FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVEL COMMUNICATIONS, INC., a 

Delaware corporation; ACCESS

ANYWHERE LLC; KRISTIN MOELLE;

AUTOMATED TELECOM TECHNOLOGY

INC., dba A-Tel Inc.; CENTRAL

TELEPHONE COMPANY; STEVE No. 04-35677

PETERMAN, dba Colorado D.C. No.

Payphones; COMMUNICATIONS  CV-03-03680-MJP

MANAGEMENT SERVICES LLC,

Plaintiffs-Appellants, OPINION

v.

QWEST CORPORATION, a Colorado

corporation,

Defendant-Appellee. 

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted

December 8, 2005—Seattle, Washington

Filed June 26, 2006

Before: Ronald M. Gould and Marsha S. Berzon,

Circuit Judges, and William W Schwarzer,* District Judge.

Opinion by Judge Berzon

*The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation. 

7035
COUNSEL

Brooks E. Harlow, Miller Nash LLP, Seattle, Washington, for

the plaintiffs-appellants. 

Douglas P. Lobel and David A. Vogel, Arnold & Porter LLP,

McLean, Virginia, for the defendant-appellee. 

OPINION

BERZON, Circuit Judge: 

The Federal Telecommunications Act of 1996 (“1996 Act”)

largely deregulated the telecommunications industry. At the

same time, the 1996 Act continued to regulate certain segments of the industry so as to increase competition overall.

For example, to promote more competitive market conditions,

the 1996 Act required incumbent local exchange carriers,

DAVEL COMMUNICATIONS v. QWEST CORP. 7039
including appellee Qwest Corp., to provide access to their

telephone lines and services essentially at their cost of providing the service. 

In 1996 and 1997, the Federal Communications Commission (“FCC”) issued a series of orders setting standards for

rates and services offered by local carriers to payphone service providers. This case concerns claims by Davel Communications, Inc. and other payphone service providers

(“Davel”) that, under the FCC’s 1996 and 1997 orders, Qwest

owes reimbursements for periods in which it failed to file tariffs implementing the new standards or filed tariffs not compliant with the 1996 Act and its implementing regulations.

The district court held the reimbursement claims barred by the

filed-tariff doctrine and dismissed them without prejudice. In

addition, the court dismissed on statute of limitations grounds

Davel’s claims that Qwest overcharged it for fraud protection

services during the time Qwest failed to file required fraud

protection tariffs with the FCC. 

As a threshold matter, Qwest contends that the district court

lacked jurisdiction under the primary jurisdiction doctrine

over Davel’s claims and that we therefore lack jurisdiction to

hear this appeal. That is not so. The primary jurisdiction doctrine is “a doctrine specifically applicable to claims properly

cognizable in court that contain some issue within the special

competence of an administrative agency.” Reiter v. Cooper,

507 U.S. 258, 268 (1993) (emphasis added). In other words,

“[p]rimary jurisdiction is not a doctrine that implicates the

subject matter jurisdiction of the federal courts.” Syntek Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775, 780 (9th

Cir. 2002). Consequently, even where the doctrine requires an

issue to be referred to an administrative agency, it “does not

deprive the court of jurisdiction.” Reiter, 507 U.S. at 268. 

We therefore have jurisdiction of this appeal from the final

judgment of the district court pursuant to 28 U.S.C. § 1291,

and address Qwest’s primary jurisdiction doctrine contention

7040 DAVEL COMMUNICATIONS v. QWEST CORP.
on its merits in due course rather than as a threshold jurisdictional issue. Cf. Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 93-94 (jurisdictional objections must be addressed

before proceeding to merits issues). After considering the parties’ contentions, we vacate the district court’s order of dismissal and remand for further proceedings.

I. Background

Davel and the other appellants are payphone service providers that purchase telecommunications services from Qwest

in eleven of the fourteen states in which Qwest operates.

Because Qwest operates its own payphones, Davel is both a

competitor and a customer of Qwest. The services Qwest provides its payphone service provider customers include public

access lines, local usage to enable Davel to connect its payphones to the telephone network for placing calls, and fraud

protection. 

Chapter 5 of the Federal Communications Act of 1934 as

amended by the 1996 Act regulates the telecommunications

industry. 47 U.S.C. § 151 et seq.1 As a general matter, the

Federal Communications Act requires common carriers subject to its provisions to charge only just and reasonable rates,

id. § 201, and to file their rates for their services with the FCC

or, in some cases, with state agencies. Id. § 203. As part of the

1996 Act’s general focus on improving the competitiveness of

markets for telecommunications services, § 276 substantially

modified the regulatory regime governing the payphone

industry by providing, in general terms, that dominant carriers

may not subsidize their payphone services from their other

telecommunications operations and may not “prefer or discriminate in favor of [their] payphone service[s]” in the rates

they charge to competitors. Id. § 276(a). The 1996 Act directs

the FCC to issue regulations implementing these provisions,

1All statutory references are to the 2000 edition of Title 47 of the United

States Code unless otherwise indicated. 

DAVEL COMMUNICATIONS v. QWEST CORP. 7041
specifying in some detail the mandatory contents of the regulations. Id. § 276(b). 

Pursuant to this directive, the FCC adopted regulations

requiring local exchange carriers such as Qwest to set payphone service rates and “unbundled features” rates, including

rates for fraud protection, according to the FCC’s “new services test” (sometimes “NST”). The new services test requires

that rates for those telecommunications services to which it

applies be based on the actual cost of providing the service,

plus a reasonable amount of the service provider’s overhead

costs. The FCC’s regulations required local exchange carriers

to develop rates for the use of public access lines by intrastate

payphone service providers that were compliant with the new

services test. The rates were to be submitted to the utility

commissions in the states in the local exchange carriers’ territory, which would review and “file” (i.e., approve) the rates.

