United States District Court, District of Columbia
February 10, 2000
CURT HIMMELMAN, PLAINTIFF,
MCI COMMUNICATIONS CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Urbina, District Judge.
Granting the Defendant's Motion to Dismiss without Prejudice
Pursuant to the Doctrine of Primary Jurisdiction
This purported class action is before the court upon the
defendant's motion to dismiss
pursuant to the doctrine of primary jurisdiction, among other
grounds. For the reasons which follow, the court will grant the
motion and dismiss the amended complaint without prejudice.
The plaintiff, Curt Himmelman, is a New Jersey resident who
subscribes to telephone service provided by the defendant, MCI
Communications Corporation ("MCI"). See Compl. ¶ 4. MCI is a
telecommunications corporation that maintains its executive
offices and national headquarters in Washington, D.C. Id. ¶ 5.
The plaintiff initiated this putative class action against MCI
by filing a complaint in the Superior Court of the District of
Columbia, Civil Division, see Compl. ¶ 3, but MCI removed the
case to this court. Pursuant to Federal Rule of Civil Procedure
23(a), (b)(2) and (b)(3), the plaintiff's amended complaint
proposes to litigate on behalf of a class consisting of all
persons who have used MCI's directory-assistance service, with
the exception of MCI employees, from August 13, 1993 through and
including the date that MCI ends the practices complained
The complaint alleges that MCI has violated and continues to
violate the tariffs it has filed with the Federal Communications
Commission ("FCC") pursuant to the Federal Communications Act of
1934, 47 U.S.C. § 1515 et seq., as amended ("the Act").
Specifically, FCC Tariffs require MCI to provide up to two
requests for listings within the area code dialed on each call to
Directory Assistance. For each such call, the FCC Tariffs permit
MCI to charge $1.40. FCC Tariff No. 1, 4th Revised Page No. 18.12
section C.3, effective March 1, 1999, provides, in pertinent
02117 Directory Assistance * * *
.021171 For customers who access Directory
Assistance by dialing Area Code 555-1212, an
undiscountable charge of $1.40 per call will be
applied to each call requesting Directory Assistance
for numbers in the U.S. mainland. . . . * * * The
Directory Assistance Operator will search for up to
two numbers per call.
Mot. to Dis., Ex. 1 (emphasis added). The plaintiff does not
challenge the provisions of these tariffs, including the rate of
$1.40 per directory assistance call. See Compl. ¶¶ 2, 15.
Rather, the plaintiff alleges that "MCI, by means of
manipulative, unfair and deceptive acts, prevents, hinders and
impedes its customers from availing themselves" of their right to
request a second telephone number during the same call to
directory assistance. See Compl. ¶¶ 2, 14. In order to spare
itself time and expense, the plaintiff charges, MCI responds to
directory-assistance calls with the questions, "For what city,
please?" and "What listing?" See Compl. ¶ 16. Each of these
questions unfairly misleads the customer into believing that he
will have an opportunity to request a second number after he
receives a response to his first request. See Compl. ¶ 17.
Moreover, MCI never affords the customer an opportunity to
request a second number. Id. Lastly, the plaintiff charges that
MCI refuses to provide a credit to customers who learn that they
are entitled to two numbers per call and who would request a
second number if not prevented from doing so by MCI's
manipulative procedures. See Compl. ¶ 20.
The plaintiff demands a jury trial and asserts six causes of
action: Count 1, breach of contract, see Compl. ¶¶ 22-29;
Count 2, violation of the D.C. Consumer Fraud Act, D.C.Code §
28-3901 et seq., see Compl. ¶¶ 30-39; Count 3, common-law
fraud, see Compl. ¶¶ 40-48; Count 4, negligent
misrepresentation, see Compl. ¶¶ 49-58; Count 5, violation of
the Federal Communications Act section 201(b), see Compl. ¶¶
59-65; and Count 6, a request for injunctive relief, see
Compl. ¶¶ 66-69.
Subsequently, MCI filed the instant motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim on which relief can be granted, and pursuant to the
doctrine of primary jurisdiction. For the reasons which follow,
the court will dismiss the amended complaint, without prejudice,
pursuant to the doctrine of primary jurisdiction. Accordingly,
the court declines to reach the other grounds for dismissal
asserted in the defendant MCI's motion to dismiss.
