Great Lakes Communication Corporation v. AT&T Corp

Filing 236

OPINION and ORDER: Denying 232 Motion to Vacate Primary Jurisdiction Referral and Stay: See text of Order for further information. Signed by Judge Mark W Bennett on 11/20/18. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
GREAT LAKES COMMUNICATION
CORPORATION,
No. C 13-4117-MWB
Plaintiff/Counterclaim
Defendant,
vs.
AT&T CORPORATION,
Defendant/Counterclaimant.

OPINION AND ORDER
REGARDING PLAINTIFF’S
MOTION TO VACATE PRIMARY
JURISDICTION REFERRAL AND
STAY

___________________________
This case, involving a billing dispute between two telecommunications companies,
plaintiff Great Lakes Communications Corporation (GLCC), a “competitive local
exchange carrier” or CLEC, and defendant AT&T Corporation (AT&T), an
“interexchange carrier” or IXC, is before me on GLCC’s October 15, 2018, Motion To
Vacate Primary Jurisdiction Referral And Stay. GLCC requests that I withdraw my June
29, 2015, order (Referral Order), which referred certain issues to the FCC, pursuant to
the agency’s “primary jurisdiction,” and vacate the accompanying stay of the proceedings
in this court. AT&T argues that the reasons for the referral remain and that the FCC is
actively considering the matter, so that the referral and stay should continue.
More specifically, in support of its Motion To Vacate, GLCC contends that it has
been more than 32 months since the FCC was first informed of the referral and 21 months
since briefing was completed in the FCC proceedings, yet the FCC has taken no action
to resolve the referred issues. GLCC argues that AT&T has unnecessarily delayed the
proceedings before the FCC by injecting issues that I refused to refer based on a specious

argument that they had been “referred” by the judge to whom this case was previously
assigned; dragging its feet for six months before filing its Formal Complaint; insisting on
discovery of the improperly injected issues, even though this case was referred just weeks
before trial; and insisting that the FCC bifurcate liability and damages proceedings.
GLCC contends that the FCC then failed to decide the referred questions in a timely
manner, contrary to a statutory deadline and a regulatory “shot clock” intended to speed
up the disposition of the FCC’s proceedings. GLCC argues that the FCC has simply
taken an unreasonable amount of time without issuing any ruling. GLCC appends that
its request to vacate the referral and lift the stay is “in light of” my announcement that I
will be retiring from the bench in early 2019, and GLCC wants this case brought to a
close before I retire rather than transferred to another judge.
In response, AT&T argues that I correctly determined that various issues should
be decided by the FCC, not by a jury, the referred issues strongly implicate the purposes
of primary jurisdiction, and the FCC has indicated—in response to GLCC’s one and only
inquiry about the status of the administrative proceedings—that it is actively considering
the issues, so that I should not now lift the stay. Rather, AT&T argues that referring
courts generally stay their hand until the resulting administrative action is final, because
vacating a stay once the agency has actually undertaken to decide the issue creates more
than a theoretical danger of actual conflict between agency and judicial decisions. Indeed,
AT&T points out that very few of the cases on which GLCC relies ultimately support
vacating the referral or lifting the stay, where the agency is actually proceeding on the
referral. AT&T also disputes GLCC’s contention that the agency proceedings have been
unduly delayed, pointing out that GLCC delayed the start of those proceedings by
pursuing a motion for reconsideration, an appeal, and an action for mandamus, all of
which were frivolous, in response to my referral, and that GLCC insisted that AT&T not
initiate formal agency proceedings until after the appeals ran their course.
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AT&T

contends that it did not unduly delay the filing of its Formal Complaint, because of the
“fact pleading” requirements for that pleading before the agency. AT&T also points out
that GLCC has never formally moved for the FCC to adhere to the statutory time limit
that GLCC contends is applicable (and AT&T contends is not) or for application of any
“shot clock” and, indeed, has not complained to the FCC about allegedly undue delay in
the proceedings or the issuance of a decision.