See In re Implementation of the Pay Telephone Reclassification and Compensation Provisions of the Telecommunications

Act of 1996, Report and Order, FCC 96-388, 11 F.C.C.R.

20,541 (Sept. 20, 1996); In re Implementation of the Pay

Telephone Reclassification and Compensation Provisions of

the Telecommunications Act of 1996, Order on Reconsideration, FCC 96-439, 11 F.C.C.R. 21,233 (Nov. 8, 1996) ¶ 163

(“Order on Recons.”) (collectively “Payphone Orders”). Also

pursuant to the regulations, local exchange carriers were

required to file their “unbundled features” rates with both the

state commissions and the FCC for approval. Order on

Recons. ¶ 163. The FCC required the local exchange carriers

to file the new tariffs for both kinds of rates by January 15,

1997, with an effective date no later than April 15, 1997. Id.

In addition, the Payphone Orders required interexchange

carriers, mainly long distance telephone service providers, to

pay “dial-around compensation” to payphone service providers, including Qwest, for calls carried on the carrier’s lines

which originated from one of the provider’s pay telephones.2

2Prior to the passage of the 1996 Act, callers could use an access number to bypass the payphone provider and place a call directly with the

7042 DAVEL COMMUNICATIONS v. QWEST CORP.
If, however, the payphone service provider was also an

incumbent local exchange carrier, as was Qwest, the Payphone Orders required full compliance with the new tariff filing requirements, including the filing of cost-based public

access line rates and fraud protection rates, before the local

exchange carrier could begin collecting dial-around compensation. 

On April 10, 1997, a coalition of regional Bell operating

companies (“the Coalition”), which included Qwest, sent a

letter to the FCC requesting a limited waiver of certain provisions of the Payphone Orders. The Coalition wanted this

waiver so that the constituent companies could begin collecting dial-around compensation before they were in full compliance with the new regulations. Specifically, they requested an

extension of time to file intrastate payphone service rates

compliant with the new services test. These rates were due to

become effective on April 15, 1997, but the Coalition wanted

that deadline extended forty-five days from April 4, 1997.

(The FCC had earlier granted a similar extension with respect

to interstate rates.) The Coalition proposed that, if the FCC

granted the waiver and allowed the Coalition companies to

file rates that complied with the new services test by the

extended deadline, those companies would reimburse or provide a credit back to April 15, 1997, to customers purchasing

the services if the new rates were lower than the previous

non-compliant rates. 

On April 15, 1997, the FCC issued an order granting a limited waiver of the new services test rate-filing requirement. In

interexchange carrier. The interexchange carrier then collected the full tariff, leaving the payphone provider with no compensation for the call. Payphone providers were prohibited from blocking these calls. The new rules

requiring dial-around compensation changed this regime so as to assure

some compensation to the company that provided the payphone. See 47

U.S.C. § 276(b)(1)(A); see generally Global Crossing Telecomm., Inc. v.

FCC, 259 F.3d 740, 742, 747 (D.C. Cir. 2001) (tracing background of the

dial-around compensation regulations). 

DAVEL COMMUNICATIONS v. QWEST CORP. 7043
re Implementation of the Pay Telephone Reclassification and

Compensation Provisions of the Telecommunications Act of

1996, Order, DA 97-805, 12 F.C.C.R. 21,370 (Apr. 15, 1997)

(“Waiver Order”). Specifically, the Waiver Order granted an

extension until May 19, 1997, for filing intrastate payphone

service rates compliant with the new services test, while at the

same time permitting incumbent local exchange carriers to

begin collecting dial-around compensation as of April 15,

1997. Id. ¶ 2. The Waiver Order stated that the existing rates

would continue in effect from April 15, 1997, until the new,

compliant rates became effective (“the waiver period”). The

NST-compliant rates were to be filed with state utility commissions, which were required to act on the filed rates “within

a reasonable time.” Id. ¶ 19 n.60; see also id. ¶¶ 2, 18-19, 25.

If a local exchange carrier relied on the waiver, it was

required to reimburse its customers “from April 15, 1997 in

situations where the newly [filed] rates, when effective, are

lower than the existing [filed] rates.” Id. ¶¶ 2, 20, 25. The

order emphasized that the waiver was “limited” and “of brief

duration.” Id. ¶¶ 21, 23. 

In 2002, in a decision subsequently affirmed by the D.C.

Circuit, the FCC clarified the requirements of the new services test as it applies to the payphone industry, making it

clear that, as in other areas in which it has been applied, the

new services test requires forward looking, cost-based rates.

In re Wis. Pub. Serv. Comm’n, Mem. Op. & Order, 17

F.C.C.R. 2051 (2002) (“Wisconsin Order”), aff’d New Eng.

Pub. Commc’ns Council, Inc. v. FCC, 334 F.3d 69 (D.C. Cir.

2003). That is, the rates must take into account only the ongoing costs of providing the service, and may not recover previously incurred costs, such as those incurred in building the

telephone system infrastructure. In so holding, the FCC

rejected the Coalition’s challenge to its authority to regulate

intrastate rates and to require forward-looking cost estimates

in determining rates, as well as the Coalition’s challenges to

the agency’s determination of how overhead costs may be

allocated. Id. ¶¶ 31-58. In 2002, after the FCC’s decision in

7044 DAVEL COMMUNICATIONS v. QWEST CORP.
the Wisconsin Order, Qwest dramatically reduced its public

access line and fraud protection tariffs. 

