PUBLISH

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                  FILED
                                                          U.S. COURT OF APPEALS
                                _______________             ELEVENTH CIRCUIT
                                                                 07/30/99
                                                             THOMAS K. KAHN
                                  No. 97-6804                     CLERK
                                _______________
                         D. C. Docket No. 96-0286-RV-S

BLAB T.V. OF MOBILE, INC. d.b.a. Bay T.V.,

                                                               Plaintiff-Appellant,

                                      versus

COMCAST CABLE COMMUNICATIONS, INC.,
COMCAST CABLEVISION CORPORATION OF MOBILE, INC.,

                                                            Defendants-Appellees.

                      ______________________________

                   Appeal from the United States District Court
                      for the Southern District of Alabama
                     ______________________________
                                 (July 30, 1999)

Before HATCHETT and BIRCH, Circuit Judges, and KEITH*, Senior Circuit
Judge.**

____________________
*Honorable Damon J. Keith, Senior U.S. Circuit Judge for the Sixth Circuit, sitting
by designation.
**This decision is rendered by a quorum, due to the retirement of then-Chief Judge
Hatchett on May 14, 1999. 28 U.S.C. § 46(d).
BIRCH, Circuit Judge:
      In this appeal, we determine, as a matter of first impression, whether section

612 of the Cable Communications Policy Act of 1984 completely preempts state-

law tort and breach of contract claims involving “leased access” cable channels

such that the claims are removable to federal court. The district court ruled that

section 612 converted the state-law claims into claims arising under federal

question jurisdiction, and thus denied a motion to remand the claims to state court.

For the reasons set forth in this opinion, we conclude that Congress has not

manifested sufficient intent to displace completely state-law claims pursuant to

section 612. The district court therefore erred in determining that it possessed

jurisdiction over this case on complete preemption grounds.

                                  I. Background

      On August 1, 1987, BLAB-TV of Mobile (“Bay TV”) became Mobile,

Alabama’s first and only locally owned and operated television station. At that

time, Comcast Cable Communications, Inc. (“Comcast”), was the cable operator

for Mobile as defined under the Cable Communications Policy Act of 1984,

codified at 47 U.S.C. § 521 et seq. (“Cable Act”). Bay TV leased commercial air

time from Comcast in which Bay TV broadcasted its programs over the cable

service. Initially, Bay TV and Comcast executed a four-year contract that was to

expire on July 31, 1991. The parties later disagreed about the terms of a new


                                          2
contract. Bay TV claims that the parties had entered into a verbal agreement to

honor the terms of the original contract until the new contract was finalized and

that the parties in fact entered into a new contract, while Comcast claims that the

parties never executed the second contract.

       In September 1993, Bay TV filed a complaint in the Circuit Court of Mobile

County, Alabama, asserting claims of fraud and breach of contract.1 Bay TV

included a demand for a jury trial and demands for both compensatory and punitive

damages.

       In March 1996, Comcast removed the case to federal district court, asserting

that section 612 of the Cable Act, codified at 47 U.S.C. § 532, extended federal

jurisdiction over Bay TV’s claims even though they were based on state law.

Section 612 regulates the manner in which cable operators like Comcast make

“leased access” cable channels available to unaffiliated local broadcasters like Bay

TV, requiring a cable operator with thirty-six or more channels to set aside ten

percent of its capacity for use by unaffiliated programmers. Cable Act §

612(b)(1)A), 47 U.S.C. § 532(b)(1)(A). Section 612 also creates a federal cause of

action in district courts for unaffiliated programmers who are aggrieved by the



       1
           Bay TV included numerous other state law causes of action, but dropped these claims
after the case was removed to federal court.

                                               3
failure or refusal of cable operators to make the commercial leased access channels

available, authorizing the courts to award injunctive relief as well as actual

damages if appropriate. 

47 U.S.C. § 532(d). The provision states:

      Any person aggrieved by the failure or refusal of a cable operator to
      make channel capacity available for use pursuant to this section may
      bring an action in the district court of the United States for the judicial
      district in which the cable system is located to compel that such
      capacity be made available. If the court finds that the channel
      capacity sought by such person has not been made available in
      accordance with this section, or finds that the price, terms, or
      conditions established by the cable operator are unreasonable, the
      court may [award certain injunctive relief and actual damages, if
      appropriate].

did not object to the removal of its state-law claims to federal court.

