Case Information
*1 Before BOWMAN, WOLLMAN, and LOKEN, Circuit Judges.
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BOWMAN, Circuit Judge.
Aсcess Telecommunications (Access) appeals the order of the District Court [1] dismissing its claim against Southwestern Bell Telephone Company (SWBT). Access *2 had filed a class action under the Communicаtions Act of 1934, see 47 U.S.C. §§ 202, 203, 207 (1994), alleging that SWBT had been overcharging for telephone access services. SWBT moved to dismiss the action, arguing that primary jurisdiction to decide the issues rested with the Federal Communicаtions Commission (FCC). In its opinion, the District Court noted that a party claiming damages against a common carrier such as SWBT generally has its choice to file a complaint either with the FCC or in federal court. See District Ct. Order at 2. But in the end the District Court agreed with SWBT and dismissed the action. This appeal followed.
Access claims that the FCC does not have primary jurisdiction over the issues presented in this case. Access argues that the District Court erred in dismissing the action because none of the reasons for invoking the primary jurisdiction doctrine is present. Access further asserts that, even if the FCC does have primary jurisdiction, the District Court should not have dismissed but instead should have stayed the action.
I.
Access resells long-distance services by connecting customers to various long- distance providers. Access uses SWBT's local lines to оffer the service. SWBT allows resellers such as Access to control the quality and cost of the interconnection by giving them a choice of twelve different voice grades (VGs). The VGs range from one to twеlve, with VG 1 representing the lowest level of quality and VG 12 representing the highest level of quality. Quality is measured in terms of factors such as distortion and echo control. Charges for the interconnection increаse as the level of VG increases. In this case, Access sought to purchase VG 7 service from SWBT.
As required by federal law, common carriers must file with the FCC tariffs setting forth a schedule of charges for the various sеrvices they provide. See 47 U.S.C. § 203. Accordingly, SWBT filed Tariff No. 73 (the Tariff), which established charges *3 for each VG level. The FCC approved the Tariff, and now SWBT must provide access services pursuant to the terms of the Tariff. See id. § 203(c).
SWBT provides VG 7 service on either a two-wire circuit or a more expensive four-wire circuit. The Tariff sets forth two schedules, indicating the price for each circuit. See J.A. at 91 (Tariff 7.3.4(G)(1)). Thus, a VG 7 intеrconnection on a four- wire circuit has a higher price schedule than a VG 7 interconnection on a two-wire circuit. The Tariff indicated that the VG 7 service must conform to specific transmission standаrds, see id. at 73 (Tariff 7.3.1(B)), meaning that items such as attenuation distortion, echo control, impulse noise, and phase jitter cannot fall to unacceptable levels. These standards are to ensure the quality of the signal requested by the reseller. The Tariff incorporates a Technical Specifications Package (TSP), which sets forth a detailed listing of these standards for VG 7 service. The choice by the rеsellers of whether to purchase two-wire or four-wire circuits depends upon the capabilities of the resellers' system; they may purchase the less expensive two-wire circuit only if the transmission standаrds set forth in the Tariff and TSP are being met. For example, as long as attenuation distortion remains at or below the level set forth in the TSP, the reseller may use a two-wire circuit in obtaining VG 7 service. But as soon as attenuation distortion increases to an unacceptable level (as defined by the TSP), the reseller must use a four-wire circuit.
In January 1991, SWBT began requiring Access to purchase VG 7 service on the more exрensive four-wire circuit. SWBT claimed it had to charge this rate because the distance from SWBT's central office to the connection point (the "local loop connection") exceеded 6,000 feet in length. SWBT contends that distortion and echo loss increase to unacceptable levels (as defined by the TSP) when the distance gets beyond 6,000 feet, making it impossible consistently to maintain VG 7 quality on а two-wire circuit. Thus, in order to comply with the quality standards set forth in the Tariff and TSP, SWBT maintains that it must run VG 7 service on a four-wire circuit for local loop connections exceeding 6,000 feet.
Access points out thаt the length of the resellers' local loop connection is not a specification set forth in the Tariff or the TSP. Access argues that this arbitrary 6,000- foot limit on two-wire circuits violates federal law because, in establishing this limit, SWBT is not abiding by the terms of the Tariff. Under the terms of the Tariff, Access maintains it is entitled to receive VG 7 service on the less expensive two-wire circuit. Access seeks to have the District Court grant it rеlief against SWBT on this federal law claim.