Davel maintains that the rates Qwest charged for public

access lines services from 1997 to 2002 did not comply with

the new services test. Because Qwest relied on the Waiver

Order by collecting dial-around compensation beginning on

April 15, 1997, argues Davel, Qwest is required by the Act

itself and by the Waiver Order to refund the difference

between the non-compliant rates charged from 1997 to 2002

and the compliant rates filed in 2002. 

Davel further contends that: (1) from 1997 to 2002, rather

than filing NST-compliant public access line rates in any of

eleven states in which the plaintiff payphone service providers

operate, Qwest was pursuing legal challenges to the FCC’s

authority to regulate intrastate public access line rates; (2) the

first time Qwest filed NST-compliant rates in the states at

issue was in 2002; (3) the rates filed in 2002, which were substantially lower than the 1997-2002 rates, show that Qwest’s

1997-2002 rates were not compliant with the new services

test. On these premises, Davel argues that the Waiver Order

requires Qwest to reimburse it for the difference between the

compliant rate filed in 2002 and the non-compliant rates actually charged for the entire preceding period, beginning on

April 15, 1997. 

In addition, according to Davel, Qwest was required pursuant to the Order on Recons. to file with the FCC rates compliant with the new services test for fraud protection services and

other “unbundled features.” Davel alleges that Qwest failed to

file compliant fraud protection rates from 1997 until 2002 or

2003, and that this lapse violated the Act. Pursuant to 47

U.S.C. §§ 206-207, Davel asserts, it is entitled to recover

damages for this violation measured by the difference

between the amount it was charged and the compliant rates.

Qwest moved to dismiss Davel’s complaint under Federal

Rule of Civil Procedure 12(b)(6), arguing (1) that Davel’s

DAVEL COMMUNICATIONS v. QWEST CORP. 7045
claims arising out of the payphone service rates are barred by

the filed-rate doctrine; and (2) that Davel’s claim arising from

the fraud protection rates is time-barred under the applicable

statute of limitations. In the alternative, Qwest, invoking the

primary jurisdiction doctrine, requested a stay and referral of

the threshold legal issues to the appropriate state and federal

agencies. The district court granted Qwest’s motion to dismiss, holding Davel’s refund claims under the Waiver Order

barred by the filed-rate doctrine and its fraud protection

claims barred by the two year statute of limitations set out in

47 U.S.C. § 415. The court dismissed Davel’s complaint without prejudice to Davel’s asserting the claims before the appropriate administrative tribunals. We review de novo the district

court’s dismissal for failure to state a claim under Fed. R. Civ.

P. 12(b)(6). Madison v. Graham, 316 F.3d 867, 869 (9th Cir.

2002). 

II. The Filed-Rate Doctrine

[1] The filed-rate doctrine, also known as the filed-tariff

doctrine, applies in regulated industries in which federal law

requires common carriers publicly to file schedules of services and the rates or tariffs to be charged for those services.

The doctrine requires that common carriers and their customers adhere to tariffs filed and approved by appropriate regulatory agencies. Evanns v. AT&T Corp., 229 F.3d 837, 840 (9th

Cir. 2000). “Under the doctrine, once a carrier’s tariff is

approved by the FCC [or an appropriate state agency], the

terms of the federal tariff are considered to be ‘the law’ and

to therefore ‘conclusively and exclusively enumerate the

rights and liabilities’ as between the carrier and the customer.” Id. (quoting Marcus v. AT&T Corp., 138 F.3d 46, 56 (2d

Cir. 1998)). 

Not only is a carrier forbidden from charging rates

other than as set out in its filed tariff, but customers

are also charged with notice of the terms and rates

set out in that filed tariff and may not bring an action

7046 DAVEL COMMUNICATIONS v. QWEST CORP.
against a carrier that would invalidate, alter or add to

the terms of the filed tariff. 

Id. (citations omitted). That is, the doctrine bars suits challenging rates which “if successful, would have the effect of

changing the filed tariff.” Brown v. MCI WorldCom Network

Servs., Inc., 277 F.3d 1166, 1170 (9th Cir. 2002). 

The regulatory scheme of the Federal Communications Act,

the source since 1934 of the filed-rate doctrine in the telecommunications industry, see Evanns, 229 F.3d at 840, was fundamentally altered with the passage of the 1996 Act.

Although the Federal Communications Act prohibited the

FCC from eliminating for any covered carriers the requirement that they obtain advance approval of schedules of rates

from the agency and adhere to the approved tariffs, see Ting

v. AT&T, 319 F.3d 1126, 1131-32 (9th Cir. 2003) (citing MCI

Telecomms. Corp. v. AT&T Corp., 512 U.S. 218, 231 (1994)),

the 1996 Act expressly permitted the FCC to “detariff” (to use

the telecommunications industry’s “horrid neologism,” Verizon Del., Inc. v. Covad Commc’ns Co., 377 F.3d 1081, 1089

(9th Cir. 2004)) large swaths of the telecommunications

industry. 47 U.S.C. § 160(a); see Ting, 319 F.3d at 1132.

Where the FCC has done so, the filed-rate doctrine no longer

applies. See Verizon Del., 377 F.3d at 1088. Conversely,

where tariff filing is still required by statute or regulation, the

filed-rate doctrine continues to apply with full force. Id. at

1089. 