One year later, Comcast filed a motion to strike Bay TV’s demand for a jury trial

and demand for punitive damages, arguing that neither is permitted for claims

under section 612. In response, Bay TV filed a motion to remand, arguing that its

claims arose under state law and thus did not confer removal jurisdiction. After

hearing argument, the district court agreed with Comcast and held that section 612

fell within the “complete preemption” doctrine and therefore converted Bay TV’s

state-law claims into claims arising under section 612. The court denied Bay TV’s

motion to remand and granted Comcast’s motion to strike Bay TV’s demands for a

jury trial and for punitive damages.

                                           4
      Upon a motion for reconsideration, the district court certified for

interlocutory appeal the question whether section 612 completely preempts Bay

TV’s state-law claims and confers removal jurisdiction upon the district court. We

agreed to resolve this question.

                                     II. Discussion

      The issue raised in this appeal is whether the district court possessed

jurisdiction to consider the case on the merits. Whether a federal court possesses

jurisdiction is a question of law that we review de novo, see Triggs v. John Crump

Toyota, Inc., 

, 1287 (11th Cir. 1998), and an argument that the court

lacks jurisdiction may be raised at any time during the course of the proceedings.

See Lucero v. Trosch, 

, 598 (11th Cir. 1997).

      The district court asserted jurisdiction over this case pursuant to the removal

statute codified at 28 U.S.C. § 1441(a). The removal statute provides that any civil

action brought in state court may be removed to federal court by the defendant so

long as the federal court has original jurisdiction over the case under either federal

question or diversity jurisdiction. § 1441(a). The parties agree that no diversity

jurisdiction exists in this case, and therefore the case was removable only if the suit

raises a federal question, that is, if the suit is an action “arising under the

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.


                                            5
      When evaluating whether this case arises under federal law, we are guided

by the “well-pleaded complaint” rule, which provides that the plaintiff’s properly

pleaded complaint governs the jurisdictional determination. See Louisville &

Nashville R.R. v. Mottley, 

, 152, 

, 43, 

(1908). A case thus may be removed based on federal question jurisdiction “only

when the plaintiff’s statement of his own cause of action shows that it is based” on

federal law. 

of a federal defense does not make the case

removable, even if the defense is preemption and even if the validity of the

preemption defense is the only issue to be resolved in the case. See Caterpillar Inc.

v. Williams, 

, 393, 

, 2430, 

(1987). In

short, the plaintiff is the “master of the claim” and may prevent removal by

choosing not to plead an available federal claim. 

107 S. Ct. at 2429.

      Defendant argues that this case falls within an “independent corollary” to the

well-pleaded complaint rule known as the “complete preemption” doctrine. See 

107 S. Ct. at 2430. According to the Supreme Court, complete preemption

occurs when “the pre-emptive force of a statute is so ‘extraordinary’ that it

converts an ordinary state common-law complaint into one stating a federal claim

for purposes of the well-pleaded complaint rule.” 

marks and

citation omitted). “Because they are recast as federal claims, state law claims that


                                          6
are held to be completely preempted give rise to ‘federal question’ jurisdiction and

thus may provide a basis for removal.” McClelland v. Gronwaldt, 

,

512 (5th Cir. 1998); see also Arthur R. Miller, Artful Pleading: A Doctrine in

Search of Definition, 

, 1794 (June 1998) (hereinafter

“Miller”) (“The stated rationale for this deviation from what is one of the

fundamental cornerstones of federal subject matter jurisdiction is that, in these

cases, federal law not only preempts a state law to some degree but also substitutes

a federal cause of action for the state cause of action.”) (internal quotation marks

omitted).

      The inclusion of the term “preemption” within the doctrine’s label, while not

inaccurate, has enkindled a substantial amount of confusion between the complete

preemption doctrine and the broader and more familiar doctrine of ordinary

preemption. Stated simply, complete preemption functions as a narrowly drawn

means of assessing federal removal jurisdiction, while ordinary preemption

operates to dismiss state claims on the merits and may be invoked in either federal

or state court. As summarized by the Fifth Circuit,

      “complete preemption” is less a principle of substantive preemption
      than it is a rule of federal jurisdiction. In other words, complete
      preemption principally determines not whether state or federal law
      governs a particular claim, but rather whether that claim will,
      irrespective of how it is characterized by the complainant, [serve as
      the basis for federal question jurisdiction].

