ITT World Communications v. New York Tel., 381 F. Supp. 113 (S.D.N.Y. 1974); Southwestern Bell Telephone, 8 FCC Rcd. 2589 (1993).
In addition, plaintiffs concede that it is the FCC which interprets the concept of "community". And there is a question as to whether customers in Big Cabin, Oklahoma, are not being provided with long-distance service by AT&T since plaintiffs do not controvert the fact that Big Cabin residents can still complete long-distance calls using AT&T service via Atlas. Moreover, Big Cabin residents have access to long-distance services from multiple long-distance carriers. Consequently, in reality there is only one end user served by TTS that is currently being affected, Audiobridge. Accordingly, TTS would have to prove that the FCC regards this entity or the customers serviced by it as constituting a community or part thereof.
Even if the court were to frame the current dispute as an alleged unlawful discontinuation of service on the part of AT&T, as opposed to a dispute concerning the right of TTS to be interconnected to AT&T's services, referral to the FCC would nevertheless be appropriate.
The resolution of whether a carrier first needs to procure a certificate from the FCC under Section 214 prior to the termination of service, is a matter that should be resolved by the FCC itself, in part, since it is the agency from which the permit must be obtained. This is so, because in certain situations prior authorization for the discontinuation of service to a customer is not required. See e.g., Memorandum Opinion and Order, Pacific Telatronics, Inc. & Revisions to Tariff F.C.C. No. 4, 74 F.C.C. 2d 286, 290 (1979). It is unclear whether a Section 214 application is even required in this case because a certificate is not needed when "the adequacy or quality of service" is not impaired. 47 U.S.C. § 214 (a). As referenced above, plaintiffs do not dispute the fact that customers continue to have access to their services via other long-distance carriers.
As a result, the FCC is the entity that should determine whether in fact there has been a violation of Section 214 in this case, since that section provides for the issuance of an injunction only upon a finding that there has been a discontinuance of service "contrary to the provisions of" Section 214.
Finally, in this action there are more important issues implicated than resolving the question of whether a rule, in this instance Section 214, was violated. See Western Union Tel. Co. v. Graphic Scanning Corp., 360 F. Supp. 593, 596 (S.D.N.Y. 1973) (dismissing plaintiff's Section 214 claim; denying injunctive relief request and referring claim to the FCC because plaintiff could obtain full relief by filing his complaint with the FCC). This case implicates policy questions regarding the relationship of putative competitive access providers, in this case, TTS and local exchange monopolies, such as Atlas. Inherent is these questions is the issue of whether TTS is in fact a competitive access provider and whether its tariff is valid. The FCC is better equipped to render a decision on these issues and thereby promote uniformity in the telephone industry.
D. Plaintiffs' Other Claims
Plaintiffs' contention of discrimination on the part of AT&T made pursuant to Section 202 is also more properly the province of the FCC since it is within the FCC's sole discretion to either prescribe a remedy or to order that the carrier end the discrimination. National Ass. of Motor Bus Owners v. FCC, 460 F.2d 561 (2d Cir. 1972); see also Vortex Communications, Inc. v. AT&T, 828 F. Supp. 19 (S.D.N.Y. 1993). Additionally, plaintiffs' allegation, recently brought forth in their application for a temporary restraining order, that AT&T is violating Section 251 of the new Communications Act, should also be entertained by the FCC. That section states that carriers have a duty to interconnect with other carriers. The duty, however, is dependent upon a finding that TTS is a carrier. The court is disinclined to interpret the rights and duties of carriers and other parties under this section because inconsistent and disparate results might ensue. More importantly, however, is the fact that the new Act charges the FCC with the mandate to "complete all actions necessary to establish regulations to implement the requirements of this section." 47 U.S.C. § 251 (i). The court therefore declines to interpret Section 251 in the first instance.
E. Additional Public Policy Considerations
Inherent in the resolution of the issues before the court and perhaps outcome determinative is the determination of whether the operating structure such as the one being employed by the plaintiffs should be allowed to persist. Atlas is the local monopoly in Big Cabin, Oklahoma. As a monopoly it is subject to rigorous regulations. The president of Atlas apparently is also the chairman of TTS. As a result, TTS and Atlas have common officers and operating equipment. TTS holds itself out to be a competitive access provider; if it is indeed such an entity, it is subject to less stringent regulatory standards. Plaintiffs' operating arrangement thus raises important questions regarding the ability of symbiotic companies to enter into an arrangement by which they simultaneous hold themselves out to be the local monopoly and a competitive access provider. The latter is to be a competitor of the former. Without opining on these issues, the court does conclude that this subject is one that should first be entertained by the FCC.
F. The Concern for Delay
Plaintiffs' reliance on various cases for the proposition that the doctrine of primary jurisdiction should rarely be invoked is misplaced under the circumstances of this case. The rationale for invoking the doctrine only in certain circumstances is the potential for delay and expense when the doctrine is applied. United States v. McDonnell Douglas Corp., 751 F.2d 220, 224 (8th Cir. 1984) (internal citations omitted). Thus "when reaching a decision to defer [to an agency], a court must consider how long an administrative process will run before its work is done." Rohr Industries v. WMATA, 232 U.S. App. D.C. 92, 720 F.2d 1319, 1326 (D.C.Cir. 1983). When the duration of the administrative process is short, the case for deferring to the agency is great. Id. In Rohr Industries, the court was concerned with the potential for delay because in that case the administrative process threatened to drag on for many years. Similarly, in Red Lake Band of Chippewa Indians v. Barlow, 846 F.2d 474 (8th Cir. 1988), the court noted that the application of the doctrine could result in the protraction of the litigation. Nevertheless, although the litigation in that case had been on-going for more than six years, the court thought it proper to apply the doctrine. Finally, in National Comm. Ass'n, 46 F.3d 220 (2d Cir. 1995), the parties estimated that the delay resulting from referral to the FCC would be from two to five years. In this case, the FCC would be required by statute to issue a final decision within a year of the filing of a complaint; or in exceptional cases, within fifteen months. 47 U.S.C. §§ 208 (b)(2), 201 (b)(1).
