it is the [FCC] which must first pass on them." Id. at 168.
At first glance, the issue of what constitutes a "completed"
call appears to be one of statutory interpretation well within
the conventional experience of judges. Were the scope of the
definition of a "completed" call the only issue before the court,
the court would be disinclined to defer to the FCC. However, the
definition of a "completed" call is dependant upon the LEC's
ability to implement FLEX-ANI technology, an issue the court has
already referred to the FCC. FLEX-ANI technology permits IXC's to
identify a call made from a payphone and track that call to
determine whether it has been completed. For the court to divine
a definition of a "completed" call without an informed
appreciation of the technology needed to implement it in the
first place would be an empty gesture. Cf. Allnet Communication
Service, Inc. v. National Exchange Carrier Association, Inc.,
965 F.2d 1118, 1122 (D.C.Cir. 1992) ("In any event, it would make
little sense to refrain from applying primary jurisdiction merely
because of an ancillary claim that we would reach only after
examination of ones clearly within the agency's purview.").
Because the scope of the definition of a "completed" call is
closely intertwined with the problems created by the LEC's
inability to implement FLEX-ANI technology, the definition of a
"completed" shall also be referred to the FCC for resolution.
D. Plaintiff's Equitable Argument
Plaintiff advances the equitable argument that referring the
matter to the FCC will further delay the compensation to which it
claims it is entitled, and that this delay will seriously injure
its continued business operations. According to plaintiff,
defendants are large corporations that could afford to advance
the payments requested by plaintiff without suffering economic
hardship. Plaintiff also argues, in the alternative, that the
court could establish an interim rate for the time period of
November 7, 1996 to October 6, 1997, and that if the FCC later
sets a lower rate, plaintiff could be required to refund the
Plaintiff's equitable arguments are misplaced because
application of the doctrine of primary jurisdiction is not
discretionary. Rather, once the court determines that a claim
"contain[s] some issue within the special competence of an
administrative agency, [the doctrine of primary jurisdiction]
requires the court to refer the matter to the administrative
agency." Reiter, 113 S.Ct. at 1220 (emphasis added). Thus,
regardless of the equities involved, referral to the FCC, in the
first instance, of issues which the court finds are within the
FCC's special competence is mandatory.
E. Appropriate Disposition
Where the court determines that there are issues in a case
within an administrative agency's discretion and expertise, "the
judicial process is suspended pending referral of such issues to
the administrative body for its views." Western Pacific, 77
S.Ct. at 165. Referral of an issue to an administrative agency
"does not deprive the court of jurisdiction" over the case.
Reiter, 113 S.Ct. at 1220.*fn9 The court may retain
jurisdiction, or if the parties would not be "unfairly
disadvantaged," it may dismiss the case. Id. at 1220.
The court finds that dismissal of the case would "unfairly
disadvantage" plaintiff in two ways. First, plaintiff would
be deprived of its chosen forum. Congress vested the court with
concurrent jurisdiction over plaintiff's claim, and the doctrine
of primary jurisdiction does not alter that grant.*fn10 See
Reiter, 113 S.Ct. at 1220. Rather, the doctrine of primary
jurisdiction requires only that the court refer certain discrete
issues raised in the case, in the first instance, to the
appropriate administrative agency. In this case, after the FCC
has been given an opportunity to address the issues referred to
it by the court, plaintiff shall be entitled to return to its
chosen forum to proceed to final judgment.
Second, plaintiff could not receive the class-wide relief it
seeks before the FCC. Plaintiff filed its complaint as a class
action. The FCC is not empowered to certify a class action under
Federal Rule of Civil Procedure 23. Thus, the case will be stayed
pending consideration by the FCC of the issues outlined
The court concludes that plaintiff's claim raises technical and
policy issues requiring application of the doctrine of primary
jurisdiction. However, the court also concludes that dismissal of
the case would "unfairly disadvantage" plaintiff, therefore,
these proceedings will be stayed pending consideration by the FCC
on the issues covered in this memorandum.
An appropriate order follows.
AND NOW, this 12th day of June, 2000, upon consideration
of Defendant Sprint Corporation's Motion to Dismiss (doc. no. 9),
Defendant MCI Worldcom, Inc.'s Motion to Dismiss (doc. no. 10),
and Defendant AT & T Corp.'s Motion Pursuant to Fed.R.Civ.P.
12(b)(1) to Dismiss, or in the Alternative, to Stay Pending
Referral of this Action to the Federal Communications Commission
(doc. no. 11), it is hereby ORDERED that the motions are
It is FURTHER ORDERED that the following issues are
REFERRED to the Federal Communications Commission for its
1. Creation of a per call compensation rate for the period
November 7, 1996 to October 6, 1997;
2. The effect of the LEC's failure to implement FLEX-ANI
3. Whether IXC's or FBR's are required to compensate PSP's for
calls completed from their payphones using long distance services
purchased by FBR's; and
4. The scope of the definition of a "completed" call.
It is FURTHER ORDERED as follows:
1. Further proceedings in this case are STAYED pending
resolution of plaintiff's claims under the Telecommunications Act
of 1996 by the Federal Communications Commission;
2. The case shall remain in SUSPENSE until further order of
the court; and
3. An in-person status conference shall be held on November 2,
2000 at 9:15 a.m.
in Courtroom 7-A, 7th Floor, United States Courthouse, 601 Market
Street, Philadelphia, PA. At least 72 hours prior to the status
conference, each party shall deliver to the court a written
status report which shall identify with specificity any issue the
party wishes to discuss at the status conference.
AND IT IS SO ORDERED.