                                          7


.

       The Supreme Court published the opinion credited with originating the

complete preemption doctrine more than 30 years ago. See Avco Corp. v. Aero

Lodge No. 735, 

, 560, 

, 1237, 

(1968).

In Avco, the Court held with little elaboration that a state court lawsuit to enjoin a

defendant union from striking actually arose under section 301 of the Labor

Management Relations Act (“LMRA”), codified at 29 U.S.C. § 185, which grants

federal jurisdiction for suits alleging violations of collective bargaining

, 88 S. Ct. at 1237. The Court therefore concluded

that the case was removable to federal court. 

Avco, the Court has revisited the complete preemption

doctrine only sparingly and in the context of only one federal statute besides the

LMRA.2 See Schmeling v. NORDAM, 

, 1339-141 (10th Cir. 1996)

(summarizing cases). The Court relied on Avco to conclude that state claims



       2
          Some courts have read Oneida Indian Nation v. County of Oneida, 

, 94 S.
Ct. 772, 

(1974), as a case applying the complete preemption doctrine. In Oneida,
the Court held that a district court possessed federal question jurisdiction over a right-to-
possession claim concerning Indian tribal lands because the claim asserted a right to possession
under federal 

, 94 S. Ct. at 781. Ostensibly, the reasoning of Oneida
suggests that a state law claim falling within the scope of federal laws governing possession of
Indian tribal lands is removable to federal court. Because we find sufficient guidance in the
Supreme Court opinions that expressly consider the complete preemption doctrine in the context
of ERISA, we need not consider Oneida.

                                               8
falling within the scope of section 502(a) of the Employee Retirement Income

Security Act (“ERISA”), 29 U.S.C. § 1132(a), are necessarily federal in character

and therefore removable to federal court. See Franchise Tax Bd. v. Construction

Laborers Vacation Trust, 

, 23-24, 

, 2853-54, 

(1983); Metropolitan Life Ins. Co. v. Taylor, 

, 63-64, 

, 1546-47, 

(1987). The Metropolitan Life Court extended the

doctrine to section 502 claims “reluctant[ly],” 

, 107 S. Ct. at

1547, and employed an analytical framework based almost entirely on the

similarities between the LMRA and ERISA. First, the Court noted that the

language in section 502 of ERISA that grants jurisdiction to federal courts is

virtually identical to the language contained in section 301 of the LMRA. See id.

at 

. Second, the Court observed that the legislative history

surrounding the enactment of ERISA expressly stated that suits under section 502

“are to be regarded as arising under the laws of the United States in similar fashion

to those brought under section 301 of the [LMRA].” 

107 S. Ct. at

1547-48 (emphasis omitted) (quoting H.R. Conf. Rep. No. 93-1280, at 327

(1974)). These two factors, the Court concluded, revealed “the clearly manifested

intent of Congress” that such claims are necessarily federal in character and

therefore removable. 

107 S. Ct. at 1548.


                                          9
      Two months after the publication of Metropolitan Life, the Court released

Caterpillar. In Caterpillar, the Court concluded that, because the state claims at

issue challenged the validity of individual employment contracts rather than a

collective bargaining agreement, the claims did not fall within the scope of section

301 of the LMRA and were not removable under the complete preemption

, 107 S. Ct. at 2431. The Court did not have occasion

to consider whether any federal statutes other than the LMRA or ERISA provide

the opportunity to remove state claims to federal court, and left undisturbed the

scope of the complete preemption doctrine as it was defined, albeit imprecisely, in

Metropolitan Life. See 

(reviewing dicta in

Caterpillar and concluding that “[t]he Caterpillar Court purported merely to apply

the complete preemption doctrine, not to amend it”).