A. Legal Standard for Motion to Dismiss under Rule 12(b)(6)
A motion to dismiss for failure to state a claim upon which
relief can be granted tests not whether the plaintiff will
prevail on the merits, but instead whether or not he has properly
stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94
S.Ct. 1683, 40 L.Ed.2d 90 (1974); Fed. R.Civ.P. 12(b)(6). The
court may dismiss a complaint for failure to state a claim only
if it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations. See
Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81
L.Ed.2d 59 (1984); Atchinson v. D.C., 73 F.3d 418, 421
(D.C.Cir. 1996). In deciding such a motion, the court must accept
as true all wellpleaded factual allegations and draw all
reasonable inferences in favor of the plaintiff. See Maljack
Prods. v. Motion Picture Ass'n, 52 F.3d 373, 375 (D.C.Cir.
1995). The court need not, however, accept as true the
plaintiff's legal conclusions. See Taylor v. F.D.I.C.,
132 F.3d 753, 762 (D.C.Cir. 1997). Nor need the court accept unsupported
assertions, unwarranted inferences or sweeping legal conclusions
cast in the form of factual allegations. See Miree v. DeKalb
County, 433 U.S. 25, 27, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977).
The court may consider the allegations of the complaint,
documents attached to or specifically referred to in the
complaint, and matters of public record. See 5A Charles A.
Wright & Arthur R. Miller, Federal Practice & Procedure § 1357
at 299 (2d ed. 1990).
B. Whether this Court Should Defer to the FCC Pursuant to the
Doctrine of Primary Jurisdiction
In addition to his nominally state-law causes of action, Mr.
Himmelman contends that MCI's practices constitute an "unjust and
unreasonable practice" within the meaning of the Federal
Communications Act ("the FCA"). See Am. Compl. Count V. The FCA
provides, in pertinent part, "All charges, practices,
classifications and regulations for and in connection with [a]
communication service, shall be just and reasonable, and any such
charge, practice, classification, or regulation that is unjust or
unreasonable is declared to be unlawful." 47 U.S.C. § 201(b). The
FCA creates a cause of action on behalf of any person who claims
that he has been damaged by a common carrier, such as MCI. See
47 U.S.C. § 207. Such an aggrieved individual may elect to file a
complaint with the FCC, or he may commence an action in any
United States district court, but he may not pursue both remedies
simultaneously. See 47 U.S.C. § 207; Richman Brothers Records,
Inc. v. U.S. Sprint Communications Co., 953 F.2d 1431, 1435-36
(3d Cir. 1991).
MCI asks this court to dismiss Mr. Himmelman's amended
complaint pursuant to the doctrine of primary jurisdiction "so
that the FCC can determine whether the manner in which MCI . . .
provide[s] directory assistance services is just and reasonable."
See Defendant MCI's Motion to Dismiss the Amended Complaint
("Mot. to Dis.") at 22.
The primary-jurisdiction doctrine originated with Mr. Justice
White in Texas & Pacific R. Co. v. Abilene Cotton Oil Co.,
204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907). See United States
v. Radio Corp. of America, 358 U.S. 334, 346, 79 S.Ct. 457, 3
L.Ed.2d 354 (1959). "Primary jurisdiction is invoked in
situations where the
courts have jurisdiction over the claim from the very outset but
it is likely that the case will require resolution of issues
which, under a regulatory scheme, have been placed in the hands
of an administrative body." Total Telecommunications Services,
Inc. v. AT & T, 919 F. Supp. 472, 478 (D.D.C. 1996) (quoting
Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1376 (10th
Cir. 1989)). "The primary jurisdiction doctrine is premised on a
desire for uniform outcomes and on the inherent advantage in
allowing an agency, in this case the FCC, to apply its expert
judgment to the issues in dispute."*fn2 Total
Telecommunications, 919 F. Supp. at 478. 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 v.
AT & T, 496 F.2d 214, 220 (3d Cir. 1974); see also Allnet
Communication Service, Inc. v. National Exchange Carrier Ass'n.,
965 F.2d 1118, 1120 (D.C.Cir. 1992) ("Expertise, of course, is
not merely technical but extends to the policy judgments needed
to implement an agency's mandate.").
