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Case Summary: Alltel Tennessee, Inc. et al. v. Tennessee Public Service Commission et al., No. 89-5832 (6th Cir. Sept. 10, 1990)

Factual and Procedural Background

Five small Tennessee telephone companies, which provide intrastate service under the Tennessee Public Service Commission (Tennessee Commission) and interstate service under the Federal Communications Commission (FCC), allocate operating costs between their intrastate and interstate operations for ratemaking purposes. Under FCC rules, carriers may allocate interstate costs either on a company-specific "cost basis" under 47 C.F.R. part 36 (separations studies) or by using an "average schedule" that applies generalized industry data.

The companies in this litigation used the average schedule for interstate cost allocation and requested that the Tennessee Commission allow them to use company-specific cost studies (the cost basis) for intrastate ratemaking. After an adjudicatory hearing, the Tennessee Commission rejected that request, held that the method used for interstate allocation must also be followed in state proceedings (i.e., intrastate and interstate both must be computed the same way), and stated it would continue to use the residual methodology to determine intrastate costs (subtracting interstate-allocated expenses from total costs, with the remainder deemed intrastate).

The telephone companies filed suit in the United States District Court for the Middle District of Tennessee (April 5, 1989), alleging that 47 C.F.R. part 36 and the FCC separations order preempt the Tennessee Commission's residual approach. They sought declaratory and injunctive relief. The district court dismissed the complaint on jurisdictional grounds and, alternatively, on Younger abstention grounds. The plaintiffs appealed.

Legal Issues Presented

  1. Whether the federal district court has subject matter jurisdiction under 28 U.S.C. § 1331 and § 1337 to adjudicate a claim that state ratemaking regulation is preempted by federal law.
  2. Whether a separations order promulgated by the FCC through a rulemaking (47 C.F.R. part 36) constitutes an "order" enforceable in federal court under 47 U.S.C. § 401(b), thus supporting jurisdiction to enforce that FCC order.
  3. Whether abstention under Younger v. Harris is appropriate in this case (i.e., whether the district court should refrain from deciding the federal preemption/enforcement claims because of ongoing state proceedings).
  4. Whether the doctrine of primary jurisdiction requires deferral to the FCC (and, if so, whether the case should be remanded or otherwise stayed/dismissed to permit FCC consideration of whether the Tennessee Commission's use of the residual methodology violates federal separations rules).

Arguments of the Parties

Plaintiffs-Appellants' Arguments

  • The telephone companies argued that 47 C.F.R. part 36 and the FCC separations order preempt state use of the residual approach for determining intrastate costs and therefore sought declaratory and injunctive relief enforcing the FCC separations rules.
  • They sought to apply company-specific cost separation studies (cost basis) for intrastate ratemaking, despite using the average schedule for interstate ratemaking.
  • The plaintiffs invoked federal jurisdiction and enforcement under 47 U.S.C. § 401(b) and federal question jurisdiction under 28 U.S.C. § 1331 and § 1337.

