Plaintiff Beach TV Cable Co., Inc. d/b/a Key TV (“Key TV”), a local over-the-air broadcaster serving the Florida Keys, brought this action in federal district court against Comcast of Florida/Georgia, LLC (“Comcast”), which owns and operates a cable television system serving the same area. Pursuant to federal law, Key TV is entitled to lease access on a Com-cast channel at a reasonable rate and free from editorial review. Key TV has alleged both that it was unlawfully overcharged for the right to broadcast its content over Comcast’s cable system and that Comcast illegally discriminated against it by not carrying the station in high definition or including it on Comcast’s “hospitality tier.” Key TV has also included in its complaint two state law claims arising under Florida’s consumer protection statute, the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), which are closely tied to federal regulations governing telecommunications in general and leased access to cable networks in particular. The district court stayed the entire case under the primary jurisdiction, doctrine pending resolution of Key TV’s federal law claims by the Federal Communications Commission (“FCC”).
We lack appellate jurisdiction to entertain this interlocutory appeal. Stay orders are generally not thought to be. final orders under 28 U.S.C. § 1291, particularly where the stay is designed to effect a referral to a federal agency. This stay does not end the litigation on the merits and it does not leave the district court without anything to do but execute the judgment. Nor does the collateral order doctrine apply to save appellate jurisdiction because the district court’s stay order is bound up with the merits of the case and does not render the plaintiffs suit effectively unreviewable on appeal from a final judgment. Accordingly, we dismiss the appeal.
I.
Because this case arises from a motion to dismiss plaintiffs First Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for a stay pending resolution of the claims by the FCC, the facts as asserted are taken to be true for the purposes of the appeal. Key TV, a Florida corporation, is a local FCC-licensed over-the-air broadcaster serving
The access Comcast granted Key TV arose from the requirements found in the Cable Communications Policy Act of 1984, codified in 47 U.S.C. § 532. Under this section of the law, cable operators are required to “designate channel capacity for commercial use by persons unaffiliated with the operator.” 47 U.S.C. § 532(b)(1). The expressed purpose behind this section was to “promote competition in the delivery of diverse sources of video programming and to assure that the widest possible diversity of information sources are made available to the public from cable systems in a manner consistent with growth and development of cable systems.” 47 U.S.C. § 532(a). The FCC is responsible for determining the “maximum reasonable rates” that cable operators may charge for allowing use by unaffiliated persons. 47 U.S.C. § 532(c)(4)(A)®. The FCC is also responsible for setting “reasonable terms and conditions for such use.” 47 U.S.C. § 532(c)(4)(A)(ii). Moreover, the statute provides that “[a] cable operator shall not exercise any editorial control over any video programming provided pursuant to this section, or in any other way consider the content of such programming” except to the extent required to establish a reasonable price for the lessor or to determine whether the program contains obscenity, nudity, or indecency. 47 U.S.C. § 532(c)(2). Plaintiffs refer to this aspect of the law as the anti-discrimination provision, although the word “discrimination” does not actually appear in the statute.
Over the course of their lease agreement (from 2008 until 2012), Key TV paid Com-cast in excess of $871,000 for carrying Key TV over the Comcast Cable System.
Key TV commenced this action in the United States District Court for the Southern District of Floiida asserting both diversity and federal question jurisdiction. It alleged multiple counts, which can be divided into three broad groupings of . claims. First, in counts one through five, Key TV basically alleged that Comcast breached the lease agreement by charging and collecting fees that substantially exceeded the maximum reasonable rates allowed by the FCC and then by failing to promptly notify or reimburse Key TV for those overcharges. In the second bundle of claims, in counts six through nine, Key TV alleged that Comcast acted in violation
Comcast moved to dismiss the First Amended Complaint or, in the alternative, to stay the action pending resolution of the plaintiffs federal claims by the FCC. The district judge adopted the reasoning of Comcast’s argument and ordered that the entire action be stayed under the primary jurisdiction doctrine, despite Key TV’s claims that it was entitled to a jury trial under the Seventh Amendment. Under the primary jurisdiction doctrine, a court of competent jurisdiction may stay an action pending resolution of an issue that falls within the special competence of an administrative agency. Boyes v. Shell Oil Prods. Co.,
II.
We are obliged to first address (and, because of our holding, it is all we address today) whether the Court has jurisdiction to consider the merits of Key TV’s claims. We have long recognized that “in the federal tandem, jurisdiction takes precedence over the merits. Unless and until jurisdiction is found, both appellate and trial courts should eschew substantive adjudication.” Belleri v. United States,
The federal courts are courts of limited jurisdiction. Thus, the courts of appeals have jurisdiction over final decisions made by the district courts, 28 U.S.C. § 1291, and certain interlocutory orders that have been specifically certified for appeal by the district court, 28 U.S.C. § 1292. Alternatively, the Supreme Court has carved out a narrow exception to the usual rules for “that small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp.,
Ordinarily, a stay is not “a final decision for purposes of § 1291, since most stays do not put the plaintiff effectively out of court.” Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp.,
B.
