July 29, 2010 - 10:00 am

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.

What action must the parties take once the court has invoked the primary jurisdiction doctrine?  What pleadings must they file at the FCC?  Many – perhaps most – primary jurisdiction referrals involve allegations of unlawful conduct by common carriers.  In such circumstances, we strongly encourage the parties to contact the Market Disputes Resolution Division of the FCC’s Enforcement Bureau at (202) 418-7330 prior to filing any pleadings with the agency.  See Public Notice, Primary Jurisdiction Referrals Involving Common Carriers, 15 FCC Rcd 22,449 (2000).  The staff of that division can discuss the issues with you and provide advice on whether the referral is best effectuated by filing a complaint against a common carrier under section 208 of the Communications Act, or a petition for declaratory ruling to terminate a controversy or remove uncertainty under section 1.2 of the FCC’s rules.

After the Commission has issued an order addressing the issue(s) involved, what happens next?  Contrary to what one might think, the case does not return to the “referring” court to review the FCC’s decision.  The federal circuit courts of appeals have exclusive jurisdiction to review final FCC orders – even one resulting from a primary jurisdiction referral.  Accordingly, an aggrieved party may seek review of the FCC’s decision only in a federal circuit court of appeals.  Thus, even if the case does return to the “referring” court for further proceedings in the original litigation, that court has no jurisdiction to review the lawfulness of the FCC’s order and must take the FCC’s decision on the specific issue(s) involved as a binding statement of law.

Primary jurisdiction referrals to the FCC can be a useful tool in private litigation, and they can allow the agency to clarify unclear areas of communications law.  But it is important for litigants to understand what they are and how they relate to the underlying court case.