Defendants-Appellees' (and District Court's) Position

  • The Tennessee Commission maintained that the method used for interstate cost allocation should be mirrored in state ratemaking (i.e., intrastate and interstate costs must be calculated by the same method) and continued to apply the residual methodology.
  • The district court concluded that the Tennessee Commission's use of the residual methodology did not violate the FCC separations order and therefore held it lacked jurisdiction under 47 U.S.C. § 401(b) because the merits of a violation had not been established.
  • The district court also concluded it lacked federal question jurisdiction under 28 U.S.C. §§ 1331 and 1337, relying on its earlier ruling in Federal Express; alternatively, the court found Younger abstention appropriate because of ongoing state proceedings, a compelling state interest in ratemaking, and a fair opportunity to raise federal claims before the Tennessee Commission.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
N.A.R.U.C. v. FCC, 737 F.2d 1095 (D.C. Cir. 1984) Definition/description of the "average schedule" method for cost allocation. Used to explain what the average schedule method is and how some companies elect that method for interstate cost allocation.
Federal Express Corp. v. Tennessee Pub. Serv. Comm'n, 693 F. Supp. 598 (M.D. Tenn. 1988), rev'd, 878 F.2d 381 (6th Cir. 1989) District court precedent regarding federal jurisdiction over state regulation; earlier district court denial of jurisdiction later reversed. The district court in this case relied on its Federal Express decision to deny jurisdiction; the Sixth Circuit's reversal of Federal Express supports the conclusion that federal jurisdiction exists here under §§ 1331 and 1337.
CSXT, Inc. v. Pitz, 883 F.2d 468 (6th Cir. 1989) Support for federal subject matter jurisdiction in cases challenging state regulation as preempted by federal law. Cited as a basis for reversing the district court in Federal Express and establishing that subject matter jurisdiction exists here under §§ 1331 and 1337.
New England Tel. Tel. Co. v. Public Utils. Comm'n of Maine, 742 F.2d 1 (1st Cir. 1984) Holds that an FCC order resulting from rulemaking is not an "order" under 47 U.S.C. § 401(b). Presented as the circuit court view that disagrees with the majority; cited to note inter-circuit disagreement on whether rulemaking orders are enforceable under § 401(b).
Hawaiian Tel. Co. v. Public Utils. Comm'n, 827 F.2d 1264 (9th Cir. 1987) Holds that an FCC order arising from rulemaking can be an "order" under § 401(b). The Sixth Circuit adopted the Ninth Circuit's reasoning and found the FCC separations order (from rulemaking) to be an enforceable order under § 401(b).
Chesapeake & Potomac Tel. Co. v. Public Serv. Comm'n, 748 F.2d 879 (4th Cir. 1984) Treats FCC rulemaking-derived separations orders as potentially enforceable under § 401(b). Cited as part of the majority view among circuits that such rulemaking orders may be "orders" under § 401(b).
South Central Bell Tel. Co. v. Louisiana Pub. Serv. Comm'n, 744 F.2d 1107 (5th Cir. 1984) Similar treatment of separations orders as potentially enforceable under § 401(b). Included among circuit authorities supporting the conclusion that the separations order may be enforced under § 401(b).
Illinois Bell Tel. Co. v. Illinois Commerce Comm'n, 740 F.2d 566 (7th Cir. 1984) Similar principle regarding separations orders and § 401(b). Cited as additional circuit authority aligning with the majority view.
Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 738 F.2d 901 (8th Cir. 1984) Similar principle regarding separations orders and § 401(b). Cited as additional circuit authority in support of the majority view.
Younger v. Harris, 401 U.S. 37 (1971) Sets the abstention doctrine criteria for federal courts to refrain when there are ongoing state proceedings of a judicial nature. The district court applied Younger to abstain; the Sixth Circuit concluded Younger abstention was improper here given the legislative nature of ratemaking and intervening Supreme Court guidance.
Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982) Explains that Younger applies only when the state proceeding is judicial in nature. Used to state the standard for Younger abstention and to evaluate whether Younger applies in this context.
New Orleans Public Service, Inc. v. Council of City of New Orleans, ___ U.S. ___, 109 S.Ct. 2506 (1989) Holds that ratemaking is essentially legislative and that Younger does not require abstention from challenges to completed legislative action in ratemaking contexts. The Sixth Circuit relied on New Orleans Public Service to conclude that Younger abstention was inappropriate here because the Tennessee proceedings were legislative in nature (ratemaking).
Prentis v. Atlantic Coast Line Co., 211 U.S. 210 (1908) Quoted guidance on determining whether a proceeding is judicial or legislative based on the "nature of the final act." Quoted (via New Orleans Public Service) to explain the standard for evaluating the nature of state proceedings for Younger purposes.
In re Long Distance Telecommunications Litigation, 831 F.2d 627 (6th Cir. 1987) States the doctrine of primary jurisdiction and its purposes (agency expertise and uniformity). Applied to conclude that primary jurisdiction favors deferring to the FCC on separations issues central to its expertise.
United States v. Western Pacific, 352 U.S. 59 (1956) Quoted for the rationale behind primary jurisdiction: agency expertise and uniformity. Used to support the conclusion that the FCC should address the separations question before judicial resolution.
Mid-Plains Tel. Co. v. Public Serv. Comm'n, No. 89-C-318-S (W.D. Wis. July 26, 1989) A district court decision on similar facts that found federal jurisdiction and applied primary jurisdiction, and in which the carrier sought an FCC ruling under 47 C.F.R. § 1.2. Relied upon analogously to justify referring the separations issue to the FCC under primary jurisdiction and noted that Mid-Plains sought an FCC ruling.

