In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1777

Katie Arsberry, et al.,

Plaintiffs-Appellants,

v.

State of Illinois, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern

Division.

No. 99 C 2457--William J. Hibbler, Judge.

Argued December 5, 2000--Decided March 19, 2001

 Before Posner, Easterbrook, and Evans,

Circuit Judges.

 Posner, Circuit Judge. This is a suit by

Illinois prison and jail inmates,

inmates’ family members (and other

intimates of the inmates), and a publicinterest law firm that specializes in the

defense of inmates on death row in

Illinois. Grounded in 42 U.S.C. sec.

1983, the Sherman Act, and Illinois state

law, the suit attacks the practice by

which each prison and jail grant one

phone company the exclusive right to

provide telephone service to the inmates

in return for 50 percent of the revenues

generated by the service. The suit claims

that the rates for the service, which are

collect only and are contained in tariffs

filed by the phone companies with the

Federal Communications Commission and the

Illinois Commerce Commission, are

exorbitant, being far higher than

required to cover the costs involved in

providing phone service to inmates. The

plaintiffs seek damages and injunctive

relief against the phone companies and

the state agencies and officials

responsible for the arrangements with the

companies. The district court dismissed
the suit as beyond its jurisdiction by

reason of the filed-rate and primaryjurisdiction doctrines.

 There are a number of jurisdictional

bars or quasi-jurisdictional bars (by the

latter term we mean defenses that a court

can invoke even if the defendant has not

done so, see, e.g., Higgins v.

Mississippi, 217 F.3d 951 (7th Cir.

2000)) to various pieces of this suit,

quite apart from the ones identified by

the district court. The State of Illinois

is not a person within the meaning of

section 1983. E.g., id. at 953; Will v.

Michigan Dept. of State Police, 491 U.S.

58, 66 (1989). The individual defendants

have qualified immunity from the damages

claims, given the novelty of the suit.

The law firm has no standing to sue

because there is no indication that it

has suffered any detriment from the high

price of its phone conversations with its

clients; the cost of these phone calls

is, at least so far as its counsel is

aware, an expense that the firm is

reimbursed for by the state or federal

government. And the inmate plaintiffs are

barred from suing because they have

failed to exhaust their administrative

remedies, as required by the Prison

Litigation Reform Act. 42 U.S.C. sec.

1997e(a); Massey v. Wheeler, 221 F.3d

1030, 1034 (7th Cir. 2000); Perez v.

Wisconsin Dept. of Corrections, 182 F.3d

532, 535-38 (7th Cir. 1999); Nyhuis v.

Reno, 204 F.3d 65, 71 (5th Cir. 2000);

Alexander v. Hawk, 159 F.3d 1321, 1323-28

(11th Cir. 1998); Brown v. Toombs, 139

F.3d 1102, 1104 (6th Cir. 1998) (per

curiam). The plaintiffs say they have no

such remedies against exorbitant phone

bills, but the cases we have cited reject

a "futility" exception to the requirement

of exhaustion. We have left open the

possibility of an exception to the

exception for cases in which the only

relief sought is monetary and is beyond

the power of the prison authorities to

give. Davis v. Streekstra, 227 F.3d 759

(7th Cir. 2000). That possible exception

is unavailable to these plaintiffs,

because they are seeking injunctive as

well as monetary relief.

 But since these various grounds do not

dispose of all the plaintiffs or all the

defendants, we proceed to consider

whether the district court was right to

think that the filed-rate and primary-
jurisdiction doctrines place the entire

suit outside the jurisdiction of the

district court. The filed-rate doctrine,

which is based both on historical

antipathy to rate setting by courts,

deemed a task they are inherently

unsuited to perform competently, and on a

policy of forbidding price discrimination

by public utilities and common carriers,

forbids a court to revise a public

utility’s or (as here) common carrier’s

filed tariff, which is to say the terms

of sale that the carrier has filed with

the agency that regulates the carrier’s

service. AT&T Co. v. Central Office

Telephone, Inc., 524 U.S. 214, 223

(1998); Maislin Industries, U.S., Inc. v.

Primary Steel, Inc., 497 U.S. 116, 126

(1990); Arkansas Louisiana Gas Co. v.

Hall, 453 U.S. 571, 577-78 (1981);

Cahnmann v. Sprint Corp., 133 F.3d 484,

487 (7th Cir. 1998); Wegoland Ltd. v.