[2] In its regulations implementing the requirements of

§ 276, the FCC chose to require filing of tariffs for certain

aspects of the payphone system while leaving others to the

free market. See Order on Recons. With respect to the public

access line rates at issue here, the FCC indisputably imposed

a rate-filing requirement. See id. ¶ 163. The Commission similarly imposed a tariffing requirement with respect to fraud

protection rates. Id. Intrastate public access line tariffs are to

be filed with state regulatory agencies, while rates for unbunDAVEL COMMUNICATIONS v. QWEST CORP. 7047
dled services, including fraud protection, are to be filed with

both the state agencies and the FCC. Id. Thus, while Davel

may be correct as a general matter that “the filed-rate doctrine

is all but dead in telecommunications law,” the “but” qualifier

applies here, as the doctrine is not dead with respect the rates

at issue in this case. 

[3] Nevertheless, the filed-tariff doctrine does not bar a suit

to enforce a command of the very regulatory statute giving

rise to the tariff-filing requirement, even where the effect of

enforcement would be to change the filed tariff. Reiter, 507

U.S. at 266 (holding, in a motor carrier case, that the filed-rate

doctrine applies to common-law claims but “assuredly does

not preclude avoidance of the tariff rate . . . through claims

and defenses that are specifically accorded by the [Interstate

Commerce Act] itself”).3 This principle applies to regulations

implementing the statutory command as well as to the statute

itself. See ICC v. Transcon Lines, 513 U.S. 138, 147 (1995)

(“Carriers must comply with the comprehensive scheme provided by the statute and regulations promulgated under it, and

their failure to do so may justify departure from the filed

rate.”). That is to say, the filed-tariff doctrine is “open to repudiation by the FCC.” Verizon Del., 377 F.3d at 1089; see

Transcon Lines, 513 U.S. at 147 (regulating agency may

require “departure from a filed rate when necessary to enforce

other specific and valid regulations adopted under the Act,

3We note that the question whether the 1996 Act provides a private right

of action to enforce payphone regulations such as the Waiver Order is

pending before the United States Supreme Court. See Metrophones Telecomms., Inc. v. Global Crossing Telecomms., Inc., 423 F.3d 1056, 1065-

70 (9th Cir. 2005), cert. granted 126 S. Ct. 1329 (Feb. 21, 2006). However, as Qwest emphatically stated in its October 3, 2005, Fed. R. App. P.

28(j) letter, it has never disputed in this case that Davel has such a right

of action. We therefore decline to address the issue, assuming for purposes

of this case only that Davel does have a right of action. See Burks v.

Lasker, 441 U.S. 471, 475-76 & n.5 (1979) (the existence of a private right

of action is not a jurisdictional question, and, where not raised, may be

assumed without being decided). 

7048 DAVEL COMMUNICATIONS v. QWEST CORP.
regulations that are consistent with the filed rate system and

compatible with its effective operation.”). 

[4] Here, the FCC, in adopting the Waiver Order, expressly

required a “departure from a filed rate” as to the public access

line tariffs on file during the waiver period. The Waiver Order

extended the time for Qwest to file NST-compliant rates and

provided that existing, non-compliant rates would remain on

file in the interim. The order further provided that once the

NST-compliant rates became effective, Qwest was to reimburse its customers, including Davel, for the difference

between the new rates and the rates on file after April 15,

1997. As the Order thus expressly provided that Qwest’s customers would pay rates different from those on file during the

waiver period for certain services obtained during that time,4

it is not consistent with a strict application of the filed-rate

doctrine to the non-compliant rates on file after April 15,

1997. Consequently, the filed-rate doctrine does not stand as

a bar to Davel’s claims enforcing the Waiver Order’s reimbursement requirement. This is so even though the lawsuit, in

effect, challenges the tariffs on file between 1997 and 2002

and, if successful, would result in Davel paying an amount for

public access line services different from that provided in

those tariffs. 

[5] Accordingly, we hold that Davel’s claims are not barred

by the filed-rate doctrine.5

III. The Primary Jurisdiction Doctrine

The conclusion that the filed-rate doctrine does not pre4Qwest does not raise any challenge to the FCC’s authority to promulgate such an order, and indeed, was part of the Coalition that requested it.

5The parties’ arguments with regard to the fraud protection rates concern only the district court’s statute of limitations decision. We therefore

do not decide on this appeal whether the filed-rate doctrine is applicable

to that claim. 

DAVEL COMMUNICATIONS v. QWEST CORP. 7049
clude Davel’s lawsuit does not mean that the case can go forward. Davel’s refund claim presents several issues that

arguably implicate technical and policy considerations. Qwest

contends that under the primary jurisdiction doctrine, these

issues must be addressed in the first instance by the agencies

with regulatory authority over the payphone industry. 

[6] The doctrine of primary jurisdiction “is a prudential

doctrine under which courts may, under appropriate circumstances, determine that the initial decisionmaking responsibility should be performed by the relevant agency rather than the

courts.” Syntek, 307 F.3d at 780. “The doctrine is applicable

whenever the enforcement of a claim subject to a specific regulatory scheme requires resolution of issues that are ‘within

the special competence of an administrative body.’ ” Farley

Transp. Co. v. Santa Fe Trail Transp. Co., 778 F.2d 1365,

1370 (9th Cir. 1985) (quoting United States v. W. Pac. R.R.