Court's Reasoning and Analysis

The Sixth Circuit's analysis proceeded in several discrete steps:

  1. Jurisdiction under 28 U.S.C. §§ 1331 and 1337 — The court explained that a prior district court ruling (Federal Express) had denied federal question jurisdiction but that the Sixth Circuit's subsequent decision reversing Federal Express (relying on CSXT) established that federal subject matter jurisdiction exists for claims that state regulation is preempted by federal law. Thus, jurisdiction under §§ 1331 and 1337 is present in this case.
  2. Jurisdiction under 47 U.S.C. § 401(b) — The court addressed whether an FCC separations order promulgated through rulemaking (47 C.F.R. part 36) constitutes an "order" enforceable under § 401(b). After surveying circuit authority (noting one circuit's contrary view), the court joined the majority and held that an order resulting from rulemaking can be an "order" under § 401(b). The court held that the separations order here mandates specific actions and is therefore reviewable and enforceable under § 401(b). The court also found error in the district court's reasoning where the district court had made the merits determination a prerequisite to asserting § 401(b) jurisdiction.
  3. Younger abstention — The court examined the district court's alternate ground for dismissal under Younger. It explained the governing principle from Middlesex that Younger applies only when the state proceeding is judicial in nature. The court relied on the Supreme Court's decision in New Orleans Public Service to conclude that ratemaking is essentially legislative, not judicial, and therefore the Younger rationale does not apply to bar federal adjudication in this context. Additionally, the court emphasized that federal comity concerns (an underlying rationale for Younger) were absent because the separations process is necessarily intertwined with federal authority and the FCC has final authority to prescribe separations procedures.
  4. Primary jurisdiction and ripeness — Although the Sixth Circuit concluded jurisdiction existed and abstention was improper, it found the dispute not ripe for judicial resolution because the question at the center of the case—whether the Tennessee Commission violated the FCC separations order by refusing to apply 47 C.F.R. part 36 to average schedule companies—is squarely within the FCC's area of special competence. The court applied the doctrine of primary jurisdiction, emphasizing the need for agency expertise and uniformity of decisions, and noted that similar district courts (e.g., Mid-Plains) had deferred to the FCC and that Mid-Plains had sought an FCC ruling under 47 C.F.R. § 1.2. Consequently, the court directed that the matter be remanded so the FCC can address the issue first.

Holding and Implications

Holding:

The judgment of the district court is REVERSED. The Sixth Circuit held that the district court had subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1337 and under 47 U.S.C. § 401(b), and that abstention under Younger was improper in this context. Nevertheless, the court remanded the case because the question required resolution by the FCC under the doctrine of primary jurisdiction.

Implications / Consequences:

  • The district court's dismissal on jurisdictional and abstention grounds was reversed.
  • The case was remanded with directions to dismiss without prejudice so that the FCC may determine whether the Tennessee Commission's use of the residual methodology violates federal law (i.e., whether FCC separations rules under 47 C.F.R. part 36 preempt or otherwise control the state methodology for average schedule companies).
  • The opinion adopts the view that an FCC separations order issued via rulemaking can be an "order" enforceable under 47 U.S.C. § 401(b), and it clarifies that Younger abstention is inappropriate where state proceedings are legislative ratemaking and federal interests (including uniformity under FCC authority) are implicated.
  • The decision does not resolve the merits of whether the Tennessee Commission's residual methodology violates the FCC order; rather, it sends the question to the FCC for primary review. No final judicial determination on the merits was made here, and the dismissal on remand is to be without prejudice to allow administrative resolution.

This summary is strictly based on the information contained in the provided opinion and does not add or infer facts beyond that text.

