Federal court in Hawaii invites FCC to participate in Bluesky lawsuit
Pago Pago, AMERICAN SAMOA — Chief U.S District Court Judge, J. Micheal Seabright is inviting the U.S. Federal Communications Commission (FCC) to participate as “amicus curiae” — or friends of the court — in a lawsuit filed by four Alega residents against AST Telecom dba Bluesky Communications including the company’s current and former executives.
Seabright, who issued the invitation on Apr. 12th, is presiding over the lawsuit filed in February at the federal court in Honolulu by Steven Jay Pincus Hueter, Rosalia Tisa Faamuli, Michael S. Kirk, and Faamuli Pete Faamuli.
Plaintiffs allege that — among other things — the defendants violated FCC Rules and Regulations by improperly hanging and attaching its telecommunication cables on trees and land belonging to the plaintiffs in Alega village and on the official private Alega Marine and Wildlife Sanctuary and Reserve.
In his invitation-order, Seabright noted that the court “has broad discretion to appoint amicus curiae.”
And the “classic role of amicus curiae” is “assisting in a case of general public interest, supplementing the efforts of counsel, and drawing the court’s attention to law that escaped consideration,” he said and cited quotes from a 1982 federal court decision.
Plaintiffs had argued in court filings that the defendants are violating FCC radio frequency emission regulations and violating FCC antenna height and power requirements.
Additionally, they claimed defendants are violating the National Electrical Code and National Electrical Safety Code by improperly hanging cables below the Codes’ height requirements, including on trees within the marine sanctuary.
Defendants on Mar. 5th filed their oppositions, and had argued among other things, that plaintiffs do not have a federal private cause of action under Telecommunications Act (TCA) of 1996 for violations of the relevant FCC regulations or the National Electrical Codes.
In his written invitation to FCC, Seabright noted that the question before the court is whether the TCA affords private parties, like Plaintiffs, a cause of action if they are harmed by a regulated entity’s violation of specific FCC regulations.
Answering this question necessarily requires the court to examine the relevant statutory and regulatory landscape, according to the federal judge, who points out that FCC has thorough understanding of its own regulations and their statutory objectives and is therefore “uniquely qualified” to assess whether such a private cause of action may be sustained.
Seabright invites the FCC to join this litigation as amicus curiae to address two questions:
• Does the TCA provide a private cause of action for violations of FCC regulations regarding radio frequency emissions?
• Does the TCA provide a private cause of action for violations of FCC regulations regarding antenna height and power requirements?
The FCC is requested to submit a response indicating whether it accepts the invitation no later than Apr. 27th. And if the FCC requires an extension of this response date, it may make a request to the court.
Meanwhile, plaintiffs on Wednesday requested to be allowed to file a third amended complaint, to include claims relating to mobile services by AST Telecom’s allegedly non-compliant antenna wireless facilities outside of Alega that allegedly irradiate Plaintiffs with radio frequency radiation (RFR) at harmful levels of radiation, above the Maximum Permitted Exposure (MPE) RFR emission limits of FCC regulations, and above the limits of the National Council on Radiation Protection (NCRP) standards, to the irreparable harm of the Plaintiffs, and against public interest.