WL 4106272, at *1 (E.D.Pa. Nov. 15, 2007) (citing Irons v. TransCor Am., Civ. A. No. 01-4328, 2002 WL 32348317 (E.D.Pa. July 8, 2002)). The plaintiff must establish the defendant’s contacts with the forum state with reasonable particularity. Snyder v. Dolphin Encounters Ltd., 235 F.Supp.2d 433, 436. (E.D.Pa.2002) (citation omitted). Pursuant to Federal Rule of Civil Procedure 4(e), a federal court may exercise personal jurisdiction over a nonresident of the state in which the court sits “to the extent permissible under the law of the state where the district court sits.” Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir.1998) (citation omitted). Pennsylvania’s long arm statute authorizes the exercise of jurisdiction over a nonresident “to the fullest extent allowed under the Constitution of the United States.” 42 Pa. Cons.Stat. Ann. § 5322(b); see also O’Connor, 496 F.3d at 316 (noting that the Pennsylvania long arm statute “provides for jurisdiction ‘based on the most minimum contact with th[e] Commonwealth allowed under the Constitution of the United States’ ” (quoting 42 Pa. Cons.Stat. Ann. § 5322(b) and citing Mellon Bank (East) PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217, 1221 (3d Cir.1992))). In evaluating whether an exercise of personal jurisdiction is constitutional, a court first determines whether the defendant’s contacts with the forum state are sufficient to support general personal jurisdiction. Pennzoil, 149 F.3d at 200. General jurisdiction exists where a nonresident’s contacts with the forum are “continuous and substantial,” and permits the court to exercise jurisdiction “regardless of whether the subject matter of the cause of action has any connection to the forum.” Id. (internal quotations omitted). In the absence of general jurisdiction, a court looks to whether the requirements of specific personal jurisdiction are met. Id. at 200-01. “Specific jurisdiction exists where the plaintiffs claim ‘is related to or arises out of the defendant’s contacts with the forum.’ ” Id. at 201 (quoting Farino, 960 F.2d at 1221). “To establish specific jurisdiction a plaintiff must show that the defendant has minimum contacts with the state ‘such that [the defendant] should reasonably anticipate being haled into court there.’ ” North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 690 (3d Cir.1990) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). “Specific jurisdiction is established when a nonresident defendant has ‘purposefully directed’ his activities at a resident of the forum and the injury arises from, or is related to, those activities.” General Elec. Co., 270 F.3d at 150. General jurisdiction over a non-resident defendant is established where the defendant’s contacts with the forum state are “ ‘continuous and systematic.’ ” Pinker, 292 F.3d at 368 n. 1 (3d Cir.2002) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 317, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). Plaintiff has a high “ ‘threshold to meet for the facts required to assert ... general jurisdiction [which] must be extensive and persuasive.’ ” Kuehnemund v. Agrium, Inc., Civ. A. No. 07-83, 2007 WL 3334974 (W.D.Pa. Nov. 8, 2007) (quoting Reliance Steel Prods. Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir.1982)). See also Zombeck v. Amada Co. Ltd., Civ. A. No. 06-953, 2007 WL 4105231 (W.D.Pa. Nov. 15, 2007) (same) (citing Allied Leather Corp. v. Altama Delta Corp., 785 F.Supp. 494, 497 (M.D.Pa.1992)). Even “continuous activity of some sorts [by a corporation] within a state is not enough to support [general jurisdiction over the corporation].” Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir.1993) (quoting Int'l Shoe, 326 U.S. at 318, 66 S.Ct. 154). “Only when the ‘continuous corporate operation within a state [is] thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities’ may a court assert general jurisdiction over a corporate defendant.” Id. (quoting Int'l Shoe, 326 U.S. at 318, 66 S.Ct. 154). Federal courts sitting in Pennsylvania consider the following objective criteria in ascertaining the existence of general jurisdiction over a corporate defendant: (1) whether the defendant is “incorporated or licensed to do business in Pennsylvania;” (2) whether the defendant has “ever filed any tax returns with the Commonwealth of Pennsylvania;” (3) whether the defendant files “administrative reports with any agency or department of the Commonwealth;” (4) whether “the defendant regularly purchased] products or supplies within Pennsylvania for use in its business outside of the state;” (5) whether “the defendant own[s] land or property within the state;” (6) whether “the defendant advertisefs] in Pennsylvania;” and (7) whether “the defendant maintain[s] an agent in Pennsylvania.” Gaylord v. Sheraton Ocean City Resort & Conference Ctr., Civ. A. No. 93-0463, 1993 WL 120299 (E.D.Pa. April 15, 1993) (citing Wims v. Beach Terrace Motor Inn, Inc., 759 F.Supp. 264, 269 (E.D.Pa.1991)). COG maintains that it does not have sufficient contacts with the Commonwealth of Pennsylvania to enable this Court to exercise general personal jurisdiction over it, and that Farina’s claim does not arise out of its purposeful availment of the jurisdiction. COG has submitted the Affidavit of Camille Cadman (“Cadman Aff.”) attesting that: 1. COG was a general partnership organized under Delaware law and then later Oklahoma law, with its principal place of business located at different times in Texas, Oklahoma and Washington, Cadman