Although there is no fixed formula for determining whether to
apply the doctrine of primary jurisdiction, see United States v.
Western Pacific R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1
L.Ed.2d 126 (1956), the courts traditionally have considered four
factors: (1) whether the question at issue is within the
conventional expertise of judges; (2) whether the question at
issue lies particularly within the agency's discretion or
requires the exercise of agency expertise; (3) whether there
exists a substantial danger of inconsistent rulings; and (4)
whether a prior application to the agency has been made. Total
Telecommunications, 919 F. Supp. at 478; AT & T v. MCI,
837 F. Supp. 13, 16 (D.D.C. 1993); accord AT & T v. People's
Network, 1993 WL 248165 (D.N.J. 1993).*fn3 The primary
jurisdiction doctrine "may be applicable even if the questions
raised in a case are within the ordinary experience of the
judiciary." Total Telecommunications, 919 F. Supp. at 478;
accord MCI v. AT & T, 496 F.2d 214, 223 (3d Cir. 1974); IPCO
Safety Corp. v. WorldCom, Inc., 944 F. Supp. 352, 355-56 (D.N.J.
As to the first of the four elements of primary jurisdiction,
the doctrine emphasizes that the court should defer to the
appropriate specialized agency in cases that require
administrative expertise and raise "issues of fact not within the
conventional experience of judges." See Far East Conference v.
United States, 342 U.S. 570, 574, 72 S.Ct. 492, 96 L.Ed. 576
(1952). The courts have not hesitated, in appropriate cases, to
defer to the expertise of administrative agencies such as the
FCC. See, e.g., MCI v. AT & T, 496 F.2d 214, 220-21 (3d Cir.
1974); Carter v. AT & T, 365 F.2d 486, 497-98 (5th Cir. 1966);
Alltel Tennessee v. Tennessee Pub. Serv. Comm'n., 913 F.2d 305,
309-310 (6th Cir. 1990); People's Telephone Coop. v.
Southwestern Bell, 399 F. Supp. 561 (E.D.Tex. 1975).
Broadly speaking, the FCC is the administrative agency that
possesses the requisite specialized experience and expertise in
the field of telecommunications. See AT & T v. PAB, Inc.,
935 F. Supp. 584, 590
(E.D.Pa. 1996). "[T]here is no doubt that a determination of the
reasonableness or discriminatory nature of common carrier rules
and charges is squarely at the heart of the FCC's mandate. . . ."
Ambassador v. United States, 325 U.S. 317, 324, 65 S.Ct. 1151,
89 L.Ed. 1637 (1945); accord National Communications Ass'n v. AT
& T, 46 F.3d 220, 223 (2d Cir. 1995); In re Long Distance
Telecomm. Lit., 831 F.2d 627, 632 (6th Cir. 1987); MCI v.
Ameri-Tel, Inc., 852 F. Supp. 659, 665 (N.D.Ill. 1994). Sprint
Corp. v. Evans, 846 F. Supp. 1497, 1508 (M.D.Ala. 1994). Indeed,
the FCC was created by Congress specifically to enforce the
provisions of the Communications Act of 1934. See AT & T v. IMR
Capital Corp., 888 F. Supp. 221, 224 (D.Mass. 1995).
Nor is the FCC's authority and expertise limited to the
evaluation of rates. Rather, "[i]ts supervisory powers extend to
a carrier's `charges, practices, classifications and
regulations.'" Total Telecommunications, 919 F. Supp. at 478
(citing 47 U.S.C. § 201(b)). Of course, the FCC's evaluation of
carriers' charges and practices is not merely advisory: "The FCC
has the authority not only to determine the reasonableness of
rates and practices, but also to grant relief to those victimized
by unreasonable rates and practices." AT & T v. PAB, Inc.,
935 F. Supp. 584, 590 (E.D.Pa. 1996). "The Communications Act's
prohibition of `unreasonable', `unjust' and `discriminatory'
practices is a contentless injunction, which essentially invites
the FCC to promulgate specific polices governing the practices of
the telecommunications industry." AT & T v. IMR Capital Corp.,
888 F. Supp. 221, 224 (D.Mass. 1995). If the FCC determines that
the carriers' directory-assistance procedures are not reasonable
and do not comport with the tariff, it may order specific changes
in those procedures. See 47 U.S.C. § 205 ("the Commission is
authorized and empowered to determine and prescribe . . . what .