The present litigation has been on-going for only several months. Moreover, plaintiff recognized in the proceedings before the Oklahoma court that the FCC had to resolve the underlying merits of the current dispute. However, it nevertheless decided to voluntarily dismiss the action in Oklahoma and institute a fundamentally similar one in this jurisdiction. Consequently, plaintiff has contributed to the delay and expense associated with the resolution of this controversy that it is seeking to prevent.
III. Plaintiffs' Request for Injunctive Relief16
Having concluded that the invocation of the doctrine of primary jurisdiction is appropriate; the court further concludes that it shall not entertain plaintiffs' request for injunctive relief. The court so concludes because to engage in an analysis of whether injunctive relief should issue in this case, would require the court to analyze the underlying merits of the case, thereby encroaching into the FCC's primary jurisdiction. "This is precisely what the doctrine of primary jurisdiction is designed to avoid." Atchison, T. & S.F. Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 821, 37 L. Ed. 2d 350, 93 S. Ct. 2367 (1973); see also MCI Communications Corp. v. AT&T, 496 F.2d 214 (3d Cir. 1974); Mical Communications, Inc. v. Sprint Telemedia, Inc., 1 F.3d 1031 (10th Cir. 1993). The issuance of an injunction pending further agency action may indicate the court's opinion on the viability and legal validity of plaintiffs' claims -- a result that should be avoided.
Moreover, plaintiffs do not dispute the fact that they are free to seek injunctive relief from the FCC. Section 4 (i) of the Communications Act, 47 U.S.C. § 154 (i), provides that the FCC may issue "such orders, not inconsistent with this [Act], as may be necessary in the execution of its functions." 47 U.S.C. § 154 (i). This section has been interpreted by the Supreme Court as allowing the FCC to grant interim relief. U.S. v. Southwestern Cable Co., 392 U.S. 157, 180, 88 S. Ct. 1994, 20 L. Ed. 2d 1001 (1968). In addition, the FCC has, in the past, applied the same standard as this circuit in assessing requests for preliminary injunctions. That is, the moving party must show: a substantial likelihood of success on the merits; that relief is necessary to prevent irreparable harm; that temporary relief will not substantially harm other interested parties; and that temporary relief will be in the public interest. See Order, Participation by COMSAT Corp. in a New Imarsat Satellite Sys., 10 FCC Rcd. 1061 (1995) (citing Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841 (D.C.Cir. 1977); Memorandum Opinion and Order, Business Wats, Inc. v. AT&T, 7 FCC Rcd. 7942 (1992); Memorandum Opinion and Order, Whitney Cablevision v. Southern Indiana Gas & Elec. Co., 1984 FCC LEXIS 1629 (FCC Nov. 16, 1984).
Lastly, the court concludes that no useful purpose would ensue by the retention of jurisdiction in this case. "The primary jurisdiction doctrine allows a district court to dismiss, or stay, an action over which it has subject matter jurisdiction." AT&T v. MCI Communications Corp., 837 F. Supp. 13, 16 (D.D.C. 1993); see also Allnet Communication Service, Inc., 965 F.2d at 1120. The central claims in this case are those which allege violations of the Communications Act and which lie within the FCC's primary jurisdiction.
The remaining claims are for breach of contract, intentional interference with business relations, and quantum meruit. These claims are fundamentally premised on the central claims; and are thus incidental in nature. See Far East Conf. v. United States, 342 U.S. 570, 577, 96 L. Ed. 576, 72 S. Ct. 492 (1952). Plaintiffs' breach of contract claim is dependent upon the validity of TTS's tariff. The viability of the intentional interference of business relations claim depends upon the appropriateness of AT&T's decision not to interconnect its services with those of TTS. Similarly, plaintiffs' quantum meruit claim depends upon the FCC's determination of the validity and reasonableness of TTS's tariff and practices. The entire dispute will therefore be resolved by the FCC and as such the court finds no reason to hold the lawsuit in abeyance.
Accordingly, this action shall be dismissed.
Resolution of the issues before the court by the FCC, the agency charged by Congress with regulating the telecommunications industry, will promote uniformity of regulation of the telephone industry and prevent the possibility of inconsistent results. Since agency referral is appropriate, the court declines to entertain plaintiffs' request for injunctive relief in order to avoid encroaching upon the province of the FCC by engaging in an analysis of the underlying merits of this action. The court further concludes that holding this action in abeyance is unnecessary under the circumstances of this case and therefore this action is dismissed.
Accordingly, pursuant to this court's order dated February 29, 1996,
(1) Defendant's Motion to Refer this Case to the Federal Communications Commission is hereby granted;
(2) Plaintiffs' Motion for a Preliminary Injunction is hereby denied;