The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.
This is an action brought by plaintiff Phone-Tel
Communications, Inc. (plaintiff) against defendants AT & T
Corporation, Sprint Corporation, and MCI Worldcom, Inc.
(collectively defendants), alleging violations of the
Telecommunications Act of 1996 (the Act). Plaintiff is a payphone
service provider (PSP) that owns and operates payphones across
the country. Defendants are interexchange carriers (IXC's),
commonly known as long distance telephone companies.
Plaintiff alleges, in what it terms a "simple collection" case,
that defendants have not paid it for calls which defendants'
customers completed by using payphones owned by plaintiff.
Defendants, on the other hand, argue that because plaintiff's
complaint raises technical and policy issues within the expertise
and discretion of the Federal Communications Commission (FCC),
the court should refer this matter to the FCC under the doctrine
of primary jurisdiction and either dismiss the case, or
in the alternative, stay these proceedings pending action by the
FCC. Before the court are defendants' motions to dismiss
plaintiff's complaint, or in the alternative, to stay these
proceedings. The court concludes that because plaintiff's claim
raises certain technical and policy issues within the special
competence of the FCC, those issues shall be referred to the FCC
in the first instance for resolution and the case shall be stayed
pending consideration of those issues by the FCC.
A. The Doctrine of Primary Jurisdiction
1. The parties' contentions
In the Telecommunications Act of 1996, Congress required the
FCC to promulgate regulations "ensuring that payphone service
providers would be `fairly compensated' for calls made on their
payphones." MCI Telecommunications Corporation v. Federal
Communications Commission, 143 F.3d 606, 607 (D.C.Cir.
1998).*fn1 Pursuant to the direction of Congress, the FCC
established a compensation system requiring IXC's such as
defendants to compensate PSP's such as plaintiff on a per call
basis for each call their customers complete from a payphone
owned by the PSP.
Plaintiff seeks relief under the Act in the form of an
accounting requiring defendants to: (1) identify the number of
calls their customers completed from plaintiff's payphones
beginning on October 6, 1996; (2) establish that the procedure
employed in making that identification was performed accurately
and in accordance with FCC regulations; and (3) compensate
plaintiff using the applicable per call compensation rate for
each identified call.
Defendants contend that this is not a "simple collection" case,
as plaintiff claims, but rather the case implicates "a myriad of
outstanding technical, interpretive and policy issues" that fall
squarely within the expertise and discretion of the FCC.
Defendant MCI Worldcom, Inc.'s Motion to Dismiss (Doc. No. 10),
p. 2. Thus, according to defendants, the court should stay its
hand and refer the matter to the FCC under the doctrine of
The doctrine of primary jurisdiction applies "to claims
properly cognizable in court that contain some issue within the
special competence of an administrative agency." Reiter v.
Cooper, 507 U.S. 258, 113 S.Ct. 1213, 1220, 122 L.Ed.2d 604
(1993). Under the doctrine, "a court should refer a matter to an
administrative agency for resolution, even if the matter is
otherwise properly before the court, if it appears that the
matter involves technical or policy considerations which are
beyond the court's ordinary competence and within the agency's
particular field of expertise." MCI Communications Corporation
v. American Telephone & Telegraph Company, 496 F.2d 214, 220 (3d
Cir. 1974); see also MCI Telecommunications Corporation v.
Teleconcepts, Inc., 71 F.3d 1086, 1103 (3d Cir. 1995) ("Primary
jurisdiction `applies where a claim is originally cognizable in
the courts, and comes into play whenever enforcement of the claim
requires resolution of issues which, under a regulatory scheme,
have been placed within the special competence of an
body.'").*fn2 The Supreme Court described the doctrine of
primary jurisdiction as
a principle, now firmly established, 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. This is so even though the facts
after they have been appraised by specialized
competence serve as a premise for legal consequences
to be judicially defined. Uniformity and consistency
in the regulation of business entrusted to a
particular agency are secured, and the limited
functions of review by the judiciary are more
rationally exercised, by preliminary resort for
ascertaining and interpreting the circumstances
underlying legal issues to agencies that are better
equipped than courts by specialization, by insight
gained through experience, and by more flexible
Far East Conference v. United States, 342 U.S. 570, 72 S.Ct.
492, 494, 96 L.Ed. 576 (1952).*fn3
Courts have been cautioned, however, not to instinctively
invoke the doctrine of primary jurisdiction "whenever a
controversy remotely involves some issue falling arguably within
the domain of the agency's `expertise.'" Teleconcepts, 71 F.3d
at 1104. Rather, courts are commanded to examine each issue
identified by the party proposing application of the doctrine to
determine whether resolution of the specific issue requires the
special competence of an administrative agency. Id. (quoting
Elkin v. Bell Telephone, 491 Pa. 123, 420 A.2d 371, 377 (1980)).
The party urging the court to refer the matter in whole or in
part to an administrative agency bears the burden of persuading
the court that the case "requires resolution of issues which,
under a regulatory scheme, have been placed within the special
competence of an administrative body." Id. at 1103. If the
moving party satisfies its burden and the court finds that
specific and discrete issues in the case require attention from
the appropriate administrative agency, the issues identified by
the court shall be referred to the administrative agency for its
consideration in the first instance.
3. Issues which implicate the doctrine of primary