Pago Pago, AMERICAN SAMOA — AST Telecom LLC, d/b/a Bluesky Communications along with the company’s current and former executives have strongly opposed the latest request by four Alega village residents, filed at the federal court in Honolulu — a second motion for a temporary restraining order (TRO) and preliminary injunction against the defendants.

Plaintiffs asked the court to immediately remedy hazardous telecom cable and electrical wire hazards to public safety that are an immediate real threat to the safety of life and property in Alega village and island-wide. It also seeks to enjoin the American Samoa Power Authority.

(Samoa News notes that ASPA is already a defendant in another but similar case by plaintiffs against, AST Telecom, ASG along with current and former officials.)

In their lawsuit filed early this year, the plaintiffs — Steven Jay Pincus Hueter, Rosalia Tisa Faamuli, Michael S. Kirk, and Faamuli Pete Faamuli — allege among other things, that defendants violated US Federal Communications Commission (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.

Last month plaintiffs filed a second motion for a TRO and preliminary injunction in which the court allowed plaintiffs to proceed with defendants to file a response last Friday, which they did.

Defendants’ recalled in their response that plaintiffs assert — in their motion — that AST Telecom’s cables are physically hung on the Faamuli Property in a manner that violates the Federal Communications Act (the Act). They seek injunctive relief, under federal law and a direction to defendants to remedy the alleged violations.

“Plaintiffs’ allegations are patently without merit,” said attorneys for the defendants in the summary argument outlined in their 20-page response.

The defense claims that the Act does not purport to regulate the relationship between a carrier and the owner of the land upon which a utility easement runs, or how the carrier’s cables must or must not be physically hung, let alone provide a private right of action to Plaintiffs.

“Therefore, this Court lacks subject matter jurisdiction over plaintiffs’ claims and lacks power to grant the relief requested,” according to the defense, noting that provisions of the Act do not authorize injunctive relief in any event.

Defendants point to a previous motion, already in court files to dismiss plaintiff’s amended complaint for lack of subject matter jurisdiction.

Out of necessity, the defense says that many of the arguments set forth in defendants’ pending motions are been repeated in their latest response.

The defendants also say that some of plaintiffs’ allegations in the motion are also directed against a non- party, the American Samoa Power Authority (“ASPA”).

They explained that ASPA is an American Samoa power utility that owns the poles on which AST Telecom’s fiber optic cables are hung, and ASPA also owns electrical power lines that are attached to its poles.

“This Court cannot grant relief which involves adjudication of rights and privileges of ASPA, a non-party over which this Court has no personal jurisdiction,” the defense argued.

They also say that plaintiffs had acknowledge that a parallel action under American Samoa law, which arises from the same alleged facts, is pending in the High Court of American Samoa between some plaintiffs and some defendants.

“However, plaintiffs contend that, to the extent they may be entitled to relief under the law of American Samoa, the High Court in American Samoa is not competent to provide relief because they have sued the Presiding Judge in another matter,” the defense notes, referring to Chief Justice Michael Kruse, the presiding judge and one of the defendants in Hueter’s lawsuit pending at the federal court in Washington D.C. over local COVID-19 restrictions.

“This contention does not help establish subject matter jurisdiction of this Court over plaintiffs’ purported federal claims.  Accordingly, defendants submit that plaintiffs’ motion is frivolous and should be denied,” according to the defendants, who are represented by a Honolulu-based law firm.