Nynex Corp., 27 F.3d 17 (2d Cir. 1994). A

customer or competitor can challenge the

tariff before the agency itself, and if

disappointed with the agency’s response

can seek judicial review, 47 U.S.C.

sec.sec. 204(a) (2)(C), 402, but it

cannot ask the court in any other type of

suit (such as this civil rights and

antitrust suit) to invalidate or modify

the tariff. Nor can it seek damages based

on the difference between the actual

tariff and a hypothetical lawful tariff.

That would require the court to determine

the lawful tariff, and this is not

regarded as a proper judicial function.

Wegoland Ltd. v. Nynex Corp., supra, 27

F.3d at 19-21.

 The plaintiffs deny that they are

challenging tariffs. They say their

objection is to the deals by which the

correctional authorities in Illinois have

granted exclusive rights to telephone

companies in return for what the

plaintiffs characterize as kickbacks.

They want to dissolve the deals in the

hope that competition among phone

companies will lead companies to file

prison tariffs that have lower rates.

They point out that a conspiracy to file

(or not file) particular tariffs is not

insulated by the filed-rate doctrine from

attack under the antitrust laws or other

sources of independent rights, Square D

Co. v. Niagara Frontier Tariff Bureau,

Inc., 476 U.S. 409, 422 and n. 28 (1986);

United States v. Radio Corp. of America,

358 U.S. 334, 346-47 (1959); Georgia v.
Pennsylvania Railroad Co., 324 U.S. 439,

455 (1945); United States v. Pacific &

Arctic Ry. & Navigation Co., 228 U.S. 87,

104-05 (1913); City of Mishawaka v.

Indiana & Michigan Electric Co., 560 F.2d

1314, 1323 (7th Cir. 1977); Town of

Norwood v. New England Power Co., 202

F.3d 408, 419-20 (1st Cir. 2000); Barnes

v. Arden Mayfair, Inc., 759 F.2d 676, 679

(9th Cir. 1985), provided that only

injunctive relief is sought. Square D Co.

v. Niagara Frontier Tariff Bureau, Inc.,

supra; Keogh v. Chicago & Northwestern

Ry., 260 U.S. 156 (1922). Such an attack

does not seek to invalidate any tariff,

but merely to create an environment in

which the regulated firm is more likely

to file a tariff that contains terms more

favorable to customers. Whether what the

plaintiffs are attacking here is aptly

described as a "conspiracy" remains to be

considered; provisionally, however, the

suit is not barred by the filed-rate

doctrine.

 The doctrine of primary jurisdiction is

not a bar either. The doctrine is really

two doctrines. In its central and

original form, in which it is more

illuminatingly described, however, as

"exclusive agency jurisdiction," it

applies only when, in a suit involving a

regulated firm but not brought under the

regulatory statute itself, an issue

arises that is within the exclusive

original jurisdiction of the regulatory

agency to resolve, although it will

usually be subject to judicial review.

United States v. Western Pacific R.R.,

352 U.S. 59, 64 (1956); Cahnmann v.

Sprint Corp., supra, 133 F.3d at 487;

Advance United Expressways, Inc. v.

Eastman Kodak Co., 965 F.2d 1347, 1352-53

(7th Cir. 1992); City of Peoria v.

General Electric Cablevision Corp., 690

F.2d 116, 121-22 (7th Cir. 1982). When

such an issue arises, the suit must stop

and the issue must be referred to the

agency for resolution. If the agency’s

resolution of the issue does not dispose

of the entire case, the case can resume

subject to judicial review of that

resolution along whatever path governs

review of the agency’s decisions, whether

back to the court in which the original

case is pending or, if the statute

governing review of the agency’s

decisions designates another court, to

that court. Id. at 122; 2 Kenneth Culp

Davis & Richard J. Pierce, Jr.,
Administrative Law Treatise sec. 14.1,

pp. 272-80 (3d ed. 1994).

 If the plaintiffs in this case wanted to

get a rate change, the version of the

doctrine that we have described would

kick in; but they do not, so it does not.

Eventually they want a different rate, of

course, but at present all they are

seeking is to clear the decks--to

dissolve an arrangement that is

preventing the telephone company

defendants from competing to file tariffs

more advantageous to the inmates. We are

oversimplifying, because the complaint

includes a claim under the Federal

Communications Act, 47 U.S. sec.sec. 151

et seq., that the phone companies charge

unreasonably high rates and also engage

in rate discrimination. These claims are

squarely within the FCC’s jurisdiction,

but have been forfeited. They are not

mentioned in the plaintiffs’ opening

briefs, and are merely brushed in their

reply brief.