. . practice is or will be just, fair, and reasonable, to be
thereafter followed. . . .").
Moreover, the rationale for the wide scope of the FCC's
authority is material to the court's consideration of whether to
defer to the agency in this case. As this court has observed, the
"powers granted to the FCC are a reflection of Congress'
intention that one government entity be vested with the
responsibility of developing, coordinating and enforcing a
uniform telecommunications policy." Total Telecommunications,
919 F. Supp. at 478; accord AT & T v. Ameritech, 1998 WL 325242,
*3 (N.D.Ill. 1998).
Consistent with this Congressional policy, the courts have
routinely deferred to the FCC's unique expertise in disputes
involving tariff interpretations. See Nader v. Allegheny
Airlines, 426 U.S. 290, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976)
(deference to agency is appropriate where an action otherwise
within the court's jurisdiction "raises a question of the
validity of a . . . practice included in a tariff filed with an
agency"); Ambassador, Inc. v. United States, 325 U.S. 317, 324,
65 S.Ct. 1151, 89 L.Ed. 1637 (1945); Allnet Communication
Service, Inc. v. National Exchange Carrier Ass'n.,
965 F.2d 1118, 1120 (D.C.Cir. 1992). The court finds that Mr. Himmelman's
disagreement with MCI constitutes just such a dispute. The
Communications Act provides that carriers such as MCI may file
tariffs with the FCC setting forth their charges and practices,
see 47 U.S.C. § 203(a), and such tariffs define the terms and
conditions upon which a carrier must provide interstate services.
See Western Union v. Esteve Brothers, 256 U.S. 566, 41 S.Ct.
584, 65 L.Ed. 1094 (1921); MCI v. FCC, 765 F.2d 1186, 1194-95
(D.C.Cir. 1985). The crux of the instant dispute is whether MCI
has acted justly, reasonably and honestly in establishing
procedures to effectuate the terms of its FCC
directory-assistance tariff. Namely, Mr. Himmelman alleges that
MCI has violated section 201(b) of the Act, which prohibits
charges or practices that are "unjust or unreasonable." He
alleges, inter alia, that MCI
interprets Tariff No. 1, 18.12 Section C3 unreasonably by failing
to inform directory assistance callers at the beginning of the
call that they are entitled to two numbers for the $1.40 they are
charged.*fn4 In other words, Mr. Himmelman effectively argues
that MCI's interpretation of its obligations under the tariff is
unreasonable — i.e., he contends that the procedures MCI uses to
implement the tariff are unjust and unreasonable.*fn5 This is
significant, because "[t]he FCC has primary jurisdiction over
claims that tariffs and/or practices are not just and
reasonable." Total Telecommunications, 919 F. Supp. at 480
Moreover, the dispute between Mr. Himmelman and MCI is also
fairly characterized as a dispute over tariff interpretation in a
second respect. MCI contends that under its FCC
directory-assistance tariff, the only customers who may recover
in a billing dispute are those who give the carrier written
notice of the dispute within six months of the issuance of the
disputed invoice. See Mot. to Dis. at 25. MCI further argues
that Mr. Himmelman's proposed class definition "is directly at
odds with the Tariff," because the proposed class would include
customers who failed to give MCI the required written
notice.*fn6 See Mot. to Dis. at 25. Without expressing any
opinion on the merit of MCI's argument on this score, the court
notes that resolution of the instant dispute may require
interpretation of the tariff on one of several points: whether
the tariff actually contains the limitation as stated by MCI;
whether the notice requirement applies to claims such as Mr.
Himmelman's, i.e., whether his dispute is a "billing dispute";
and whether he adequately complied with the requirement of notice
to the carrier.