      These cases reveal that, although the Supreme Court recognizes the

existence of the complete preemption doctrine, the Court does so hesitatingly and

displays no enthusiasm to extend the doctrine into areas of law beyond the LMRA

and ERISA. A narrow reading of Metropolitan Life suggests that complete

preemption occurs only when a federal cause of action features jurisdictional

language that closely parallels that of section 301 of the LMRA as well as an

express statement within the legislative history that Congress intends for all related


                                          10
claims to arise under federal law in the same manner as section 301. Courts,

however, have not uniformly interpreted Metropolitan Life in this fashion and have

struggled to define the exact contours of the complete preemption doctrine. The

results have varied. As the Tenth Circuit noted, “the scope of the doctrine is not

entirely clear: ‘[t]he evolution of the doctrine . . . has been one of fits-and-starts

and zig-zags [and] has, not surprisingly, occasioned both confusion and

disagreement among the federal circuit and district courts.’” 

(quoting Burke v. Northwest Airlines, Inc., 

, 1356 (E.D.

Mich. 1993)). In an extensive examination of the instances in which courts have

deviated from the well-pleaded complaint rule, Professor Miller has concluded

that:

        [t]he application of the complete-preemption doctrine is unclear . . .
        because thus far the [Supreme] Court has not enunciated clear
        principles for identifying completely preempted claims beyond the
        LMRA and ERISA contexts nor defined the “necessary quantum of
        congressional intent.” Furthermore, Congress has never indicated its
        desire to invoke the complete-preemption principle and replace certain
        state law causes of action with federal law through the explicit
        adoption of this term in a federal statute.

Miller, at 1796.

        The Eleventh Circuit has not addressed directly the application of the

complete preemption doctrine outside of the context of the LMRA or ERISA, so

we will look to those circuits that have done so for guidance. These courts have

                                            11
adopted several different two- and three-part tests for assessing complete

preemption arguments. The Fourth Circuit examines whether: (1) the rights

underlying the state cause of action are equivalent to the exclusive rights granted

under a federal statute; and (2) the statutory language and legislative history

evinces Congress’s intent that litigation to protect the federal rights occur in

federal courts. See Rosciszewski v. Arete Assocs., Inc., 

, 229-33 (4th

Cir. 1993 (concluding that removal jurisdiction existed pursuant to the complete

preemption doctrine for a state-law “copying by use of computer” claim that fell

within the scope of section 301 of the Copyright Act). The Tenth Circuit has

adopted a similar test, examining whether: (1) Congress has provided a federal

cause of action to enforce the federal law, thus revealing an intent to allow removal

in such cases, and (2) the state claim is displaced by federal law under an ordinary

preemption analysis. See 

(concluding that no removal

jurisdiction existed for state claim concerning employee drug testing because

Federal Aviation Act regulations did not provide a federal cause of action). The

Fifth Circuit has applied a three-part test, requiring: (1) the existence of a federal

cause of action within the federal statute, (2) a provision conferring jurisdiction to

the federal courts for the cause of action that “closely parallels” the jurisdictional

provisions of the LMRA and ERISA, and (3) evidence of “the kind of


                                           12
congressional intent found to exist with respect to ERISA.” Aaron v. National

Union Fire Ins. Co. of Pittsburgh, 

, 1164-65 (5th Cir. 1989)

(concluding that no removal jurisdiction existed for state wrongful death suit

because the Longshore and Harbor Workers’ Compensation Act did not contain a

jurisdictional provision closely parallel to that contained in the LMRA and no

evidence existed that Congress intended to allow removal).

      These cases reveal a varying emphasis on such questions as whether the state

claim is displaced by federal law under an ordinary preemption analysis, whether

the federal statute provides a cause of action, what kind of jurisdictional language

exists in the federal statute, and what kind of language is present in the legislative

history to evince Congress’s intentions. Despite the variations, however, “all [the

tests] focus on a similar goal: to determine whether Congress not only intended a

given federal statute to provide a federal defense to a state cause of action that

could be asserted either in a state or federal court, but also intended to grant a

defendant the ability to remove the adjudication of the cause of action to a federal

court by transforming the state cause of action into a federal [one].” Miller, at

1797-98. The complete preemption analysis thus focuses primarily upon

evaluating Congress’s intent, which is the “touchstone” of federal court removal

jurisdiction. Metropolitan 

, 107 S. Ct. at 1548.