 The doctrine of primary jurisdiction is

sometimes defined quite differently, as a

doctrine that allows a court to refer an

issue to an agency that knows more about

the issue, even if the agency hasn’t been

given exclusive jurisdiction to decide

it. So, for example, we read in National

Communications Ass’n, Inc. v. AT&T Co.,

46 F.3d 220, 222-23 (2d Cir. 1995), that

"the doctrine of primary jurisdiction

allows a federal court to refer a matter

extending beyond the ’conventional

experiences of judges’ or ’falling within

the realm of administrative discretion’

to an administrative agency with more

specialized experience, expertise, and

insight." This definition obscures the

core of the doctrine, described earlier.

Cases in which a court refers an issue to

an agency because of the agency’s

superior expertise, such as the case just

cited and American Automobile

Manufacturers Ass’n v. Massachusetts

Dept. of Environmental Protection, 163

F.3d 74, 81, 83 (1st Cir. 1998), rather

than because of the agency’s

jurisdiction, are not felicitously

described as cases of primary

jurisdiction. They are akin to those

Burford abstention cases that like the

granddaddy of the line, Burford v. Sun

Oil Co., 319 U.S. 315, 332-34 (1943),

itself, or the more recent New Orleans

Public Service, Inc. v. Council of City
of New Orleans, 491 U.S. 350, 361 (1989),

concern arcane regulatory issues; or

cases in which the court solicits an

amicus curiae brief from an interested

agency; or cases in which the court has

in effect appointed the agency to be a

special master-- an analogy embraced in

Lodge 1858, American Federation of

Government Employees v. Webb, 580 F.2d

496, 508-09 (D.C. Cir. 1978). In such

cases, either court and agency have

concurrent jurisdiction to decide an

issue, or only the court has the power to

decide it, and seeks merely the agency’s

advice. (In the core of the doctrine, in

contrast, the court has jurisdiction of

the case, but the agency of the issue.)

That model doesn’t fit this case either.

The FCC has no authority to approve a

collusive arrangement among telephone

companies; nor is there any indication

that it knows anything that would be

useful in evaluating the claim of

collusion.

 Prudently the defendants have not rested

wholly on jurisdictional or procedural

grounds for the dismissal of this suit,

but have argued that the plaintiffs’

claims lack merit. They are right.

Consider first the claim that exorbitant

telephone rates violate the First

Amendment. It is true that communications

the content of which is protected by the

First Amendment are often made over the

phone, but no one before these plaintiffs

supposed the telephone excise tax an

infringement of free speech. Saltzman v.

United States, 516 F.2d 891 (9th Cir.

1975) (per curiam). Communications

protected by the amendment are also

frequently made by printing words on

paper, yet no one supposes that the

consequence is to bring the corporate

income tax, when imposed on manufacturers

of paper, within the purview of the First

Amendment, or even to forbid taxing those

manufacturers more heavily than

manufacturers of products that are less

important as inputs into the production

of communications media. Any regulation

direct or indirect of communications can

have an effect on the market in ideas and

opinions, but that possibility in itself

does not raise a constitutional issue.

Minneapolis Star & Tribune Co. v.

Minnesota Commissioner of Revenue, 460

U.S. 575, 581-83 (1983); BellSouth Corp.

v. F.C.C., 144 F.3d 58, 69 (D.C. Cir.

1998). Otherwise the entire tax and

regulatory operations of American
government would be brought under the

rule of the First Amendment.

 There is no suggestion that the scheme

of which the plaintiffs complain is

motivated by a desire to limit free

speech, as in Grosjean v. American Press

Co., 297 U.S. 233 (1936); the plaintiffs

themselves contend that it is motivated

by pure greed; and of course the

telephone rates of which they complain

are independent of the protected or

unprotected character of the phone calls

being charged for. We note

parenthetically that "greed" doesn’t seem

the right characterization either,

considering that prisons are costly to

build, maintain, and operate, and that

the residents are not charged for their

room and board. By what combination of

taxes and user charges the state covers

the expense of prisons is hardly an issue

for the federal courts to resolve.