ALLTEL TENNESSEE, INC.; CROCKETT TELEPHONE COMPANY; OOLTEWAH-COLLEGEDALE TELEPHONE COMPANY; PEOPLES TELEPHONE COMPANY; WEST TENNESSEE TELEPHONE COMPANY, PLAINTIFFS-APPELLANTS, v. TENNESSEE PUBLIC SERVICE COMMISSION; KEITH BISSELL, CHAIRMAN; FRANK COCHRAN, COMMISSIONER, STEVE HEWLETT, COMMISSIONER, DEFENDANTS-APPELLEES.

BOYCE F. MARTIN, Jr., Circuit Judge.

Five small Tennessee telephone companies appeal the dismissal of their complaint alleging that the Tennessee Public Service Commission violated an order of the Federal Communications Commission by the issuance of an order adopting a "residual methodology" as the basis for setting intrastate telephone rates. The district court dismissed the complaint on both jurisdictional and abstention grounds. Because subject matter jurisdiction existed and abstention was improper, we reverse. However, because the case was not ready for a judicial determination, we remand with directions to dismiss the case without prejudice so that the FCC may determine whether the Tennessee Commission's use of residual methodology violates federal law.

The plaintiff telephone companies provide local, or intrastate, telephone service under the regulatory jurisdiction of the Tennessee Public Service Commission and interstate service under the jurisdiction of the Federal Communications Commission. For ratemaking purposes, the companies are required to allocate their operating costs between the intrastate and interstate portions of their business.

Under FCC rules, the companies have the option of allocating costs for their interstate service either on a true cost basis or by averaging their cost schedules. Companies electing the cost basis method perform company-specific cost separation studies, pursuant to 47 C.F.R. part 36. These regulations outline the procedure to separate expenses, taxes and plant use between interstate and intrastate service. Telephone companies choosing the average schedule method estimate their costs using "an `average schedule' which adopts generalized industry data to reflect the costs of a hypothetical exchange company." N.A.R.U.C. v. FCC, 737 F.2d 1095, 1127 (D.C. Cir. 1984).

The telephone companies in this case all use the average schedule method to determine their interstate costs. The present dispute arises because the companies requested that the Tennessee Commission allow them to use the cost basis method under 47 C.F.R. part 36 to determine their intrastate costs. Following an adjudicatory hearing, the Tennessee Commission rejected the telephone companies' argument and held that the method used to allocate costs for federal ratemaking purposes must also be followed for state rate proceedings. Thus, intrastate and interstate costs must both be calculated on a true cost basis or must both be averaged, rather than using one method to assess intrastate costs and the other to assess interstate costs. The Tennessee Commission further held that it would continue to follow the residual method of calculating the companies' intrastate costs. Under this method, the Tennessee Commission deducts from each company's total costs those expenses which have been allocated to interstate jurisdiction. The remainder, the "residual", are the company's intrastate costs. This method is used by virtually every state commission in the country to fix rates for local telephone companies.

Alleging that 47 C.F.R. part 36 is a set of FCC rules that preempts state use of the residual approach, the telephone companies filed suit in the district court in Nashville on April 5, 1989, challenging the Tennessee Commission's decision and seeking declaratory and injunctive relief. The district court dismissed the suit on both jurisdictional and abstention grounds. The court denied jurisdiction under 47 U.S.C. § 401(b) based on its finding that the use of the residual methodology of cost determination does not offend the separations order of the FCC adopting 47 C.F.R. part 36. The district court also determined that it was without jurisdiction under 28 U.S.C. § 1331 and § 1337, relying on its ruling in Federal Express Corp. v. Tennessee Pub. Serv. Comm'n, 693 F. Supp. 598 (M.D.Tenn. 1988), rev'd, 878 F.2d 381 (6th Cir. 1989) (per curiam) (amending original opinion). The district court also stated that if it erred in its jurisdictional rulings, abstention was warranted under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The district court found that abstention was appropriate because there was a parallel Tennessee state procedure that was ongoing, there was a compelling state interest in establishing fair phone rates, and there was a fair opportunity for the federal claims to be raised in the proceedings before the Tennessee Public Service Commission.