                                           13
      We are able to solve the jurisdictional puzzle presented by this case by

looking solely at the expressions of congressional intent found in section 612, the

Cable Act in general, and the Act’s legislative history. Not surprisingly, Congress

did not address this issue directly; the Cable Act and its legislative history contain

no statements that expressly announce an intent that state-law actions related to

section 612 are to be considered as arising under federal law for purposes of

removal jurisdiction. Instead, section 612(a) contains jurisdictional language that

is similar to section 301 of the LMRA, which according to Metropolitan Life

supports complete preemption.

      Even so, Congress omitted any indication in the Cable Act’s legislative

history that section 612(a)’s jurisdictional language is intended to function in the

same manner as section 301 of the LMRA, a circumstance that was of significant

importance to the Metropolitan Life Court. See 481 U.S. at 

.

We find the absence of such a statement in the legislative history to be a persuasive

argument against finding complete preemption in this case, but we agree with other

circuit courts that this omission is not dispositive. Instead, we will examine the

surrounding provisions in the Cable Act and its legislative history to seek out other

clues of Congress’s intent.




                                          14
      Compared to the LMRA and ERISA, the Cable Act reveals a broad policy of

preserving state authority except in areas in which the exercise of this authority

would be inconsistent with federal law. Listed among the purposes of the Cable

Act is an effort to “establish guidelines for the exercise of Federal, State, and local

authority with respect to the regulation of cable systems.” Cable Act § 601(3), 47

U.S.C. § 521(3). In addition, in a section entitled, “Coordination of Federal, State,

and Local Authority,” the Cable Act provides that “[n]othing in this subchapter

shall be construed to restrict a State from exercising jurisdiction with regard to

cable services consistent with this subchapter.” 

47 U.S.C. § 556(b).

These provisions contemplate the application of state law and the exercise of state

court jurisdiction to some degree with respect to the regulation of cable services.

In our view, the inclusion of these provisions counsels against a conclusion that the

purpose behind the Cable Act was to replicate the “unique preemptive force” of the

LMRA and ERISA. Cf. Metropolitan Life, 481 U.S. at 

.

      Comcast argues that, although Congress inserted these broad policy

statements within the Cable Act, section 612 in particular embodies an intent to

displace state laws related to commercial leased access channels so forcefully that

we should examine this provision independently of the Act’s other provisions. We

acknowledge that the availability of leased cable channels to parties unaffiliated


                                          15
with cable operators was a topic of significant interest to Congress, as reflected by

the creation of a federal cause of action and a stated desire to encourage the

development of “Federal case law precedent” in this area. See H.R. Rep. No. 98-

934, at 52 (1984), reprinted in 1984 U.S.C.C.A.N. 4655, 4689.

      These circumstances, however, are common features found in many sections

of the U.S. Code. For example, Congress used language that closely parallels the

language of section 612 to create a cause of action on behalf of employees of an

insured depository institution for certain acts by the depository institution. See 12

U.S.C. § 1831j(b). Like section 612(d), § 1831j(b) provides a claimant with a

cause of action that may be filed “in the appropriate United States district court”

without any reference to state court jurisdiction. 

v. Maryatt Indus.,

(N.D. Cal. 1993), however, a district court rejected a depository

institution’s reliance on § 1831j(b) as evidence of complete preemption of state-

law tort and contract claims and remanded the case to state 

. This language alone therefore does not provide sufficient evidence of

congressional intent to invoke the complete preemption doctrine.

      Comcast next points to a 1992 amendment to the Cable Act that authorizes

the Federal Communications Commission (“FCC”) to establish a pricing formula

to determine maximum reasonable rates for the lease of commercial access


                                          16
channels. Cable Television Consumer Protection and Competition Act of 1992 §

9, Pub. L. No. 102-385, 106 Stat. 1640 (1992) (the “CTCPCA”), codified at 47

U.S.C. § 532(c)(1) & (4). The CTCPCA also empowers the FCC to establish

reasonable terms and conditions for the lease of commercial access channels and to

create administrative procedures for the “expedited resolution” of any disputes

over the rates, terms, or conditions. 

fails to carry the day. The

legislative history for these amendments speaks only of an intent to create federal

standards for cable operators when they offer access to commercial leased access

channels. As with the Cable Act, the CTCPCA’s legislative history says nothing

about treating claims related to leased access channels as though they arise under

federal law or about any other jurisdictional issues. See generally S. Rep. No. 102-

92 (1992), reprinted in 1992 U.S.C.C.A.N. 1133-1230; H. Conf. Rep. No. 102-862

(1992), reprinted in 1992 U.S.C.C.A.N. 1231-86. While Congress’s interest in

creating federal standards to be applied in such cases certainly is relevant to an

assessment of whether the federal law supersedes state-law claims under an

ordinary preemption analysis, the creation of such federal standards is not so

unusual that it reveals an intent to replicate the jurisdictional force of the LMRA or

ERISA.




