The opinion of the court was delivered by: GORBEY
The plaintiff's claim in Count I arises under §§ 4 and 16 of the Clayton Act (15 U.S.C. §§ 15 and 26) for violations of §§ 1 and 2 of the Sherman Act (15 U.S.C. §§ 1 and 2) and of § 7 of the Clayton Act (15 U.S.C. § 18). The court has jurisdiction based upon the aforementioned Sections of the Clayton Act and 28 U.S.C. § 1337. The cause of action arose in the Eastern Judicial District of Pennsylvania, and venue is in accord with 15 U.S.C. § 15, and 28 U.S.C. § 1391(b) and (c).
A second Count is based upon common law conspiracy, unfair competition and interference with contractual relations. Jurisdiction and venue are pendent to Count I. The amount in controversy exceeds the sum of $10,000, exclusive of interest and costs.
"whether defendant CBS has sought to prevent plaintiff from utilizing the present transmitter site and broadcast tower presently owned by CBS; whether the two defendants have sought to deprive plaintiff of engineering expertise necessary to the evaluation of alternate transmitter sites, including the Banks Tower in Philadelphia; whether CBS has sought by coercive or deceptive means to cause WHYY-TV, Wilmington, Delaware, to intervene on the side of defendant CBS in the FCC proceedings."
The Review Board in the FCC proceedings has determined that the refusal of CBS to lease the present transmitter site to the plaintiff, was not a violation of the FCC rules.
The contention of plaintiff that CBS was involved in the termination of engineering services of Cohen & Dippell, was initially disposed of when the Review Board of FCC refused to consider it as an issue because "in our view the subject petition does not comply with the support and specificity requirements of § 1.229(c) of the Commission's rules" (Memorandum Opinion and Order of May 13, 1975, P. 3).
The question as to the alleged misinformation given by CBS to WHYY-TV, is not presently before the FCC. As to the specific rulings in the administrative proceedings, it is to be noted that such rulings are reviewable by the full Commission and ultimately by the Court of Appeals for the District of Columbia Circuit (47 C.F.R. §§ 1.271-1.282; 47 U.S.C. § 402(b)).
The defendant, CBS, pursuant to Rule 12 of the Federal Rules of Civil Procedure has filed a motion (1) to dismiss this action without prejudice to its reinstitution upon the final conclusion of the proceedings now pending before the FCC, or, alternatively that the court stay this action pending such final conclusion, and (2) that the court dismiss with prejudice that portion of the complaint which alleges that CBS violated the antitrust laws by seeking by false statements to induce station WHYY-TV to intervene in the FCC proceedings.
The requested dismissal of the complaint without prejudice, or the alternative, staying proceedings pending the conclusion of the FCC proceedings is urged on the ground that primary jurisdiction over the issues in this case lies with the FCC. The second request with respect to the allegations relative to WHYY-TV, rests upon the contention that such intervention is not actionable under the so-called Noerr-Pennington exemption from antitrust liability.
EASTERN RAIL. PRES. CONF. v. NOERR MOTOR FRGT., INC., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961); UNITED MINE WORKERS OF AMERICA v. PENNINGTON, 381 U.S. 657, 14 L. Ed. 2d 626, 85 S. Ct. 1585 (1965).
"The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. 'Exhaustion' applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. 'Primary jurisdiction,' on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views." UNITED STATES v. WESTERN PACIFIC R. CO., 352 U.S. 59, 63-64, 1 L. Ed. 2d 126, 77 S. Ct. 161.
"Thus, when questions arose as to the applicability of the doctrine to transactions allegedly violative of the antitrust laws, particularly involving fully regulated industries whose members were forced to charge only reasonable rates approved by the appropriate commission, this Court found the doctrine applicable." UNITED STATES v. RADIO CORPORATION OF AMERICA, 358 U.S. 334, 346, 347, 3 L. Ed. 2d 354, 79 S. Ct. 457 (1959).
Included in those cases to which the doctrine was applied are cases involving common carriers by rail and water, which by statute, could charge only the published tariff and that tariff must have been found by the appropriate agency to have been reasonable. Where free rate competition was modified by federal controls,
"The Court's concern was that the agency which was expert in and responsible for, administering those controls should be given the opportunity to determine questions within its special competence as an aid to the courts in resolving federal antitrust policy and federal regulatory patterns into a cohesive whole. That some resolution is necessary when the antitrust policy of free competition is placed beside a regulatory scheme involving fixed rates is obvious. Cf. McLean Trucking Co. v. United States, 321 U.S. 67, 64 S. Ct. 370, 88 L. Ed. 544. Accordingly, this Court consistently held that when rates and practices relating thereto were challenged under the antitrust laws, the agencies had primary jurisdiction to consider the reasonableness of such rates and practices in the light of the many relevant ...