 The case is a bit closer to Minneapolis

Star, which invalidated a special tax

arbitrarily imposed on newspapers. Yet to

extend that decision to the telephone

excise tax, or to the "tax" imposed by

the contracts attacked in this case,

would overlook a vital distinction. The

entire content of newspapers, in contrast

to telephone calls, is protected by the

First Amendment; and so there was in the

Minneapolis Star case a gratuitous and

potentially substantial, even if not

deliberate, impairment of the interests

that the amendment is designed to

protect. Although the telephone can be

used to convey communications that are

protected by the First Amendment, that it

is not its primary use and it is

extremely rare for inmates and their

callers to use the telephone for this

purpose. Not to allow them access to a

telephone might be questionable on other

grounds, but to suppose that it would

infringe the First Amendment would be

doctrinaire in the extreme, United States

v. Footman, 215 F.3d 145, 155 (1st Cir.

2000), though the Ninth Circuit

disagrees. Johnson v. California, 207

F.3d 650, 656 (9th Cir. 2000) (per

curiam). The telephone, and the nation’s

telecommunications infrastructure more

generally, are more commonly used for

First Amendment purposes than prison

phones are, but the federal courts do not

use that fact as the excuse to bring the

taxation and regulation of
telecommunications under comprehensive

judicial surveillance in the name of free

speech.

 The plaintiffs also argue that the

kickback scheme, as they regard it,

impairs contracts to which the plaintiffs

are parties. No contracts are specified;

and in any event a tax, which is what the

allegedly exorbitant component of the

questioned telephone rates functionally

is, is not an impairment of contracts

within the meaning of the Constitution.

Barwise v. Sheppard, 299 U.S. 33, 40

(1936); Kehrer v. Stewart, 197 U.S. 60,

70 (1905); North Missouri R.R. v.

Maguire, 87 U.S. 46, 61 (1873). The cases

that establish this proposition are old,

but that is only because it’s been a long

time since anyone thought to make the

argument. And the contention that by

charging a high price for phone calls the

defendants have taken the plaintiffs’

property and must pay just compensation

is downright absurd.

 There is a little more substance to the

argument that the scheme violates the

equal protection and due process clauses

of the Fourteenth Amendment. We must take

the facts pleaded in the complaint as

true, and they are that the very high

price charged anyone who wants to talk to

an inmate over the phone is greatly in

excess of any additional cost to the

phone companies or the prisons and jails

of allowing inmates to make collect

calls. Treating what we have called the

exorbitant component of the prison inmate

tariffs as a tax, we may appear to have

a conventional case in which a class of

taxpayers complains about a grossly

discriminatory tax rate. Allegheny

Pittsburgh Coal Co. v. County Commission,

488 U.S. 336, 345 (1989); Metropolitan

Life Insurance Co. v. Ward, 470 U.S. 869,

875 (1985); Rinaldi v. Yeager, 384 U.S.

305, 308 (1966); Wallers v. United

States, 847 F.2d 1279, 1282 (7th Cir.

1988). But here the fact that it is not

a tax but a tariffed rate bites. A claim

of discriminatory tariffed telephone

rates is precisely the kind of claim that

is within the primary jurisdiction of the

telephone regulators. The plaintiffs are

asking us to compare the rates on inmate

calls with rates on comparable calls of

other persons; that is what we cannot do

but the regulatory agencies can.
 The plaintiffs argue that inmates and

their families have an interest

encompassed by the concept of "liberty"

in the due process clause and that the

defendants (both the agencies and

officials directly subject to the

Fourteenth Amendment and the telephone

companies, which are liable under section

1983 as their coconspirators, Adickes v.

S.H. Kress & Co., 398 U.S. 144, 152

(1970); Tarpley v. Keistler, 188 F.3d

788, 791-92 (7th Cir. 1999)) have

arbitrarily deprived them of that

interest by preventing competition for

inmate phone service. It is conceivable

(no stronger statement is possible in the

current state of the case law) that the

constitutional concept of liberty may

encompass a limited right to make or

receive prison visits involving family

members, Burgess v. Lowery, 201 F.3d 942,

947 (7th Cir. 2000); Froehlich v.

Wisconsin, 196 F.3d 800, 801-02 (7th Cir.

1999); Mayo v. Lane, 867 F.2d 374, 375-76

(7th Cir. 1989), and a telephone call is

an electronic visit and may be the only

form of visit that is feasible if the

family lives far from the inmate’s

prison. But even if this is so, which we

needn’t decide, the plaintiffs cannot get

anywhere with their due process claim.