Plaintiff instead argues that the district judge’s stay order is a collateral order as defined by the Supreme Court in Cohen and thus an exception to the normal jurisdictional requirements found in § 1291. But, as we have explained, “[t]o be appealable under the collateral order doctrine, a non-final order must: (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from a final judgment.” Hofmann v. De Marchena Kaluche & Asociados,
Here, while Key TV satisfies the first requirement of the Cohen test, it is plainly unable to satisfy the remaining two, and, therefore, the district judge’s decision to stay this action is not a collateral order and does not fall within the exception to the finality rules embodied in § 1291.
We agree with Key TV that the district court’s stay order meets the first requirement. The order conclusively determines that the case should be referred to the FCC for determination under the primary jurisdiction doctrine and stays the case in district court pending that determination. See Delta Traffic Serv., Inc. v. Occidental Chem. Corp.,
2.
While the district court’s order satisfies the first Cohen requirement, Key TV’s argument falters on the second one. The Supreme Court has held that the second Cohen requirement is not met where the district court’s decision “involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action,” Coopers & Lybrand,
Particularly on-point is the Tenth Circuit’s opinion in Crystal Clear Communications, Inc. v. Southwestern Bell Telephone Co.,
After concluding that issuing a stay under the primary jurisdiction doctrine did not constitute a final, appealable order, the Tenth Circuit turned to consideration of the collateral order doctrine. Id. at 1178. The court concluded that the collateral
Likewise, the Third Circuit’s decision in Richman Brothers Records v. U.S. Sprint Communications Co.,
Just as in Crystal Clear Communications and Richman Brothers, this case involves a district court stay designed to allow the FCC to evaluate claims that fall within a realm plainly and extensively regulated by the Commission. In those cases, the realm was telephone regulation; here it is cable television regulation. But in all three cases, the question boiled down to whether a dominant market player abused its power in contravention of statute and FCC regulations. The Third and Tenth Circuits concluded that recognition of the degree to which the plaintiffs’ claims were bound up with the FCC regulations necessarily required an examination of the merits of the claims themselves. Here, too, the basic question— whether the FCC should properly determine if Comcast overcharged Key TV for access to Comcast’s cable network and otherwise discriminated against Key TV in
Moreover, both this Court and the Third Circuit have held that the collateral order doctrine does not apply to a district court’s refusal to refer a case under the primary jurisdiction doctrine. See Feldspar Trucking Co. v. Greater Atlanta Shippers Ass’n, Inc.,
[t]o determine whether referral was indicated, the district court had to evaluate the claim brought by [plaintiffs] as well as the defenses asserted by [the defendant]. Only after it had ascertained the nature of the claim and related defenses could it know whether it needed to request the expert and specialized knowledge of the [Interstate Commerce Commission] as a preliminary step in the resolution of this matter.
Delta Traffic,
Key TV is unable to satisfy the second Cohen requirement.
3.
Because the order here does not meet the second requirement of the Cohen test, there is no need to delve deeply into the third requirement. See Crystal Clear Commc’ns,
Key TV’s strongest argument about the applicability of the third Cohen requirement is that the stay effectively denies it access to the courts and to a trial by jury. But there is no reason to think the district court’s order supplanting a jury in favor of the FCC for certain fact-finding would be unreviewable in the district court — or, for that matter, in this Court. There seems little question that the case will return to district court at some point because, while the FCC is capable of determining the maximum rates Key TV could have been charged, the FCC cannot adjudicate Key TV’s state-law claims. Moreover, any challenge to the FCC’s determinations may be taken to this Court. 28 U.S.C. ,§ 2343. And, indeed, if the district court had erroneously referred the matter to the administrative agency in the first place, that determination too could be reviewed by an appellate court once the administrative agency had concluded its review. See Delta Traffic,
The long and short of it is that even after a referral to an administrative agency under the primary jurisdiction doctrine, Key TV would have ample opportunity for effective judicial review. The third Cohen requirement has not been satisfied.
C.
In arguing that this Court has interlocutory jurisdiction over the present appeal, Key TV relies exclusively on the former Fifth Circuit’s binding decision in Litton Systems, Inc. v. Southwestern Bell Telephone Co.,
This case is plainly different. The former Fifth Circuit’s concern that formal judicial review by the federal courts would be eviscerated, if not wholly removed, is inapposite here where the referral is to a federal administrative agency, not to state and municipal agencies. As we have noted at length, nothing about referring this matter to the FCC can be said to have denied Key TV effective judicial review. As the Third Circuit has written, “administrative abstention orders, which completely relinquish federal jurisdiction by giving way to state administrative agencies, are final decisions appealable under section 1291,” while “orders transferring discrete issues involving regulatory expertise under the doctrine of primary jurisdiction, by giving way to a federal administrative agency, are not final decisions appealable under section 1291.” Richman Bros.,
In sum, we hold that the referral of this matter by the district court to the FCC under the primary jurisdiction doctrine is not a final decision under 28 U.S.C. § 1291, nor does it fall within the narrow exception for collateral orders created by Cohen and its progeny. Accordingly, we lack jurisdiction to entertain this appeal and DISMISS the action.
Notes
. Key TV and Comcast subsequently entered into a new leased access agreement in January 2013, Am. Compl. ¶ 64, though the terms of that agreement are not in issue here.
. The "hospitality tier” is a cable package “distributed only in hotels and other lodging facilities in Monroe County.”