II.
A. Primary Jurisdiction Doctrine
In their briefs, both parties argue based on the assumption that we review de novo the issue of whether the doctrine of primary jurisdiction was properly applied by thе District Court. Without deciding the standard-of-review question, which is best [2]
left to be resolved in a case in which it is contested, we accept the parties' invitation to review the primary jurisdiction issue de novo.
Primary jurisdiction is a common-law doctrine that is utilized to coordinate
judicial and administrative decision making. See Red Lake Band of Chippewa Indians
v. Barlow,
One reason courts apply the doctrine of primary jurisdiction is to obtain the
benefit of an agency's expertise and experience. The principle is firmly estаblished that
"in cases raising issues of fact not within the conventional experience of judges or cases
requiring the exercise of administrative discretion, agencies created by Congress for
regulating the subject matter should not be passed over." Far East Conference v.
United States,
Access points to the distinction between a challenge to the reasonableness of a
tariff and a challenge that a tariff has been violated. The former is properly brought
before an administrative agency, while the latter is properly brought before a court. See
Pennsylvania R.R. Co. v. Puritаn Coal Mining Co.,
Congress granted to the FCC the authority to determine whether "[a]ll charges, practices, classifications, and regulations" are reasonable. 47 U.S.C. § 201(b). Here SWBT is classifying Access under a four-wire circuit price schedule. The issue is whether the 6,000-foot limitation is a reasonable сlassification. This action clearly falls within the FCC's statutory authority to determine the reasonableness of SWBT's classification. See id.
Furthermore, to determine whether the classification is reasonable, it will be
necessary to become embroiled in the technical aspects of VG 7 service. The FCC has
*6
far more expertise than the courts on matters such as circuit designs, signal
transmissions, noise attenuation, and echo return loss. Thus, the need to draw upon the
FCC's expertise and experience is present here. "[W]here words in a tariff are used in
a peculiar or technical sense, and where extrinsic evidence is necessary to determine
their meaning or proper application," as is the case here, the issue should first go to the
appropriate administrative agency. Western Pac.,
We conclude that the District Court did not err by determining that under the primary jurisdiction doctrine the court should stay its hand to allow the FCC to consider the issues raised in Access's complaint.
B. District Court's Dismissal
After the District Court determined that primаry jurisdiction rested with the FCC,
it dismissed the suit. A district court "has discretion either to [stay the case and] retain
jurisdiction or, if the parties would not be unfairly disadvantaged, to dismiss the case
without prejudice." Reiter v. Cooper,
The District Court did not abuse its discretion in dismissing the suit. Access argues that, because a dismissal does not toll the statute of limitations, Access could be unfairly disadvantaged if it chose to refile in federal court aftеr the FCC renders a decision on its claim against SWBT. Access's argument is without merit.
Because we hold today that the doctrine of primary jurisdiction applies, Access's next course of action regarding this claim will be to petition directly to the FCC. See 47 U.S.C. § 208(a). Then, the FCC is statutorily obligated to investigate the complaint, see id., and issue an order within five months. See 47 U.S.C.A. § 208(b)(1) (West Supp. 1997). The FCC's order is then final and may be appealеd. See 47 U.S.C. § 208(b)(3). If either Access or SWBT chooses to seek judicial review of the FCC's final order, it would do so under 47 U.S.C. § 402(a), which provides that appeals "shall *7 be brought as provided by and in the manner prescribed in chapter 158 of title 28." See id. § 402(a). Thus, an aggrieved party would file a petition for review in a court of appeals wherein venue lies within sixty days after the entry of the FCC's final order. See 28 U.S.C. §§ 2342(1) (jurisdiction of court of appeals), 2343 (venue), and 2344 (sixty-day filing period). The statute of limitations applicable to the original action in the District Court therefore is not implicated, and Access is not unfairly disadvantaged by the District Court's dismissal.
III.
Fоr the above reasons, we conclude that the District Court did not err in applying the doctrine of primary jurisdiction to this case. Moreover, we hold that the District Court did not abuse its discretion in dismissing the suit. Accordingly, we affirm the order of the District Court in all respects.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT
Notes
[1] The Honorable Carol E. Jackson, United States District Judge for the Eastern District of Missouri.
[2] Both parties cite National Communications Ass'n v. AT&T,