The claim has no procedural dimension;

there is no suggestion that the

defendants have denied them their due

process right to challenge the inmate

telephone rates in the regulatory

agencies. The claim is substantive, is

that the defendants have unreasonably

curtailed the liberty of being visited

and visiting by denying reasonably priced

phone service. And as a substantive claim

it cannot fly. It is no different from

claiming that a state that raised the

gasoline tax and by doing so increased

the cost to the plaintiffs of traveling

to visit their inmate relatives would be

violating the Constitution.

 We are also unimpressed by the

plaintiffs’ antitrust claim. Were they

arguing that the defendant phone

companies had gotten together to divide

the inmate phone market, using state

officials as their cat’s paws, the

defendants, in order to avoid liability,

would have to show that the initiative

for and control over the scheme resided

with the officials, acting in furtherance

of a state policy of limiting

competition. Southern Motor Carriers Rate
Conference, Inc. v. United States, 471

U.S. 48, 56-57 (1985); California Retail

Liquor Dealers Ass’n v. Midcal Aluminum,

Inc., 445 U.S. 97, 105-06 (1980); Hardy

v. City Optical Inc., 39 F.3d 765, 768

(7th Cir. 1994); Massachusetts Food Ass’n

v. Massachusetts Alcoholic Beverages

Control Comm’n, 197 F.3d 560, 563-64 (1st

Cir. 1999). There is a bare hint of

horizontal agreement--the sort of thing

that the Georgia v. Pennsylvania line of

cases that we cited earlier holds are not

protected from antitrust attack by the

filed-rate doctrine--in the allegation of

the complaint that the telephone company

defendants and the other defendants are

acting "jointly and in concert." But the

entire thrust of the plaintiffs’ argument

is that the prisons are principals, not

tools; remember, they are said to be

motivated by greed, but greed that is

institutional rather than personal. Far

from being mere agents of the phone

companies, the prisons are in the

driver’s seat, because it is they who

control access to the literally captive

market constituted by the inmates.

 Indeed the plaintiffs’ real argument has

nothing to do with any horizontal

conspiracy; it is rather that a

monopolist, namely the State of Illinois

(and its subdivisions), exercising as it

does an iron control over access to the

inmate market, has rented pieces of the

market to different phone companies, in

much the same way that an airport will

charge a high fee to concessionaires

eager to sell to the captive market

represented by the airline passengers who

perforce spend time in the airport. Cf.

Elliott v. United Center, 126 F.3d 1003

(7th Cir. 1997). The concessionaires will

pass on much of the fee to their

customers, who will thus pay a higher

than competitive price. States and other

public agencies do not violate the

antitrust laws by charging fees or taxes

that exploit the monopoly of force that

is the definition of government. They

have to get revenue somehow, and the

"somehow" is not the business of the

federal courts unless a specific federal

right is infringed. Nor do the persons

with whom the states contract violate the

antitrust laws by becoming state

concessionaires, provided those persons

do not collude among themselves or engage

in other anticompetitive behavior, of

which charging high prices as a state
concessionaire is not a recognized

species.

 Insofar as the plaintiffs’ concern is

with the purely vertical arrangement

between each defendant telephone company

and a particular prison or jail, the

filed-rate doctrine pops back in as a

jurisdictional bar. The vertical

agreement is effectively the tariff, that

is, the contract between the provider of

the regulated service (the phone company)

and the customer. Technically, the

inmates are the customers; but

realistically it is the prisons and

jails. The plaintiffs don’t want to clear

away an obstacle to a voluntarily

negotiated lower tariff; they want a

lower tariff.

 The dismissal of the plaintiffs’ federal

claims must be affirmed, though on the

merits rather than (with the exception of

the equal protection claim, which is

within the scope of the doctrine of

primary jurisdiction in its core sense of

exclusive agency jurisdiction to decide

an issue, and the vertical dimension of

the antitrust claim, which is barred by

the filed-rate doctrine) on

jurisdictional grounds. Since all the

plaintiffs’ federal claims have fallen

out well before trial and their state

claims are not even mentioned in the

district court’s opinion, we direct that

court to relinquish jurisdiction over the

state claims. 28 U.S.C. sec. 1367(c)(3).

Doubtless the court would have done that

on its own had it not thought the entire

case outside its jurisdiction, which is

why it had no occasion even to mention

those claims.

Modified and Affirmed.