Aff. ¶ 1; 2. it has never been authorized or registered to conduct business in Pennsylvania, id. ¶ 2; 3. it does not maintain a place of business; own real property; have operations, employees, agents or representatives; have bank accounts; advertise; maintain a mailing address or telephone listing; conduct business; generate sales or revenues; pay or been assessed taxes; or have an agent for receipt of service of process in Pennsylvania, id. ¶ 3; 4. it does not operate a cell phone business or other telecommunications system in Pennsylvania; does not manufacture, distribute, promote, sell or supply cell phones in Pennsylvania; has never provided a warranty for a cell phone, serviced or repaired a cell phone in Pennsylvania; has never been granted a license by the FCC to broadcast wireless signals in Pennsylvania; and has never owned or operated a cell tower or landline in Pennsylvania; id. ¶¶ 4-9. 5. COG is exclusively a trademark li-censor of the Cellular One trademark and related marks; its business was to license and promote trademarks and service marks in Texas, Oklahoma and Washington; id. ¶ 10. COG argues that none of these activities give rise to either specific or general jurisdiction in Pennsylvania. Farina responds by asserting that COG has an internet site, www.cellularone.com, which lists twenty-nine retail locations for “CellularOne” in Pennsylvania, all of which are operated under the name “Cellular-One,” and which advertise and offer for sale “CellularOne” products. Farina argues that the website cannot be reconciled with COG’s representations that it has no connection with the Commonwealth. (PI. Mem. at 3.) We find that Farina has failed to sustain his burden of proof in establishing jurisdictional facts with reasonable particularity. He has offered no sworn affidavits; his only “competent” evidence consists of page views from the above-mentioned website. However, he has not established that the website belongs to COG, rather than some other entity. He has not established that the listed retail locations are owned, operated and maintained by COG, rather than some other entity. This is particularly important since COG avers it is in the business of licensing the “CellularOne” trademark to other entities, an allegation Farina does not dispute. A licensor of a mark cannot be subject to personal jurisdiction in a state solely because its licensee is located in that state. See Red Wing Shoe Co., Inc. v. Hockersonr-Halberstadt, Inc., 148 F.3d 1355, 1361 (Fed.Cir.1998) (holding that a licensee’s contacts with a forum state are not, standing alone, enough to bring a licensor within the personal jurisdiction of the same state). Merely doing business with someone who does business in Pennsylvania does not mean that COG itself does business in Pennsylvania. As COG’s evidence has established that it does not have contacts with the forum that are “continuous and substantial,” there is no general jurisdiction. Pennzoil, 149 F.3d at 200. Likewise, as it has established that Farina’s injuries do not arise out of its minimum contacts with Pennsylvania, there is no specific jurisdiction. Indeed, Farina’s only evidence in support of its jurisdictional argument is the page views from a website he has not established belongs to COG. We conclude, therefore, that Farina has failed to meet his jurisdictional burden to show either specific or general jurisdiction. Accordingly, COG’s motion to dismiss for want of personal jurisdiction is granted. IV. FEDERAL PREEMPTION Defendants move to dismiss the TAC because, they assert, Farina’s state law claims conflict with federal law and are therefore preempted. They assert arguments relating to conflict preemption, field preemption and express preemption. These same issues were raised to and rejected by the Fourth Circuit when it decided the appeal of Judge Blake’s decision dismissing this case, as well as Naquin and the other three class actions. Accordingly, the threshold question is whether the Pinney decision qualifies as the law of the case. We conclude that it does not. After an independent review of the applicable case law, we reach the same decision as the Fourth Circuit on the issue of express preemption, namely, that the state law claims are not preempted under that theory. However, we conclude that the rationale used in Pinney to decide the issue of implied preemption does not comport with binding case law from the United States Court of Appeals for the Third Circuit; that applying Third Circuit case law leads to the conclusion that Farina’s claims are subject to conflict preemption and must be dismissed. A. Law of the Case Doctrine The United States Court of Appeals for the Third Circuit has stated that the law of the case doctrine is a discretionary principle that “is designed to protect traditional ideals such as finality, judicial economy and jurisprudential integrity.” In re City of Philadelphia Litig., 158 F.3d 711, 717-18 (3d Cir.1998). “[L]aw of the case is an amorphous concept. As most commonly defined, the doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983). “Law of the case rules have developed ‘to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.’ ” Casey v. Planned Parenthood of Southeastern Pennsylvania, 14 F.3d 848, 856 (3d Cir.1994) (quoting Charles A. Wright et al., 18 Federal Rules and Practice § 4478 (1981)). See also Harbor Ins. Co. v. Essman, 918 F.2d 734, 738 (8th Cir.1990) (holding that “law of the case” is a doctrine of discretion which provides that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case; however, where the case sub judice is merely related to, but not the “same case,” the law of the case doctrine does not apply). Other law of the case rules apply to subsequent rulings by the same judge in the same ease or a closely related one, to rulings by different judges at the same level, or to the consequences of the failure to preserve an issue for appeal. Casey, 14 F.3d at 856 n. 11 (citing Charles A. Wright et al., 18 Federal Rules and Practice § 4478 (1981)). “They do not apply between separate actions,” and the doctrine “does not reach a matter that was not decided.” Charles A. Wright et al., 18 Federal Rules and Practice § 4478. Defendants argue that the law of the case doctrine does not apply to the question of federal preemption because the Fourth Circuit decided the Farina appeal on different grounds from that used to decide the Naquin appeal. They argue that, since Judge Blake’s Farina decision was vacated because she lacked jurisdiction, the merits of the federal preemption issue were never reached viz Farina. Finally, they contend that the Fourth Circuit’s discussion of the issue in Naquin was not a decision in the same case; thus, we are free to apply our own understanding of federal preemption law to the merits of Farina. We agree. In Pinney, the Fourth Circuit clearly articulated that it was not'addressing the merits of preemption in the cases where it found that Judge Blake lacked subject matter jurisdiction, including Farina. After first concluding that none of the Plaintiffs’ claims could arise under federal law — because it found the jurisdictional doctrine of complete preemption did not apply and because the “well-pleaded complaint rule did not permit consideration of the affirmative defense doctrine of complete preemption — the Court went on to state: After the district court denied the Pin-ney plaintiffs’ motion to remand their four cases to state court, it dismissed all five cases, including the one brought by the Naquin plaintiffs, on the ground that the claims are preempted by the [FCA]. Because the district court lacked subject matter jurisdiction over the four cases brought by the Pinney plaintiffs, the district court had no power to dismiss them. However, as we noted earlier, the district court has diversity jurisdiction over the case brought by the Na-quin plaintiffs. See 28 U.S.C. § 1332(a). We must therefore review the district court’s order granting Nokia’s motion to dismiss the claims of the Naquin plaintiffs.” Pinney, 402 F.3d at 451. Later, in its concluding paragraph, the Court again specifically stated that its merits ruling was expressly limited to the Naquin class: For the foregoing reasons, we reverse the district court’s order denying the consolidated motion to remand made by the plaintiffs in the Pinney, Farina, Gilliam, and Gimpelson cases. Because federal subject matter jurisdiction does not exist over these four cases, we re-. turn them to the district court for remand to the state courts in which they originated. We also reverse the district court’s order dismissing the Naquin plaintiffs’ case as preempted by the FCA. That case is remanded to the district court for further proceedings. Id., 402 F.3d at 459. Because the Farina decision was vacated for want of subject matter jurisdiction, the Fourth Circuit never reached the merits of the preemption decision in this case. Hence, Pinney cannot be considered the law of the case controlling our decision on the affirmative defense preemption issue. B. Binding Case Law on Federal Preemption Under the Supremacy Clause, a state law that “interferes with, or is contrary to” federal law is invalid. Free v. Bland, 369 U.S. 663, 666, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962); see also Medtronic, Inc. v. Lohr, 518 U.S. 470, 500, 116 S.Ct. 2240, 135 L.Ed.2d.700 (1996) (holding that the “overarching concern” of preemption analysis is that a particular state requirement threatens to interfere with a specific federal interest). The Supreme Court has identified three major situations where federal preemption applies: (1) “express” preemption, which is applicable when Congress expressly states its intent to preempt state law; (2) “field” preemption, which is applicable when “Congress’ intent to pre-empt all state law in a particular area may be inferred [because] the scheme of federal regulation is sufficiently comprehensive” or “ ‘the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject;’ ” and (3) “conflict” preemption, which is applicable when “state law is nullified to the extent that it actually conflicts with federal law,” even though Congress has not displaced all state law in a given area. Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). See also Colacicco v. Apotex Inc., 521 F.3d 253, 261 (3d Cir.2008) (citing Hillsborough County and holding that, by its passage of the Federal Food, Drug, and Cosmetic Act, Congress impliedly preempted state law tort actions against drug manufacturers on the theory that the drugs’ labeling failed to warn of their association with an increased risk of suicidality). “A conflict between state and federal law ‘arises when compliance with both federal and state regulations is a physical impossibility or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Colacicco, 521 F.3d at 265 (quoting Hillsborough County, 471 U.S. at 713, 105 S.Ct. 2371). In contrast to express preemption, both field preemption and conflict preemption are forms of “implied preemption.” Id. at 261 n. 6 (citing Geier v. Am. Honda Motor Co., 529 U.S. 861, 884, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000)); Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995)). “However, the Supreme Court has also asserted that these three categories are not ‘rigidly distinct;’ for example, ‘field pre-emption may be understood as a species of conflict preemption: A state law that falls within a pre-empted field conflicts with Congress’ intent (either express or plainly implied) to exclude state regulation.’ ” Id. (citing English v. Gen. Elec. Co., 496 U.S. 72, 79-80 n. 5, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). 1. The Presumption Against Preemption The Supreme Court has held that “[c]onsideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981) (citation omitted); Lohr, 518 U.S. at 485, 116 S.Ct. 2240 (holding that “because the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action”). How this presumption against preemption is to be applied constitutes a major distinction among the cases. In Colacicco, the Third Circuit discussed, at length its proper application to the three forms of preemption. It noted that Supreme Court precedents have not been consistent across the three areas. For example, in some preemption eases, particularly those involving state health and safety regulations and police powers, such as Hillsborough County and Lohr, the Court held that a presumption against preemption did exist. However, in other preemption cases where “traditional” state interests are lacking, the Supreme Court declined to apply a presumption against preemption. See Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001) (declining to apply a presumption against preemption where the plaintiff alleged fraud on the FDA); United States v. Locke, 529 U.S. 89, 94, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000) (declining to apply a presumption against preemption to Washington State laws governing maritime oil tanker operations). The Third Circuit noted that the Supreme Court has found that “even where an express preemption saving clause demonstrated Congress’ intent to exempt common-law tort actions from preemption, the language of the saving clause did not suggest an intent to ‘bar the ordinary working of conflict pre-emption principles’ or preserve ‘state-law tort actions that conflict with federal regulations.’ ” Colacicco, 521 F.3d at 265 (quoting Geier, 529 U.S. at 869, 120 S.Ct. 1913 (plaintiffs tort action against automobile manufacturer for failing to install air bags was preempted under conflict preemption principles although expressly saved from preemption by statute)). It concluded that “the Supreme Court’s case law makes clear that ‘the purpose of Congress [is] the ultimate touchstone of pre-emption analysis.’ ” Id. at 264 (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992)). We must be guided in our application of any presumption against preemption by the distinction between traditional and non-traditional state law interests. The regulation of the health risks associated with cell phone use arguably falls within the traditional areas of state law interests. Further, the purpose of Congress in enacting the statutes that form the basis of Defendants’ express preemption arguments — the “ultimate touchstone” for preemption analysis — leads to the conclusion that Farina’s state law claims should not be subject to express preemption. Nonetheless, we conclude that Congress, through its establishment of the FCC and its grant to that agency of plenary jurisdiction over the technical standards for radio communications, has impliedly preempted contrary state laws regarding RF emissions. Similar to the area of maritime commerce at issue in Locke, radio communication has been the subject of Congressional regulation since its “earliest days.” Further, as noted by defense counsel at oral argument, the telecommunications industry is not merely a product of commerce; like the maritime industry, it is an instrumentality of commerce that has been subject to consistent national regulation. Given this history of significant federal regulatory presence, we approach the issue of implied preemption from the standpoint that traditional state interests are lacking. 2. Express Preemption Express preemption applies to bar state law claims where Congress has expressly declared its intent to preempt state law. Colacicco, 521 F.3d at 261 (citing Hillsborough County, 471 U.S. at 713, 105 S.Ct. 2371); Lindsey v. Caterpillar, Inc., 480 F.3d 202, 205 (3d Cir.2007). Also, a “federal agency may explicitly preempt state law through its regulations so long as the agency acts within its con-gressionally-delegated authority.” Id. at 205 (citing Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153-54, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982)). Defendants argue for express preemption based on two specific sections of the FCA: 47 U.S.C. §§ 332(c)(3)(A) and 332(c) (7)(B)(iv). Section 332 of Title 47 vests the FCC with authority to manage, and make available for the use of cell phones, certain portions of the radio spectrum. In so doing, Congress has charged that, in taking actions to manage the radio spectrum, the FCC must consider whether its actions will “(1) promote the safety of life and property; (2) improve the efficiency of spectrum use and reduce the regulatory burden upon spectrum users, based upon sound engineering principles, user operational requirements, and marketplace demands; (3) encourage competition and provide services to the largest feasible number of users; or (4) increase interser-viee sharing opportunities between private mobile services and other services.” 