Co., 352 U.S. 59, 63 (1956)). The doctrine does not, however,

“require that all claims within an agency’s purview be

decided by the agency.” Brown, 277 F.3d at 1172; accord

United States v. Gen. Dynamics Corp., 828 F.2d 1356, 1363

(9th Cir. 1987) (“While it is certainly true that the competence

of an agency to pass on an issue is a necessary condition to

the application of the doctrine, competence alone is not sufficient.”). “Nor is [the primary jurisdiction doctrine] intended

to ‘secure expert advice’ for the courts from regulatory agencies every time a court is presented with an issue conceivably

within the agency’s ambit.” Brown, 277 F.3d at 1172. 

[7] Although “[n]o fixed formula exists for applying the

doctrine of primary jurisdiction,” W. Pac., 352 U.S. at 64,

courts in this circuit traditionally look for four factors identified in General Dynamics. Under this test, the doctrine

applies where there is “(1) the need to resolve an issue that (2)

has been placed by Congress within the jurisdiction of an

administrative body having regulatory authority (3) pursuant

to a statute that subjects an industry or activity to a compre7050 DAVEL COMMUNICATIONS v. QWEST CORP.
hensive regulatory scheme that (4) requires expertise or uniformity in administration.” Gen. Dynamics, 828 F.2d at 1362.

Where an issue falls within an agency’s primary jurisdiction, the district court enables “referral” of the issue to the

agency. Reiter, 507 U.S. at 268. As we have explained,

“Referral” is the term of art employed in primary

jurisdiction cases. In practice, it means that a court

either stays proceedings, or dismisses the case without prejudice, so that the parties may pursue their

administrative remedies. There is no formal transfer

mechanism between the courts and the agency;

rather, upon invocation of the primary jurisdiction

doctrine, the parties are responsible for initiating the

appropriate proceedings before the agency. 

Syntek, 307 F.3d at 782 n.3 (citations omitted). 

Qwest argues that the primary jurisdiction doctrine requires

“referral” of two issues necessary to the resolution of this

case: First, Qwest contends that, to assure uniformity of

administration, the FCC, rather than the court, should resolve

the parties’ dispute as to the scope of the Waiver Order—that

is, whether, as Qwest would have it, the refund obligation was

limited to the forty-five-day period in which Qwest was to

bring its public access line rates into compliance with the new

services test, or whether, as Davel asserts, the obligation was

open-ended, continuing until Qwest filed rates which were in

fact compliant. Second, Qwest argues, whether Davel is entitled to any refund depends on whether the public access line

rates Qwest filed prior to 2002 were in fact not compliant

with the new services test, as Davel alleges. Qwest maintains

that this determination will require a highly technical application of the new services test, a task within the primary jurisdiction of the state utility commissions and the FCC. 

DAVEL COMMUNICATIONS v. QWEST CORP. 7051
A.

Relying on Cost Management Services, Inc. v. Washington

Natural Gas Co., 99 F.3d 937, 948-49 (9th Cir 1996), Davel

asserts as an initial matter that the primary jurisdiction doctrine does not apply at this juncture—that is, when a case is

at the motion to dismiss stage. Davel maintains that it has adequately alleged that the public access line rates Qwest filed

prior to 2002 were not cost-based, so the threshold issue of

whether the rates were consistent with the new services test

must be resolved in Davel’s favor, and it is therefore entitled

to go forward with its case. Qwest, in contrast, maintains that

the proper interpretation of an agency order, here the Waiver

Order, is an issue which must be decided by the agency,

regardless of the plaintiffs’ factual allegations.6

In Cost Management, the plaintiff claimed that the owner

of the natural gas delivery facilities violated its own filed tariff in an effort to monopolize the local natural gas market, in

violation of the Sherman Antitrust Act. Id. at 940-41. The

defendant sought dismissal on the ground, among others, that

the issue whether it had violated the tariff was within the primary jurisdiction of the state utility commission. Id. at 941,

948-49. We held the primary jurisdiction doctrine inapplicable on the grounds that the facts alleged in the complaint

established a violation of the tariff, and thus, on a 12(b)(6)

motion, the issue to be referred “must necessarily be resolved

in favor of [the plaintiff].” Id. at 949. Implicit in this conclusion was the recognition that resolving the question whether

there was a violation of an applicable tariff did not necessarily

involve complex issues requiring agency expertise. Cf. W.

Pac., 352 U.S. at 69; Brown, 277 F.3d at 1173. 

6Qwest additionally contends that the issue of its rates’ compliance with

the new services test may be referred on a motion to dismiss. Because we

conclude that referral of the proper construction of the Waiver Order is

required, we do not address this contention. 

7052 DAVEL COMMUNICATIONS v. QWEST CORP.
[8] Reading Cost Management against the background of

established Rule 12(b)(6) jurisprudence, it becomes clear that

Cost Management’s primary jurisdiction holding was but a

straightforward application in the context of the primary jurisdiction doctrine of standard principles of pleading applicable

to any motion to dismiss. Under these principles, “the federal

courts may not dismiss a complaint unless ‘it is clear that no

relief could be granted under any set of facts that could be

proved consistent with the allegations.’ ” Kwai Fun Wong v.

United States, 373 F.3d 952, 956-57 (9th Cir. 2004) (quoting

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)). 

[9] In the context of the primary jurisdiction doctrine, the

analogous question is whether any set of facts could be

proved which would avoid application of the doctrine. The

superordinate question governing the primary jurisdiction

doctrine is “whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be

aided by its application in the particular litigation.” W. Pac.,

352 U.S. at 64. Whether this question can be answered on a

motion to dismiss depends on the nature of the case. 