This court has previously held that in addition to disputes
over tariff interpretation, "[q]uestions involving standard
industry practices should also be entertained by the FCC." Total
Telecommunications, 919 F. Supp. at 480. This principle also
militates in favor of deferring to the FCC as to the justness and
reasonableness of MCI's procedures for implementing its FCC
directory-assistance tariff. This is so because plaintiff's
counsel has not contended that the directory-assistance practices
complained of here are peculiar to MCI. Rather, plaintiff's
counsel also filed an action
in the U.S. District Court for the District of New Jersey,
alleging that another major telecommunications provider, AT & T,
uses very similar practices to implement its FCC
directory-assistance tariff. See Mot. to Dis., Ex. 4. As Mr.
Himmelman says of MCI, the New Jersey plaintiffs allege that AT &
T begins a directory-assistance call with the question "What
city, please" followed by "What listing, please?" See Ex. 4 at
¶¶ 16-17. Again mirroring Mr. Himmelman's allegations against
MCI, the New Jersey plaintiffs further allege that "AT & T
provides no means for the customer to request an additional
listing during that same call." See Ex. 4 at ¶ 18. Cf. Am.
Compl. ¶¶ 16-17. Consequently, consumers have challenged the
general industry practice for implementing the
two-number-per-call tariff, not just a single carrier's own
The fact that consumers have challenged carriers'
interpretation of, and compliance with the directory-assistance
tariff in more than one forum also poses the risk of inconsistent
rulings by different courts, or by this court and the FCC. See
Nader v. Allegheny Airlines, 426 U.S. 290, 303-304, 96 S.Ct.
1978, 48 L.Ed.2d 643 (1976) (one rationale for primary
jurisdiction is to promote uniformity and consistency within each
field of regulation). Neither the FCC nor any appellate court has
had the opportunity to decide the reasonableness of the carriers'
interpretation of what the directory-assistance tariff requires.
Contrast MCI v. Gorman, Wells, 761 F. Supp. 124, 126 (S.D.Fla.
1991) (court denied defendant's motion to refer matter for FCC to
decide continuing viability of the filed-rate doctrine, since
that question was "established" due to a recent Supreme Court
decision). Deferring to the FCC here will enable the agency to
write on a clean slate — providing a resolution which applies
uniformly to all telecommunications carriers and consumers, with
no unpredictability or variation from one district to another.
In short, the court has considered the factors essential to the
primary-jurisdiction inquiry and concludes that they favor
deference to the FCC. Under circumstances like those presented
here, "It is hardly surprising that courts have frequently
invoked primary jurisdiction in cases involving tariff
interpretations. . . ."*fn7 Total Telecommunications, 919
F. Supp. at 480 (quoting Allnet Communication Service, 965 F.2d
The primary jurisdiction doctrine allows a district court to
dismiss, or stay, an action over which it has subject-matter
jurisdiction. See Total Telecommunications, 919 F. Supp. at 483;
AT & T, 837 F. Supp. at 16; accord Access Telecommunications v.
Southwestern Bell Telephone Co., 137 F.3d 605, 608 (8th Cir.
1998). In general, when primary jurisdiction lies with an
administrative agency, this court will stay the proceedings in
front of it rather than dismiss the suit. See American Ass'n. of
Cruise Passengers v. Cunard Line, Ltd., 31 F.3d 1184, 1187
(D.C.Cir. 1994).*fn9 "However, dismissal may be warranted
in some cases, particularly where no party is prejudiced
thereby." Montgomery Environmental Coalition v. Washington
Suburban Sanitary Commission, 607 F.2d 378, 383 (D.C.Cir. 1979)
(affirming district court's decision to dismiss rather than stay
pursuant to primary jurisdiction) (citing United States v.
Michigan National Corp., 419 U.S. 1, 4-5, 95 S.Ct. 10, 42
L.Ed.2d 1 (1974)); see also Total Telecommunications, 919
F. Supp. at 483 (dismissal is appropriate when "no useful purpose
would ensure by the retention of jurisdiction"). This principle
has been invoked by this court and other federal courts which
have deferred to the primary jurisdiction of the FCC. See, e.g.,
Total Telecommunications, 919 F. Supp. at 483; Citibank v.