47 U.S.C. § 332(a). In the same statute, Congress also provided for regulation of the cell phone industry. For example, it has legislated that commercial providers of mobile services are deemed to be common carriers, 47 U.S.C. § 332(c)(1)(A). Most importantly, in § 332(c) Congress also provided specific rules for the preemption of state laws: (3) State preemption (A) ... no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services. Nothing in this subparagraph shall exempt providers of commercial mobile services (where such services are a substitute for land line telephone exchange service for a substantial portion of the communications within such State) from requirements imposed by a State commission on all providers of telecommunications services necessary to ensure the universal availability of telecommunications service at affordable rates. (7) Preservation of local zoning authority (A) General authority Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. (B) Limitations (iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions. 47 U.S.C. §§ 332(c)(3), (7) (emphasis supplied). Defendants assert, citing § 332(c)(7)(B)(iv), that Farina’s state law claims fall directly within the prohibition on state laws that regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of RF emissions. Defendants assert that cell phones constitute “personal wireless services facilities” and that Farina’s claims are all based on the allegedly adverse environmental effects of RF emissions. They also argue, citing § 332(c)(3), that any claim premised upon the failure of manufacturers and carriers to include specific components or warnings in order to sell cell phones would constitute a regulation of the “entry” into the wireless marketplace. Thus, Defendants contend, all of Farina’s claims are expressly preempted by these sections of the FCA. Judicial treatment of these arguments has not been consistent. These arguments were accepted by Judge Blake in all of the consolidated cases, but rejected by the Fourth Circuit in Pinney. Following remand from the MDL proceeding, motions raising similar preemption issues were filed and granted in several consolidated former companion MDL cases after those cases were remanded to the District of Columbia Superior Court. See Murray v. Motorola, Inc., Civ. No. 01-8479 (D.C.Super.Ct. Aug. 24, 2007) (“Murray slip op.”). On the issue of express preemption, we reach the same conclusion as the Fourth Circuit: nothing in the FCA expressly preempts state common law designed to ensure the health and safety of cell phone users. A. Express Preemption Arising from Subsection (7)’s Use of the Term “Personal Wireless Service Facilities” In addressing the argument regarding the limitation on state regulation contained in section 332(c)(7)(B)(iv), the Pinney Court stated: Nokia asserts that the claims are expressly preempted by § 332(c)(7)(B)(iv), which limits the general authority of local bodies .... This section applies only to “personal wireless service facilities,” a term defined in circular fashion as “facilities for the provision of personal wireless services.” 47 U.S.C. § 332(c) (7) (C) (ii). The statute does not define the term “facilities” or “facility.” We must therefore determine, as a matter of first impression, whether a wireless telephone constitutes a “facility” for purposes of § 332(e)(7)(B)(iv). We conclude that it does not. Pinney, 402 F.3d at 454. The Court found that when the specific and broader contexts of the term “facility” were considered, it became plain that a cell phone is not itself a “facility.” It reasoned: Because § 332(c)(7) deals with the authority of the states over zoning and land use, we conclude that Congress intended the term “facility” to mean a structure or object, such as a base station or a mobile telephone switching office (MTSO), that falls within the states’ zoning or land use authority. This interpretation excludes devices, such as wireless telephones, that are completely portable and have no attachment to land. The broader context in which the term “facility” is used also supports the interpretation that the term does not include wireless telephones.... Congress enacted the entire § 332 to ensure the availability of a nationwide network of wireless service coverage. Consistent with this objective, a facility should, at the very least, be part of the infrastructure (a base station or an MTSO, for example) that provides wireless service coverage. A wireless telephone, however, only accesses a wireless service provider’s network of coverage; a wireless telephone itself is not part of the underlying infrastructure. Because both the specific context of the use of the term “facilities” in § 332(c) (7) and the broader context (and purpose) of § 332 reveal that a wireless telephone is not a facility under § 332(c)(7)(B)(iv), state tort claims relating to the manufacture and sale of wireless telephones are not expressly preempted by § 332(c)(7)(B)(iv). Id. at 455. In her decision in Murray, Judge Cheryl Long of the D.C. Superior Court disagreed with this analysis. She found that the Pinney Court’s choice to define facilities as structures and objects was based solely on the title of the subsection— “Preservation of local zoning