AT&T also argues that recent

developments, both judicial and regulatory, support maintaining the stay, but if I decide
to move forward with proceedings in this court, I should address all the issues that the
FCC is considering based on AT&T’s Formal Complaint.
In reply, GLCC disputes AT&T’s contention that there were two referral orders,
when the first order identified by AT&T, by the prior judge assigned to this case,
dismissed Counts II and III of AT&T’s Counterclaim on “primary jurisdiction” grounds,
instead of referring any issues to the FCC. GLCC also contends that it asserted in a
procedural conference with the FCC’s Enforcement Bureau that the five-month statutory
deadline applied, but the FCC has never ruled on the applicability of the deadline. GLCC
also disputes that there are any subsequent developments that support maintaining the
stay, because the FCC decisions to which AT&T points have no impact on the issues I
referred to the FCC in this case. GLCC also reiterates that Eighth Circuit precedent
establishes that a court retains the discretion to vacate its referral when an agency fails to
act on the referred issues within a reasonable period of time.
I do not find substantial guidance from any decision in this Circuit concerning
whether and when a district court should withdraw from a proper administrative agency
a referral on “primary jurisdiction” grounds. Certainly, Charter Advanced Servs. (MN),
L.L.C. v. Lange, 903 F.3d 715 (8th Cir. 2018), on which GLCC relies, is not such a
decision. Indeed, in that case, the court did not even consider withdrawal of a referral.
Rather, in the part of the decision cited by GLCC, the court stated the following:
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We note that while the FCC would be able to announce a
classification decision regarding VoIP, it has so far declined
to do so. See, e.g., USF-ICC Transformation Order, 26
F.C.C.R. 17663, 18013-14 ¶ 954 (2011) (explaining that “the
Commission has not classified interconnected VoIP services
or similar one-way services as ‘telecommunications services’
or ‘information services’”) (footnote omitted). We sometimes
stay our hand “while seeking the guidance of an
administrative agency’s perceived expertise” when resolving
a question concerning a statute ordinarily interpreted by the
agency. See Owner-Operator Indep. Drivers Ass’n, Inc. v.
New Prime, Inc., 192 F.3d 778, 785 (8th Cir. 1999)
(discussing the doctrine of primary jurisdiction). Here the
agency has “decline[d] to provide guidance” for well over a
decade, so that we may, in our discretion, proceed “according
to [our] own light.” Id. (quoting Atchison, Topeka & Santa
Fe Ry. v. Aircoach Transp. Ass’n, 253 F.2d 877, 886 (D.C.
Cir. 1958)).
Charter Advanced Servs., 903 F.3d at 720 n.3. Thus, if anything, this part of Charter
Advanced Services explains that the district court may decline to refer a matter to an
agency in the first instance if the agency has had prior opportunities to address the issue,
but the agency has not done so. The procedural footing as to both agency action on
pertinent issues and the case before the court, here, are quite deferent, where the agency
had never declined to address the pertinent issues, and I have already referred the issues
to the FCC.
Another decision cited by GLCC, American Automobile Manufacturers
Association v. Massachusetts Department of Environmental Protection, 163 F.3d 74 (1st
Cir. 1998), also does not address withdrawal of a “primary jurisdiction” referral that a
court had already made based on unreasonable delay by the agency. Rather, it actually
states, “a court might refer a matter to an administrative agency, explicitly providing,
however, that if the agency fails to rule within a reasonable amount of time, the court
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would either vacate the referral order and decide the matter itself. . . .” 163 F.3d at 82
(emphasis added). There is also considerable validity to AT&T’s observation that only
a very few of the other cases cited by GLCC can possibly or plausibly be read to support
withdrawal of a referral where an agency has actually undertaken to decide the issues
referred. I simply find no substantial support in the case law for withdrawing a “primary
jurisdiction” referral after a district court has actually referred issues to the agency.
Assuming, nevertheless, that I retain the discretion to withdraw a referral, where
I had discretion to decide whether to refer issues in the first place, GLCC’s strident
complaints of undue delay by AT&T and the FCC ring rather hollow, here. GLCC also
initially delayed prompt initiation of the FCC’s proceedings on referral and the record
does not demonstrate that GLCC has made any formal motion for a ruling by the FCC
on the applicability of the time limits on agency decision-making that GLCC now relies
on or even regular requests for a status conference or an indication of the status of the
FCC’s proceedings.
Moreover, I remain convinced that the reasons for referral of issues in this case to
the FCC under its “primary jurisdiction” still exist. As I noted in my referral order, the
Eighth Circuit Court of Appeals has explained,
Primary jurisdiction “is a doctrine specifically applicable to
claims properly cognizable in court that contain some issue
within the special competence of an administrative agency. It
requires the court to enable a ‘referral’ to the agency, staying
further proceedings so as to give the parties reasonable
opportunity to seek an administrative ruling.” Reiter v.
Cooper, 507 U.S. 258, 268, 113 S.Ct. 1213, 122 L.Ed.2d
604 (1993). The doctrine “is concerned with promoting
proper relationships between the courts and administrative
agencies charged with particular regulatory duties.” United
States v. W. Pac. R.R. Co., 352 U.S. 59, 63, 77 S.Ct. 161,
1 L.Ed.2d 126 (1956). Primary jurisdiction “promotes
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uniformity, consistency, and the optimal use of the agency’s
expertise and experience.” [United States v.] Henderson, 416
F.3d [686,] 691 [(8th Cir. 2005)].
United States v. Rice, 605 F.3d 473, 475 (8th Cir. 2010). The one decision of the Eighth
Circuit Court of Appeals in the interim since my referral order to consider referral to any
significant degree is not to the contrary. See, e.g., Chlorine Inst., Inc. v. Soo Line R.R.,
792 F.3d 903, 909 (8th Cir. 2015). The considerations stated in Rice still apply, perhaps
even more so, where the agency has actually undertaken to decide the referred issues, as
it has in this case. To pull the matter away from the agency, when the only indication is
that the agency is actively considering the issues, would fly in the face of promoting
proper relationships between the courts and administrative agencies, uniformity,
consistency, and the optimal use of the agency’s expertise and experience. Rice, 605
F.3d at 475.
So, what has changed? Only the passage of time while the agency has been
considering the matter and the announcement of my retirement from the bench. As to
the passage of time, I recognized in my Referral Order that referral on “primary
jurisdiction” grounds presented the possibility—even probability—of added expense and
delay, but that did not outweigh the reasons for referral of issues to the FCC. Referral
Order, 13 (citing Alpharma, Inc. v. Pennfield Oil Co., 411 F.3d 934, 938 (8th Cir. 2005),
which explained that “[t]he doctrine is to be invoked sparingly, as it often results in added
expense and delay” (internal quotation marks and citation omitted)). The delay, here,
has not so far exceeded reasonable expectations as to outweigh the reasons for the
referral. Furthermore, my imminent retirement is no reason for an abrupt withdrawal of
the referral. As I also pointed out in my referral order, the Supreme Court has never
identified judicial economy as a relevant factor in the determination of whether referral
is appropriate, notwithstanding the delay. Referral Order at 8 (citing Ellis v. Tribune
Television Co., 443 F.3d 71, 90 (2d Cir. 2006)). There are judges who will still be
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active in this district who are every bit as able to preside over this case as I have ever
been.
THEREFORE, GLCC’s October 15, 2018, Motion To Vacate Primary
Jurisdiction Referral And Stay (docket no. 232) is denied.
IT IS SO ORDERED.
DATED this 20th day of November, 2018.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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