[10] Where the issues raised by a complaint necessarily

implicate policy concerns requiring application of the primary

jurisdiction doctrine, a federal court may suspend its resolution of those issues in favor of their referral to the governing

agency. Cost Management by contrast did not necessarily

involve policy concerns committed to an agency, and our

decision there simply conforms the primary jurisdiction doctrine with the usual principles that apply on motions to dismiss. In other words, where, as in Cost Management, the

allegations of the complaint do not necessarily require the

doctrine’s applicability, then the primary jurisdiction doctrine

may not be applied on a motion to dismiss; if, on the other

hand, the primary jurisdiction doctrine applies on any set of

facts that could be developed by the parties, there is no reason

to await discovery, summary judgment, or trial, and the application of the doctrine properly may be determined on the

DAVEL COMMUNICATIONS v. QWEST CORP. 7053
pleadings. The Waiver Order construction issue in this case,

as will appear, is of the latter variety. 

B.

The threshold dispute regarding the refund claim centers on

whether the Waiver Order entitles Davel to the refund, assuming the facts Davel has alleged. Specifically, the parties dispute whether the Waiver Order’s reimbursement requirement

is limited to the forty-five-day period of the Order’s waiver of

the rate filing deadline, or whether the reimbursement obligation instead extends indefinitely—that is, until Qwest’s NSTcompliant rates are on file and effective. Davel contends that

the plain language of the Waiver Order provides for an openended obligation. Qwest maintains, in contrast, that the

waiver provided by the order was expressly limited to a fortyfive-day period, and that it would be absurd to construe the

reimbursement obligation as extending beyond that period.

Qwest further contends that if, as Davel alleges, it failed to

file NST-compliant rates at all during the forty-five-day

extension provided by the Waiver Order, then the Order’s

refund obligation never arose, and Davel’s only remedy was

a reparations claim filed with the FCC at the time of the

missed deadline. Finally, Qwest argues, this threshold dispute

over the scope and construction of the Waiver Order must be

referred to the FCC under the primary jurisdiction doctrine. 

[11] We agree that the primary jurisdiction doctrine

requires referral of the threshold issue of the scope of the

Waiver Order. Both this court and the Supreme Court have

held that the interpretation of an agency order issued pursuant

to the agency’s congressionally granted regulatory authority

falls within the agency’s primary jurisdiction where the order

reflects policy concerns or issues requiring uniform resolution. See, e.g., Rilling v. Burlington N. R.R. Co., 909 F.2d

399, 401 (9th Cir. 1990) (holding that the resolution of plaintiff’s claim required a proper interpretation of an ICC merger

order, an issue within ICC’s primary jurisdiction); see also

7054 DAVEL COMMUNICATIONS v. QWEST CORP.
Serv. Storage & Transfer Co. v. Virginia, 359 U.S. 171, 177

(1959) (holding that the interpretation of a certificate of convenience and necessity issued by ICC to an interstate motor

carrier was an issue within the primary jurisdiction of the

ICC). These decisions are grounded in the central focus of the

primary jurisdiction doctrine, the desirability of uniform

determination and administration of federal policy embodied

in the agency’s orders. Serv. Storage, 359 U.S. at 177; Rilling,

909 F.2d at 401. 

[12] Given this emphasis on achieving uniformity in policy

determination and administration, the application of the primary jurisdiction doctrine to the issue of the scope of the

FCC’s Waiver Order is particularly compelling. The Waiver

Order was issued pursuant to the congressional mandate that

the FCC regulate the payphone industry and, specifically, that

it provide for payphone service providers to receive compensation from interexchange carriers and for incumbent local

exchange carriers to eliminate cost subsidies for their payphone systems. Davel observes that the Waiver Order’s plain

language may be read as open-ended. Opposed to that observation is the consideration that, in adopting the Order, the

FCC initially contemplated that all local exchange carriers

would file NST-compliant tariffs within the forty-five-day

waiver period. As the current dilemma was not one contemplated at the outset by the agency, interpreting the Waiver

Order requires consideration of policy considerations similar

to those that gave rise to the FCC’s 1996 and 1997 orders

applying the new services test to intrastate payphone rates, as

well as to the Waiver Order itself. 

More specifically, with the issuance of the Wisconsin

Order in 2002, it became apparent that the initial expectation

of prompt filing of NST-compliant tariffs may not have been

fulfilled. Thus, beyond issues of initial FCC intent, any application of the Order to the several-year period beyond the original forty-five-day waiver term—a several-year period in

which the existence of NST-compliant tariffs was uncertain—

DAVEL COMMUNICATIONS v. QWEST CORP. 7055
would raise policy questions not resolved by the Waiver

Order itself. Those policy questions include whether applying

the refund obligation should depend on whether or not there

were good-faith efforts to file compliant rates; whether future

enforcement of tariffs will be impeded by allowing ratepayers

to complain about noncompliant rates years after the fact; and,

conversely, whether a narrow construction of the Waiver

Order would reward intentional non-compliance with FCC

orders under the 1996 Act. 

We cannot say without addressing such policy considerations how the Waiver Order should be applied in the circumstances of this case. How the Waiver Order applies here thus

involves questions of policy best left to the FCC, the agency

that adopted the Waiver Order in the first place pursuant to its

regulatory authority in this arena. 

[13] In addition, the Waiver Order is national in scope,

affecting local exchange carriers and payphone service providers throughout the country, including many industry participants not involved in this litigation. For the Order’s

reimbursement requirement to be applied uniformly, it is the

FCC that must construe its scope. We note that there are currently five requests for such a construction pending before the

FCC. The agency has provided some indication that it will

determine this issue in due course. See In re Implementation

of the Pay Telephone Reclassification and Compensation Provisions of the Telecommunications Act of 1996, Public

Notice, New England Public Communications Council, Inc.