authority”— and ignored what she found to be expansive language in the subsection: the wording that follows the reference to “local zoning” also includes a reference to “personal” wireless service facilities. Moreover, such references cannot supplant the more specific language in the Act forbidding states and localities from predicating regulatory actions “on the basis of the environmental effects of radio frequency emissions” as it is stated in the same Act.... For several distinct reasons, this Court cannot agree with the analysis used by the Fourth Circuit in concluding that hand-held wireless cellular phones are not “facilities” within the meaning of the [FCA]. One, whether or not the Pinney plaintiffs did so in their own Complaints, the plaintiffs herein plainly do regard the hand-held phones as part of the overall cellular phone facilities regulated by the FCC.... The Murray plaintiffs have defined “the cell phone” to include “base stations, antennas, land lines, and switching offices,” all of which are necessary for the operation of a cell phone.... This definition eliminated the relevance of the Fourth Circuit’s definition of “facilities.” Murray slip op. at 37-39. She also concluded that there was a “bedrock mandate” that Congress gave to the FCC to maintain control over all the channels of radio transmission. Id. at 39 (citing 47 U.S.C. § 301). She found it was not possible for the FCC to maintain control over wireless telephones as an entire “channel” of radio transmission if the point of usage&emdash;the cell phone itself&emdash;was not under federal control. Id. at 39-40 (“The onus is not on the agency to continually hunt for statutory language that literally covers exemption issues from one detail of its operation to another.”) Citing Judge Long’s decision in Murray, as well as dictionary definitions, Defendants argue that a cell phone is a personal wireless service facility because “facility” typically refers to that which promotes the ease of any action. (Def. Mem. at 35 (citing Black’s Law Dictionary 591 (6th ed.1990))). They also argue, again citing Murray, that the phone itself is integral to the provision of personal wireless services because it permits the customer to receive and transmit the radio signal. We reject this argument. While the Fourth Circuit’s discussion of the meaning of “facility” is well-reasoned and thorough, Defendants’ argument in favor of a contrary result ignores the clear context of the term “personal wireless service facilities.” The preemption statute is narrowly concerned with attempts by the states, based on environmental concerns, to interfere through zoning and land use regulations with the infrastructure required to establish and maintain national cellular networks. The statute simply does not speak in terms of the cell phones used to access that infrastructure. It seems unreasonable that a statutory section concerned with the parameters of local zoning authority could be read to affect state common law standards of care applying to an allegedly defective product. Judge Long cogently criticizes Pinney for ignoring the bedrock mandate that Congress gave the FCC to regulate radio, but we cannot ignore the fact that Congress narrowly chose to expressly limit state environmental zoning regulation over “facilities.” As such, we reject Defendants’ reliance on dictionary definitions of “facilities” to stretch the term beyond Congress’s clearly articulated context. Accordingly, we adopt the holding of the Fourth Circuit that § 332(c)(7) does not expressly preempt state tort law. B. Express Preemption Arising from Subsection (3)’s Prohibition on State Regulation of “Entry” and “Rates” The other section upon which Defendants rely in asserting that Congress has expressly preempted state tort law is the prohibition on state regulation of “the entry of or the rates charged by any commercial mobile service.” 47 U.S.C. § 332(c)(3)(A). Defendants argue that a “judge or jury-set requirement forcing manufacturers and carriers to add specific components (i.e., headsets) and warnings in order to sell cell phones would clearly be regulating ‘entry’ into the wireless marketplace.” (Def. Mem. at 38.) For the following reasons, we find that this argument was also correctly rejected by the Fourth Circuit. In Pinney, Defendant Nokia similarly argued that a state law, court-imposed requirement that cell phones have headsets would constitute a market entry barrier because plaintiffs would be permitted to use state tort law to regulate technical specifications for cell phones. The Fourth Circuit found nothing in Subsection 3’s prohibition on entry regulations to constitute an express preemption: While § 332(e)(3)(A) is unclear as to what precisely constitutes a barrier to entry into the PCS market, we conclude that the relief sought by the Naquin plaintiffs (a headset requirement) is not such a barrier. To begin with, the PCS market is a market for wireless service. Wireless service providers use base stations and MTSOs to create a network of coverage, a network that wireless telephone users generally pay a fee to access. The FCC licenses portions of the radio spectrum to wireless service providers so they can provide PCS coverage, see 47 C.F.R. § 24.1(a), (b), and one of the main requirements for the grant of a license is that the licensee must construct enough base stations to provide coverage to the area for which it receives a license. 