                                          17
       Given these circumstances, we conclude that section 612 of the Cable Act

and its legislative history fail to demonstrate the requisite congressional intent to

convert Bay TV’s state law claims into claims arising under federal law and to

permit removal jurisdiction under § 1441(a). In reaching this conclusion, we have

avoided adopting a specific test to be applied to all future claims of complete

preemption in this circuit. While such a test may indeed be appropriate in future

cases in light of further direction from the Supreme Court, the circumstances of

this case allow us to focus our attention solely upon Congress’s intent as

manifested in the statutory language and legislative history.3

       To this end, we also have taken great care to avoid legal questions and

arguments raised by the parties that are unnecessary to our resolution of the

complete preemption issue. Most significantly, we express no opinion as to

whether Bay TV’s state law claims run afoul of ordinary preemption principles or

whether the claims are the legal equivalent of the cause of action created by section


       3
          For example, although we have relied largely upon the Tenth Circuit’s scholarly
examination of the complete preemption doctrine in Schmeling, that opinion suggests that the
provision of a federal cause of action, by itself, manifests Congress’s intent to permit removal.
See 

. In our view, the provision of a federal cause of action, while
relevant, is not dispositive of the issue of congressional intent. If the creation of a federal cause
of action served as the sole litmus test for congressional intent, complete preemption would
apply to every federal statute that creates such a cause of action and complete preemption would
be common rather than extraordinary. As this case demonstrates, Congress may create a federal
cause of action without also providing sufficient evidence of its intent that state causes of action
are to be considered as arising under the federal statute and thus removable to federal court.

                                                 18
612(d). Because we have concluded that the district court lacked jurisdiction under

the complete preemption doctrine, we necessarily must avoid further consideration

of these issues, which go directly to the merits of Bay TV’s claims. See

(“We choose to avoid, if possible, the awkwardness of

simultaneously (1) holding that we lack jurisdiction and (2) commenting on the

merits of the preemption defense.”).

      We also decline to consider Comcast’s argument that, even if section 612

does not convert Bay TV’s state law claims into federal claims for removal

purposes, the district court properly asserted jurisdiction under the “substantial

federal question” doctrine recognized in Merrell Dow Pharm. Inc. v. Thompson,

, 

, 

(1986). This argument, which

implicates a jurisdictional doctrine that is distinct from complete preemption, is

raised for the first time in the final two pages of Comcast’s response brief.

Comcast did not raise this argument in the proceedings before the district court,

and the district court considered only whether jurisdiction existed under the

complete preemption doctrine. Although we “may affirm the district court where

the judgment entered is correct on any legal ground regardless of the grounds

addressed, adopted or rejected by the district court,” Colsa Corp. v. Martin

Marietta Servs., Inc., 

, 855 n.5 (11th Cir. 1998) (per curiam), we find


                                          19
in this case that justice would not be served by exploring an argument that one

party addressed only superficially and that its adversary did not address at all. We

therefore decline to reach the merits of this issue. See Citro Florida, Inc. v.

Citrovale, S.A., 

, 1232 (11th Cir. 1985) (“We, therefore, decline to

reach the merits of an issue on which the district court has not ruled.”) (per curiam)

(citation and internal quotation omitted).

                                   III. Conclusion

      For the foregoing reasons, we conclude that section 612 of the Cable Act

does not confer removal jurisdiction over Bay TV’s state-law claims pursuant to

the complete preemption doctrine. We VACATE the district court’s Order of May

22, 1997, granting Comcast’s Motion to Strike and denying Bay TV’s Motion to

Remand, and REMAND to the district court for further proceedings consistent with

this opinion.




                                             20