Filing of Letter from Supreme Judicial Court of Massachusetts Regarding Implementation of the Pay Telephone Compensation Provisions of the Telecommunications Act of 1996,

DA 06-780, 2006 WL 850948 (Apr. 3, 2006), ¶ 1 & n.3; see

also In re Implementation of the Pay Telephone Reclassification and Compensation Provisions of the Telecommunications

Act of 1996, Public Notice, Pleading Cycle Established for

Michigan Pay Telephone Association Petition for Declaratory

Ruling, DA 06-1190, 2006 WL 1519441 (June 2, 2006). It is

7056 DAVEL COMMUNICATIONS v. QWEST CORP.
precisely the purpose of the primary jurisdiction doctrine to

avoid the possibility of conflicting rulings by courts and agencies concerning issues within the agency’s special competence. At least unless and until the FCC declines to determine

the scope of the Waiver Order, questions regarding that scope,

including those at the core of this case, are within the agency’s primary jurisdiction.7

[14] We conclude that the issue of the scope of the Waiver

Order should be referred to the FCC. 

C.

If the Waiver Order does entitle Davel to some relief as a

result of Qwest’s alleged failure to file public access line rates

compliant with the new services test by the specified deadline,

the pivotal question would become whether Qwest’s rates

between 1997 and 2002 were NST-compliant. Until we know

whether and, if so, to what degree the Waiver Order gives rise

to refund relief for all or part of the several year period in

which Qwest’s rates were assertedly non-NST-compliant,

however, we cannot evaluate this refund claim on its merits.

Nor, applying our understanding of Cost Management, can we

determine whether the refund claim is sufficiently factdependent that any primary jurisdiction determination must

await factual development. Consequently, because we have

held that the scope of the Waiver Order is within the primary

jurisdiction of the FCC, we cannot now address whether the

issue of Qwest’s pre-2002 rates’ compliance with the new services test is also within the agency’s primary jurisdiction, and

we do not do so.8

7Whether, as Davel maintains, the FCC could decline to address the

scope of its Waiver Order, either expressly or by failing to respond to the

outstanding requests, and, if it does, whether the district court could then

proceed to do so, are questions we do not decide. 

8Qwest also contends that the determination of whether its pre-2002

intrastate public access line rates complied with the new services test is

DAVEL COMMUNICATIONS v. QWEST CORP. 7057
D.

[15] The district court dismissed the case pursuant to the

filed rate doctrine. Davel contends that, under the primary

jurisdiction doctrine, the appropriate disposition of this case

is a stay, not a dismissal. Whether to stay or dismiss without

prejudice a case within an administrative agency’s primary

jurisdiction is a decision within the discretion of the district

court. Reiter, 507 U.S. at 268-69. The court may stay the case

and retain jurisdiction or, “if the parties would not be unfairly

disadvantaged, . . . dismiss the case without prejudice.” Id.

The factor most often considered in determining whether a

party will be disadvantaged by dismissal without prejudice is

whether there is a risk that the statute of limitations may run

on the claims pending agency resolution of threshold issues.

Syntek, 307 F.3d at 782; Brown, 277 F.3d at 1173. Also,

where the court suspends proceedings to give preliminary deference to an administrative agency but further judicial proceedings are contemplated, then jurisdiction should ordinarily

be retained via a stay of proceedings, not relinquished via a

dismissal. N. Cal. Dist. Council of Hod Carriers, Bldg. &

Constr. Laborers, AFL-CIO v. Opinski, 673 F.2d 1074, 1076

(9th Cir. 1982). 

[16] Here, because it dismissed the case on the basis of the

filed-rate doctrine, the district court did not address whether

Davel would be disadvantaged by dismissal. In particular, the

district court had no occasion to consider that Davel’s claims

are subject to a two-year statute of limitations that began to

run, at the latest, when Qwest first filed its NST-compliant

within the primary jurisdiction of the state utility commissions, with

which, pursuant to the FCC’s Order on Recons., those rates are filed. For

the same reasons we cannot address whether the issue is within the FCC’s

primary jurisdiction, we cannot address this contention. We thus do not

decide the open question whether primary jurisdiction referral to a state

agency would be proper in any event. See Cost Mgmt., 99 F.3d at 949

n.12. 

7058 DAVEL COMMUNICATIONS v. QWEST CORP.
tariffs, so Davel may well lose its claims before the FCC

resolves the threshold issues. 

[17] We therefore remand to the district court to determine

whether to stay the case or dismiss it without prejudice,

applying the pertinent factors. 

IV. Statute of Limitations

The district court dismissed Davel’s claims based on

Qwest’s fraud protection rates as barred by the two-year statute of limitations of 47 U.S.C. § 415(b). Davel contends this

dismissal was error because its fraud rate claims did not

accrue until Qwest filed NST-compliant fraud protection rates

with the FCC in 2003. 

The Order on Recons. required the filing of fraud protection tariffs with the FCC by January 15, 1997. See Order on

Recons. ¶ 163. Davel contends, and Qwest does not dispute,

that Qwest filed no fraud protection tariffs with the FCC until

2003. During the period between 1997 and 2003, Davel paid

Qwest for fraud protection under the rates specified in tariffs

Qwest filed with the states. The district court correctly found

that, accepting the allegations of the complaint as true, Davel

had a cause of action against Qwest as soon as Qwest missed

the federal filing deadline and Davel paid for fraud protection

services based on the non-compliant rates on file with the

state utility commissions. At that time, Davel could have

brought any claim it had under 47 U.S.C. §§ 206-207 in district court or with the FCC. 