47 C.F.R. §§ 24.103, 24.203. Accordingly, in order for state law to constitute a barrier to entry, it must, at a minimum, obstruct or burden a wireless service provider’s ability to provide a network of wireless service coverage.... A headset requirement for wireless telephones would not constitute a barrier to entry into the PCS market because wireless telephones are only used to access a wireless service provider’s network of coverage; the telephones themselves do not provide the actual coverage.... Because the relief sought by the Naquin plaintiffs would not be a barrier for wireless service providers seeking to enter the PCS market, § 332(c)(3)(A) does not expressly preempt the claims of the Naquin plaintiffs. Pinney, 402 F.3d at 455-56 (internal citations omitted). Once again, Judge Long reached the opposite conclusion in Mum-ay. She found that any attempt to hold a manufacturer or cellular service provider to a radio frequency standard higher than that required by the FCC was a barrier to entry into the marketplace. Murray slip op. at 23. She reasoned: The meaning of the term “entry” requires a close look, because the depth, breadth or character of what is sought in a lawsuit can effectively prohibit the “entry” of a particular product or service provider. There is no doubt that “entry” is denoted by the issuance of a federal license which, in turn, is earned when the applicant has established compliance with the “radiofrequency radiation exposure requirements ... for both fundamental emissions and unwanted emissions.” 47 C.F.R. § 24.52 (1996).... Plaintiff effectively creates a barrier to entry into the market by extending this lawsuit to “the entire system(s) used to transmit voice and/or data transmissions from and/or to the cell phone.... ” These lawsuits reach all facets of the wireless telephone market.... At the risk of stating the obvious, the reasons why these lawsuits pose a barrier to market entry is that the use of potential jury verdicts based upon competing RF emissions standards would create a new hurdle for participating in the market. Murray slip op. at 23-24. We again adopt the Fourth Circuit’s rationale and reject the Defendants’ position. Their argument, and Judge Long’s analysis, conflate agency regulations on RF emissions from cell phones with Congress’s express preemption of state regulation of market entry for wireless services. It must be remembered that Subsection 3 only expressly preempts state laws that regulate market entry or rates, while preserving state regulation of “the other terms and conditions of commercial mobile services.” 47 U.S.C. § 332(c)(3); see Peck v. Cingular Wireless, LLC, 535 F.3d 1053, 1057 (9th Cir.2008) (holding that Congress did not intend Subsection 3’s prohibition on state laws regulating entry to preempt state law allowing cellular providers to itemize tax and pass it along to its customers; such regulation would be of “other terms and conditions”). This distinction, we find, is consistent with the Fourth Circuit’s admonition that, in order for state law to constitute a barrier to entry, it must, at a minimum, obstruct or burden a wireless service provider’s ability to provide a network of wireless service coverage. We conclude that Pinney’s, finding that Congress’s intent in enacting Subsection 3 was to prevent the states from obstructing the creation of nationwide cellular service coverage, and not the preemption of health and safety and police powers, is correct. Thus, we conclude that Subsection 3’s prohibition on conflicting market entry rules also does not expressly preempt Farina’s state law claims. 3. Implied Preemption There are two types of implied preemption: field preemption and conflict preemption. Field preemption applies when Congress’s “intent to preempt all state law in a particular area may be inferred [because] the scheme of federal regulation is sufficiently comprehensive” or “ ‘the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’ ” Colacicco, 521 F.3d at 261 (quoting Hillsborough County, 471 U.S. at 713, 105 S.Ct. 2371). “ ‘Conflict’ preemption applies when ‘state law is nullified to the extent that it actually conflicts with federal law,’ even though Congress has not displaced all state law in a given area.” Id. Stated another way, “the State may not, under the guise of exercising its police power or otherwise, ... enact legislation in conflict with the statutes of Congress passed for the regulation of the subject....” McDermott v. Wisconsin, 228 U.S. 115, 131-32, 33 S.Ct. 431, 57 L.Ed. 754 (1913); see also Pennsylvania Employees Ben. Trust Fund v. Zeneca Inc., 499 F.3d 239, 247 (3d Cir.2007) (implied conflict preemption renders state law “without effect” when, without “express congressional command,” state law conflicts with federal law): “Most of the preemption cases falling within the conflict category are cases that present the second scenario discussed in Hillsborough County — when ‘state law stands as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress.’ ” Colacicco, 521 F.3d at 266 (quoting Hillsborough County, 471 U.S. at 713, 105 S.Ct. 2371); Pennsylvania Employees Ben. Trust Fund, 499 F.3d at 247 (stating that the question presented was whether state consumer fraud laws posed an obstacle to the FDA’s con-gressionally-mandated regulation of prescription drug advertising). Such “obstacles” are not just found in state statutes; law suits based on state tort law “may be viewed as presenting obstacles to the federal objectives and hence barred as preempted.” Colacicco, 521 F.3d at 267 (citing Geier, 529 U.S. at 871-72, 120 S.Ct. 1913). This is because, in the absence of this principle, state law could impose legal duties that would conflict directly with federal regulator y mandates .... Insofar as petitioners’ argument would permit common-law actions that “actually conflict” with federal regulations, it would take from those who would enforce a federal law the very ability to achieve the law’s congressionally mandated objectives that the Constitution, through the operation of ordinary pre-emption principles, seeks to protect. To the extent that such an interpretation of the saving provision reads into a particular federal law toleration of a conflict that those principles would otherwise forbid, it permits that law to defeat its own objectives, or potentially, as the Court has put it before, to “ ‘destroy itself.’ ” Geier, 529 U.S. at 871-72, 120 S.Ct. 1913 (quoting Am. Tel. & Tel. Co. v. Cent. Office Tel., Inc., 524 U.S. 214, 228, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998)). In the area of conflict preemption, the Third Circuit has recognized that State common-law tort actions based on a federally regulated manufacturer’s failure to warn can present defendants with particular difficulties. This is because State standards of care differ from state to state, and the absence of any consistent federal warning requirement may subject such manufacturers “to considerable liability based on varying standards, with no benchmark that they should follow.” Colacicco, 521 F.3d at 267-68. Thus, Cola-cicco teaches, in determining whether a federal regulation, or the failure to regulate as extensively as a plaintiff seeks, has preemptive force, we must review the record of the agency’s treatment of the desired warning at issue. Id.; accord Hillsborough County, 471 U.S. at 721, 105 S.Ct. 2371 (holding that, in the absence of a clear congressional command as to preemption, courts may infer that the relevant administrative agency possesses a degree of leeway to determine which rules, regulations, or other administrative actions will have preemptive effect). It is in this area that Judge Long’s discussion of the FCC’s role as sole authority over the licensing of radio facilities and regulation of the technical aspects of radio communications is relevant and persuasive. A. The Role of the FCC in Regulating Cellular Networks Congress has given the FCC exclusive authority over every technical aspect of radio communication. See 47 U.S.C. § 151; Head v. New Mexico Bd. of Exam’rs in Optometry, 374 U.S. 424, 430 n. 6, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963) (holding that the FCC’s jurisdiction over technical matters such as frequency allocation is clearly exclusive). The Supreme Court has held that, in passing the FCA, Congress created a “unified and comprehensive regulatory system” governing the use of radio signals in the United States. FCC v. Pottsville Broad. Co., 309 U.S. 134, 137, 60 S.Ct. 437, 84 L.Ed. 656 (1940). Congress has also given the FCC broad authority to issue regulations to implement the FCA, see 47 U.S.C. §§ 154(i), 201(b), 303(r), and the FCC has determined that regulation of the technical standards and competitive market structures for cellular service is within its exclusive regulatory domain. See In re An Inquiry into the Use of the Bands 825-845 MHZ and 870-890 MHZ for Cellular Commc’ns Sys., 1981 WL 158543, 86 F.C.C.2d 469, ¶82 (1981) (“Cellular Commc’ns Sys.”). Further, the Commission has stated that “technical standards and ... operational rules are to apply nation-wide ... without regard to state boundaries or varying local jurisdictions,” In re AN INQUIRY RELATIVE TO THE FUTURE USE OF THE FREQUENCY BAND, 806-960 MHZ, 1974 WL 29789, 46 F.C.C.2d 752, ¶43 (1974), and declared that its “essential objective” in creating wireless policy is to “achieve nationwide compatibility.” Cellular Commc’ns Sys., 1981 WL 158543, 86 F.C.C.2d 469 at ¶ 79. Thus, the FCC has asserted “federal primacy over the areas of technical standards and competitive market structure for cellular service,” id. at ¶ 82, and declared that, We affirm our preemption over the technical standards for cellular systems. We continue to regard this as being essential to the ‘assurance of compatible operation of equipment on both local and national levels.’ Order at 505. We have carefully developed the technical requirements essential for efficient spectrum re-use and nationwide compatibility, while providing sufficient flexibility to accommodate new technological innovations. It is imperative that no additional requirements be imposed by the states which could conflict with our standards and frustrate the federal scheme for the provision of nationwide cellular service. In re An Inquiry Into the Use of the Bands 825-845 MHZ and 870-890 MHZ for Cellular Communications Systems, 1982 WL 190439, 89 F.C.C.2d 58, 95 ¶ 81 (1982). B. The Role of the FCC in Regulating Cellular Phones RF Emissions The FCC has also assumed specific responsibility for creating safety standards for cell phone RF emissions (not just cellular infrastructure); however, it has done so not under its authority pursuant to the FCA to regulate the technical aspects of radio communications, but rather under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-35. The FCC determined that it had the responsibility under NEPA to address safety concerns raised by RF emissions. See In re Responsibility of the Fed. Commc’n Comm’n to Consider Biological Eff