Most people who work in the area of communications law and policy have heard the term “primary jurisdiction referral.” But myths and misconceptions abound, and they are shared by litigants, lawyers, and even judges. This post is intended to clear up some of the confusion.
In the communications law context, a primary jurisdiction referral typically occurs when private litigants raise an issue in court (most often a federal district court) that involves a contested interpretation of the Communications Act, the FCC’s rules, or an FCC order – in other words, a dispute over an issue that the Commission has the congressionally delegated authority to resolve. In most instances, the dispute also lies within the court’s subject matter jurisdiction. Nevertheless, the court, recognizing that the FCC also has jurisdiction over the matter and may be better suited to answer the particular issue in the first instance, may elect to invoke the doctrine of primary jurisdiction and stay its hand to permit the FCC to decide the issue.
Here is where the confusion begins. The term “primary jurisdiction referral” is a misnomer – the court refers nothing to the FCC. Rather, the court will stay – that is, suspend action on – the judicial proceeding (or dismiss the case without prejudice) and direct the litigants to initiate an administrative proceeding before the FCC seeking resolution of the particular issue. Thus, the parties to the litigation – not the court – must take affirmative steps to effectuate a primary jurisdiction “referral” to the FCC.
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