The opinion of the court was delivered by: John F. Grady, United States District Judge
Before the court is defendants' motion for partial summary judgment. For the reasons explained below, the motion is entered and continued generally because the court is considering referral of the issues raised in the motion to the Federal Communications Commission ("FCC") pursuant to the doctrine of primary jurisdiction.
In this multidistrict litigation, plaintiffs contend that the wireless telephones manufactured and sold by defendants fail to comply with the Second Report and Order of the FCC concerning the revision of the FCC's rules to ensure compatibility with Enhanced 911 emergency calling systems.*fn1 The background and procedural history of this litigation is set forth in our Memorandum Opinion of June 3, 2005 and will not be repeated here.
Plaintiffs allege in their latest complaint--the Second Consolidated Amended Class Action Complaint--that defendants' phones fail to satisfy at least one of the following three requirements set forth in the Second Report and Order:
(1) If a cell phone attempting to place a 911 call does not detect a signal from the preferred carrier, it must switch to the non-preferred carrier and attempt to complete the call.
(2) If a cell phone detects a signal from the preferred carrier but is not assigned a voice channel within 17 seconds, it must switch to the non-preferred carrier and attempt to complete the call.
(3) If a wireless 911 call is completed but then dropped, the cell phone must automatically retry the call on the non-preferred carrier. (Second Consolidated Amended Class Action Complaint ¶ 40.)
In the latest round of motion practice in this case, defendants have moved for partial summary judgment. They seek "a pre-trial order interpreting the meaning and effect of certain FCC regulations as the law of the case." (Mem. in Support of Defs.' Mot. at 11.) Defendants contend that we should enter the following seven rulings:
(1) A wireless handset manufacturer is in compliance with 47 C.F.R. § 22.921 if it utilizes a call-processing method, or some combination of methods, proposed by other wireless handset manufacturers and approved by the FCC.
(2) All handsets manufactured on or before the effective date of the Second Report and Order (or as to any particular defendant, any extensions granted to that defendant) are not subject to the FCC's 911 call-processing compliance requirements.
(3) The FCC's 911 call-processing requirements do not apply to handsets manufactured for customers outside the United States.
(4) The 17-second time limit in the Second Report and Order applies only to the initial attempt to connect a 911 call on the preferred carrier's system and not to any further attempts to connect the call.
(5) The Second Report and Order does not require handsets to both switch and connect to the non-preferred carrier in any particular ...