Graphic Scanning, 618 F.2d 222, 224 (2d Cir. 1980); In re Long
Distance Telecommunications Lit., 647 F. Supp. 78, 79 (E.D.Mich.
1986) ("The court has previously dismissed seventeen similar
lawsuits in deference to the Federal Communications Commission
(FCC) under the doctrine of primary jurisdiction and finds such
action appropriate in this case as well."); Western Union Tel.
Co. v. Graphic Scanning Corp., 360 F. Supp. 593, 596 (S.D.N Y
In the instant case, there is no reason to believe Mr.
Himmelman cannot obtain adequate relief from the FCC.*fn10 As
discussed above, the FCC is empowered to decide what carrier
practices are "just and reasonable." See 47 U.S.C. § 201(b).
Specifically, the FCC has the authority and expertise to
determine whether carriers' current procedures for implementing
the directory-assistance tariff are unjust or unreasonable, and
it can award relief on all Mr. Himmelman's claims if he
establishes liability. See 47 U.S.C. § 207. For instance, the
Federal Communications Act provides, in part,
In case any common carrier shall do, or cause or
permit to be done, any act, matter, or thing in this
chapter prohibited or declared to be unlawful, or
shall omit to do any act, matter, or thing in this
chapter required to be done [such as providing two
numbers per call to directory assistance], such
common carrier shall be liable to the person for the
full amount of damages sustained in consequence of
any such violation of the provisions of this chapter,
together with a reasonable counsel or attorney's fee,
to be fixed by the court in every case of recovery,
which attorney's fee shall be taxed and collected as
part of the costs in the case.
47 U.S.C. § 206. The FCC has the authority to order a carrier to
pay such damages and costs to the petitioner by a date certain.
See 47 U.S.C. § 209.
Lastly, the court also has considered that its discretion to
dismiss is appropriately exercised only where "the parties would
not be unfairly disadvantaged. . . ." See Reiter v. Cooper,
507 U.S. 258, 268, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993). Although
the plaintiff has not raised the issue of the statute of
court considers the issue sua sponte to ensure that the
plaintiff is not unduly prejudiced by dismissal. Because a
dismissal pursuant to primary jurisdiction does not toll the
statute of limitations, the court considered whether the
plaintiff could be unfairly foreclosed from seeking relief in
federal court after the FCC renders a decision on its claim
against MCI. The court concludes that dismissal will not lead to
a time bar on the plaintiff's ability to seek relief in federal
court. This is so because following this dismissal, the
plaintiff's next course of action regarding this tariff dispute
will be to petition directly to the FCC. See
47 U.S.C. § 208(a). Then, the FCC will be statutorily obligated to
investigate the complaint and issue an order within prescribed
time periods. See 47 U.S.C. § 208(a), § 208(b)(1) and
(2).*fn11 The FCC's order is then final and may be appealed.
See 47 U.S.C. § 208(b)(3). If either Mr. Himmelman or MCI
chooses to seek judicial review of the FCC's final order, it
would do so under 47 U.S.C. § 402(a), which provides that appeals
"shall be brought as provided by and in the manner prescribed in
chapter 158 of title 28." Thus, a party aggrieved by the FCC's
decision would file a petition for review in a court of appeals
wherein venue lies, within sixty days after entry of the FCC's
final order. See 28 U.S.C. § 2342(1) (jurisdiction of Court of
Appeals); 28 U.S.C. § 2343 (venue); 28 U.S.C. § 2344 (sixty-day
Therefore, the statute of limitations applicable to the
plaintiff's original action in this court will not be implicated,
and the plaintiff will not be unfairly disadvantaged by
dismissal.*fn12 See Access Telecommunications v. Southwestern
Bell, 137 F.3d 605, 608 (8th Cir. 1998) (district court did not
err in deferring to FCC and dismissing rather than staying action
pursuant to doctrine of primary jurisdiction).
For the foregoing reasons, the court finds it is appropriate to
defer to the FCC pursuant to the doctrine of primary
jurisdiction. Accordingly, the amended complaint will be
dismissed without prejudice.
An order directing the parties in a fashion consistent with
this Memorandum Opinion was executed and issued on the 31st day
of January, 2000. This Opinion is executed and issued on the 10th
day of February, 2000.