We reject Davel’s contention that its cause of action did not

accrue until Qwest filed NST-compliant rates in 2003,

because it had no knowledge until then that Qwest’s rates

were too high. The D.C. Circuit, affirming the FCC, rejected

such a contention in similar circumstances in Sprint Communications Co. v. FCC, 76 F.3d 1221, 1227-31 (D.C. Cir. 1996)

(rejecting application of a “discovery” rule of accrual where

DAVEL COMMUNICATIONS v. QWEST CORP. 7059
cause of action was predicated on “AT & T’s failure to file

and to charge cost-justified rates”). In that case, the plaintiff,

Sprint, argued that it had no knowledge of its claim based on

the payment of tariffed rates for telecommunications services

until the defendant, AT&T, several years later, filed cost data

indicating that the rates charged exceeded lawful levels. Id. at

1224-25. Affirming the FCC, the D.C. Circuit held that Sprint

was on inquiry notice of the claim as soon as it had knowledge suggesting the rates might be improper. Id. at 1229-30.

[18] We find the D.C. Circuit’s reasoning on this issue particularly apposite in the circumstances of this case. As soon

as Qwest failed to file fraud protection rates with the FCC, it

was in technical non-compliance with the Payphone Orders,

and Davel was on inquiry notice that it might be paying

excessive rates for fraud protection.9 Its cause of action therefore accrued at that time. The fact that, until Qwest filed its

new fraud protection rates in 2003, Davel was not in a position to determine the precise amount of the overcharges, or

even whether the charges were excessive at all, does not

change this result. “Accrual does not wait until the injured

party has access to or constructive knowledge of all the facts

required to support its claim. Nor is accrual deferred until the

injured party has enough information to calculate its damages.” Sprint, 76 F.3d at 1229 (citation omitted). Rather,

“once a plaintiff has [inquiry] notice [of its claim], it bears the

responsibility of making diligent inquiries to uncover the

remaining facts needed to support the claim.” Id. at 1230.

Once Davel was aware that Qwest had missed the federal fil9

Indeed, as Davel recognizes, the Colorado Public Utilities Commission

determined in 1999, based upon a complaint filed in March of 1998, that

Qwest’s fraud protection rates filed in that state were excessive. See Colo.

Payphone Ass’n v. U.S. West Commc’ns, Inc., 1999 WL 632854 (Colo.

Pub. Util. Comm’n May 18, 1999). Thus, as in Sprint, publicly available

information allowed parties similarly situated to Davel to discover their

cause of action within a year of the new regulations coming into effect.

7060 DAVEL COMMUNICATIONS v. QWEST CORP.
ing deadline, it was obliged to make reasonable inquiries to

determine any possible injury it may have suffered as a result.10

This analysis reflects a key difference between the damages

claims concerning the fraud protection services and the claims

based on the Waiver Order. On Davel’s construction of the

Waiver Order, the right to reimbursement under the Order

came into existence only upon the filing of NST-compliant

rates. On that interpretation, Davel had no right to reimbursement against Qwest until Qwest filed compliant rates, allegedly in 2002, and its cause of action for Qwest’s alleged

violation of the Waiver Order thus accrued thereafter, when

Qwest failed to pay the reimbursements. In contrast, there was

no reimbursement order applicable to the fraud protection services, so any cause of action necessarily accrued when Qwest

failed to comply with the Payphone Orders and Davel was

injured as a result. 

[19] Davel’s fraud protection services claims are not, however, wholly barred. Qwest’s tariff filing obligations were

ongoing. Each time Davel paid the non-NST-compliant statefiled tariff, it was injured anew by Qwest’s failure to file the

required federal tariff. See MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1101 (3d Cir. 1995) (analogizing to installment contracts and coming to a similar

conclusion with respect to 47 U.S.C. § 415(a), the statute of

limitations applicable to actions by carriers). Thus, while the

district court was correct that the claim for any amounts paid

as of May 15, 1997, expired on May 15, 1999, amounts paid

under non-compliant tariffs within two years prior to the filing of the complaint are timely. 

[20] Accordingly, we hold that the fraud protection claims

10We also find it of no moment that this case is before us on a motion

to dismiss. Davel’s own allegations charge that Qwest missed the federal

filing deadline, and there is no reasonable possibility that it can prove that

it was not aware of this omission until after 2002. 

DAVEL COMMUNICATIONS v. QWEST CORP. 7061
based on non-NST-compliant fraud protection rates paid

within two years of the filing of Davel’s complaint are timely.11

V. Conclusion

We REVERSE the dismissal of Davel’s fraud protection

claims with respect to fraud protection payments made pursuant to non-NST-compliant rates within the two-year period

prior to the filing of the complaint and REMAND for further

proceedings consistent with this opinion. We VACATE the

dismissal without prejudice of Davel’s Waiver Order claims

and REMAND the case to the district court for a consideration whether a stay or dismissal without prejudice is the

appropriate disposition pursuant to the primary jurisdiction

doctrine.

11Because the parties have raised on appeal no other issues regarding

the fraud protection claims, our decision on these claims is limited to the

statute of limitations question. Qwest is free to raise other available

defenses to these claims on remand. 

7062 DAVEL COMMUNICATIONS v. QWEST CORP.