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September 30, 1988

PETER T. LEWIS, et al., Plaintiffs,
LEO BUK LHU, et al., Defendants

The opinion of the court was delivered by: OBERDORFER


 Plaintiffs, Lewis Telecom, Inc., a telecommunications consulting firm, and its president, Peter Lewis, sue two California individuals involved in a competing telecommunications consulting business for alleged violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. ยงยง 1962, 1964, as well as the common law torts of libel, slander, interference with business relations and prospective advantage, and abuse of process. Plaintiffs' claims arise out of the Federal Communication Commission's procedure for allocating available licenses for cellular mobile radio telecommunications systems.

 On January 27, 1988, defendants filed a motion to dismiss, and argument was heard on that motion on March 23, 1988. Following that hearing, counsel filed supplemental memoranda addressing the Commission's primary jurisdiction to hear plaintiffs' claims, the status of the Commission's actions on those claims, and the authority of the Court, if any, to invite the Commission to participate as an amicus.

 On May 6, 1988, plaintiffs amended their complaint, and defendants filed a motion to dismiss the amended complaint on May 27, 1988. Plaintiffs opposed this motion on June 7, 1988, and a hearing was held on June 17, 1988. Again, both parties filed supplemental memoranda following the hearing. Because the Federal Communications Commission ("FCC") has declined to exercise any primary jurisdiction it might have had over plaintiffs' claims and because the allegations in the amended complaint, taken as true for the purposes of a motion to dismiss under Fed. R. Civ. P. 12(b) (6), do state, with one exception, claims upon which relief can be granted, an Order accompanying this Memorandum will deny defendants' motion to dismiss, except as to the claim for tortious interference with business relations.


 The FCC conducts a random lottery among applicants for cellular mobile radio telecommunications licenses to establish an initial ranking among ten contestants for a given license. The Commission then scrutinizes the applicant who wins the lottery, the "tentative selectee," to determine whether an award of the license to that applicant serves the public interest. To facilitate this evaluation, FCC rules provide the "public," typically the nine other ranked applicants, with an opportunity to comment on the worthiness of the tentative selectee. In practice, the other nine applicants file comments urging the denial of the license to the top-ranked applicant. If the FCC decides to deny that applicant the license, the second-place applicant then becomes the "tentative selectee," and the comment process begins anew.

 Plaintiffs claim that defendants, competitors in the telecommunications consulting business, assembled information packets to support challenges to the worthiness of plaintiffs' clients as tentative selectees, which packets were then allegedly sold to disappointed applicants and prospective protestants for as much as $ 25,000 to $ 30,000. Plaintiffs contend that, in the course of gathering information for these protest packets, defendants harassed and threatened applicants who were believed to be plaintiffs' clients. Further, plaintiffs charge, defendants' employees misrepresented themselves to those applicants as employees of plaintiffs and used other fictitious identities. Most seriously, plaintiffs allege that defendants or their agents prepared declarations, with forged signatures of applicants who had been assisted by plaintiffs, stating that the original license applications were part of a sham engineered by plaintiffs and their employees. Plaintiffs also contend that defendants prepared sworn statements reporting conversations with plaintiffs' clients, which declarations contained false and misleading statements intended to support allegations that the applications were not bona fide. Plaintiffs further claim that several of the disappointed applicants purchased the allegedly fraudulent packets prepared by defendants and submitted them to the FCC to protest grants of licenses to plaintiffs' clients.

 Plaintiffs contend that defendants have devised and pursued a scheme to defraud cellular applicants who purchased these packets. Plaintiffs claim that the scheme was intended to and did in fact defraud the FCC by preparing and selling for submission to the agency the forged declarations to support protests against grants of licenses to the tentative selectees. Moreover, plaintiffs claim, defendants' conduct has injured them by causing delay in the FCC's rejection of the disappointed applicants' protest petitions and by increasing the risk that the FCC will deny the license applications by the tentative selectees who are plaintiffs' clients. Plaintiffs also sue for damage to reputation arising from, among other things, defendants' comments about plaintiffs published in a trade magazine. Plaintiffs claim that defendants are attempting to spread their "smear campaign" against plaintiffs to other applications pending before the FCC.


 Defendant Leo Buk Lhu moves to dismiss on the grounds that the FCC has primary jurisdiction over plaintiffs' claims and that the amended complaint fails to state a claim upon which relief can be granted. Although federal courts should, in some circumstances, stay an action pending resolution of specific issues by an administrative body, the FCC has declined to exercise its primary jurisdiction in this case. In an Order dated May 31, 1988, the Commission stated:

Lewis' request that issues be specified against the petitioners for alleged abuses in their investigations and for allegedly abusing the Commission's processes is denied. Petitioners' applications are not being considered in this proceeding and, therefore, Lewis' request that issues be specified against the petitioners is not appropriate . . . Petitioners' applications may never advance to the point of being considered for grant.

 Federal Communications Commission, In re: Applications of Jones, et al., Order Designating Applications for Hearing and Order to Show Cause (CC Docket No. 88-278) (May 31, 1988) at 12 n.12. Defendants contend that, in deciding not to consider plaintiffs' allegations of fraud in the application proceedings, "the FCC has effectively concluded that the allegations are not worthy of further action." Defendant Lhu's Response to Plaintiffs' Letter to the Court Dated June 2, 1988 (filed June 27, 1988) at 4. Further, defendants argue, "if the FCC has ...

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