The question of subject matter jurisdiction under 28 U.S.C. § 1331 and 1337 is no longer at issue as a result of our decision reversing the district court in Federal Express. At issue in Federal Express was the identical question that is raised here — whether a federal court has subject matter jurisdiction when a party seeks declaratory and injunctive relief from state regulation on the ground that such regulation is preempted by a federal statute. The district court determined that it lacked subject matter jurisdiction in Federal Express, and relied on that decision in this case. Relying on CSXT, Inc. v. Pitz, 883 F.2d 468 (6th Cir. 1989), we reversed the district court's decision in Federal Express, finding that the district court, in fact, had jurisdiction. Thus, it is established that subject matter jurisdiction in this case exists under 28 U.S.C. § 1331 and 1337.

We are next faced in this case with the additional question of whether subject matter jurisdiction exists under the Federal Communications Commission Statute, 47 U.S.C. § 401(b). A suit brought under § 401(b) is an action to enforce an order of the FCC. The telephone companies allege that failing to apply their cost studies under 47 C.F.R. part 36 is directly contrary to the FCC's separations order adopting that regulation and, therefore, creates a cause of action under 47 U.S.C. § 401(b). The district court stated that it lacked jurisdiction under § 401(b) because in determining intrastate costs "the use of residual methodology does not offend the order of the FCC." This reasoning was erroneous because the district court made the ultimate decision on the merits a prerequisite to deciding whether it had § 401(b) jurisdiction.

A separations order is the term used by the FCC to distinguish between interstate and intrastate value of equipment, costs and expenses. The separations order at issue here resulted from a rulemaking proceeding before the FCC. There is some disagreement among the circuits as to whether an order resulting from an FCC rulemaking proceeding, as opposed to an adjudicatory proceeding, is an "order" within the meaning of § 401(b). The First Circuit has ruled that an order resulting from a rulemaking proceeding is not an order under § 401(b). New England Tel. Tel. Co. v. Public Utils. Comm'n of Maine, 742 F.2d 1, 4-7 (1st Cir. 1984), cert. denied, 476 U.S. 1174, 106 S.Ct. 2902, 90 L.Ed.2d 988 (1986). Each of the other circuits that has addressed this issue, however, has either implicitly or expressly found that such an order may be an order under § 401(b). Hawaiian Tel. Co. v. Public Utils. Comm'n, 827 F.2d 1264, 1270-72 (9th Cir. 1987), cert. denied, 487 U.S. 1218, 108 S.Ct. 2870, 101 L.Ed.2d 906 (1988); Chesapeake Potomac Tel. Co. v. Public Serv. Comm'n, 748 F.2d 879, 880-81 (4th Cir. 1984), vacated and remanded for proceedings consistent with Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986), 476 U.S. 445, 106 S.Ct. 2239, 90 L.Ed.2d 444 (1986); South Central Bell Tel. Co. v. Louisiana Pub. Serv. Comm'n, 744 F.2d 1107, 1115 (5th Cir. 1984), vacated and remanded for consideration in light of Chesapeake Potomac, supra, 476 U.S. 1166, 106 S.Ct. 2884, 90 L.Ed.2d 972 (1986); Illinois Bell Tel. Co. v. Illinois Commerce Comm'n, 740 F.2d 566, 571 (7th Cir. 1984); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 738 F.2d 901 (8th Cir. 1984), vacated and remanded for consideration in light of Chesapeake Potomac, supra, 476 U.S. 1167, 106 S.Ct. 2885, 90 L.Ed.2d 973 (1986).

We join the majority and agree that an order resulting from a rulemaking proceeding can be an order for purposes of § 401(b). We are especially persuaded by the Ninth Circuit's reasoning in Hawaiian Tel. Co. v. Public Utils. Comm'n, 827 F.2d at 1271-72. Congress, rather than attempting to limit § 401(b) exclusively to adjudicatory orders, intended that a broad range of orders be reviewable under § 401(b). Because the separations order in this case mandates specific action as to the division of costs to be taken by the telephone companies and the regulatory agencies, we find that the separations order is a reviewable and enforceable order under § 401(b).

