United States Tenth Circuit

In a suit by a payphone service provider alleging noncompliance with the anti-discrimination and antisubsidization requirements by an incumbent local exchange carrier, dismissal of the suit is vacated and remanded where: 1) the filed rate doctrine did not bar plaintiff's ability to proceed in federal court; 2) although correct that a primary jurisdiction referral was appropriate, the district court erred by misidentifying the issues to be referred and failing to clearly direct its primary jurisdiction referral to the FCC; and 3) because plaintiff might be prejudiced by dismissal rather than a stay of its action pending primary jurisdiction referral, the district court abused its discretion in dismissing plaintiff's claims, albeit without prejudice.

Appellate Information

• Decided 07/24/2007
• Published 07/24/2007

Judges

• MURPHY, Circuit Judge., Before LUCERO and MURPHY, Circuit Judges, and ROBINSON, District Judge.

Court

• United States Tenth Circuit

Counsel

• For Appellant:
  
• Floyd A. Jensen, Floyd Andrew Jensen PLLC, Salt Lake City, Utah, for Plaintiff-Appellant.


• For Appellees:
  
• David A. Vogel (Douglas P. Lobel with him on the brief), Cooley Godward LLP, Reston, Virginia, for Defendant-Appellee.