The telephone companies, therefore, properly sought enforcement of the separations order by injunction pursuant to § 401(b). The district court, by tying its jurisdiction to a prior demonstration of a violation of the order, erred in holding that it lacked jurisdiction under § 401(b). Accordingly, we conclude that the district court had subject matter jurisdiction in this case under 47 U.S.C. § 401(b), as well as under 28 U.S.C. § 1331 and 1337. See Mid-Plains Tel. Co. v. Public Serv. Comm'n, No. 89-C-318-S (W.D.Wisc. July 26, 1989) (in a case dealing with virtually the same facts and issues as this case, the court, contrary to the district court in the present case, held that it had jurisdiction under 28 U.S.C. § 1331, 1337(a), 1343(a)(3) and 47 U.S.C. § 401(b)).

The district court here ruled that even if it had subject matter jurisdiction, it would abstain from exercising its jurisdiction pursuant to the abstention doctrine of Younger v. Harris. Abstention is appropriate under Younger only when there is an ongoing state administrative proceeding that is judicial in nature. Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). The United States Supreme Court recently rejected the application of Younger in New Orleans Public Service, Inc. v. Council of City of New Orleans, ___ U.S. ___, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989), another case where a utility claimed that federal law preempted certain state actions in setting rates. The Court stated that whether an agency's proceeding is judicial or legislative depends upon the "nature of the final act" which the proceeding is intended to produce. New Orleans Pub. Serv., ___ U.S. at ___, 109 S.Ct. at 2519, 105 L.Ed.2d at 319 (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226-27, 29 S.Ct. 67, 69-70, 53 L.Ed. 150 (1908) (Holmes, J.)). The Court concluded that "ratemaking is an essentially legislative act" and that the suit, as a challenge to completed legislative action, did not represent "the interference with ongoing judicial proceedings against which Younger was directed." Id., ___ U.S. at ___, 109 S.Ct. at 2520, 105 L.Ed.2d at 319-20.

In Mid-Plains Telephone, the district court in Wisconsin held that New Orleans Public Service controlled the issue of Younger abstention and precluded abstention from the claims brought under 47 U.S.C. § 401(b). See Mid-Plains Tel. Co., supra. We agree. The Tennessee Commission's proceedings were sufficiently concerned with ratemaking to make them legislative in nature. In addition, it is clear that the underlying reason for Younger abstention, federal comity, is absent in this case. There is no purely separate function of the state in the separations process at issue here. The actions of the state are necessarily intertwined with federal actions because the FCC has final authority to prescribe uniform cost separations procedures for both intrastate and interstate telephone service. The express grant of jurisdiction under § 401(b) indicates the intent of Congress for federal courts to resolve these issues.

Although we conclude that the district court had subject matter jurisdiction and that abstention was improper, we believe that this matter is not yet ripe for adjudication. Under the doctrine of primary jurisdiction, questions within the special competency of an administrative agency should be resolved by that agency. In re Long Distance Telecommunications Litigation, 831 F.2d 627, 631 (6th Cir. 1987). The principal reasons for the doctrine of primary jurisdiction are to obtain the benefit of the expertise and experience of the administrative agencies and the desirable uniformity which occurs when a specialized agency decides certain administrative questions. Id. at 630 (quoting United States v. Western Pacific, 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956) (Harlan, J.)). A court must apply the doctrine of primary jurisdiction on a case-by-case basis, deferring to an administrative agency only when the reasons for the existence of the doctrine are present. Id.

The FCC has final authority for prescribing the regulations which control the separation of costs between intrastate and interstate telephone services. The ultimate issue in this case, whether the Tennessee Public Service Commission has violated an FCC order by refusing to apply 47 C.F.R. part 36 to average schedule telephone companies, is a question that is certainly central to the FCC's separations procedures. The resolution of this issue will affect a large number of telephone companies. Thus, both reasons for invoking the doctrine of primary jurisdiction, the need for agency expertise and for uniformity of decisions, are present in this case.

The district court in Mid-Plains Telephone also applied the doctrine of primary jurisdiction to allow the FCC to address the issue, and, as a result of that decision, the Mid-Plains Telephone Company has formally requested an FCC ruling on this controversy pursuant to 47 C.F.R. § 1.2. See Mid-Plains Tel. Co., supra. We, therefore, conclude that on remand the district court should rule that the doctrine of primary jurisdiction is applicable here and await the decision of the FCC on this matter.

The judgment of the district court is reversed.

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ALLTEL TENNESSEE, v. TENNESSEE PUB. SERV COMM
(Sep 10, 1990)